2020 PLP 580 (MLD)

ROZI KHAN BARRECH, J.

Through this single judgment we intend to decide the Criminal Appeal No. 201 of 2018 and Criminal Revision Petition No. 26 of 2018 as both the matters emanate from one and same judgment dated 05.06.2018 ("impugned judgment") handed down by learned Sessions Judge Pishin ("trial court") in case FIR No. 9 of 2017 dated 29.07.2017 registered under Sections 302, 427 and 34, P.P.C. at Levies Thana Barshore Pishin, whereby the appellant Rozi Khan was convicted under Section 302(b), P.P.C. and sentenced to suffer imprisonment for life as Tazeer and to pay compensation amounting to Rs.700,000/- to the legal heirs of deceased as envisaged under Section 544-A, Cr.P.C. in default whereof he was further directed to suffer RI for six months with benefit of Section 382-B, Cr.P.C.

2. As per prosecution story on the fateful day of incident i.e. 29.07.2017 at about 5:00 pm the complainant Molvi Zainatullah along with his brother Sanaullah. Molvi Abdul Hanan and Saadatullah were sitting at Killi Marina Toba Kakari, when Hidayatullah through telephone informed him that he was present at his garden of Killi Chanar Toba Kakari, where the accused Matiullah, Muhammad Hazrat, Rozi Khan along with four unknown accused persons came in a fielder vehicle. All the accused persons were armed with pistols and sticks. They smashed 36 solar panels installed at the garden. On receipt of this information the complainant along with Abdul Hanan, Sanaullah and Sadullah proceeded towards Killi China Toba Kakari and at about 6:00 pm when they reached near Killi Karo deer, accused Matiullah, Muhammad Hazrat, Rozi Khan along with four unknown accused persons intercepted them. The accused Matiullah, Muhammad Hazrat and Rozi Khan were having pistols, while the remaining unknown four accused persons were having sticks. The accused persons alighted them from motorcycles. Accused Matiullah made firing upon Sanaullah due to which he received bullet injury at his right thigh, besides causing injury at his head. Due to firing, Sanaullah fell down on the ground and died at the spot, where-after the accused persons fled from the crime scene in their vehicle. Hence the crime report.

3. After completion of the investigation the challan was submitted before the trial court, charge was framed on 9th February 2018 to which the accused pleaded not guilty and claimed trial, whereafter the prosecution in order to substantiate the accusation against the appellant produced as many as nine witnesses during the trial. On closure of prosecution's evidence, statement of appellant/accused was recorded under Section, 342, Cr.P.C. wherein he rebutted the allegation leveled against him and professed his innocence. The appellant neither opted to appear as his own witness under Section 340(2), Cr.P.C. nor produced any witness in his defense. After hearing arguments advanced by learned counsel appearing on behalf of both the parties, the trial court while evaluating the evidence available on record found the version of the prosecution proved beyond the shadow of reasonable doubt. Resultantly, recorded conviction to the appellant in the above terms.

4. Arguments advanced from both the sides have been heard. We have also minutely gone through the record available on file with the able assistance of learned counsel for the parties.

5. It appeared from the FIR that in the present case the occurrence took place on 29.07.2017 at 6:00 pm, whereas report was lodged on the same day at 10:00 pm. Molvi Zainatullah (PW-1) is complainant of the case and he charged the appellant and absconding accused with committing murder of his brother Sanaullah (deceased). On the face of it there is an inordinate delay of four hours in lodging of report by the complainant. It is astonishing that when the deceased succumbed to the injuries on the spot then what prevented the complainant to lodge the report at levies station despite the fact that the distance between the levies station and crime scene is mentioned to be 35 kilometers. The record also reveals that between the place of occurrence and levies station there is a Levies Chowki, which creates serious doubt in the prosecution case that why the report was not lodged at levies station promptly. Needless to say that delay in lodging the report cannot simply be brushed aside as it assumes great significance and it could be attributed to consultation, taking instructions and calculated preparation of report, keeping in view the names of the assailants open to involving such persons who ultimately the prosecution might wish to nominate. Reliance in case law reported in (AIR 1983 SC 810) titled 'Ranji Suriya and another v. The State of Maharashtra', 'Allahyar v. The State' (1990 SCMR 1134), 'Mahmood Ahmad and 3 others v. The State and another' (1995 SCMR 127), 'Imran Hussain v. Amir Arshad and 2 others' (1997 SCMR 438) and 'Muhammad Rafique v. The State' (2014 SCMR 1698).

6. Perusal of the case record would shows that prosecution has produced three eyewitnesses i.e. Molvi Zainatullah PW-1/complainant, Abdul Hanan PW-2, and Sadullah PW-7 in support of its charge but all the above witnesses are closely related to the deceased (Sanaullah brother of complainant), thus, for safe dispensation of justice, their evidence will have to be appreciated with great care and caution. No doubt, evidence of a related witness cannot be discarded on the ground of his being related to the victim but if it is found that the testimony of a related witness gets no corroboration from attending circumstances of the case or the conduct shown by him at the time of occurrence or just thereafter is such which cannot be expected from a prudent person, then in such circumstance the evidence furnished by a related witness can be easily discarded.

7. On the touchstone of the above we now take into consideration the testimonies furnished by all the above eyewitnesses in the case. It reflects from the record that the occurrence had taken place at 6:00 p.m. near garden Killi Deer. According to PW-1 Molvi Zainatullah, he along with Abdul Hanan and Sadatullah went to levies station Barshore for registration of the FIR. He further stated during cross-examination that they remained at the place of occurrence for ten minutes and there after they went to levies station. Both, PW-1 and PW-2 stated that they remained in the levies station till 12 O'clock at night and thereafter they went to their homes. On the other hand PW-3 Shehzada Levies Khasadar stated in his statement that on 29.07.17 he along Nizamuddin Tehsildar and Azizullah went to the place of occurrence situated at Widyar at 11:00 p.m. During cross-examination he stated that they were not accompanied by any private persons. PW-8 Azizullah Naib Tehsildar, who conducted investigation of the case stated that on 29.07.2017 after registration of FIR he went to the place of occurrence along with other levies officials, where he found dead body of the deceased. The record is totally silent in respect of shifting of dead body to hospital or the levies station as none of the eyewitnesses stated even a single word in this regard. It is stated earlier that PW-1 stated that, ten minutes after the occurrence, they left the place of occurrence and went to levies station. PW-3 stated during cross-examination that when they reached the place of occurrence no private persons were accompanying them, meaning thereby that complainant and other eyewitnesses left the dead body of deceased at the spot alone. Conduct of the complainant/ PW-1 and other eyewitnesses by not shifting the dead body of the deceased either to hospital or levies station despite being complainant's brother and relative of other eyewitnesses, suggests that at the time of occurrence they were not present on the spot. Had they been present on the spot at the relevant time they must have taken the dead body either to hospital or to levies station, which admittedly they did not do. Assuming for the sake of argument that personally the eyewitnesses were unable to take the deceased either to hospital or levies station then they could have at least deputed someone for that purpose. Waiting for levies on the spot with the dead body, is conduct of the complainant and other eyewitnesses, which ordinarily is not expected from brother and other relatives.

8. Another important aspect of the case is that all the above witnesses stated that they remained at levies station till 12:00 p.m., and thereafter they went to their houses. They further stated that the dead body of the deceased was lying at levies station and on the next morning they came to the levies station and took the dead body of the deceased to Civil Hospital Quetta for post-mortem. It is quite natural that when brother or relative dies no one leaves the dead body of the deceased alone. Leaving the dead body of deceased at levies station for the whole night for no justifiable reason does not appeal to the prudent mind.

9. Dr. Abdul Qadir Umrani PW-6 examined the dead body of the deceased on 30.07.2017 at 11:00 am at Bolan Medical Complex Hospital Quetta. The said witness in his statement stated that the dead body of the deceased brought to the casualty already dead and rigor mortis developed. It is stated earlier that allegedly the occurrence took place on 29.07.2017 at 6:00 pm and the dead body of the deceased was examined by PW-6 with delay of seventeen hours. This delay in post-mortem examination, when the report was lodged on 29.07.2017 at 10:00 p.m. gives rise to inference that the incident was not reported as stated by the prosecution. The story as narrated by the prosecution casts a ring of suspicion around its probability and credence.

10. Another aspect of the matter for not conducting the post-mortem of the deceased within time and shifting the dead body to the hospital, which creates further doubt, is that according to the report of complainant/PW-1 the accused/appellant Rozi Khan and Muhammad Hazrat caught hold of deceased and Matiullah (absconding accused) made firing upon the deceased Sanaullah, who received injuries on his right thigh and on his head, due to which Sanaullah succumbed on the spot. But on the other hand according to medical certificate, the deceased received incised wounds at temporal region with depressed skull and at left occipital region (lower back of the head). It is also mentioned in the medical report that the deceased received firearm injuries on his right medial thigh. The complainant/PW-1 in order to bring the case of the prosecution in line with the post-mortem report, recorded his supplementary statement i.e. Ex.P/l-B, wherein he stated that the accused/appellant Rozi Khan also attacked upon the deceased with knives and gave his blows on his head and further stated that the accused Muhammad Hazrat (absconding accused) attacked upon the deceased with sticks. This aspect of the matter casts serious doubt in prosecution's case.

11. Let us now examine the conduct of the eyewitnesses at the time of occurrence. According to the eyewitnesses the accused/appellant Rozi Khan, Matiullah and Muhammad Hazrat armed with pistols and rest of the accused armed with sticks caught hold of the deceased and accused Matiullah made firing upon the deceased on his right thigh. They further stated that the other accused persons caught hold of them. It is worthwhile to mention here that the complainant is brother of the deceased and the other eyewitnesses Abdul Hanan and Sadullah are his cousins. Prosecution witnesses also stated during cross-examination that the accused/appellant Rozi Khan has no enmity with them. None of the PWs received even a single injury and they went unhurt to the levies station without receiving any scratches when they were totally at the mercy of the accused assailants. They were left alive by the assailants who selected to kill brother of the complainant with whom they had no direct motive and so it may be inferred that the incident did not take place in the mode and manner as it was alleged. It is very unusual conduct on the part of the eyewitnesses i.e. PW-1/complainant brother of the deceased and other PWs being cousins of the deceased that someone hit him and they would make no efforts to save him. At the time of the incident the PWs were able to snatch the sticks and knives from the accused, however they neither caught hold of the accused, who were almost equal in number nor did they make any effort to hit them. The Hon'ble Supreme Court had disbelieved the statement of such witnesses, whose conduct remained unusual in the case of Muhammad Khan and another v The State (1999 SCMR 1220).

12. There cannot be two opinions about the fact that the cardinal principle of justice always laid emphasis on the quality of evidence which must be of first degree and sufficient enough to dispel the apprehension of the Court with regard to the implication of innocent persons along with guilty one by the prosecution, otherwise, the golden principle of justice would come into play that even a single doubt if found reasonable would be sufficient to acquit the accused, giving him/ them benefit of doubt because bundle of doubts are not required to extend the legal benefit to the accused. In this regard, reliance is placed on a view held by the Hon'ble Supreme Court in the case of "Riaz Masih alias Mithoo v. State (1995 SCMR 1730).

13. In the case reported as Bagh Ali v. State (PLD 1973 SC 321), it was observed that the appraisement of the evidence of eye-witnesses has to be based upon a full consideration and evaluation of all the circumstances appearing in the case where there is fatal absence of physical circumstances to connect the accused person with the crime and there is a motive and in such a situation, the ocular evidence must, in order to carry conviction on a capital charge, come from unimpeachable source and if such source is not available, then it must be supported by some strong circumstance which would enable the court to overcome the inherent doubt which such evidence must necessarily create. Regarding the golden principle of benefit of doubt, reference can be made to the celebrated judgment of the apex Court title "Muhammad Luqman v. The State" (PLD 1970 SC 10), where the Hon'ble Bench have observed that:- "It may be said that a finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards his guilt should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjectures and probabilities cannot take the place of proof. If a case where to be decided merely on high probabilities regarding the existence of non-existence of a fact to prove the guilt of a person, the golden rule of "benefit of doubt" to an accused person, which has been a dominant feature of the administration of criminal justice in this country with the consistent approval of the superior Courts, will be reduced to a naught". In the result, we would accept the appeal, set aside the conviction of the appellant recorded vide impugned judgment dated 05.06.2018 and acquit him of the charge in case FIR No. 9 of 2017 dated 29.07.2017 registered under Sections 302, 427 and 34, P.P.C. at Levies Thana Barshore Pishin, of the charge. He be set at liberty if not required in any other case. Since, the appeal filed by the appellant has been accepted and he has been acquitted of the charge, therefore, the Criminal Revision Petition No. 26 of 2018 is dismissed. JK/142/Bal. Appeal accepted.