2025 PLP 761 (YLR)

Abdullah Baloch, J.

This judgment disposes of Criminal Appeal No.435/2022 filed by the appellant Mehrullah son of Khair Jan, against the judgment dated 31st August 2022 ("the impugned judgement") passed by learned Sessions Judge, Mastung (the trial Court"), whereby the appellant was convicted under Section 302(b), P.P.C. and sentenced to suffer imprisonment for life with compensation of Rs.10,00,000/- (Rupees one Million) as envisaged under Section 544-A, Cr.P.C., which in case of recovery was directed to be paid to the legal heirs of deceased or in default thereof to further suffers six (6) months S.I., with the benefit of Section 382-B, Cr.P.C., while the accused Nazar Muhammad and Muhammad Usman were acquitted of the charge.

2. Facts of the case are that on 12th June 2020 the complainant Abdul Razzaq lodged FIR No.62/2020 at Police Station City Mastung, under Sections 302, 337-ADF, 337-H(2) 147, 148, 149, P.P.C., stating therein that at about 06:30 a.m. he along with his father Baz Muhammad and uncle Abdul Samad were taking cattle to their wheat crops, when they reached there, meanwhile accused persons namely Mehrullah, Sahib Khan, Mian Khan, Qudratullah, Usman, Meer Ahmed, Muhammad Zaman son of Khair Jan, Khair Jan son of unknown and Allah Dad son of Juma Khan along with three unknown accused persons were already present in armed condition. They told them to take their goats from their fields, meanwhile the accused persons attacked upon them. Accused Qudratullah attacked upon his father with sticks and caused him head injury due to which he fell down, while accused Mehrullah attacked upon his uncle Abdul Samad and caused him head injury. Thereafter all accused persons attacked upon them with sticks and caused them injuries. Accused Khair Jan made aerial firing with Kalashnikov and escaped. Their relatives Sher Ahmed son of Rustam Khan and Muhammad Rahim son of Rasool Bakhsh took them to hospital. Thus, FIR was lodged under above mentioned offences, but after registration of FIR the injured Abdul Samad succumbed to his injuries and died at hospital, thus Section 302, P.P.C. was also inserted in the case. The complainant through supplementary statement dated 14th June 2020, nominated the acquitted co-accused Nazar Muhammad.

3. Pursuant to the above FIR, the appellant along with co-accused were arrested, who were subjected to investigation and on completion thereof, they were remanded to judicial custody. On receipt of challan, the trial Court indicated the charge, which was refuted. During trial, the prosecution produced Nine (09) witnesses, Whereafter the accused were examined under Section 342, Cr.P.C. However, they neither recorded their statements on oath under Section 340(2), Cr.P.C. nor produced any witness in their defence. On conclusion of trial and after hearing arguments, the learned trial Court, convicted and sentenced the appellant as mentioned above, while the accused Nazar Muhammad and Muhammad Usman were acquitted of the charge. Whereafter, the appellant has filed the instant appeal.

4. Heard the learned counsel and perused the available record. Perusal of record reveals that the prosecution has failed to establish the charge through consistent and confidence inspiring evidence against the appellant and the evidence so produced is not justifying the impugned judgement of conviction. It is evident from the record that the occurrence was taken place on the said date at about 06.30 a.m., thus the FIR should have been lodged promptly without any delay, but this has not been done so rather the FIR was lodged at about 11.20 a.m. i.e. after delay of about five hours. The complainant Abdul Razzaq appeared in the Court as PW-3, who in reply of Question No.18 of his cross-examination admitted that the FIR was lodged after consultation. The admission so tendered by the complainant has jolted the very foundation of the prosecution case. The main scope of prompt registration of FIR is to eliminate the possibility of consultation and deliberation in registration of FIR in order to avoid the false implication of innocent persons in baseless cases, but in the case in hand this has been done even admitted by the complainant in his Court statement and in our view that was the reason that number of accused persons have been nominated in a single murder case. Not only this, but subsequently on the third day of occurrence i.e., 14th June 2020, the complainant through his supplementary statement nominated the acquitted accused Nazar Muhammad and such fact was rightly appreciated by the trial Court whilst recording acquittal in favour of the acquitted accused Nazar Muhammad, because besides the presence of PW-3 Abdul Razzaq, the prosecution has also claimed the presence of PW-6, who is brother of deceased and both the witnesses were not injured in the occurrence, thus they could have correctly identified the accused persons being the resident of same vicinity, but this was not done so and after two days of occurrence another accused was involved in the crime, which shows that the complainant party not only consulted at the time of registration of FIR, but subsequently also, which resulted into filing of supplementary statement.

5. Now adverting to ocular testimony, the prosecution in toto has produced the evidence of nine witnesses. The complainant of the case Abdul Razzaq appeared as PW-3, who mostly reiterated the contents of his fard-e-bayan, but mostly he derailed from his earlier deposition. PW-3 stated that when he along with his father PW-1 Baz Muhammad and deceased uncle Abdul Samad reached at their wheat fields, they saw the accused persons present over there in armed condition, who after exchange of some harsh words attacked upon them, while one of the accused was also armed with Kalashinkove and due to attack of the culprits the complainant, his father and uncle received injuries on their persons. If the statement of this witness is scrutinized deeply, it would not appeal to the logic, because it accused persons also brought their cattle in the fields for grazing and they had no previous enmity of grudge, then as to how it was possible that they came to fields to graze their cattle being armed with Kalashinkove and also it does not appeal to the logic about 10-accused persons of same family had come on fields to graze their cattle. The statement of PW-3 transpires that actually there was some other dispute in between the parties, but the true facts were not brought to the notice/knowledge of the Court and some baseless story was concocted.

6. The statement of PW-3 further transpires that all the accused persons being equipped with sticks and one accused being armed with Kalashinkove attacked upon him, his father and uncle, but surprisingly no injury was received by the complainant. Even otherwise, the prosecution has failed to produce any Medical evidence showing that the complainant had received any sort of injury on his person. If the 9/10 culprits being equipped with sticks attacked upon all the three victims, then as to how it was possible that the complainant did not receive any single injury on his person. Non-production of medical evidence to the extent of complainant has not only made the case of prosecution as doubtful, but also his presence at the time of occurrence or witnessing the crime, thus presumption can be drawn without any stretch of imagination that the complainant was not present at the site and he did not witness the crime and that was the reason the FIR was lodged after delay of five hours and even after registration of FIR, he himself through supplementary statement recorded after two days of occurrence has nominated the acquitted accused Nazar Muhammad.

7. Adverting to the statement of PW-1 Baz Muhammad, who was injured in the incident, suffice to observe here that his statement is also contradictory to the statement of other witnesses on material counts. This witness has improved from his earlier statement and also contradicted the statement of PW-3 by stating that they were present in their field at about 6.00 a.m., when the culprits arrived over there in armed condition and after some altercation the accused Khair Muhammad made Lalkaar to other accused to beat/kill them, while the statement of PW-3 is silent in this regard. This witness has not corroborated the statement of PW-3 on any material count.

8. PW-5 Muhammad Gul, who also claims to be the eye-witness of crime and he stated that the accused persons attacked upon the complainant party. However, this witness has admitted that he and the victims belonged to same tribe and even the complainant Abdul Razzaq is his nephew. Now question arises that if the accused persons were beating the nephew and brothers of PW-5 Gul Muhammad, then as to how they left unhurt this witness, who otherwise was present at the site and was witnessing the crime. It is an astonishing factor that the complainant along with the deceased Abdul Samad, injured Baz Muhammad and PW-5 Gul Muhammad were on the target of accused party, but only Abdul Samad and Baz Muhammad were hit and the complainant as well as his another uncle i.e. PW-5 were let free. It does not appeal to the logic that by killing a person in presence of his blood relations, the accused would not attempt to cause any injury/kill the prosecution witnesses leaving them for evidence to get hanged. Reliance in this regard is placed on the case of "Muhammad Farooq v. The State, 2006 SCMR 1707. Reference in this regard is also made to the case of Dohlu v. The State 2002 PCr.LJ

690. PW-5 being brother of deceased and uncle of complainant played a role of an audience, which otherwise cannot be believed in our prevailing tribal set-up. Apparently, the conduct of all the witnesses and more particularly the conduct of PW-3 and PW-5 appear to be unnatural. On this point too, the presence of both the witnesses is doubtful. We are fortified by the dictum laid down by the Hon'ble Apex Court in the case of Muhammad Asif v. The State, 2017 SCMR 486, wherein it was held as under: "

10. We fail to understand that in the presence of the two close friends accompanying the deceased and parents, how such tragedy with a son could happen without any intervention on their part to come to rescue of the deceased when they were not far away as shown in the site plan."

9. The prosecution has produced PW-6 Muhammad Raheem as the witness of the occurrence, but this witness has not supported the case of prosecution and stated that at the time of occurrence he was present in his house when he received information about the occurrence. On the request of District Public Prosecutor this witness was declared hostile and he was cross-examined by the State Counsel. Admittedly, this star witness of the prosecution resiled from his earlier statement and did not support the case of prosecution, thus his statement has further caused dent and damage to the prosecution case.

10. Now adverting to the disclosure of acquitted accused Muhammad Usman and appellant Maher Ullah, which were recorded in presence of PW-8 Ghulam Abbas. The disclosure of both the accused relates to narration of occurrence and pointing out the place of occurrence. Admittedly, the occurrence as well as the place of occurrence were already known to the prosecution and no new facts were emerged pursuant to such disclosure. It is well established principle of law that the conviction can be granted and maintained by the Courts on the sole basis of extra-judicial confession of an accused, once it is established through record that such disclosure was infact made voluntarily and truly and some incriminatory evidence has been discovered pursuant to such disclosure or the recovery of any crime weapon was effected. Now new facts were emerged and even no incriminatory evidence has come on record to strengthen the case of prosecution, thus the disclosure of accused recorded in police custody is not admissible under the law, thus hereby discarded from consideration.

11. It has been alleged that the besides being armed with sticks, one of the accused was also armed with Kalashinkove and at the relevant time he was making aerial firing and the police also recovered empties from the place of occurrence, but to the contrary the prosecution has failed to recover any crime weapon from the possession of appellant or from the possession of acquitted accused persons, thus mere collection of some empties from the place of occurrence is not helpful to the case of prosecution.

12. So far as the medical evidence is concerned, the medical evidence is not substitute of direct evidence rather is only a source of corroboration in respect of nature and set of injury, the kind of weapon used, the duration between the injury and death and may confirm the ocular account to a limited extent but cannot establish the identity of the accused or connect him with the commission of offence, therefore, if the charge of murder is not proved through direct evidence, the presence of medical evidence may not be helpful to the case of prpsecution. Reliance in this regard can be place on the case of Muhammad Sharif and another v. The State (1997 SCMR 866).

13. The overall reappraisal of the entire prosecution evidence would establish the fact that the prosecution has failed to substantiate the charge against the appellant through confidence inspiring evidence. On the one hand, the eye-witness of the occurrence contradicted the case of prosecution on material counts and has failed establish his presence at the place and time of occurrence, while on the other hand one of the own witness of prosecution was declared hostile, as he did not support the case of prosecution. Admittedly, the prosecution has badly failed to establish the charge against the appellant through confidence inspiring evidence and beyond shadow of reasonable doubts and the learned trial Court while delivering the impugned judgement has failed to extend the benefits of such doubts in favour of appellant, bare reading of impugned judgement reflects that the same is suffering from misreading, non-reading and misappreciation of evidence in its true sense and perspective. Thus, in view of contradictions and dishonest improvements in testimonies of interested witnesses, which are lacking independent corroboration in material aspects of the case, the false implication of the appellant cannot be ruled out of consideration as the appellant throughout the case has taken the plea of his false implication. The above legal defects in the prosecution case were not considered while passing the impugned judgement. It is well settled principle of law that a wrongful conviction results into injustice, the first tragedy is to the innocent person; the second is to the victim of the offence and to society, because the real offender is not brought to justice, wrong conviction undermine the credibility of the legal system, whenever witnesses are mistaken, it is rarely because they lie or misreptesent the facts. Needless to emphasize that accused was entitled to be extended benefits of doubt as a matter of right, but the same was withheld. Even an accused cannot be deprived of benefit of doubt, merely because there is only one circumstance, which creates doubts in the prosecution story, whereas in the case in hand there are series of doubts apparent from the case record. Reliance in this regard is placed on the case of Tariq Pervaiz v. The State 1995 SCMR 1345, wherein the Hon'ble Supreme Court has held that, "The concept of benefit of doubt to an accused is deep-rooted in our country. For giving him benefit of doubt it is not necessary that there should be many circumstances creating doubt if there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused then accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right." For the above reasons the appeal is accepted, the impugned judgment dated 31st August, 2022 passed by learned Sessions Judge, Mastung is set aside and while extending the benefit of doubts, the appellant Mehrullah son of Khair Jan, is acquitted of the charge. The appellant being in custody, is ordered to be released forthwith, if not required in any other case. JK/32/Bal. Appeal allowed.