2021 PLP 972 (MLD)

ABDUL HAMEED BALOCH, J.

This Criminal Appeal is directed against the judgment dated 25th February, 2020 (impugned judgment) passed by the learned Sessions Judge, Jaffarabad at Dera Allah Yar (trial court), whereby the appellant was convicted under Section 302(b) Pakistan Penal Code (P.P.C.) and sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.50,000/- (Rupees fifty thousand) and in default to further suffer five months simple imprisonment with benefit of Section 382-B, Cr.P.C.

2. Precise facts of the case are that on 26th September, 2015, FIR No. 127 of 2015, under Sections 320, 34, P.P.C. was registered with Police Station Dera Allah Yar, on the report of Asghar Ali alleging therein that on the said date at 8:15 p.m. the complainant along with his brother Gul Hassan, relative Ghulam Hussain and Noor Muhammad were taking tea at Noorani Hotel New Bus Adda Quetta Road Dera Allah Yar, where accused Allah Bakhsh (appellant), Muhammad Bakhsh and another unknown person came on motorcycle, raised Larkana that they today would not spare Gul Hassan and thereafter, Allah Bakhsh and Muhammad Bakhsh made firing with TT pistols upon his brother Gul Hassan and escaped from the spot. It was alleged that his relatives Ghulam Hussain and Noor Muhammad took his brother to hospital where he succumbed to the injuries. The motive was alleged to be previous enmity between the parties. With these allegations FIR was chalked.

3. After registration of case appellant was arrested and subjected to investigation. On completion of investigation the challan was submitted before the trial court and after full dressed trial the appellant was convicted in the manner as mentioned in para-1 above, hence this appeal.

4. Heard learned counsel for the appellant, learned Additional Prosecutor General and also perused the available record with their able assistance. The prosecution in order to substantiate the charge produced eight witnesses. The case of the prosecution revolve on the statement of complainant (PW-3) and ocular witnesses PW-1 Noor Muhammad, PW-2 Ghulam Hussain and medical evidence Ex: P/6-A. PW-4 Naseebullah Constable witness of recovery produced site inspection memo Ex: P/4-A, blood stained earth Ex: P/4-B, memo of three empties Ex: P/4-C, memo of blood stained shirt and trouser Ex: P/4-D, FSL Report Ex: P/8-G. The complainant submitted an application Ex: P/3-A for registration of FIR Ex: P/8-A. The complainant (PW-3) alleged that he along with his brother and relatives were sitting at Noorani Hotel, meanwhile three persons on a motorcycle came there, two of them alighted from the motorcycle fired upon his brother Gul Hassan, due to which he sustained injuries. He identified two of them as Allah Bakhsh and Muhammad Bakhsh, while third one was not identified. After more than sixteen days the complainant submitted supplementary application wherein he named the third unknown person as Muhammad Anwar.

5. The record further transpires that Muhammad Anwar was arrested who faced trial and acquitted by the trial court vide judgment dated 24th April, 2016. The complainant in cross-examination stated that he left his brother in injured condition and went to police station for registration of FIR. In cross-examination the witness replied that he returned back in half an hour to the place of occurrence and his brother was expired. Whereas PW-1 in his deposition contradicted PW-3. The witness stated that he and Ghulam Hussain shifted the injured from the place of occurrence. The injured died near the hospital. The witness further stated that he has not seen any other person sitting in the hotel due to darkness. The witness replied that when the complainant came back he was present at the spot. The police reached the spot before shifting the injured to hospital. PW-2 stated that he, complainant and PW-2 have taken the injured to hospital, but before reaching hospital the injured died. The witness replied:

6. It appeared from the above referred replies that the witness was not known to the accused/ appellant. The police party has told the name of accused to the witness. The record depicts that accused was arrested on 26th February, 2019. The statement of PW-2 belied the version of complainant and PW-1. The statements of the witnesses are nth in line rather contradicting each other. Above such glaring contradictions cannot lightly be ignored. Reliance is placed on Muhammad Jabran v. The State 2020 SCMR 1493, wherein it was held: "

5. The complainant Muhammad Afzal (PW2) stated in his cross-examination that at the time of occurrence, they were sleeping in the verandah of the house. However, Zulfiqar Ali (PW3) stated in his cross-examination that they were sleeping in a room at the time of occurrence and the room was closed. He further explained that wife of complainant had went out of the room to feed her son, when the petitioners entered the room.

6. In their court statements, complainant Muhammad Afzal (PW2) and Zulfiqar Ali (PW3) claimed that on 22.07.2016, they were present in the police station, when Muhammad Nadeem ASI (PW6) received a telephonic call and the caller informed him about weeping voice of a child from a deserted room in Ashiana Housing Scheme at Rathian. They further claimed that they along with police in official vehicle went there, where the abductee Muhammad Bilal was recovered and petitioners were arrested. However, investigating officer Muhammad Nadeem ASI (PW6) stated in his cross-examination that he went to recover abductee Muhammad Bilal after receiving call from a spy informer and the complainant Muhammad Afzal was called later on at the place of recovery. He further stated that the complainant came at the spot of recovery after fifteen minutes; that he first arrested the petitioners, prepared site plan and then the complainant came at the spot and identified his abducted son. He further stated that the petitioners were arrested from the courtyard of the house whereas it was the claim of the complainant Muhammad Afzal (PW2) and Zulfiqar Ali (PW3) that petitioners were apprehended by the police while they were running from the place of recovery. He (PW6) further clarified in his cross-examination that he did not call any other person except the complainant at the place of recovery."

7. The conduct of the complainant is unnatural. The deceased was brother of the complainant, who due to firing sustained injuries and was in critical condition, but the complainant left the injured at the spot and went for registration of FIR. It was human conduct firstly tried to shift the injured to hospital in order to provide medical treatment. From the conduct of the witnesses it could be judged that they were not present at the spot. Even otherwise two persons armed fired upon deceased but un-harm the brother of the deceased and other eye-witnesses. Reliance is placed on Syed Muhammad v. The State 2019 YLR

337. It was held therein: "

11. We have taken into consideration with utmost care, caution and by applying our judicious mind to the facts and circumstances of the case, but we have not found ourselves agreeing either with the prosecution story or with the statements of prosecution witnesses. The admitted feature of the case is that none of prosecution witnesses had directly witnessed the crime rather allegedly the appellant made phone call to the PW-1 and informed her about the murder of her daughter, but the fact remains that the prosecution has failed to collect the CDRs of both mobile numbers to establish that actually the appellant made a phone call and that such call was received by his mother-in-law. The prosecution has failed to produce on record either the mobile number that was remained in the use of the appellant or his mother-in-law (PW-1), thus in absence of any material evidence it cannot be presumed that any phone call was either made by the appellant or such call was received by the PW-1."

8. PW-8 produced FSL Report Ex: P/8-G. The blood stained earth, shirt received to Forensic Science Laboratory on 5th November, 2015, with the delay of ten days with positive report. The prosecution failed to justify the delay in sending the referred to articles and its safe custody. In such situation the positive report lost its evidentiary value as has been held by the august Court in case of Asad Rehmat v. The State 2019 SCMR 1156.

9. So far as medical evidence is concerned. PW-6 Medical Officer examined the deceased ad issued medical certificate Ex: P/6-A, who confirmed unnatural death of the deceased, which has not been denied by the defence. The medical evidence is not corroborative rather it only confirms ocular account with regard to seat of injuries, time of occurrence and weapon used in commission of the offence. The medical evidence does not prove the culpability of accused. Reliance is placed on the case of Altaf Hussain v. Fakhar Hussain 2008 SCMR 1103.

10. The complainant in Fard-e-Biyan Ex: P/3-A alleged the motive of killing his brother that 15/16 years ago the accused levelled allegation of Siyahkari and theft and on that account the accused killed his brother, but no evidence produced to substantiate the same. There is no rule that conviction could not be awarded without motive. Where it appeared from the record that the evidence is sufficient for conviction the court can convict the accused but when once the motive is alleged by the complainant it must be proved. Reliance is placed on the case of Mst. Mir Shahbano v. Ahmed Khan 2011 YLR 1965. It was held therein: "

15. Another fact to be noted is the motive shown in the F.I.R. which is blood feud enmity. This motive has not been proved at all in the evidence by the prosecution. No documentary proof has been filed. Normally motive is of no avail and in certain cases which are motiveless conviction can be recorded. But once motive is alleged by complainant in report it must be proved and in case of failure, the benefit must go to the accused."

11. As per complainant the occurrence took place in Noorani Hotel. The prosecution has neither recorded the statement of owner of the hotel nor recorded statement of any employee in order to confirm whether the occurrence had taken place in the hotel or elsewhere, because the Investigating Officer in cross-examination stated that the occurrence took place in Achaanak Hotel near Bus Adda Usta Muhammad. All the witnesses are related to the deceased and this fact was admitted by them during their depositions. Though mere relationship is no ground to discard the ocular account. When there is animosity with the deceased the prosecution evidence must be corroborated by independent witnesses.

12. Now adverting to the disclosure/confession of accused wherein he admitted the guilt. Under Article 38 of Qanun-e-Shahadat Order, 1984 admission/disclosure before the police is inadmissible evidence. The admission or disclosure during custody before police has no evidentiary value. Reliance is placed on the case of Hayatullah v. The State 2018 SCMR 2092, wherein it was held: "It is the duty of the court to make distinction between admissible and inadmissible evidence and only admissible evidence should be allowed to come on record. If any inadmissible evidence is brought on the record then it will expose the ability and knowledge of law of the prosecutor and defence counsel. If the trial judge allows to bring the inadmissible evidence on record then it must reflect adversely regarding the knowledge of law and the ability of said Judge. We have observed that in certain cases the case files were found filled with inadmissible evidence which is ultimately to be discarded. It is the duty of the court to stop the witness at the moment he utters inadmissible evidence and should not allow to bring on record such inadmissible evidence."

13. The liberty of a person is paramount consideration. The Constitution has guaranteed the freedom of individual which cannot be curtailed without any lawful justification. It is settled law that the conviction must be found on unimpeachable evidence and certainty of guilt. Any doubt arises in the prosecution case must be resolved in favour of the accused. Reliance is placed on the case Safdar Baloch alias Ali v. The State 2019 SCMR 1412, wherein it was held: "

. Criminal liability is to be essentially settled on evidentiary certainty and not on moral satisfaction or factualities incompatible with evidence based upon truth. Prosecution's case against the appellants cannot be viewed as beyond reasonable doubt and thus conviction cannot be maintained without potential risk of error. --" In view of the above, the instant appeal is allowed. The judgment dated 25th February, 2020 passed by learned Sessions Judge, Jaffarabad at Dera Allah Yar is set aside. The appellant Allah Bakhsh son of Attaullah is acquitted of the charge in case FIR No. 127 of 2015, Police Station Dera Allah Yar. He is in custody be released forthwith if not required in any other case. JK/257/Bal. Appeal allowed.