2025 PLP 2424 (YLR)

Rozi Khan Barrech, J.

Appellant Ashraf, son of Noor Bakhsh, allegedly committed the murder of Sakhi Dad, son of Barat and attempted to murder Miroo, son of Mehmood, on 17.10.2021 at 8:00 am at the area of Waja Bagh Bazar, District Awaran by means of firearms. For the commission of the said offence, the appellant was booked in case FIR No. 07 of 2021, registered at Levies Thana Jhaoo on 17.10.2021 at 10:30 am. After a regular trial, the appellant was convicted under section 302(b) P.P.C and sentenced to suffer RI for life as Ta'zir. He was also convicted for an offence under section 324 P.P.C and sentenced to suffer RI for one year as Ta'zir and to pay a fine of Rs.10,000/- or in default thereof to further suffer SI for four months. He was further convicted for an offence under section 337-F(i) P.P.C and sentenced to suffer RI for six months as Ta'zir and fine of Rs.5000/- only as Daman to the injured with benefit of section 382-b Cr.P.C, vide judgment dated 16th February 2023 ('the impugned judgment') passed by the learned Sessions Judge, Awaran ('the trial Court') in P.P.C Case No. 01/2022. Being aggrieved from the impugned judgment, the appellant has filed the instant appeal through Superintendent Central Prison Khuzdar.

2. We have heard the learned counsel for the appellant as well as the learned APG and have gone through the record with their valuable assistance.

3. It is an axiomatic and universally recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt, and hence, any doubt that arises in the prosecution case must be resolved in favour of the accused. It is, therefore, imperative for the court to examine and consider all the relevant events preceding and leading to the occurrence so as to arrive at a correct conclusion. Where the evidence examined by the prosecution is found inherently unreliable, improbable and against the natural course of human conduct, then the conclusion must be that the prosecution failed to prove guilt beyond a reasonable doubt. It would be unsafe to rely on the ocular evidence which has been moulded, changed and improved step by step so as to fit in with the other evidence on record. It is obvious that the truth and falsity of the prosecution case can only be judged when the entire evidence and circumstances are scrutinized and examined in its correct perspective.

4. The whole prosecution story revolves around the statements of Miroo the injured eye-witness (PW-2), and Rasheed, eye-witness (PW-2) of the occurrence. Both of them claimed that on 17.10.2021, the appellant, Ashraf and the acquitted accused Khalid fired upon the deceased Sakhi Dad, who received injuries and later on succumbed to the injuries. PW-2 Miroo claimed that the appellant Ashraf and acquitted co-accused Khalid also made a firing on him, and he received injury on his left leg. The complainant of the instant case i.e., Barat (PW-1) is not an eye-witness of the alleged occurrence. He received information from PW-3 Rasheed about the occurrence and reached the place of occurrence, and found the dead body of the deceased Sakhi Dad on the spot on his written report the FIR was lodged. According to the statements of the above witnesses, the alleged occurrence took place at 8:00 am, but on the other hand, the FIR was lodged at 10:30 am with a delay of two and a half hours. According to further facts of the case, the complainant lodged the FIR at 12:30 pm, on the same date. When he appeared before the court, he stated during cross-examination that he reached Levies Thana Jhaoo at 12:30 pm, day time, and on his written report, Tehsildar Levies Thana Jhaoo lodged the report. He further stated during cross-examination that he left Levies Thana at 1:00 pm, thus, the time of registration of the FIR is highly doubtful.

5. It is stated earlier that the FIR was lodged with a delay of two and a half hours. It is astonishing that when the deceased succumbed to the injuries on the spot, what prevented the complainant from lodging the report immediately despite that the distance between the place of occurrence and Levies Thana Jhaoo, as mentioned in the FIR, is 16 kilometers. It creates reasonable doubt in the prosecution story that why the report was not lodged promptly. Needless to say that, the delay in lodging the report cannot be simply brushed aside as it assumes great significance and can be attributed to consultation, taking instructions and calculated preparing the report, keeping in view the name of the assailants opened for involving such persons who ultimately the prosecution may wish to nominate. Even otherwise, the alleged time of lodgment of the FIR is doubtful because the complainant himself stated that he reached Levies Thana Jhaoo at 12:30 pm and submitted the application for registration of the FIR. This aspect of the case renders the case of the prosecution extremely doubtful.

6. It came on record that the dead body of the deceased was brought by Tehsildar Levies Thana Jhaoo to Rural Health Center Jhaoo Camp at 10:30 am. For the sake of argument, if it is presumed that both the so-called eye-witnesses were present at the place of occurrence at the relevant time and the complainant/PW-1, after receiving information, reached the place of occurrence, then why did they not shift the dead body of the deceased Sakhi Dad to the hospital and kept waiting for two and a half hours for levies officials to arrive at the place of occurrence, which is unacceptable to the prudent mind and this aspect of the matter causes reasonable doubt in the prosecution case, and the presence of the above eye-witnesses at the spot also becomes highly doubtful.

7. The statements of PW-2 and PW-3 under section 161 Cr.P.C were also recorded with delay without any plausible explanation. PW-2, namely Miroo, while appearing before the court, stated during cross-examination that his statement was recorded by the investigation officer on the day of occurrence in the evening. PW-3 Rasheed stated that the levies officials recorded his statement at 10:00am. How can it be possible that before registration of the FIR, the investigation officer recorded his statement despite the fact that the FIR was lodged at 10:30 am. Even the statement of PW-1 was recorded with a delay of two and a half hours after the lodgment of the FIR. The investigation officer furnished no plausible explanation for recording the statements under section 161 Cr.P.C of the so-called eye-witnesses with delay. This fact renders the prosecution's case extremely doubtful.

8. There is also a contradiction in the statements of Miroo (PW-2), the injured witness, and medical evidence. When the said witness appeared before the court, he stated that he received injuries on his left leg, but on the other hand, according to his medical certificate Ex.P/5-A produced by Dr. Shahzad Baloch Medical Officer Rural Health Centre Camp Jhaoo Awaran (PW-5) 'on examination there is a gunshot on the left side of buttock which is about 1x3 inch and surfically touch the skin of buttock ' The above contradiction too creates reasonable doubt in the prosecution case. It is settled law that the stamps of injuries on the person of a witness may establish his presence at the relevant time at a particular place of occurrence, but the injuries itself are not the proof that whatever the witness is telling is the truth.

9. The ocular account was furnished by PW-2 and PW-3, who claimed to be present at the place of occurrence and witnessed the alleged incident. During cross-examination, they stated that they witnesses and the alleged incident from a distance of one kilometer. The claim of the above prosecution witnesses to have seen the alleged occurrence from such a long distance appears to be a claim which can be accepted only with a grain of salt. The reliability of the eye-witnesses' identification is deeply influenced by the distance between the witness and the perpetrator at the time of the event. The importance of incorporating scientific research in criminal cases cannot be negated. Scientific research established that individuals with average eyesight cannot accurately recognize facial features up to a distance of 40 meters. The Hon'ble Supreme Court of Pakistan, in Ameeruddin v. The State has held that: ''The ability of a witness to accurately identify a perpetrator significantly diminishes with increased distance, Scientific evidence accepted by the Court confirms that a person with 20/20 (average) vision can only reliably identify facial features up to 40 meters. Observations from a distance of 500 meters (half a kilometer), especially involving rapid movement, occurrence in a not well-lit area or containing obstructions that could hinder vision, are scientifically implausible and legally unreliable in the absence of corroboration. The relevant part of the Judgment is reproduced as under, "

4. The human eye has limitations in resolving fine details at a great distance Even with 6 x 6 vision, the ability to identify specific actions or individuals diminishes significantly as the distance increases. In evaluating the reliability of eye witnesses' testimony, it is crucial to consider how the distance between the witness and the perpetrator can affect identification accuracy. A recent study by Nyman, Lampinen, Antfolk, Korkman, and Sennila (2019). published in the credible Journal of Law and Human Behavior, states that even a person by 20 x 20 vision or average eyesight can only accurately recognize facial features up to a maximum of 40 meters. The relevant extract from the study is reproduced below: "Increased distance between an eye-witness and a culprit decreases the accuracy of eye-witness identifications, but the maximum distance at which reliable observations can still be made is unknown. Our aim was to identify this threshold. We hypothesized that increased distance would decrease identification, rejection accuracy, confidence and would increase response time. We found that even at 40 m the accuracy of identifying a witness was 50% lower than at 5 m with increased distance. We found that high confidence and shorter response times were associated with the identification accuracy up to 40 m. We conclude that age and lineup type moderate the effect distance has on eye-witness accuracy and that there are perceptual distance threshold at which an eye-witness can no longer reliably encode and later identify a culprit. The Hon'ble Supreme Court has further held that under optimal conditions, the human eye is inherently limited in its capacity to sustain detailed observation of minute features at long distances. The structure and acuity of avenge human vision are not designed so discern or retain intricate facial characteristics or subtle movements beyond a certain threshold-Scientific evidence establishes that recognition of facial features becomes significantly unreliable beyond 40 meters, and at distances such as 500 meters, even individuals with perfect eyesight cannot meaningfully distinguish specific identities or actions. The relevant part of the Judgment is reproduced as under. 'Furthermore, a man's eyesight, even under optimal conditions, is not designed for sustained observations of minute details at such a distance. Thus, the claim of the witnesses is not only a tall claim, but also one that is too farfetched to be accepted by a prudent mind.' In Ameeruddin's case, the eye-witness claimed to have recognized it from approximately 500 meters away. The Supreme Court rejected this assertion, citing both common sense and scientific research, ultimately extending the benefit of the doubt to the accused and acquitting him.

10. The law is clear on cases involving witness testimony, the prosecution must establish the credibility and reliability of its witnesses. The distance from which the witnesses claim to have observed the incident with graphic details is critical in assessing their account's truthfulness and ability. The general rule is that at a distance of 500 meters (half a kilometer), even individuals with excellent visual acuity would struggle to discern specific details of an event, particularly when the incident involves a rapid moment, or if it occurs in an area that is not well lit or has obstructions that could hinder vision. Furthermore, even under optimal conditions, a man's eyesight is not designed for sustained observations of minute details at such a distance. Thus, the claim of the witnesses is not only a tall claim but also one that is too far-fetched to be accepted by a prudent mind.

11. Both the above eye-witnesses claimed that the appellant Ashraf and the acquitted co-accused Khalid made a firing upon the deceased. The trial court, without giving any sufficient reason, convicted the appellant and acquitted the co-accused Khalid in the same judgment. The prosecution produced the same set of evidence against the appellant Ashraf as well as the acquitted coaccused Khalid, and the evidence produced by the prosecution was disbelieved to the extent that acquitted co-accused Khalid. It is well settled by now that if a set of evidence is disbelieved to the extent of some accused, the same cannot be believed to the extent of remaining accused facing the same trial without there being any independent and strong corroboration, which is lacking.

12. So far, the recovery of the crime weapon Kalashnikov is concerned, allegedly the same was recovered on the pointation of the appellant on 11.04.2022, which does not connect the appellant with the commission of the crime. Even if it is accepted as correct, both the crime weapon and crime empties recovered from the place of occurrence were not sent to Firearms expert's to ascertain that whether the crime empties recovered from the place of occurrence were fired from the alleged Kalashnikov recovered on pointation of the appellant. Even there is no report of the Firearms Expert to establish that the alleged crime weapon was in working condition or not.

13. The recovery of the alleged Kalashnikov is also doubtful. The prosecution produced Jasir Ali (PW-6), who stated that on 11.04.2022, on the pointation of the appellant, a Kalashnikov was recovered from a hut. The alleged occurrence took place on 17.10.2021, and the alleged recovery was effected on 11.04.2022. How can it be possible that the said Kalashnikov was kept in a hut for such a long time waiting to be recovered, which cannot be accepted by the prudent mind. Even no other evidence was produced by the prosecution to corroborate the statement of PW-6. The investigation officer, Sabir Ali Levies Incharge, who appeared before the court as PW-7 did not state a single word in his statement that from where, when and how the recovery was affected from the appellant. This aspect of the matter also caused reasonable doubt with respect of the alleged recovery of the crime weapon; therefore, the said recovery is also of no avail to the prosecution.

14. All the above-narrated facts and circumstances, when evaluated on judicial parlance, reflect that the prosecution has miserably failed to establish the culpability of the appellant in the instant case through reliable, trustworthy, and confidence-inspiring evidence.

15. From the facts and circumstances narrated above, we are persuaded to hold that the conviction passed by the trial court against the appellant in the circumstances is against all canons of law recognized for the safe dispensation of criminal justice. As per the dictates of the law, the benefit of the doubt is to be extended in favour of the accused. Resultantly, Criminal Jail Appeal No. 13 of 2023 filed by the appellant is allowed, and after setting aside the conviction and sentence recorded by the trial court in terms of the judgment dated 16th February 2023 passed by learned Sessions Judge, Awaran in Case No. 01/2022, the appellant Ashraf, son of Noor Bakhsh is acquitted of the charge in FIR No. 07/2021 Levies Jhaoo under sections 302, 324, 337-F and 34 P.P.C. The appellant Ashraf, son of Noor Bakhsh, is ordered to be released forthwith if not required in any other case. JK/62/Bal. Appeal allowed.