2024 PLP 2204 (YLR)

Abdullah Baloch, J.

This judgment disposes of Criminal Appeal No.615 of 2021 filed by the appellants Mir Agha son of Muhammad Hashim and Khan Muhammad son of Najo, against the judgment dated 18th November 2021 ("the impugned judgment") passed by learned Additional Sessions Judge-I Quetta ("the trial Court"), whereby they were convicted under Section 302 (b)P.P.C. and sentenced to suffer R.I. for life each as Tazir and to pay compensation amount of Rs.200,000/- (Rupees Two Hundred Thousand) each, which in case of recovery was directed to be paid to the legal heirs of deceased Muhammad Hussain as envisaged under Section 544-A Cr.P.C. or and in default thereof to further suffer six (06) months S.I. each; they were also convicted under Section 387 P.P.C. and sentenced to suffer four (04) years R.I. each, with fine of Rs.5000/- each or in default thereof to further suffer fifteen days S.I.; the appellant were also convicted under Section 404 P.P.C. and sentenced to suffer two years R.I. each, with fine of Rs.5000/- each or in default thereof to further suffer 15-days S.I., with the benefit of Section 382-B Cr.P.C.

2. Facts of the case are that on 6th December 2020, the complainant Munir Khan, lodged FIR No.98 of 2020 at Police Station Bijli Road Quetta, under Section 302 Q & D Ordinance, read with Sections 387, 404, 34 P.P.C., with the averments that he works as Security Guard at Whitel Security Company and in the absence of supervisor Matiullah, he was performing supervisory duty. In this connection on 5th December 2020 at about 06.45 p.m. he went to the office of Taraqi Foundation situated at Chaman Housing Scheme, Quetta to check the security guard Muhammad Hussain. Upon reaching there, he knocked at the gate and called for him, but no response was received, whereupon he tried to make a call on his mobile number, which was found switched off. Whereafter he informed the owner of company namely Abdul Samad Khilji and on the next day when he went there to check the said guard and knocked at the gate, yet again no one opened the gate, thus upon ascending on the gate and peeking inside he found the shoes lying outside the room, where after he leaped down and found the said Muhammad Hussain in dead condition, whose hands and throat was tied with a rope and had bleed from mouth. Subsequently, he rushed to the office of the company and informed the Manager Sajjad Haider, who informed the owner of company, where after the police as well as the officials of Tarraqi Foundation arrived over there, while on checking the files and other articles were shattered.

3. In pursuance of above FIR, the appellants were arrested, subjected to investigation and on completion thereof, they were challaned in the trial Court, who framed the charge and after refuting the same by the appellants, the prosecution produced eight (08) witnesses. The appellants were examined under Section 342 Cr.P.C. 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, the appellant were convicted and sentenced the appellant as mentioned in para-1 above, Whereafter instant appeal has been filed.

4. We have heard the learned counsel for parties and perused the available record. So far as the unnatural death of deceased is concerned, the same is undisputed. The defence has also admitted the unnatural death of deceased, but pleaded false implication. PW-4 Dr. Ali Mardan, Police Surgeon, BMC Hospital, Quetta, conducted the post mortem of deceased and observed red bruises on chest, angle of mouth, right ramous of mandible fractured, ligature marks on right and left around neck rigor mortis started and further opined that the cause of death of deceased was homicidal due to Asphyxia caused by strangulation around neck with torture by blunt weapon. However, during his cross-examination, PW-4 admitted that the death of the deceased had occurred about 12-hours prior to the post mortem. He also admitted that suicide may have the same symptoms.

5. Now adverting to ocular testimony, suffice to observe here that the complainant of the case namely Munir Khan appeared as PW-1, who reiterated the contents of his fard-e-bayan Ex.P/1-A. According to PW-1 on 5th December 2020 he went to check the Security Guard Muhammad Hussain at the office of Tarraqi Foundation and despite repeated knock, no response was received, thus he informed the owner of Company with the request to allow him to climb over the wall to check the guard, but his such request was declined with the assertion that the guard might have gone for lunch. However, on the very next day again this witness went to check the Guard and after knocking no response was received, thus he climbed over the wall and on checking, the deceased Security Guard namely Muhammad Hussain was found dead, whose hands were tightened. Whereafter he informed his high-ups and accordingly the officials of Tarraqi Foundation and police arrived over there. If the statement of PW-1 is presumed to be true, then it would contradict the medical evidence. As discussed in the preceding para that the PW-4, who conducted the post mortem of deceased opined in his cross-examination that duration in between death and post-mortem of deceased was about 12-hours, then under such circumstanced a question arises that if on 5th December 2020, on knocking the door by the complainant, no response was received and on the following day i.e. 6th December 2020, again no response was received, it means that the appellant was already dead on 5th December 2020, then as to how the duration between the death and postmortem was about 12-hours. The statement of PW-1 reveals that the mouth of deceased was bleeding, but PW-4 negates such fact by stating that the eyes and mouth of deceased were closed and no discharge from nose and mouth was observed. Admittedly, the medical evidence is not in consonance with the ocular testimony.

6. Further scrutiny of the statement of PW-1 divulges that this witness in his examination in chief stated that the doors and windows of said office were broken, but to the contrary the statements of this witness contained in his fard-e-bayan Ex.P/1-A as well as his Court statement are silent in such behalf. PW-1 made his ignorance to the effect that after end of duty hours of deceased, who was the next security guard, but however, he admitted that the next security guard did not come to his duty. PW-1 admitted that the duty hours of deceased was between 08.00 a.m. to 08.00 p.m., however, after end of duty hours of deceased, he did not visit the said place.

7. PW-2 Sajjad Haider was the Manager of Whitel Security, who stated that on 6th December 2020 he was present in his office situated at Shahbaz Town Phase-I Quetta, when PW-1 informed him about the incident that the deceased Muhammad Hussain, Security Guard was found dead in his place of duty, whose neck and hands were tightened, where after PW-2 informed the owner of Company Abdul Samad and subsequently the police was informed, who arrived at the site. PW-2 brought on record that besides the deceased Muhammad Hussain, other security guards namely Abdul Qadir, Chacha Aslam and Muhammad Naeem were also deputed and after end of duty hours of deceased, the guard Abdul Qadir was to perform his duty.

8. If the statements of both the witnesses i.e. PW-1 and PW-2 are taken into consideration, it would become crystal clear that each security guard was posted for performing his duties for eight hours, but to the contrary the deceased was deputed for 12-hours and even after end of duty hours of deceased, neither on 5th nor on 6th December 2020, the next security guard arrived at the place of his duty nor any investigation was conducted from the next security guard Abdul Qadir to the effect that as to why he did not come to his place of duty, due to which the exact time of occurrence as well as other material facts were not come on record. The investigation of the case to such extent is very poor, which otherwise damaged the case of prosecution.

9. The sole evidence came on record against the appellants is the extra-judicial confession of appellants as well as the recoveries effected pursuant to such disclosure. PW-3 is the recovery witness of certain articles and besides he also witness of disclosure memo. of appellant Ex.P/3-E, wherein the appellant allegedly confessed his guilt by disclosing the fact that he along with co-accused Muhammad Khan planed to loot the amount of Tarraqi foundation and as per plan they knocked the door of Tarraqi Foundation Office, which was opened by the deceased and during discussion, they overpowered the deceased and by strangulation committed his murder, where after they took money lying in the office i.e. Rs.100,850/-, DVR of Camera (Hard Disk), where after Khan Muhammad co-accused gave him Rs.50,000/-. It has also been observed that pursuant to such disclosure got recovered the Hard Disk and cash amount of Rs.50,000/-, which were taken into possession through recovery memo. Ex.P/3-F. The disclosure memo. of the appellant is altogether silent with regard to exact date and time of occurrence to confirm on which date and time they planned for committing the crime and when they performed their such plan.

10. PW-3 is also witness of disclosure memo. of appellant Khan Muhammad Ex.P/3-G, wherein he did not mention the details of crime as narrated in his disclosure by the appellant Mir Agha, but however, stated that on 5th December 2020 he along with his accomplice Mir Agha committed the murder of deceased by strangulation and took away the pistol of Company and cash amount, while pursuant to such disclosure the appellant got recovered the pistol from Naala. Besides, he also gotrecovered Rs.30,000/- from his house.

11. We have taken into consideration both the disclosures of the appellants and the recovery memos effected pursuant to such disclosure and observed that the recovery of cash amount from the possession of appellants is doubtful, as no one can say with certainty that the said amount recovered from the possession of the appellants were the same that were missing or looted from the office of Taraqi Foundation. Besides the recovery of pistol is also doubtful as the alleged occurrence had taken place on 5th or 6th December 2020, while as per the alleged disclosure of the appellant Khan Muhammad after taking away the pistol he threw the same in Naala, while the alleged recovery of pistol from Naala was effected on 16th December 2020 i.e. after lapse of almost 10-days. It does not appeal to the prudent mind that after throwing the pistol the same was remained in the said Naala and was not seen or took away by any third person and instead it was remained safe in an open place after delay of 10-days. Even otherwise, if the accused persons were confessing their guilt, then under such circumstances as to why they were not produced before the concerned Judicial Magistrate for recording their proper confessional statement as envisaged under Section 164 Cr.P.C., thus the recovery of cash amount and the pistol are also not helpful to the case of prosecution.

12. As per the case of prosecution the appellants were identified through CCTV footages taken from nearby the offices and the cameras installed in the streets, however, in such behalf it is observed from the record that the person shown in the said CCTV footages had muffled their faces and also they wore gloves. If the culprits were having muffles in their faces and also they were having gloves in their hands, then question arises that as to how they were identified by the prosecution as the appellants, who had committed the crime. Besides, if the accused persons had wore gloves, then no question arises for their finger prints and its matching by the FSL Expert. Even otherwise, the prosecution has failed to mention that from which offices, houses or streets the said CCTV footages were taken and why the concerned persons of said offices or houses were produced in the Court in order to diminish any sort of ambiguity in the case of prosecution, but this has not been done so and under the circumstances a reasonable doubts have been created with regard to evidentiary value of the said CCTV footages.

13. The reappraisal of the statements of all the witnesses shows that the prosecution has absolutely failed to establish the charge through concrete and solid evidence. All the witnesses including the complainant of the case have narrated the occurrence in different mode and manner, which has created reasonable doubts in the case of prosecution. The requirement of the criminal case is that prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, benefit of the same must go to the accused and it would be sufficient to disbelieve the prosecution story and acquit the accused. Since, it was a blind murder and for establishing the charge the prosecution has mainly relied upon the circumstantial evidence, however, in order to convict a culprit on the basis of circumstantial evidence, it is necessary that the circumstantial evidence must be so clear, cogent and convincing that the facts could not be accounted for on any other rational hypothesis than the guilt of the culprit. In such a situation unless the accused creates a reasonable doubt regarding natural conclusion which can be drawn or produce strong evidence of exculpatory nature, it may be difficult to discard such circumstantial evidence. The case of prosecution is full of doubts and infirmities and on the basis of such evidence, no conviction can be granted or maintained and the learned trial Court whilst recording the impugned judgement has failed to consider the above facts and circumstances of the case. 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."

14. Thus, the prosecution has failed to establish the charge against the appellants beyond the shadow of reasonable doubts. The learned trial Court while delivering the impugned judgement has failed to extent the benefits of doubts to the appellant. The impugned judgement of the trial Court is suffering from mis-reading, non-reading and mis-appreciation of evidence in its true perspective. For the above reasons, the appeals are accepted. The impugned judgement dated 18th November 2021 passed by learned Additional Sessions Judge-I Quetta is set-aside and the appellants Mir Agha son of Muhammad Hashim and Khan Muhammad son of Najo are acquitted of the charge. The appellants being in custody; shall be released forthwith, if not required in any other case. JK/67/Bal. Appeals allowed.