2020 PLP 1990 (MLD)

ROZI KHAN BARRECH, J.

This criminal appeal was filed to call in question validity of judgment dated 30.10.2019 ('impugned judgment") passed by Model Criminal Trial Court/Sessions Judge, Killa Abdullah at Chaman (trial court) in P.P.C. Case No.19/2017, whereby the respondent No.1 namely Azizullah son of Musa Jan was acquitted of the charge.

2. Relevant facts for disposal of the instant appeal are that on 4th July 2017 at 11:30 a.m. the complainant Rehmatullah son of Haji Muhammad Kabir lodged FIR No. 79 of 2017 at Levies Thana Chaman under Section 302 P.P.C. with the averments that on the said date at about 9:45 a.m. he was present at his godown when he received telephonic information that someone has injured his brother Attaullah by inflicting knife blows, who was lying in injured condition in Baloch Khan Hospital. Thereafter the complainant reached the hospital and found his brother in a pool of blood. Due to critical condition the injured was shifted to Civil Hospital Chaman but the injured (Attaullah) succumbed to injuries. On query a close neighbor of respondent/accused Azizullah told that the deceased was guest in the house of the accused and on hearing hue and cry of the children, he found the deceased in the guest room of the accused in injured condition. Hence, the crime report. After completion of usual investigation challan of the case was submitted before the trial court. The charge was framed against the accused to which he pleaded not guilty and claimed trial. After full dressed trial the accused was acquitted of the charge by the trial court. Hence, the instant appeal.

3. 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 appellants.

4. Undeniably it is a case of blind murder which has been witnessed by none. PW-1/complainant Rehmatullah is brother of the deceased. PW-2 Noor Khan, PW-7 Bakht Muhammad, PW-8 Abdul Salam are not the eyewitnesses of the occurrence and according to report of the complainant on the day of occurrence he was present in his godown when he received telephonic information that someone has injured his brother Attaullah by inflicting knife blows and was lying in injured condition in Baloch Khan Hospital. PW-2 Noor Khan, who was neighbor of the accused Azizullah stated before the court that the accused took him to his guestroom where he saw the deceased in injured condition and that he and Azizullah took the injured to hospital. PW-7 Bakht Muhammad alleged that on 4.7.2017 he met the deceased at Bhawal Adda, who told him that he was going to meet Azizullah at his house. PW-8 Abdul Salam alleged that on 4.7.2017 he along with his son Abdul Manan and son-in-law Hanifa were going to Chaman Bazar in a car and found one person lying in the street in injured condition; that they shifted the injured person to hospital.

5. A verity of reasons weighed with the learned trial judge to acquit the accused from the charge, which include; contradiction in the statement of witnesses and the case of the respondent was based on circumstantial evidence and the trial court was found right that there are missing links in the chain of the prosecution story and the prosecution could not successfully prove the charge beyond shadow of reasonable doubt against the accused. None of the reasons cited by the trial judge has been found by us as artificial or unrealistic. Even otherwise on independent analysis, genesis of prosecution case does not appear to be free from doubt.

6. Record transpires that no one came forward to furnish ocular evidence of this unfortunate. The material collected by the prosecution are: the deceased was found in injured condition in guestroom of the accused Azizullah, recovery of blood stained carpets, two canes of energy drinks, two pairs of shoes, cap green in color, blood stained clay, motorcycle 70-CC, last worn clothes of the deceased and medical evidence.

7. Before dilating upon the above referred circumstantial evidence, we are fully conscious of the principle that if the case is based on circumstancial evidence, the prosecution must ensure, that the circumstances from which the inference of guilt is sought to be drawn, must be cogently and firmly established. The circumstances must unerringly point towards the guilt of the accused and when taken cumulatively, should form a chain so complete, that it must demonstrate in all probabilities that the crime was committed by the accused. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and it must be such to show that within all human probability the act must have been done by the accused. In case titled Sheikh Muhammad Amjad v. State PLD 2003 SC 704, the august Supreme Court while dealing with circumstantial evidence, has been held that:- "According to the standard of proof required to convict a person on circumstantial evidence, the circumstances relied upon in support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances from which the conclusion of the guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused and should not be capable of being explained by any other hypothesis, except the guilt of the accused and when all the circumstances cumulatively taken together should lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime". There is no direct piece of evidence available on record against the accused. PW-2 Noor Khan stated in his statement that Azizullah told him to come to his guestroom, which was situated in front of his house, where he saw a person lying in injured condition in a pool of blood; that they should take the injure to hospital on motorcycle but condition of the injured was very serious, therefore he told Azizullah that due to Attaullah's (deceased) serious condition they cannot take him to hospital on motorcycle; that in the meanwhile they stopped Thanedar Abdul Salam in the street, who was going in a vehicle and informed him about the situation and thereafter took the injured to Baloch Khan Hospital. The statement of PW-2 is further corroborated by PW-8 who stated in his statement that he, Abdul Manan and Hanifa were proceeding to Chaman Bazar in a car; that on their way they saw two young boys standing in the street who told them that one person was lying in the street in injured condition; that they reached the place of occurrence and saw that a person was lying in injured condition in front of Azizullah's house; that when the injured was taken to the hospital accused Azizullah was also with them. According to the statement of both the said witnesses the accused Azizullah was the person who informed PW-2 about the injuries of the deceased Attaullah and shifted the deceased to hospital in injured condition. In such view of the facts, question arises that if the crime was committed by the accused and the intention was to murder the deceased then why did he (accused) call PW-2 to help him to take the deceased to the hospital. It is not acceptable to believe that the accused first inflicted life threatening severe knife blows on the person of the deceased that too in his own guestroom and thereafter call his neighbor to take him/injured to hospital in order to save his life. The accused was not only trying hard to take the deceased to hospital but he managed to take the deceased in injured condition to hospital with PW-8 and others and above all remained at the hospital without any fear of being involved in the case. Nothing came on record that there existed any kind of enmity between the deceased and the accused. The prosecution obviously failed to set any motive.

8. All the above narrated facts and circumstances when evaluated on the judicial parlance reflect that the prosecution has failed to establish the culpability of the accused/respondent in the instant case through reliable, trustworthy and confidence inspiring evidence. It is an established principle of law that for extending benefit of doubt in favour of the accused so many circumstances are not required rather one circumstance, which creates reasonable dent in the veracity of the prosecution version, can be taken into consideration for the purpose not as a matter of grace rather as a matter of right. Respectful reliance in this regard in placed on the case of Tariq Pervaiz v. The State 1995 SCMR 1345 and Riaz Masih v. The State 1995 SCMR 1730.

9. Furthermore, it is by now well settled that acquittal carries with it double presumption of innocence; it is reversed only when found blatantly perverse, resting upon fringes of impossibility and resulting into miscarriage of justice. It cannot be set aside merely on the possibility of a contra view.

10. In our humble view, the trial court has considered all the material present on record properly and arrived to the conclusion which is based on proper appreciation of the facts and law, thus does not need interference by this court. The appellants have failed to point out any defect in the impugned judgment, therefore, the appeal being devoid of merit is accordingly dismissed in limine. JK/99/Bal. Appeal dismissed.