2021 P Cr (PLP)

ABDUL HAMEED BALOCH, J.

This judgment is directed against the judgment dated 13th January, 2018 (impugned judgment), passed by learned Additional Sessions Judge-II, Sibi at Mach (trial court), whereby the appellant was convicted under section 302(b), Pakistan Penal Code (P.P.C.) and sentenced to suffer life imprisonment on two counts and to pay compensation of Rs. 200,000/- (Rupees two hundred thousand) separately to the legal heirs of deceased Abdul Rahim and Mehr Dil as envisaged under section 544-A, Cr.P.C. and in default thereof to further undergo six months simple imprisonment. The appellant was also convicted under section 324, P.P.C. and sentenced to suffer ten year rigorous imprisonment and to pay fine of Rs. 50,000/- and in default thereof to further undergo two months simple imprisonment. The appellant was further convicted under section 337-A(i), P.P.C. and sentenced him to suffer one year rigorous imprisonment and to pay Daman of Rs. 20,000/- to injured Saleh Muhammad and in default thereof the appellant was directed to be dealt with under section 337-Y, P.P.C. Benefit of section 382-B, Cr.P.C. was also extended in favour of the appellant.

2. The prosecution case as gleaned from the Fard-e-Biyan dated 9th April, 2014 (Ex: P/1-A) submitted by PW-1 Saleh Muhammad son of Ali Dad that on the said date at about 8:00 a.m. the complainant dropped his cousin Muhammad Qasim at Kirta Cross as Muhammad Qasim has to proceed to Dasht. At that time his cousin Mehr Dil along with Abdul Rahim came there, who asked the complainant to accompany them to his house. It was alleged by the complainant that after boarding Muhammad Qasim in a wagon he along with Mehr Dil and Abdul Rahim on his way to home when in the way Abdul Khaliq intercepted him and asked about the person upon which the complainant introduced Mehr Dil as his cousin and asked him to inquire about the second person as he did not know him. It was further alleged by the complainant that as soon as they reached home and parked motorcycle the accused persons Abdul Khaliq, Juma Khan and Gul Hassan came there and raised Lalkara upon which the complainant turned back and saw that Abdul Khaliq and Juma Khan were armed with shotgun and TT pistol, while Gul Hassan was empty handed. The accused persons opened fire as a result of which Abdul Rahim died at the spot, whereas he and Mehr Dil sustained injuries and later on Mehr Dil also succumbed to his injuries. With these allegations FIR No. 4 of 2014, under sections 302, 324, Q&D Ordinance and sections 147, 148, 149, P.P.C. was registered with Levies Mach District Kachhi on the same date at 11:45 a.m.

3. After registration of FIR, none of the accused were arrested, as such challan under section 512, Cr.P.C. was submitted. However, later on the accused/respondents were arrested and subjected to investigation and on completion of investigation challan was submitted before the trial court.

4. After codal formalities and full dress trial, the learned trial court vide impugned judgment dated 13th January, 2018 convicted the appellant in the manner as mentioned in para-1 above, hence this appeal.

5. Heard and perused the record. The prosecution in order to substantiate the accusation produced seven witnesses. On written application Ex: P/1-A of PW-1 Saleh Muhammad FIR Ex: P/6-A was registered. PW-6 Zarif Kurd Naib Tehsildar conducted the investigation, who proceeded to the place of occurrence, prepared site inspection memo Ex: P/2-A, secured blood stained earth and stone through Ex: P/2-B, three empty shells of TT pistol, three empty shell of shotgun through memo Ex: P/3-C. On second day PW-3 Sher Muhammad handed over blood stained clothes of deceased Mehr Dil to Investigating Officer, who took the same into possession through memo Ex: P/3-A, and after five days the blood stained clothes of deceased Abdul Rahim were handed over to Investigating Officer, who took the same into possession through memo Ex: P/3-B. PW-4 Dr. Zahid Hussain Medical Officer Civil Hospital Mach examined the dead body of deceased Abdul Rahim, injured Saleh Muhammad and Mehr Dil and issued MLC as Ex: P/4-A, Ex: P/4-B and Ex: P/4-C. The injured were shifted to Sandeman Provincial Civil Hospital Quetta. PW-5 Dr. Ayesha Faiz Lady Police Surgeon examined the dead body of Mehr Dil and injured Saleh Muhammad and issued MLC as Ex:P5-B and Ex.P/5-C. The Investigating Officer recorded statements under section 161, Cr.P.C. and submitted challan under section 512, Cr.P.C. Later on the accused/ respondents were arrested and challan to their extent was submitted before the trial court by PW-7.

6. The prosecution case revolved on sole statement of injured Saleh Muhammad (PW-1), who deposed that on 9th April, 2014 at 8:00 a.m. he dropped his cousin Muhammad Qasim at Kirta Cross by motorcycle. They were waiting for wagon, meanwhile his cousin Mehr Dil along with Abdul Rahim arrived there. After boarding Muhammad Qasim in wagon he along with Mehr Dil and Abdul Rahim proceeded to his house. The witness further stated that in the way Abdul Khaliq intercepted him and asked about the persons who accompanied him. Whereafter said Abdul Khaliq left them. When they reached home and parked motorcycle accused Abdul Khaliq, Juma Khan and Gul Hassan arrived there, raised Lalkara, on which he turned back and saw that Abdul Khaliq was equipped with shotgun, while Juma Khan was equipped with TT pistol, whereas Gul Hassan was empty handed. They opened fire, as a result of which they sustained injuries. Abdul Rahim died at the spot, while Mehr Dil died at Sandeman Provincial Hospital Quetta. The witness in cross-examination stated that he put his thumb impression at 11:00/ 11:30 a.m. He put thumb impression after 30 minutes of gaining conscious. At the time of firing he was standing behind the motorcycle. No bullet hit the motorcycle. The people were not residing around his house. He did not know who brought him to hospital. He remained in Mach hospital for 40/50 minutes.

7. PW-2 Karim Bakhsh an employee of Levies stated in cross-examination that they reached at the spot at 9:00 a.m. The Fard was written by Reader of Naib Tehsildar. He signed the memo at spot. The dead body was lying there but injured were not present.

8. PW-4 Dr. Zahid Hussain Medical Officer Civil Hospital Mach issued MLCs Ex: P/4-A to Ex: P/4-C, which state as under: Abdul Rahim deceased

1. Bullet wound entrance front of head, exit wound seen;

2. Bullet entrance front of chest, exit wound back of chest; 3, Bullet wound entrance front of left hand, exit back of hand; Injured Saleh Muhammad:

1. Bullet wound at left occipital region of skull;

2. Bullet wound at front side of nose; Injured Mehr Dil

1. Bullet wound entrance left side back of chest, exit left side front of chest;

2. Bullet wound left side back of chest, exit wound left side front of chest. The witness stated that after examining injured Saleh Muhammad and Mehr Dil they were referred to Quetta. Mehr Dil expired at Sandeman Provincial Hospital Quetta.

9. PW-6 Zarif Kurd Naib Tehsildar/ Investigating Officer in cross-examination replied as under: He started investigation at 9:00 a.m. on 10th April, 2014. He reached at the spot at 9:00 a.m. They remained at the spot for an hour. The inhabitants of the area were present at the spot. He did not record statement of any private person of the locality Ex.P/1-A was received in written form. He sent the corps and injured to hospital within 5/10 minutes after reaching at the place of occurrence. He did not send the earthy mud to FSL.

10. According to Fard-e-Biyan Ex: P/1-A the time of occurrence was 9:00 a.m. While the FIR Ex: P/6-A lodged at 11:00 a.m. The Investigating Officer was posted at Dhadar, who reached at 9:00 a.m., and started investigation at 9:00 a.m. meaning thereby that the Investigating Officer was present at the spot at the time of occurrence, how the accused managed to escape from the scene. Why the Investigating Officer has not chased them. In same breath the Investigating Officer in cross-examination stated that he started investigation on 10th April, 2014. PW-2 also stated that they reached at the spot at 9:00 a.m. PW-1 stated that he did not know who brought him to hospital, while PW-2 stated that when they reached at the spot the dead body was lying there, but injured were not there. The Investigating Officer contradicted the statement of levies employee. PW-2 stated that they shifted the dead body and injured to hospital, while as per Ex: P/4- A to Ex: P/4-C the injured were brought to hospital by Levies employees. The Investigating Officer further stated that Ex: P/1-A was received to him in written form, while PW-1 stated that he put thumb impression on written paper. The question who wrote Ex: P/1-A and sent to Investigating Officer. The Investigating Officer secured three empties of TT pistol and three empties of shotgun, while as per MLC the deceased and injured received eight bullet injuries. No one sustained pellet injuries. The statements of the witnesses are not in line with medical and contradictory on material point with each other. Such discrepancies and contradictions cannot be lightly ignored. Reliance is placed on the case of Muhammad Imran v The State, 2020 SCMR 857 wherein it was held: "

5. Ocular account, prosecution's mainstay, has been furnished by the witnesses, found by us out of tune with one another; Fazal Abbas (PW-4) has been silent about material details of the incident, otherwise succinctly related by the complainant whom the witness statedly accompanied to the venue. On the contrary, according to his statement, in examination-in-chief the witness appears to have arrived at the scene after the deceased had already fallen. Umar Daraz (PW-9) is prosecution star witness; according to him, Khalid Shah and Jahanzeb, co-accused, held iron bars whereas the petitioner carried a Churri, a position that is not shared by the other witnesses; they are also discrepant on the manner and mode of their arrival at the crime scene; according to Umar Daraz PW, they reached the scene on a motorbike whereas remainder of the witnesses are reticent as to how they covered the distance; there is no unanimity amongst them on the passage, they took the deceased to the hospital. These contradictions, viewed in the retrospect of arrival of the witnesses exactly at a point of time when the petitioner started inflicting blows to the deceased with their inability to apprehend him without there being any weapon to keep them effectively at bay, cast shadows on the hypothesis of their presence during the fateful moments. It was an odd hour of night without any source of light as admitted by no other than Fazal Abbas (PW-4) himself. Petitioner's mother Mst. Ramseela was medically examined under a police docket at 10:30 p.m. on 17.8.2015; she was noted with an incised wound on the palmer aspect of her right hand; wound though not extensive, nonetheless, suggests a happening incompatible with the case set up in the crime report, a possibility further strengthened by a Rapat of even date incorporated in the daily diary at the same police station. Despite defence's inaptitude to clearly put forth its case, a different story is spelt out from, prosecution's own case. Argument that occurrence did not take place in the manner as alleged by the witnesses does not appear to the unrealistic. Co-accused blamed to have clutched the deceased to facilitate the petitioner have since been acquitted on the same evidence without reproach. Recovery of Churra/dagger from inside Darbar, that too, upon the disclosure of a co-accused, fails to inspire confidence so as to be received as independent corroboration. It is by now well settled that benefit of a single circumstance, deducible from the record, intriguing upon the integrity of prosecution case, is to be extended to the accused without reservation; the case is fraught with many. It would be unsafe to maintain the conviction. Criminal Petition is converted into appeal and allowed. The appellant is acquitted from the charge; he shall be released forthwith, if not required to be detained in any other case."

11. The prosecution case is based on lone statement of injured witness. The injuries on the person of a witness can be a proof of his presence on the spot at relevant time. The presence of witness does not mean that his statement be accepted without principle applied for appreciation of evidence. There is no distinction in the statement of injured and other witness. The statement of injured witness cannot be accepted as gospel truth and cannot be implicitly accepted without appreciation. In Muhammad Jamail's case 2010 MLD 1586 [Lahore] it was held; "Injuries on a prosecution witness only indicate his presence at the spot, but do not prove his credibility and truth." The complainant (PAN-1) in his deposition implicated the appellant, acquitted accused and absconding accused. The trial court disbelieved his statement with regard to acquitted accused. In such a situation it was imperative for the prosecution to lead unimpeachable evidence which must get corroboration from other independent evidence. It is no doubt that conviction can be awarded on the sole statement of one eye-witness subject to the condition that his statement inspires confidence and free from doubt. Reliance is placed on the case of Muhammad Pervez v. The State 2007 SCMR 760, wherein it was held: .......It is a settled principle of law that witness not related to the deceased does not necessarily prove that he is a witness of truth. Intrinsic worth of his statement is the test of his veracity. It is also a settled law that injuries on a P.W. only indication of his presence at the spot but is not informative prove of his credibility and truth. See Said Ahmad's case 1981 SCMR

795. As mentioned above in case each set of evidence is put in a juxtaposition even then prosecution has failed to connect the convicts with the commission of offence beyond any shadow of doubt. It is a settled law that each and every case is to be decided on its own peculiar circumstances and facts as law laid down by this Court in Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213. This Court does not, normally, interfere in the concurrent conclusion arrived at by the Courts below qua awarding conviction and sentence but in case the Courts below had awarded conviction and sentence while reappraisal of the evidence in violation of the law laid down by this Court then in such situation it is difficult to avoid the impression that the conclusion reached by the Federal Shariat Court and the trial Court suffer from serious errors of law and fact, which unless set right are likely to result in miscarriage of justice. We have already referred to misreading of evidence. The occurrence took place at 8-45 p.m. on the dark hours, therefore, statement of the eye-witnesses that they had seen the convicts/appellants do not appeal to the reason. It is no doubt that conviction can be awarded on the sole statement of one eye-witness subject to the condition that his statement inspires confidence. In the present case in view of the aforementioned discussion, we do not find that the statement of eye-witness inspires confidence."

12. It is settled principle that where the witness was found not telling truth on material aspects of the case, his/her statement had lost credibility. The credibility of witness cannot be bifurcated for discarding the testimony of a witness. It was not necessary that there should be numerous infirmities and discrepancies. If there is one which could impeach the credibility of his statement the entire statement of such witness lost credibility. Reliance is placed on the case of Muhammad Darvaish v The State 2019 PCr.LJ 1086, in which it was held: ".....It needs no mention that credibility of a witness is not divisible as partially reliable and partially unreliable........."

13. So far medical evidence is concerned, it always been treated to be confirmatory in nature. The medical evidence cannot establish presence of the accused in the occurrence. Medical evidence by itself cannot constitute any corroboration qua the identification of accused and their culpability. Reliance is placed on the case of Faryad Ali v. The State 2008 SCMR 1086. It was held therein: "

The medical evidence by the medical expert has made a dent in the prosecution story which made it doubtful as it has been laid down by the superior Courts a number of times that an accused is the most favourite child of law and every benefit of doubt would go to the accused regardless of whether he has taken any such plea or not. Reference in this context can be placed in, the cases of Fazal Din and others v. Rahmat and others 1968 SCMR 18 and Muhammad Nawaz and others v. The State and others PLD 2005 SC 40."

14. The re-appraisal of the statement of witnesses have drawn different sketch of occurrence creating doubt in the case of prosecution. In criminal cases the prosecution is bound to prove its case beyond reasonable doubt. If any single or slightest doubt is created the benefit of the same must go to the accused and it would be sufficient to disbelieve the persecution story. Reliance is placed on the case of Tariq Pervez v. The State 1995 SCMR 1345, wherein it was held: "..... The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right." In view of the above discussion, the instant appeal is allowed. The judgment dated 13th January, 2018 passed by learned Additional Sessions Judge-II, Sibi at Mach, is set aside. The appellant Juma Khan son of Yaqoob Khan is acquitted of the charge in case FIR No. 04 of 2014, Levies Station Mach District Kachhi. He is in custody be released forthwith if not required in any other case. JK/16/Bal. Appeal allowed.