MUHAMMAD AYUB Versus State
ABDUL HAMEED BALOCH, J.--- Through this judgment we intend to dispose of Criminal Appeal No. 463 of 2019, filed by the appellants against the judgment, dated 30th October, 2019 (impugned judgment) passed by learned Additional Sessions Judge Khuzdar (trial court), whereby the appellant Muhammad Ayub was convicted under sections 302(b), 34 Pakistan Penal Code (P.P.C.) and sentenced to death as Tazir and to pay compensation of Rs. 200,000/- to the legal heirs of deceased Mehrullah under section 544-A, Cr.P.C. and in default to further suffer simple imprisonment for six (06) months. While the appellants Master Muhammad Ishaq and Khuda Bakhsh were convicted under sections 302(b), 34, P.P.C. and sentenced to suffer imprisonment for life and further to pay compensation of Rs. 200,000/- each to the legal heirs of deceased Mehrullah under section 544-A, Cr.P.C. with benefit of section 382-B, Cr.P.C. Murder Reference was also forwarded by the trial court for confirmation of the death sentence of appellant Muhammad Ayub or otherwise.
2. The prosecution case as gleaned from the Fard-e-Biyan dated 12th June, 2018 (Ex: P/1-A) submitted by PW-1 Amanullah son of Haji Wali Muhammad, Caste Baloch. that today the complainant and his son Mehrullah were present in their house. At about 7:00 p.m., Muhammad Ayub came to his house and asked his son Mehrullah that Master Ishaq and Khuda Bakhsh are calling him, on which his son Mehrullah went with Muhammad Ayub. It was further stated that they took his son to tube well of nearby fields where Master Ishaq and Khuda Bakhsh caught hold his son whereas Muhammad Ayub inflicted blows of dagger, due to which he was seriously injured. It was further stated that his son was taken to hospital by the people present over there but he succumbed to his injuries. With these averments FIR No. 60 of 2018 under sections 302, 34, P.P.C. was registered with Police Station City Khuzdar.
3. After registration of FIR, the investigation of the case was entrusted to PW-8 Abdul Aziz, S.I. who visited Civil Hospital Khuzdar, examined the dead body and prepared inquest report Ex: P/8-C, took into possession blood stained shirt and Banyan through memo Ex: P/3-A. recorded statements of eye-witnesses under section 161, Cr.P.C. The Investigating Officer handed over the dead body to the legal heirs vide receipt Ex: P/8-D. The accused Muhammad Ayub was arrested from the spot with crime weapon. He prepared the site plan vide Ex: P/8-E. The Investigating Officer sent the blood stained articles to FSL, Crimes Branch Quetta for analysis. He interrogated the accused Muhammad Ayub and on completion of investigation remanded him to judicial custody and submitted challan vide Ex: P/8-F. On 11th October, 2018 accused Master Muhammad Ishaq and Khuda Bakhsh were arrested on rejection of their pre-arrest bail application and PW-9 Zikria ASI investigated them. He obtained FSL report vide Ex: P/9-B and thereafter produced complete challan vide Ex: P/9-C.
4. After submission of challan and fulfilling codal formalities charge was framed on 28th August, 2018 and 20th December, 2018 and read over to the appellants to which they denied, whereafter, the prosecution in order to substantiate its charge produced following seven witnesses:
PW-1 Amanullah complainant, produced Fard-e-Biyan as Ex: P/1-A;
PW-2 Saifullah eye-witness;
PW-3 Mehhoob Ali witness of recovery memo of blood stained shirt and Banyan vide Ex: P/3-A;
PW-4 Gul Bahar eye-witness;
PW-5 Taj Muhammad Constable is witness of recovery memo of dagger vide Ex; P/5-A;
PW-6 Dr. Javed Zehri Medical Officer produced death certificate as Ex: P/6-A;
PW-7 Bhawal Khan SI is also witness of recovery of dagger from accused Muhammad Ayub;
PW-8 Abdul Aziz SI is the first investigating officer, he produced FIR as Ex: P/8-A, recovery memo of dead body as Ex: P/8-B; inquest report Ex: P8-C, receipt of handing dead body Ex: P/8-D. site plan Ex; P/8-E and incomplete challan Ex: P/8-F.
PW-9 Zikria ASI produced letter to EDO about salary of accused Master Muhammad Ishaq as Ex; P/9-A. FSL, report Ex: P/9-B and complete challan P/9-C.
5. On completion of prosecution evidence the appellants were examined under section 342, Cr.P.C. in which they denied the allegation o prosecution. The appellant Muhammad Ayub did not record his statement on oath nor produced any witness in his defence, whereas appellants Master Muhammad Ishaq and Khuda Bakhsh recorded their statements on oath as envisaged under section 340(2), Cr.P.C. and also produced five defence witnesses i.e. DW-1 Rafiq Ahmed, DW-2 Saleh Muhammad, DW-3 Abdul Qadeer, DW-4 Khalil Ahmed and DW-5 Muhammad Din.
6. On conclusion the trial court convicted the appellants in the manner as mentioned in para-1 above, hence they are before this court, whereas the trial court forwarded Murder Reference for confirmation of the death sentence of appellant Muhammad Ayub.
7. Learned counsel for the appellants contended that the statements of prosecution witnesses are contradictory to each other. The presence of the witnesses at relevant time on the place of occurrence is doubtful. The conduct of the witnesses is unnatural. The recovery of dagger from the appellant Muhammad Ayub is doubtful. The whole prosecution case is doubtful and story narrated is not acceptable to a prudent mind. The impugned judgment is suffering from misreading, non-reading and mis-appreciation of the evidence available on the record. The conclusion so drawn by the learned trial court is perverse and contrary to the material available on record. The learned counsel for the appellants placed reliance on Ghulam Muhammad v. The State PLJ 1996 SC 29 and Dur Muhammad v. The State 2020 YLR 470. In the end learned counsel for the appellants prayed for setting aside of the impugned judgment and acquittal of the appellants of the charge.
8. Learned Deputy Prosecutor General supported the impugned judgment and contended that the prosecution through cogent and confidence inspiring evidence has proved the charge against the appellants beyond any shadow of doubt. The recovery of crime weapon was effected from the possession of appellant Muhammad Ayub. The witnesses are natural witnesses. The evidence of ocular account is firmed on all counts and no major contradictions came on the record. The impugned judgment is based on proper appraisal of the evidence and same calls for no interference by this Court. He prayed for dismissal of the appeal.
9. During trial the prosecution produced nine witnesses. The prosecution case stands on recovery of crime weapon i.e. dagger, ocular account, medical and FSL report. The complainant PW-1 submitted an application for registration of FIR, on the basis whereof FIR Ex: P/8-A was registered. The investigation of the case was entrusted to PW-8 who visited the hospital, prepared inquest report Ex: P/8-C, visited the venue of occurrence prepared site plan Ex: P/8-E. submitted incomplete challan Ex: P/8-F. On transfer of PW-8 the investigation was handed over to PW-9, who secured FSL report Ex: P/9-B and submitted complete challan Ex: P/9-C. It appears from the Fard-e-Biyan Ex: P/1-A that the complainant (PW-1) is not eye-witness. He was informed, on which the complainant proceeded to hospital where PW-2 Saifullah, PW-3 Mehboob Ali and PW-4 Gul Bahar were present. PW-2 SaifuIlah narrated the ocular account of the occurrence. He stated that he along with Gul Bahar were present on the tube well in the fields, meanwhile appellant Muhammad Ayub along with Mehrullah (deceased) came there. The appellants Master Muhammad Ishaq and Khuda Bakhsh caught hold Mehrullah, whereas the appellant Muhammad Ayub inflicted dagger blows on him, due to which he sustained injuries. The witness further stated that he along with Gul Bahar (PW-4), Din Muhammad and Mehboob Ali PW-3) put the injured in a rickshaw for taking to hospital for treatment. They were 15 to 20 paces away from the tube well. The blows were erupted from southern side. PW-3 Mehboob Ali narrated that he received information about the occurrence when he was in bazaar, on which he immediately reached hospital where police prepared recovery memo of blood stained cloths of the deceased vide Ex: P/3-A. The witness replied to a question as under:
10. Gul Bahar appeared as PW-4 and stated that he and Saifullah brought Mehrullah to hospital. The police reached at hospital after ten minutes. They taken the dead body to home at 9:30 p.m. The witness admitted that he is resident of Jhal Magsi and have a hotel and general store at Bonja District Jhal Magsi. He reached two days prior to occurrence and returned on 13th June, 2018.
11. PW-5 Taj Muhammad Constable is the witness of recovery of dagger from the appellant Muhammad Ayub. The witness stated that on information they proceeded towards the place of occurrence along with SHO, arrested accused Muhammad Ayub recovered dagger from his possession. prepared recovery memo Ex: P/5-A. PW-6 Dr. Javed Zehri examined the deceased and issued death certificate Ex: P/6-A. The unnatural death has not been denied by the defence. Ex: P/6-A confirmed that the death of the deceased was caused by sharp knife and due to excessive bleeding hypovolemic. The medical evidence furnished by PW-6 Dr. Javed Zehri confirmed the unnatural death of the deceased. However, the medical evidence is only used for confirmation of ocular evidence regarding seat of injuries, time of occurrence and weapon of offence used, but the medical evidence itself does not constitute any corroboration qua the identity of the accused persons to prove the culpability. Reliance in this regard is placed on the case of Muhammad Sharif v. The State 1997 SCMR 866 and Altaf Hussain v. Fakhar Hussain 2008 SCMR 1103.
12. Now adverting to the testimony of eye-witnesses. The record transpires that PW-2 Saifullah, PW-3 Mehboob Ali and PW-4 Gul Bahar are ocular witnesses. If the statements of above referred witnesses are taken into consideration together it would become clear that the above witnesses have not told the whole truth. It is evident from the testimony of the witnesses that they were present at the venue when the appellant Muhammad Ayub along with Mehrullah (deceased) came to the field, where other two appellants caught hold him. The appellant Muhammad Ayub caused dagger blows to him. It would be necessary to mention here that the witnesses are near related to deceased family, but they remained silent spectators. did not attempt to rescue the deceased from the clutches of the accused party. Even the conduct of the witnesses is unnatural and cannot appeal to the mind of prudent person. Reliance in this regard is placed on the case of Liaquat Ali v. The State 2008 SCMR 95, in which it was held
"Having heard learned counsel for the parties and having gone through the evidence on record, we note that although P.W. 7 who is first cousin and brother-in-law of Fazil deceased claims to have seen the occurrence from a distance of 30 ft. (as given in cross-examination) and two other witnesses namely Musa and Ranjha were also attracted to the spot but none rescued Fazil deceased and appellant had a free hand to inflict as many as 9 injuries on his person. The explanation given by these witnesses that since Liaquat Ali had threatened them therefore,' they could not go near Fazil deceased to rescue him is repellant to common sense as Liaquat Ali was not armed with a fire-arm which could have scared the witnesses away. He was a single alleged assailment and if the witnesses were there at the spot they could have easily overpowered him. This makes their presence at the spot doubtful.----"
13. The record depicts that PW-2 Saifullah is resident of Karakh and PW-4 Gul Bahar is resident of Jhal Magsi. The above witnesses failed to satisfy their presence on the scene of occurrence at the relevant time in the stranger field in the holy month of Ramadan at 7:00 p.m. When a chance witness claimed that he was present at relevant time on the spot, the testimony of such witness could not be ordinarily accepted unless the witness justified his presence with valid reason. Without convincing explanation the statement of chance witness would fall in the category of suspected witness. The Honorable Supreme Court in case Mst. Sughran Begum v. Qaiser Pervez 2015 SCMR 1142 held:
"20. Both the eye-witnesses admitted that their clothes were stained with the blood of the deceased while lifting and handling him but the investigating officer, otherwise showing extraordinary interest in the case, did not lake the same into possession because if these were sent to the Chemical Examiner for examination and grouping with that of the blood stained clothes of the deceased, the same would have provided strongest corroboration to the, testimony of the two eye-witnesses. This omission strikes at the roots of the case of the prosecution and bespeaks volumes about the dishonest and false claim of the said witnesses."
14. The ocular witnesses in their testimony admitted that they are inter-se related to complainant and PW-2 Saifullah, PW-3 Mehboob Ali were staying with the complainant. The occurrence was taken place in the field where the farmers and other persons were present. The prosecution does not attempt to record the statement of independent person. No doubt mere relationship is no ground to disbelieve the statement of truthful testimony of related witness. The recording of statement of independent person is not absolute rule but in this case the ocular witnesses being chance witnesses the rule of caution required independent corroboration of testimony of related witnesses. It needs no reiteration that conviction must be founded on unimpeachable evidence and certainty of guilt. The Honorable Supreme Court in Safdar Baloch's case 2019 SCMR 1412 held:
"-----. Criminal liability is to be satisfaction settled on evidentiary certainty and not on moral satisfaction or factualities incompatible with evidence based upon truth. ------
15. The statement of ocular account is not confirmatory with medical evidence. As per testimony of eye-witnesses the appellant Master Muhammad Ishaq and Khuda Bakhsh caught hold the deceased, whereas the appellant Muhammad Ayub caused dagger blows to deceased, meaning thereby that there was no chance to resist. While Ex: P/6-A mentioned "deep cut wound seen on the right and left base of thumb (hand)." It means that the deceased had caught the dagger due to which his both hands sustained injuries. It would be relevant to produce MLC:
"Patient attended in emergency ward with the gasping condition and severe bleeding given. first aid maintain i/v line blood transfused and seen following injuries:
1. A deep stab wound seen on the right chest wall above the nipple;
2. A deep stab wound seen on the lateral side of right chest wall;
3. Deep cut wounds seen on the right and left base of thumb (hand).
Given all emergency treatment and call the surgeon, shifted the patient to O.T. but patient not respond and expired due to severe internal and external bleeding.
Type of weapon used sharp.
Cause of death excessive bleeding and hypovolemic shock."
16. The testimony of ocular account is contradictory with each other. PW-2 Saifullah stated that he, PW-4 Gul Bahar, Din Muhammad and PW-3 Mehboob Ali have taken the deceased to hospital. While PW-3 Mehboob Ali stated that he was present in Bazar at relevant time, whereas PW-4 Gul Bahar stated that he and Saifullah had taken the deceased to hospital. It transpires that the witnesses were not accompanying each other at relevant time, therefore, they transposed as eye-witnesses. Where the testimony of a witness found inconsistent, contradictory or made improvement in order to strengthen the prosecution case, the same lost its credibility. For disbelieving a testimony of a witness it was not necessary that there should be numerous infirmities. If there is one which would impeach the credibility of a witness that could make entire statement doubtful. Reliance is placed on the case of Jehan Bahadur v. The State 2013 YLR 2772.
17. PW-9 produced FSL Report Ex: P/9-B. The same was received to FSL, on 6th September, 2018 with the delay of more than 85 days without any explanation. Though the report of blood stained clothes is positive. The prosecution has failed to justify the delay. Without plausible explanation of such delay the positive report lost its evidentiary value as has been held by august Court in case of Asad Rehmat v. The State 2019 SCMR 1156.
18. There is another aspect of the case. The record transpires that the appellants Master Muhammad Ishaq and Khuda Bakhsh recorded their statements on oath and produced five witnesses, whereby DW-3 Abdul Qadeer, DW-4 Khalil Ahmed and DW-5 Muhammad Din exonerated the above referred appellants but narrated that appellant Muhammad Ayub alone has murdered the deceased. It appears that entire new version has been taken by the defence witnesses. It would not be reiterated that onus lies on the prosecution to prove its case beyond reasonable doubt. In this regard reliance is placed on the case of Azhar Iqbal v. The State 2013 SCMR 383.
----It has straightaway been observed by us that both the learned courts below, had rejected the version of the prosecution in its entirely and had then proceeded to convict and sentence the appellant on the sole basis of his statement recorded under section 342, Cr.P.C. wherein he had advanced a plea of grave and sudden provocation. It had not been appreciated by the learned courts below that the law is quite settled by now that if the prosecution fails to prove its case against an accused person then the accused person is to be acquitted even if he had taken a plea and had thereby admitted killing the deceased. A reference in this respect may be made to the case of Waqar Ahmed v. Shaukat Ali and others 2006 SCMR 1139).
Reference was also made to case Javaid v. The State PLD 1994 SC 679, wherein it was held:
"Even if defence plea is raised, burden on prosecution to prove the case beyond doubt is never lessened or lightened and remains the same and accused is always entitled to benefit of doubt if the prosecution case is not proved by satisfactory evidence.
19. It is well settled principle of law that it is the prosecution which has to prove its case by standings on its own legs and it cannot take benefit from the weaknesses of the case of defence. The prosecution remained fail to discharge its responsibility of proving the case against the appellants. If there are such circumstances which create reasonable doubt regarding the prosecution case the same is sufficient to give benefit of the same to accused. Even as per saying of the Holy Prophet (P.B.U.H) the mistake in releasing a criminal is better the punishing an innocent person. The honorable Supreme Court followed the saline principle in case of Ayub Masih v. The State PLD 2002 SC 1048, wherein it was observed:
"-----It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic law and is enforced rigorously in view of the saying of the holy Prophet (p.b.u.h) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent."
In supra case the Honorable Supreme Court also pleased to observe as under:
"The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is bused on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted".
In view of the above discussion the Criminal Appeal No. 463 of 2019 is allowed. Consequently the impugned judgment dated 30th October, 2019 passed by Additional Sessions Judge, Khuzdar is set aside and appellants Muhammad Ayub, Master Muhammad Ishaq and Khuda Bakhsh sons of Eid Muhammad are acquitted of the charge under sections 302, 34, P.P.C. in case FIR No. 60 of 2018 Police Station City Khuzdar. They are in custody be released forthwith if not required in any other case.
Resultantly the Murder Reference No. 22 of 2019 is answered in negative.
JK/89/Bal. Appeal allowed.