RASOOL BAKHSH Versus State
MALIK SHAHZAD AHMAD KHAN, J.--- The petitioner has sought leave against the judgment of the High Court of Balochistan, Sibi Bench dated 28.02.2018. Rasool Bakhsh petitioner was tried by the learned Sessions Judge, Nasirabad at Dera Murad Jamali, pursuant to a case FIR No. 39/2015 dated 17.09.2015 registered at Police Station Khan Kot, District Naseerabad for offence under section 302, P.P.C. The Trial Court vide judgment dated 29.03.2016 convicted the petitioner under Section 302(b), P.P.C. and sentenced him to imprisonment for life. He was also directed to pay compensation amounting to Rs.200,000/- to the legal heirs of the deceased or in default thereof to further undergo simple imprisonment for six months. Benefit of Section 382-B, Cr.P.C. was also extended in favour of the petitioner. The High Court vide impugned judgment dated 28.02.2017, upheld the judgment of the Trial Court.
2. Arguments heard. Record perused.
3. As per contents of the FIR, on 17.09.2015, at about 7.00 a.m, Rashid Ali complainant (PW-1), along with his brother Nobat Khan (since died), paternal uncle Abdul Aziz (PW-2) and Khurshid Ahmad (PW since given-up), was present in his house and they were taking tea. In the meanwhile, the paternal cousin of the complainant namely Rasool Bakhsh (petitioner), while holding a T.T. pistol in his hand, emerged at the spot and raised a lalkara that he will not let alive Nobat Khan (since died). The petitioner thereafter made fire shots with his T.T. Pistol, due to which Nobat Khan (since died), became injured. The petitioner thereafter fled away from the spot while wielding his pistol.
The motive behind the occurrence was that 2/3 days prior to the occurrence, a quarrel took place between Nobat Khan (since died) and Rasool Bakhsh (petitioner), on account of some domestic issue.
4. The occurrence in this case took place in the broad-day light i.e., 17.09.2015, at 7.00 a.m. The FIR was also lodged on the same day at 9.00 a.m, i.e., within a period of two (02) hours from the occurrence. The distance between the place of occurrence and the police station was 7/8 kilometers. We are, therefore, of the view that the FIR was promptly lodged in this case.
5. The ocular account of the prosecution has been brought on the record through Rashid Ali complainant (PW-1) and Abdul Aziz (PW-2). The occurrence in this case took place inside the house of Rashid Ali complainant (PW-1), therefore, he (complainant) being inmate of the house of occurrence was the natural eye-witness of the occurrence. Likewise, Abdul Aziz (PW-2), was paternal uncle of the complainant. He was resident of Khot Shah Nawaz Khan Umrani, where the place of occurrence i.e., house of the complainant was situated. The presence of the abovementioned eye-witness in the house of his real brother, which was situated in the same village, cannot be termed as un-natural or improbable. Moreover, Abdul Aziz (PW-2), is also related to the petitioner, who is his paternal uncle. No mala fide on the part of Abdul Aziz (PW-2), has been brought on the record to falsely implicate the petitioner in this case. Both the abovementioned witnesses were cross-examined at length but their evidence could not be shaken. Their evidence is trustworthy and confidence inspiring.
6. The medical evidence of the prosecution has been brought on the record through Dr. Ijaz Ali (PW-5). He stated that on 17.09.2015, he medically examined Nobat Khan (since died/the then injured) and noted three fire arm injuries on his body (right side of neck, right side of chest and right arm). The said medical evidence has also supported the prosecution case to the extent of causing firearm injuries on the body of Nobat Khan (since died).
7. The prosecution case against the petitioner is further corroborated by the recovery of T.T pistol at the pointing out of the petitioner and positive report of Forensic Science Laboratory, Quetta (Ex.P/6-G). The recovery witness namely Abdullah Constable No.1045 (PW-3), was also cross-examined at length by the learned defence counsel but nothing favourable to the petitioner could be brought on the record.
8. The motive behind the occurrence was that about 2/3 days prior to the occurrence, a quarrel took place between the petitioner and the deceased on account of some domestic issue. No detail of the said domestic issue was brought on the record. No specific date, time or place of the motive incident was mentioned by the prosecution witnesses. We are, therefore, of the view that the motive as alleged by the prosecution has not been proved in this case.
9. We have disbelieved the prosecution evidence qua the motive due to the reasons mentioned in paragraph No.8, of this judgment but if the prosecution evidence qua the motive is taken out of consideration even then their remains sufficient incriminating evidence available on the record to prove the prosecution case against the petitioner. As mentioned earlier, the prosecution has proved its case against the petitioner to the extent of causing injuries on the body of Nobat Khan (since died) through confidence inspiring and trustworthy evidence of Rashid Ali complainant (PW-1) and Abdul Aziz (PW-2). The said eye-witnesses were cross-examined at length by learned defence counsel but their evidence could not be shaken. The ocular account of the prosecution was supported by the medical evidence brought on the record by the prosecution through Dr. Ijaz Ali (PW-5), who noted three firearm injuries on the right side of neck, right side of chest and right arm of Nobat Khan (since died). The prosecution case against the petitioner is further corroborated by the recovery of T.T. pistol at the pointing out of the petitioner and positive report of Forensic Science Laboratory, Quetta (Ex.P/6-G). We are, therefore, of the view that the prosecution has proved its case against the petitioner of causing injuries on the body of Nobat Khan (since died), beyond the shadow of any doubt but we have noted that the medical evidence regarding the death of Nobat Khan (since died), on account of the above-mentioned injuries has not been brought on the record by the prosecution. Although Rashid Ali complainant (PW-1), stated before the learned trial Court that Nobat Khan had died on 21.09.2015 but there is nothing on the record to show that any postmortem examination of Nobat Khan (since died), was conducted in this case to establish the actual cause of his death. It is true that absence of the postmortem examination on the dead-body of the deceased is not always fatal to the prosecution case provided it is proved beyond the shadow of any doubt that the deceased had died on account of any act of the accused. For example if a body of the deceased is thrown in a canal and the same is not subsequently recovered but it is proved through reliable evidence of eye-witnesses that after committing the murder of the deceased, the dead-body was thrown in the canal in presence of the said eye-witnesses then the absence of the postmortem examination/report regarding the said deceased may not be fatal to the prosecution case. Likewise, if the dead-body is decomposed of such degree that it was not possible to conduct the postmortem examination, however, it was proved through confidence inspiring evidence of the prosecution witnesses that the deceased was burnt to death by the accused in their presence and there is external medical examination of the said deceased, even in such like cases the absence of postmortem report regarding the death of the deceased is also of no avail to the accused but the facts are different in the instant case. As mentioned earlier, Nobat Khan (since died), was medically examined by Dr. Ijaz Ali (PW-5) but the said Medical Officer referred Nobat Khan (since died) to another hospital and thereafter merely on the oral information of the complainant party, he stated that Nobat Khan had died in another hospital. He admitted during his cross-examination that the dead-body of Nobat Khan (deceased), was not produced before him. Even the death certificate of Nobat Khan (since died), was not brought on the record to establish the actual date and cause of death of the deceased, which facts are normally written in such type of certificates. It is not understandable that if Nobat Khan (since died), had expired on the abovementioned date as stated by the complainant i.e., on 21.09.2015, in some hospital then as to why his postmortem examination was not conducted. As mentioned earlier, even the death certificate of Nobat Khan (since died), has not been brought on the record. Relevant evidence in this respect i.e., death certificate of Nobat Khan (since died), has been withheld by the prosecution, therefore, an adverse inference within the meaning of Article 129(g) of Qanun-e-Shahadat Order, 1984 can validly be drawn against the prosecution that had the said death certificate or postmortem examination report of Nobat Khan (since died), been produced in evidence, the same would have been unfavourable to the prosecution. Reliance in this respect may be placed on the case reported as Lal Khan v. The State (2006 SCMR 1846) . Relevant para No.7 of the said judgment is reproduced hereunder for ready reference:-
Para No.7
There is no plausible explanation on the record that for what reason Mst. Noor Bibi did not disclose the story of murder of deceased till the registration of case after five days of the occurrence and why no other inmate of the house was examined in confirmation of her statement. The prosecution is certainly not required to produce a number of witnesses as the quality and not the quantity of the evidence is the rule but non-production of most natural and material witnesses of occurrence, would strongly lead to an inference of prosecutional misconduct which would not only be considered a source of undue advantage for prosecution but also an act of suppression of material facts causing prejudice to the accused. The act of withholding of most natural and a material witness of the occurrence would create an impression that the witness if would have been brought into witness-box, he might not have supported the prosecution and in such eventuality the prosecution must not be in a position to avoid the consequence .
(Bold and underlining is supplied for emphasis)
Similar view was taken in the judgments reported as Riaz Ahmed v. The State (2010 SMCR 846), Abdul Qadeer v. The State (2024 SCMR 1146) and Riasat Ali v. The State (2024 SCMR 1224) .
The said fact has created serious doubt regarding the death of Nobat Khan (since died), on account of injuries caused by Rasool Bakhsh (petitioner). We may also refer here the case reported as Gul Muhammad v. The State (2021 SCMR 381) , wherein at page No.386, while keeping in view the peculiar circumstances of the said case it was held that even external examination of the deceased was not a substitute of postmortem examination of the deceased, which was necessary to determine the actual cause of death of the deceased of the said case. Consequently, the accused of the said case was acquitted from the charge under section 302(b), P.P.C., inter-alia on account of absence of the postmortem examination report of the deceased of the said case.
10. In the instant case, no Medical Officer had appeared in the witness box to state that as to when and how Nobat Khan had died and what was the cause of his death. We, therefore, cannot declare with certainty that Nobat Khan died on 21.09.2015 and he died due to the abovementioned firearm injuries caused by the petitioner or he died due to some other reason like road accident, heart attack etc or he died on some date other than the date mentioned by Rashid Ali complainant (PW-1) i.e., on 21.09.2015. As there is no evidence available on the record of any Medical Officer to prove the actual date and cause of death of Nobat Khan (since died), therefore, in our view, the conviction and sentence of Rasool Bakhsh (petitioner), under section 302(b), P.P.C., for the murder of Nobat Khan (since died), is not sustainable in the eyes of law because the prosecution has not proved the said charge beyond the shadow of doubt by producing convincing medical evidence, in this respect. The petitioner cannot be convicted and sentenced for the charge of the murder of Nobat Khan (since died) on the basis of probabilities, presumptions and guess work that as Nobat Khan (since died) had sustained the abovementioned injuries at the hands of the petitioner, therefore, he must have also died on account of the said injuries. It is always duty of the prosecution to prove its case beyond the shadow of any doubt against the accused under each charge. The conviction and sentence of the petitioner under section 302(b), P.P.C., therefore, cannot be maintained merely on the basis of presumptions, guess work and probabilities. It is by now well settled that presumptions or probabilities how soever strong, cannot be a substitute of a conclusive proof, which is required in criminal cases to prove a case against the accused. Reference in this context may be made to the judgments reported as Naveed Asghar and 2 others v. The State (PLD 2021 Supreme Court 600), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221) and Abdul Mateen v. Sahib Khan and others (PLD 2006 Supreme Court 538) . In the case of Naveed Asghar and 2 others supra, at page No.636, it has been observed as under:-
33. It is a well-established principle of administration of justice in criminal cases that finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards his guilt should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjectures and probabilities cannot take the place of proof. If a case is decided merely on high probabilities regarding the existence or non-existence of a fact to prove the guilt of a person, the golden rule of giving "benefit of doubt" to an accused person, which has been a dominant feature of the administration of criminal justice in this country with the consistent approval of the Constitutional Courts, will be reduced to a naught .
Similarly in the case of Ghulam Qadir and 2 others , ibid, at page No.1228, it has been held as under:-
16. It needs no reiteration that for the purpose of giving benefit of doubt to an accused person, more than one infirmity is not required, a single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge-makers the whole case doubtful. Merely because the burden is on the accused to prove his innocence it does not absolve the prosecution from its duty to prove its case against the accused beyond any shadow of doubt and this duty does not change or vary in the case. A finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. Mere conjectures and and probabilities cannot take the place of proof. Muhammad Luqman v. The State PLD 1970 SC 10.
11. We are, therefore, of the view that the prosecution could not prove its case against the petitioner beyond the shadow of doubt to the extent of charge under section 302(b), P.P.C. for causing death of Nobat Khan (since died), however, it has been proved by the prosecution beyond the shadow of any doubt that the petitioner caused firearm injuries on the vital parts of the body of Nobat Khan (since died) i.e., on the right side of neck, right side of chest and on his right arm, therefore, ingredients of offence under section 324, P.P.C., are fully proved in this case against the petitioner. We have further noted that the nature of injuries of Nobat Khan (since died), was not declared by the Medical Officer, therefore, apart from section 324, P.P.C., offence under section 337L(i), P.P.C., for causing the above-referred injuries has also been proved in this case.
12. Consequently, this petition is converted into an appeal and partly allowed. The conviction and sentence awarded to the appellant under section 302(b), P.P.C., is set aside and instead the appellant is convicted under section 324, P.P.C. and sentenced to ten (10) Years rigorous imprisonment. He is also directed to pay a fine of Rs.50,000/- or in default thereof to further undergo simple imprisonment for six (06) months. He is further convicted under section 337L(i), P.P.C. and sentenced to seven (07) years rigorous imprisonment and to pay Daman amounting to Rs.1,00,000/- to the legal heirs of the deceased. In case of failure to pay Daman, the appellant shall be dealt with in accordance with the provisions of section 337Y(2), P.P.C. The amount of compensation under section 544-A, Cr.P.C and sentence in default thereof, as order by the Trial Court and upheld by the High Court, is also maintained. Benefit of section 382-B, Cr.P.C, is also given to the appellant.
JK/R-13/SC Order accordingly.