2018 M L D 1781
[Balochistan]
Before Mrs. Syeda Tahira Safdar and Abdullah Baloch, JJ
GHULAM MUHAMMAD--- Appellant
Versus
OBAID- UR-REHMAN and 2 others ---Respondents
Criminal Acquittal Appeal No. 81 of 2018, decided on 21st May, 2018.
(a) Penal Code (XLV of 1860) ---
----Ss. 302, 324 & 34---Criminal Procedure Code (V of 1898), S.417(2- A)---Qatl -i-amd,
attempt to commit qatl- i-amd, common intention ---Appeal against acquittal---Reappraisal of
evidence ---Complainant, during cross -examinatio n, could not stand on his legs with regard to
ocular evidence and defence had succeeded in shaking his testimony ---Prosecution witnesses,
who claimed to be eye -witnesses of the occurrence, had contradicted each other as well as the
complainant ---Statement of one eye -witness, had also been contradicted by the medical
evidence ---Said witnesses had narrated a different story with regard to commission of crime
and had exonerated one of accused persons from commission of crime or firing upon the
deceased ---None of the prosecution witnesses had attributed any overt act to accused persons -
--Entire prosecution evidence was suggestive of the fact that absconding accused was responsible for the murder of the deceased---Entire prosecution evidence, had established, that though accused persons were present at the relevant time along with main accused
(absconded), but no overt act was attributed to them by the prosecution, rather accused persons had played the role of idle or audience at the relevant time ---Prosecution ha d failed to
establish through incriminating evidence with regard to common intention of or common object of accused persons to commit murder of the deceased ---Accused persons, were rightly
acquitted by the Trial Court ---Order of acquittal passed by the Tri al Court, was neither
arbitrary, capricious, fanciful nor contrary to the evidence brought on record, warranting interference by the High Court.
Muhammad Ameer v. Muhammad Imran 2017 MLD 1263; Manthar and 3 others v.
The State 2012 PCr.LJ 1263 and Hakim Zafar and another v. The State 2017 YLR 232 rel.
(b) Criminal Procedure Code (V of 1898) ---
----S. 417(2- A)---Appeal against acquittal ---Double presumption of innocence, was attached
to the order of acquittal and interference was unwarranted, unless the acquittal was arbitrary,
capricious, fanciful or against record.
Faizullah Khan for Appellant.
Date of hearing: 2nd April, 2018.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgement disposes of Crl. Acquittal Appeal
No.81 of 2018 filed by the appellant (complai nant) Ghulam Muhammad son of Musa Khan,
against the judgement dated 21st March 2018 (hereinafter referred as, "the impugned
judgement") passed by learned Additional Session Judge Muslim Bagh (hereinafter referred as, "the trial Court"), whereby the accused (respondents) namely Obaid- ur-Rehman son of
Syed Habib and Ameen Ullah son of Gul Habib were acquitted of the charae, under Sections 302, 324, 34, P.P.C.
2. Facts of the case are that on 23rd July 2015, the appellant (complainant) lodged FIR
No.20 of 2015 at Levies Station Nissai Muslim Bagh, under above mentioned offences,
stating therein that on the day of occurrence at about 09.00 a.m. his son Naqeebullah was busy in his agricultural land situated at Nissai. In the meanwhile, accused persons namely Abdul Shakoor armed with Kalashnikov, Abdul Ghaffar, Obaid- ur-Rehman and Ameen Ullah
arrived there and accused Abdul Shakoor made firing upon his son, who received bullet
injury on his head and succumbed to the injuries. It is further averred in the FIR that on
seeing the appellant (complainant) the accused Abdul Shakoor also made firing upon him, but
luckily, he escaped unhurt, while after commission of crime the accused persons decamped from the place of occurrence. According to the complainant the incident w as witnessed by the
witnesses Haji Abdul Malik, Abdul Wali and Salam.
3. After registration of FIR, the investigation of the case was entrusted to PW -6
Muhammad Saleem, Tehsildar/Investigating Officer (IO), who during investigation he visited the site and prepared site sketch; took into possession blood stained soil, four empties from the place of occurrence; obtained MLC; blood stained shirt and send the same to FSL for analysis, from where the FSL report received in affirmative; recorded the statements of
witnesses under section 161, Cr.P.C.; arrested the accused (respondents) and subjected them to investigation; on completion of investigation submitted the challan in the trial Court.
4. On receipt of Challans to the extent of accused (respondents), the le arned trial Court
after initiating proceedings under sections 87 and 88, Cr.P.C., declared the accused Abdul Shakoor and Abdul Ghaffar, both sons of Hazrat Khan, as proclaimed offender.
5. At the trial, the prosecution produced six (06) witnesses. The accused (respondents)
were examined under section 342, Cr.P.C. The accused Ameen Ullah has recorded his statement on oath under section 340(2), Cr.P.C. and examined Haji Hazrat as DW -1, who is
claiming the father of the complainant and he exonerated the accused (respondents) of the charge. On conclusion of trial and after recording evidence, the accused (respondents) were acquitted of the charge, vide judgement dated 21st March, 2018. Whereafter, instant appeal has been filed.
6. Learned counsel for appellant ( complainant) contended that impugned the judgement
is result of mis -reading and mis -appreciation of material available on record; that the
prosecution has produced overwhelming and confidence inspiring evidence, but the same were discarded from considerati on on flimsy grounds; that the alleged incident has been
witnessed by the inhabitants of the area, who appeared as prosecution witnesses in the trial Court, wherein they directly raised upon the accused (respondents) and absconding accused, who with their common intention and common object appeared at site in armed condition and committed the murder of the deceased, thus there was no occasion for the learned trial Court to record acquittal in favour of the accused (respondents), but this has been done in ar bitrary
manner, which requires interference of this Court by means of reversing the impugned
judgment and awarding conviction and sentence to the accused (respondents) in accordance
with law.
7. Heard the learned counsel and perused the available record. I n order to establish the
charge, the prosecution has produced the evidence of six witnesses, out of whom PW -1 is the
complainant of the case, PW -2 Abdul Salam and PW -3 Abdul Malik are claiming to be eye -
witnesses of the alleged occurrence, PW -4 Muhammad Ka leem, Levies Constable is the
recovery witness, PW -5 Dr. Noor Baloch, Medico Legal Officer has brought on record the
MLC of the deceased, while PW -6 is the Investigating Officer of the case, who counted the
steps taken by him during the course of investiga tion. Before dilating upon the ocular
testimony, it would be appropriate to first discuss the medical evidence to establish the unnatural death of deceased.
8. According to PW -5 Dr. Noor Baloch, Medico Legal Officer, Civil Hospital Quetta,
stated that on t he day of occurrence the deceased Naqeebullah was brought before him at
about 02.20 p.m., hence he examined the deceased and issued MLC Ex.P/5- A. The bare
perusal of MLC of deceased reflects that he had received a bullet entrance wound on the upper left si de forehead circled lx 1 cm in shape and exit wound of the upper occipital region,
brain matter was out of the wound, besides he observed bleeding from nose and right ear. The X-Ray report of skull reveals of multiple fracture of skull vault seen. The bare perusal of
MLC of deceased would establish the fact that his death was unnatural as the deceased received fire arm injuries on his person. Besides, the blood- stained soil, blood stained clothes
of deceased were examined in FSL and the report received in affirmative confirming the same stained with Human blood. Even otherwise, the defence has also not disputed the unnatural death of deceased but pleaded false implication.
9. Now diverting to the ocular evidence produced by the prosecution in shape of direct
evidence of PW -1 to PW -3. PW -1 Ghulam Muhammad is the complainant of the case, who is
his examination mostly reiterated the contents of his fard -e-bayan Ex.P/1- A, but during cross -
examination he could not stand on his legs and the defence has succeeded in shaking his
testimony. The comparison of both the fard- e-bayan and the Court statement of PW -1
(reflects) that he has mainly stated that four accused persons namely Abdul Shakoor, Abdul Ghaffar, Obaid ur Rehman and Amin Ullah came over the site, when he a long with his
deceased son Naqeebullah were busy in working in their field and accused Abdul Shakoor armed with Kalashnikov made firing upon his son, which hit on his head and he succumbed to the injuries. PW -1 denied the suggestion that he is an Afghan Re fugee and the actual name
of his father is Hazrat Khan. He also denied that the accused (respondents) had also participated in funeral ceremony of his deceased son. PW -2 Abdul Salam is claiming to be
the eye -witness of the occurrence, but he contradicted t he statement of PW -1 and stated that
besides the accused Abdul Shakoor, the accused Obaid- ur-Rehman was also armed with
weapon and both the accused Abdul Shakoor and Obaid- ur-Rehman made firing upon the
deceased. The statement of PW -2 has also been contradicted by the medical evidence, which
reflects that the deceased had received single entrance bully injury on his head, while the second injury was the exit wound.
10. The statements of both the witnesses i.e. PW -1 and PW -2 were also contradicted by
PW-3 Ab dul Malik. This witness has absolutely narrated a different story with regard to the
commission of crime. PW -3 has exonerated the accused (respondent) Obaid ur Rehman from
commission of crime or making firing upon the deceased. According to this witness (P W-3)
on the day of occurrence he along with others including the complainant Ghulam Muhammad
and his deceased Son were present in the lands of complainant Ghulam Muhammad, when
accused Abdul Shakoor came over the site and made firing upon the deceased Naqe ebullah,
due to which he fell down. According to this witness after the crime, he chased the accused Shakoor and succeeded in snatching his Kalashnikov. In the meanwhile, accused Obaid ur Rehman came over site and taken the Kalashnikov from him. PW -3 during his cross -
examination made his ignorance that the complainant Ghulam Muhammad, Abdul Salam and Abdul Wali are the sons of Hazrat. PW -3 has further brought on record that accused Obaid ur
Rehman was not empty handed, voluntarily stated that after the crim e he snatched the
Machine of Shakoor. Such fact was brought on record by the PW -3 in the following terms:--
۔� � � � �روا� � � واردات� � د�۔ از� � � تت
� اُس و�� � ٰخ��ا� � � ت� در�
11. The overall scrutiny of prosecution evidence would establish the fact that none of the
prosecution witnesses have attributed any overt act to the accused (respondents) Obaid ur Rehman and Ameen Ullah. The fard- e-bayan Ex.P/1- A is silent with regard to play ing any
role either of the accused (respondents) rather the absolute role of firing was attributed to the
absconding accused Abdul Shakoor and more over the PW -3 has specifically stated that the
accused (respondent) Obaid ur Rehman came over the site after commission of the crime and
he taken the Kalashnikov of main accused Abdul Shakoor. Hence, the entire prosecution
evidence is suggestive of the fact that accused Abdul Shakoor would be responsible for the murder of the deceased, who otherwise is absconder and thus rightly the accused
(respondents) were acquitted of the charge. The complainant of the case coupled with the statements of PW -2 as well as the statement of PW -3, are suggestive of the fact that the
accused (respondents) Aminullah and Obaid ur Rehman have not at all taken participation in the alleged crime. The prosecution has failed to establish the mensrea of both the accused (respondents) to commit such crime, because the absconding accused Abdul Shakoor arrived at the place of occurrence duly a rmed with Kalashnikov, but to the contrary the accused
(respondents) were empty handed and being so, the accused (respondents) could not help to main accused rather both the accused (respondents) might have put themselves in danger of being harmed by the o ther side, had there been any retaliation or counter -attack by them.
Even otherwise, if we take into consideration the motive behind the occurrence, it would be
established that the dispute arose in between the complainant party with the absconding
accused Abdul Shakoor and Abdul Ghaffar and even it has come on record that the
absconding accused and the complainant are the brothers and the descendants of DW -1
Hazrat, but being Afghan National, the complainant in order to make a ground for preparing
forged C NIC has changed the name of his father, while the motive behind the occurrence is
the ancestral property, thus being alien and stranger from family of absconding accused and
to that of complainant, have absolutely no nexus with the alleged crime. Even othe rwise, the
father of absconding accused and the complainant appeared as DW -1 Hazrat appeared in the
Court and exonerated both the accused (respondents) from commission of charge and stated that the dispute was existed in between his sons over lands, while the accused (respondents) have falsely been involved and implicated in the instance case.
12. The entire prosecution evidence would establish the fact that though the accused
(respondents) were present at the relevant time along with main accused Abdul Shakoor, but no overact has been attributed to them by the prosecution rather the accused (respondents) have played the role of idle or audience at the relevant time. The prosecution has failed to
establish through incriminatory evidence with regard to common intention or common object
of the accused (respondents) to commit the murder of deceased Naqeeb Ullah. Reliance is
placed on the case of Muhammad Ameer v. Muhammad Imran, 2017 MLD 1263 (Lahore),
wherein it has been held that: --
"4. After hearing the lear ned counsel for the appellant and going through the
impugned judgment, it is observed that the acquitted respondent was, admittedly, empty handed at the time of the occurrence, that took place at 10.30 a.m. on 14.12.2009 near the shop of Tariq Mistri. According to the allegation, both, the acquitted respondent and the death- convict Waheed Khan walked to the place of
occurrence, hence, it could hardly be believed that they facilitated or helped each other to reach the spot. Being empty handed, respondent Imr an could lend no help to
his co -accused, rather he might have put himself in danger of being harmed by the
other side, had there been any retaliation or counter -attack by them." [BOLD
ADDED]
Similar view has been taken in the case of Manthar and 3 others v. The State, reported
in 2012 P.Cr.L.J. 1263, wherein it has been held: --
"Throughout evidence there is no statement whatsoever that Manthar in any case participated in murder of deceased Abdul Kareem. No evidence has been brought about that the accused h ad prior to the incident decided to murder Abdul Kareem and
Manthar was part of this conspiracy. Mere fact that Manthar was with those who went to murder Abdul Kareem is not sufficient to come to the conclusion that Manthar had intention to commit murder a nd knew that murder was to be committed."
Likewise, in the case of Hakim Zafar and another v. The State reported in 2017 YLR
232, it has been held, as under: --
"19. We are of the view that to attract the provisions of 34, P.P.C., there must be some proof of overt act on the part of each accused done in furtherance of the common
intention. Mere presence of an accused without any overt act at the place of occurrence at the time of occurrence with co -accused, who commits the offence may
not be sufficient to c onnect former with vicarious liability. Principle of vicarious
liability cannot be invoked unless and until common intention and object is proved. For this purpose, strong circumstances must exist manifesting a common intention which is missing in the pres ent case. The word intention is a state of mind which is
not ordinarily ascertainable but is to be gathered or inferred only from external act and for this purpose it is very necessary to examine the act itself of the accused. There must be material to sho w some overt act done in furtherance of common intention
which is missing in the present case. Reliance is placed on case titled "Hassan v. The State" (1969 SCMR 454) in which Hon'ble Supreme Court of Pakistan has observed at page 456 as under:
"This expla nation was not considered by the High Court. It appears from the
observations of the High Court that the High Court was still thinking of the charge of rioting and that mere presence or being a member of the unlawful assembly was sufficient to warrant a co nviction. The Sessions Judge had applied section 34 to the
case and in order to support a conviction under that section mere presence would not be sufficient, but there must be proof of some overt act on the part of each accused done in furtherance of the common intention. Here the evidence is clear that the appellant was empty handed and he did not assault Suleman, as was stated by P.W.3. Neither of the Courts has considered the case of this appellant separately or the
evidence against him. He went to the place empty handed and there is no evidence
that he assaulted anybody or that in the circumstances he could have intended to cause a grievous hurt to anybody. Judged by the standard applied by both the High Court and the Sessions Judge to the case of the t hree acquitted persons, the case of the
appellant stands on a much more favourable ground and we see no justification for upholding his conviction. The appeal is, therefore, allowed and the conviction and sentence on the appellant are set aside and he is acquitted".
13. The reappraisal of entire prosecution evidence would establish the fact that the
prosecution has failed to establish the charge through consistent, confidence inspiring and cogent evidence to the extent of accused (respondents), thus rightly they were acquitted by
the learned trial Court. It is a settled principle of law that double presumption of innocence is attached to the order of acquittal and interference is unwarranted unless the acquittal is arbitrary, capricious, fanciful or against the record. In the instant case the order of acquittal
passed by the trial Court is neither arbitrary, capricious, fanciful nor contrary to the evidence
brought on record, warranting interference by this Court.
For the above reasons, the appeal is dismis sed in limine.
HBT/52/Bal Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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