2024 M L D 1756
[Balochistan]
Before Zaheer- ud-Din Kakar and Shaukat Ali Rakhshani, JJ
HAZOOR BAKHSH--- Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 612 of 2022, decided on 26th September, 2023.
(a) Penal Code (XLV of 1860) ---
----Ss. 322 & 337- A(i)---Qatl -bis-sabab, shajjah- i-khafifah ---Appreciation of evidence---
Contradictions in the statements of witnesses ---Accused was charged that he along with his
co-accused hit the cousin of complainant with a motorcycle, due to which he died at the spot -
--Case of the prosecution mainly rested upon the testimony of complainant and eye -
witness/injured ---Complainant, admittedly, was not an eye -witness of the occurrence which
fact had been confirmed by him during cross -examination that he had not seen the
occurrence and that he was informed through phone regarding the incident ---Contents of the
FIR lodged on the basis of application revealed altogether a different story than the one
narrated by complainant and eye- witness in their evidence which showed that on the
fateful day at 5:00 p.m. co -accused and the accused along with four other unknown
persons stopped the deceased and the eye- witness, in the meanwhile a motorcycle
driven by some unknown person collided with their motorcycle, causing death and injury to them respectively--- Complainant also mentioned in the said application that since
deceased was stopped by the accused and his companions, therefore, an unknown motorcyclist hit the deceased, otherwise accident would have not happened--- Prompt
application by no stretch of imagination revealed a story of assault except happening of incident at the hands of one unknown motorcycle rider, who sustained injuries and was medically treated and examined by Medical Officer and later was known to be Mr. "S" whose Medico Legal Certificate was produced by Medical Officer, who also produced the Medico Legal Certificate of injured and death certificate of deceased, which did not coincide with the testimony of eye -witness at all ---Circumstances established that the prosecution had
failed to prove the charge beyond shadow of doubt ---Appeal against conviction was
accordingly allowed.
(b) Penal Code (XLV of 1860)---
----Ss. 322 & 337- A(i)---Qanun- e-Shahadat (10 of 1984), Art. 129(g) ---Qatl -bis-sabab,
shajjah -i-khafifah ---Appreciation of evidence ---Withholding material evidence ---Effect ---
Accused was charged that he along with his co -accused hit the cousin of complainant with a
motorcycle, due to which he died at the spot ---Record showed that the prosecution had
withheld the testimony of injured motorcyclist Mr. "S" as he was neither produced as a witness nor was he booked as an accused who collided his motorcycle with the deceased---Such fact offended Art. 129(g) of Qanun- e-Shahadat, 1984, whereof no other inference could
be drawn except that had he been produced before the court, he would have not supported the case of prosecution and on the contrary would have testified in support of defence ---
Circumstances established that the prosecution had failed to prove the charge beyond shadow of doubt ---Appeal against conviction was accordingly allowed.
Muhammad Naeem Khan v. Muqadas Khan PLD 2022 SC 99 rel.
(c) Penal Code (XLV of 1860)---
----Ss. 322 & 337 -A(i)---Criminal Procedure Code (V of 1898), S. 367---Qatl -bis-sabab,
shajjah -i-khafifah ---Appreciation of evidence--- Contents of judgment ---Conviction awarded
beyond the charge ---Accused was charged that he along with his co -accused hit the cousin of
complainant with a motorcycle, due to which he died at the spot ---Accused was charged
under Ss.322, 147, 149, P.P.C., but while drawing the judgment impugned, the accused was
convicted under Ss.322, 337- A (i) & 337- F (i), P.P.C., which demonstrated that the Trial
Court had travelled beyond the charge ---In the present case, the accused or co -accused were
neither driving the motorcycled which collided with the deceased, causing his death nor
inflicted injuries to injured witness, therefore, the accused in no way could be held guilty of
doing an unlawful act, culminating into death of deceased and causing injuries to injured
witness ---Circumstances established that the prosecution had miserably failed to prove the
charge beyond shadow of doubt ---Appeal against conviction was accordingly allowed.
Soorat Khan Khetran for Appellant.
Muhammad Naeem Kakar, APG for the State.
Date of hearing: 5th September, 2023.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J .---Veracity and legality of the judgment dated
09.12.2022 ("impugned judgment") handed down by learned Sessions Judge, Kalat ("Trial Court") emanating from FIR No. 19 of 2021 registered with the Police Station Surab, whereby the appellant was convicted and sentenced in the following terms;
"under section 322 P.P.C. to pay diyat amount at privilege rate to the legal heirs of deceased Habib ur Rehman, sentenced under section 337- A(i) P.P.C. for six months
R.I and to pay daman Rs.20,000/ - (Rupees Twenty thousand) by means Rs.10,000/ -
(Rupees ten thousand) to each victim and further sentenced under section 33 7- F(i)
P.P.C. for six months R.1 and to pay daman Rs. 20,000/ - (Rupees twenty thousand)
by means Rs.10,000/ - (Rupees ten thousand) to each victim with the premium of
section 382- B Cr.P.C to the appellant".
2. Laconically, complainant Lal Bakhsh (PW -2) got registered an FIR ibid (Ex.P/6- A)
dated 21.05.2021 through his application (Exh.P/2- A) with the avernments that his cousins
namely Habib -ur-Rehman (deceased) and Noor Muhammad were going towards Giddar
Pump to purchase household articles and when they reached at RCD road Giddar, the accused persons namely Sibghatullah, Izzatullah, Qudratullah and Hazoor Bakhsh along with four unknown persons called them to stop, whereupon when the deceased stopped the motorcycle an unknown motorcylist in the meanwhile hit them, due to which Habib ur Rehman died at the spot, whereas Noor Muhammad got injured.
During course of investigation, co- accused persons namely Sibghatullah, Izzatullah,
Qudratullah remained away from the course of justice, as such, they were declared proclaimed offenders.
3. Muhammad Yaqoob Investigating Officer (I.O) was examined as (PW -6), who visited
the crime scene, produce FIR as (Ex.P/6 -A), prepared site plan (Ex.P 6 -B) inquest report
(Ex.P/6 -C), recorded the statement of witness under section 161 of the Criminal Procedure
Code, 1898 ("Cr.P.C"), produced death certificate (Ex.P/6 -F), took into possession the
damaged motorcycle through recovery memo (Ex.P/6 -J), produced FSL Report (Ex.P/6 -L)
and submitted incomplete challan (Ex.P/6 -M).
4. On conclusion of the investigation, the appellant was put on trial, who denied the
indictment, as such, to bring home the charge the prosecution produced as many as six prosecution witnesses and on close of the prosecution side, the appellant was examined under section 342 of the Criminal Procedure Code, 1898 ("Cr.P.C"); the allegations were refuted and innocence was professed by the appellant, but he neither testified on oath in his defence nor produced any defence witness, thus on conclusion of the trial the appellant was found guilty of the charge and as such convicted and sentenced in the terms ibid by the Trial Court.
5. Learned counsel for the appellant inter alia contended that the appellant is innocent
and has fasely been implicated in the instant case. He maintained that the statement of
prosecution witnesses namely Lal Bakhsh (PW -2) and Noor Muhammad (PW -3) does not
constitute an offence under section 322 of P.P.C. and has also not coincide with the medical
evidence, making the entire case of prosecution highly doubtful. He futher stated that the reasons and conclusion drawn by the trial Court is contrary to law and facts, which merits to be set at naught and in result whereof the appellant merits to the acquitted of the charge
by setting aside the impugned judgment rendered by the trial Court.
Conversely, the learned APG regiously opposed and resisted the appeal and
urged that the procusecion has successfully proved the case. Added further that the impugned
judgment is based upon proper appraisal of the evidence and application of law, requiring no interference by this Court, thus, prayed for dismissal of the appeal.
6. Heard. Record pondered upon with the able assistance of the learned counsel for the
parties. The case of the prosecution mainely rests upon the testimony of Lal Bakhsh (PW -2),
who lodged the FIR on the basis of an application (Exh.P/2- A) and eye- witness Noor
Muhammad (PW -3) as well as Medical evidence. Lal Bakhsh (PW- 2) is not an eye -witness
of the occurrence which fact has been confirmed by him in a reply during cross -examination
that he had not seen the occurrence and that he was informed through phone rearding the incident. He testified with regard to the motive for commission of the offence was that Habib ur Rehman (deceased) was earlier threatened by Sibghatullah, Izzatullah, Qudratullah and the appellant and they have also ablazed his wheet crops before the occurrence, thus, Lal Baksh (PW -2) held the said nominated persons to be responsible for the death of his uncle
Habir ur Rehman.
7. Noor Muhammad (PW -3) was accompanied with the deceased on the fateful day on
his motorbike where he met the appellant, Sibghatullah, Izzatullah and Qudratullah, who stopped them and made an assault upon them. He further stated that Sibghatullah caused an injury on the head of his brother Habib ur Rehman with stone and Hazoor Baksh also hit his
brother with stick, wheras, accused Izzat Ullah hit him with stone, causing an injury above
his left eye, and his left shoulder dislocated as at the same time Qudratullah hit him with
stick, thus, he became unconscious and found him in the Hospital where he come to know that his brother had died.
8. The contents of the FIR (Exh.P/6 -A) lodged on the basis of application
(Exh.P/2- A) reveals altogether a different story which shows that on the fateful day at
5:00 p.m Sibghatullah, Izzatullah, Qudratullah and the appellant along with four other unknown persons stopped his uncles Habib ur Rehman and Noor Muhammad, however, in the meanwhile a motorcycle driven by some unknown person collided with the motorcycle of Habib ur Rehman and Noor Muhammad (PW -3), casuing death and
injury to them respectively. He also mentioned in the said application that since he was stopped by the appellant and his companions, therefore, the unknown motorcyclist hit his uncle, otherwise accident would have not happened. The prompt application by no stretch of imagination reveals the story of assault except happening of incident at the hand of one unknown motorcycle rider, who sustained injuries and was medically treated and examined by Dr. Sami Ullah Medical Officer DHQ, Surab (PW- 1) and
latter known to be Sami Ullah son of Abdul Samad whose Medico Legal Certificate (MLC) was produced as (Exh.p/1- A) by Dr. Sami Ullah (PW -1), who also produced the
MLC of injured Noor Muhammad (PW -3) and Medical death certificate of deceased Habib
ur Rehman (Exh.p/1- C), which does not coincide with the testimony of Noor Muhammad
(PW -3) at all.
9. The proseuction has also withheld the testimony of said injured Sanaullah as he was
neither been produced as a witness nor was he booked as an accused who collided his motorcycle with deceased Habib ur Rehman whereby he succumbed, which offends Article 129(g) of Qanun- e-Shahadat Order, 1984 ("QSO 1984"), whereof no other inference can be
drawn except that had he been produced before the court, he would have not supported the case of the prosecution and on the contrary would have testified in support of the defence. In this regard we are fortified with the judgment of Hon'ble Supreme Court of Pakistan in case of "Muhammad Naeem Khan v. Muqadas Khan" (PLD 2022 Supreme Court 99).
10. Similarly, the appellant was charged under sections 322, 147, 149 P.P.C., but while
drawing the judgment impugned herein, the appellant was convicted under sections 322, 337- A
(i) and 337- F (i), which demonistrates that the trial Court has travelled beyond the charge.
11. After a critical analysis of the above prosecution evidence, we believe that the
prosecution has miserably failed to prove the indictment as it suffers from material
contradictions and dishonest improvement, which has made the entire case of the prosecution highly doubtful, henceforth irresistibly we have reached at the conclusion that the reasons drawn by the Trial Court are based upon improper appraisal of evidence, which in no manner can be allowed to hold field and sustain.
In order to understand section 322 P.P.C., section 321 P.P.C., which defines Qatal -Bis
Sabab is reproduced here in below,-
"321. Qatl -Bis-Sabab. Whoever, without any intention to cause death of, or cause
harm to, any person, does any unlawful act which becomes a cause for the death of another person, is said to commit qatl bis -sabab."
12. Bare perusal of the section ibid clearly manifests that an accused who is found guilty
of the indictment of section 322 P.P.C. must be held responsible by concrete evidence for causing death while committing an unlawful act. In the instant case, the appellant or co-accused were neither driving the motorcycle which collided with the deceased, causing death
of Habib ur Rehman nor inflicting injuries to Noor Muhammad (PW -3), therefore, the
appellant in no way can be held guilty of doing unlawful act, culminating into death of
deceased Habib ur Rehman and causing injuries to Noor Muhammad (PW -3).
Corrolarlly, the appeal is allowed; the impugned judgment dated 09.12.2022 handed
down by the Trial, court is set aside and consequent thereto the appellant is acquitted of the
charge. He shall be released forthwith, if not incarcerated in any other case.
JK/49/Bal. Appeal allowed.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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