2011 P Cr. L J 1490
[Quetta]
Before Abdul Qadir Mengal and Jamal Khan Mandokhail, JJ
HABIBULLAH ---Appellant
Versus
GHULAM SARWAR and another ---Respondents
Criminal Acquittal Appeal No. 95 of 2010, decided on 20th June, 2011.
Penal Code (XLV of 1860) ---
----S. 302/34 -Explosive Substances Act (VI of 1908), Ss.3, 4 & 5 --Anti-Terrorism Act
(XXVII of 1997), S.7 ---Criminal Procedure Code (V of 1898), S.417(2 -A)---Qatl-e-amd,
causing explosion and acts of terrorism ---Appeal against acquittal ---Complainant did not
disclose name of respondent/accused in his statement and alleged eye -witnesses nominated
accused in their statements under S.161, Cr.P. C. after four days of the occurrence ---F.I.R.
was got registered after the arrival of the witnesses and said witnesses admitted that ,they
recorded their statements after consultation and deliberation with the complainant --Presence
of witnesses at the spot at relevant time bein g highly doubtful, their statements were ruled out
from consideration ---Statements of two prosecution witnesses did not appeal to a prudent
mind for the reason that neither they disclosed the name of accused to the complainant, nor
they associated him for the registration of the F.I.R. ---Said two witnesses also did not help
him to take the dead bodies or the injured to the hospital ---Eye-witnesses had failed to prove
the association of accused with the main accused persons ---Evidence on a capital charge mus t
be from unimpeachable sources or be supported from strong circumstances ---None of those
eye-witnesses who were present at the site Were produced which had given adverse
presumption against the prosecution ---Trial Court after proper evaluation and assessm ent of
evidence had acquitted accused ---No illegality and impropriety being present in the
impugned judgment, appeal against acquittal Was dismissed, in circumstances.
1999 SCMR 1030 and 1972 SCMR 572 rel.
Abdul Ghani Mashwani for Appellant.
Sardar Ahmed Haleemi, Spl. Prosecutor for Respondents.
Date of hearing: 26th May, 2011.
JUDGMENT
ABDUL QADIR MENGAL, J .---This Criminal Acquittal Appeal, under section 417(2),
Cr.P.C. has been filed against the judgment dated 30 -3-2010, passed by the le arned Special
Judge Anti Terrorism Court, Khuzdar whereby the respondent No.1/accused was acquitted of
the charge.
2. Facts in brief are that an F.I.R. No.5 of 2007 was registered on the complaint of Habibullah
under section 302/34, P.P.C., read with sec tions 3, 4 and 5 of the Explosive Substances Act
read with section 7 of the Anti -Terrorism Act, 1997. In his complaint, the complainant
alleged that on 28 -4-2007, at about 12 -10 p.m., an explosion took place in a room of his
house, resulting into the death of his three (3) children, namely Bibi Shakira, Imdadullah and
Naseebullah. According to the complainant, he, thereafter, went outside his house and saw
Muhammad Yousaf, Wahid Bakhsh and Muhammad Raffique near Mashallah Hotel,
proceeded towards main road on a motorcycle, whereas, on another motorcycle, he saw three
other persons, but could not identify them.
3. The investigation in the case was entrusted to I.P/SHO Muhammad Murad, who recorded
the statements of the witnesses, out of whom, the statements of Muhammad Alam and
Habibullah were recorded on 8 -9-2007. Both of them claimed to be the eye -witnesses of the
occurrence, nominating the respondent No.1, consequently, the respondent was arrested. The
Investigating Officer, after completion of the investi gation, submitted an incomplete challan
to the extent of the respondent No.1 before the trial Court.
4. The prosecution in support of its case, produced the following witnesses and exhibited
certain documents: --
P.W.1 Habibullah, the complainant of the case, who lodged the report, Exh.P/9 -B.
P.W.2 Muhammad Alam, an eye -witness.
P.W.3 Muhammad Akbar, an eye -witness.
P.W.4 Haji Muhammad Azam, Constable, a recovery witness.
P.W.5 Muhammad Anwar, also a recovery witness.
P.W.6 Dr. Abdul Sattar, Medical Officer.
P. W.7 Abdul Basit, a recovery witness of blood -stained clothes.
P.W.8 Dr. Fareeda, Lady Medical Officer.
P.W.9 Muhammad Murad, I.P./SHO, who investigated the matter.
P.W.10 Ghulam Qadir, recovery witness of Medical Certificates and amended challan
Exh.P/10 -A.
After conclusion of the case, the trial Court acquitted the respondent/accused from the alleged
offence, hence this criminal acquittal appeal.
5. Mr. Abdul Otani Mashwani Advocate, learned counsel for the appellant mainl y contended
that the Special Judge Anti -Terrorism Court, ignored the evidence of the eye -witnesses,
which amounts to mis appreciation and is an illegality. He further argued that the learned
Special Judge Anti -Terrorism Court, Khuzdar also ignored the fact that a serious nature of
offence has been committed by the respondent and has wrongly acquitted him.
6. We have heard the learned counsel for the appellant and have perused the record. The case
of the prosecution hinges upon the statements of the allege d eye -witnesses, namely
Muhammad Alam and Muhammad Akbar. It is to be noted that the complainant in his
statement, stated that after explosion, when he came out of his house, he saw three persons,
namely Muhammad Yousaf, Wahid Bakhsh and Muhammad Raffique. He did not disclose
the name of the respondent, however, he stated that three other persons were also
accompanied with the above named persons, but he could not identify them.
7. The Investigating Officer recorded the statements of Muhammad Alam and Muh ammad
Akbar under section 161, Cr.P.C, who later on appeared as P.W.2 and P.W.3, respectively,
before the trial Court. In their statements, both the witnesses stated that they were on their
way, when two (2) motorcycles overtook them. According to the witn esses, one motorcycle
was riding by three persons, namely Muhammad Yousaf, Wahid Bakhsh and Muhammad
Raffique, whereas, on the other motorcycle, there were Rehmat Ullah, Muhammad Hussain
and Ghulam Sarwar (the respondent). It is alleged that Muhammad Hussa in was having
Kalashnikov in his hand, out of these six persons. Muhammad Hussain, Ghulam Sarwar and
Rehmat Ullah stopped near a vacant house, while Muhammad Yousaf, Wahid Bakhsh and
Muhammad Raftique, proceeded further and stopped near the house of the co mplainant.
According to the witnesses, Muhammad Yousaf pulled out something from his packet and
threw it into one of the rooms, which followed by an explosion. It is further alleged that
Muhammad Yousaf signaled his companion to move, thereafter, all of th em fled away.
According to the witnesses, they immediately reached at the house of the complainant and
saw three children were lying dead, therefore, due to sadness, they came out of the house.
The witnesses stated that after four days of the occurrence, t he complainant sent a message to
them to come and record their statements before the Investigating Officer, which they did.
8. To a question, the witnesses replied that they did not inform the complainant about the
name of the respondent. They also admit ted the fact that they did not accompany the
complainant for registration of the F.I.R., nor helped him for taking the dead bodies of the
injured to the hospital. The witness P.W.3 stated that he did not know the family members of
the complainant Habibulla h, however, he knows that the brothers, sisters, and parents were
residing with Habibullah. To a question P.W.3 admitted the fact that he and P.W.2,
Muhammad Alam, recorded their statements before the Investigating Officer after
consultation with the compl ainant.
9. Perusal of the statements of the complainant and the alleged eye -witnesses (P.W.2 and 3),
it is evident that for the, first time, the respondent was nominated by the alleged eye -
witnesses in their statement recorded under section 161, Cr.P.C., and that too, after four (4)
days of the occurrence. The witnesses alleged that they immediately went to the house of
the complainant after the explosion took place, but surprisingly they did not disclose the
name of the respondent to the complainant. Adm ittedly, the F.I.R. was registered after the
arrival of -the witnesses, but still the respondent was not named therein. If the presence of the
witnesses at the time of the occurrence is believed, then question arises, as to why they
remained silent and did not disclose the name of the respondent to the complainant so as to
register the case against them. Similarly, if they were present and immediately reached the
house of the complainant, then why their names were not mentioned as witnesses, in the
F.I.R.
10. Without prejudice to above, even otherwise, if for the sake of arguments, the statements
of the witnesses and believed, even then, it was necessary for the Investigating Officer to
have conducted the identification parade of the respondent through the complainant because
he did not nominate the respondent. In his compliant, the complainant stated that he saw three
persons, but could not identify them.
11. The statements of P.W.2 and P.W.3 do not appeal to a prudent mind for the reason that
neither the y disclosed the name of the respondent to the complainant, nor they associated him
for the registration of the F.I.R., as well as, did not help him to take the dead bodies or the
injured to the hospital. Even otherwise, the witnesses admitted the fact that they recorded
their statements after four days of the occurrence without explanation. P.W.3 further admitted
the fact that they recorded their statements after consultation and deliberation with the
complainant, therefore, in such view of the matter, the presence of the P.W.2 and 3 at the spot
is highly doubtful, therefore, their statements are ruled out from consideration. Moreover, the
allegation levelled against the respondent is that he along with two others were riding a
motorcycle, who overtook the m otorcycle of the witnesses and stopped near a vacant house.
According to the witnesses, other motorcycle, ridden by Muhammad Yousaf and others,
proceeded further and Muhammad Yousaf threw something into the room of the complainant,
which resulted into expl osion. If the statements of eye -witnesses are believed in toto, even
then, they have failed to prove the association of the respondent with the main accused,
namely Muhammad Yousaf and two others.
12. From the statements available on record, no role has been assigned to the respondent and
his involvement in the case is shrouded in mystery. Simply saying that, the motorcycle of
the appellant overtook the motorcycle of the witnesses and stopped in front of a vacant house,
did not constitute the offence. The witnesses are also silent on the point as to whether after
the explosion, the respondent accompanied Muhammad Yousaf or he remain stayed there.
The prosecution has failed to link the association of the respondent with culprits.
13. We are of the view th at the evidence on a capital charge must come from unimpeachable
source or supported from strong circumstances. In this regard, we have placed our reliance on
SCMR 1999 (1030). It may further be pointed out that failure to examine independent
witnesses rai ses adverse inference against the prosecution, as admittedly the evidence of
Ameer Hamza, Abdullah and Muhammad Ismail were recorded under section 161, Cr.P.C.,
but none of these eye -witnesses, who were present at the site were produced. Legally non -
produc tion of an -independent witness present on the site, gives adverse presumption against
the prosecution. In this regard, we have benefited our view from SCMR 1972 (572).
14. Admittedly the complainant has not nominated the respondent/accused in the F.I.R. nor
the other witnesses have corroborated the evidence of P.W.2 and P.W.3, therefore, we see no
any illegality and impropriety in the impugned judgment dated 30 -3-2010, passed by Special
Judge Anti -Terrorism Court, Khuzdar. The trial Court (Special Judge A nti-Terrorism
Court, Khuzdar) after proper evaluation and assessment has acquitted the
respondent/accused, as such this criminal acquittal appeal has no force and the same is
dismissed in limine.
H.B.T./52/Q 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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