2012 P Cr. LJ 1871
[Balochistan]
Before Abdul Qadir Mengal and Mrs. Syeda Tahira Safdar, JJ
THE STATE through Additi onal Prosecutor ATA ---Appellant
versus
HASHIM KHAN and another ---Respondents
Criminal Acquittal Appeal No.7 of 2007, decided on 26th July, 2012.
Penal Code (XLV of 1860) --
----Ss. 302, 324, 147,148 & 149 ---Anti-Terrorism Act (XXVII of 1997), Ss.7 & 25(4) ---
Criminal Procedure Code (V of 1898), S.265 -F--- Qutl e -amd, attempt to Qatl -e-amd and
rioting armed with deadly weapons ---Appeal against acquittal ---Appreciation ' of evidence ---
Essential witnesses, summoning of ---Duty of Court ---Complainant ass ailed judgment passed
by Trial Court, whereby accused were acquitted of the charge ---Validity ---Contents of F.I.R.
disclosed presence of eye -witnesses at the site and one of them was cited as witness but name
of the most important person did not appear in calendar of witnesses --Investigating officer
during course of investigation was bound to give names of eye-witnesses or other material
witnesses in the list of prosecution witnesses and should have made efforts to locate them and
procure their attendance b efore Trial Court, which had' not been done ---Even Trial Court
also failed to adopt legal course, neither issued summons thereby calling material and eye -
witnesses to get acquainted with real , aspect of the case and to administer justice ---All
witnesses wh ich were essential to unfolding of narrative on which prosecution was based,
should have been called by prosecution, whether In the result effect of their testimony was for
or against the case for prosecution ---Trial Court was empowered under S.265 -F(2), C r.P.C. to
ensure that proper witnesses, who were acquainted with facts of prosecution case should have
been produced before it but the same was not done ---Trial Court failed to fulfil its liability,
therefore, in absence of material witnesses Ito decision could be arrived at ---High Court set
aside judgment passed by Trial Court and case was remanded for retrial and decision afresh
by calling necessary witnesses of both the parties ---Appeal was allowed accordingly.
Abdul Khaliq v. The State 1996 SCMR 1553 ; Riaz alias Mithoo v. The State 1995 SCMR
1730; Adrees v. The State 2002 SCMR 1439; Jaffar Ali Khan Durani v. The State 2004
PCr.LJ 1740; 2001 PCr.LJ 1564; Lal Khan V. The State 2006 SCMR 1846; Saeedullah v.
Shah Nazar 2001 PCr.LJ 1740; Liaquat Ali v. The State 2008 SCMR 95; Dholu v. The State
2002 PCr.LJ 690; Hameed -ur-Rehman v. Said Rehman 2005 PCr.LJ 53; Allah Nawaz v. The
State 2004 PCr.LJ 1564 and 2002 SCMR 4139 ref.
Malik Sultan Mehmood, Spl. Prosecutor ATA for Appellant.
Qahir Shah, Muhammad Igb al Kasi and Barrister Amir Muhammad Lehri for Respondents.
Date of hearing: 13th June, 2012:
JUDGMENT
ABDUL QADIR MENGAL, J. ---This criminal acquittal appeal ;under section 25(4) of
Anti-Terrorism Act, 1997 has been preferred against the judgment da ted 20th December,
2006 passed by the learned Special Judge, Anti -Terrorism Court -Il, Quetta; whereby the
respondents Nos.l to 3 were acquitted from the offence under sections 302, 324, 147, 148,
149, P.P.C. read with section 7,. Anti -Terrorism Act, 1997 w ith a prayer that the trial Court
failed to apply its judicial mind in respect of the facts and circumstances of the case and
confined itself to a concocted or arranged material.
2. Brief facts of the instant criminal acquittal appeal are that one Dr. Za farullah son of Abdul
Aziz, caste Kakar Panezai, resident of Killi Khanan Bostan on 1st March, 2006 lodged report
with Police Station Bostan at about 9 -25 a. m. stating therein that at about 9 -00 a. m. he along
with his brother Nasrullah, and his gunman Ab dul Nabi in a Toyota Surf vehicle .bearing
Registration No.QAR -2729 proceeded towards Quetta, after covering 200 yards, the accused
Muhammad Hashim Khan son of Abdul Aziz, Abdul Qadeem Khan, Abdul Ghani sons of
Abdul Qadir, caste Kakar, residents of Killi Khanan Bostan along with four other persons,
already ambushed, emerged and they encircled them. Muhammad Hashim having :303 Rifle,
while all the , other persons were armed with Kalashnikovs, they shouted to them that they
today would not be spared, whereupo n all started firing. He hid himself under the seat,
whereas due to receiving bullet shots Nasrullah lost his breath. In the meanwhile the gunman
of Nasrullah namely Abdul Nabi also fired in self -defence, which hit Abdul Ghani and he fell
on the spot. On h earing fire shots one of their relatives Abdullah Khan also came on the site.
The motive behind the act was a property dispute with Muhammad Hashim Khan, Abdul
Qadeem and Abdul Ghani, who along with unknown persons after blocking their way killed
his broth er.
3. After registration of the F.I.R. and usual investigation, the matter was challaned before the
court of Special Judge, Anti -Terrorism Court -II, Quetta, where the charge was framed against
the accused, to which they pleaded not guilty and claimed tr ial. The learned Special Judge
ATC -II, Quetta examined as many as ten (10) witnesses, whereafter on conclusion of the
prosecution side, examination of the accused persons was conducted under section 340(2),
Cr.P.C. whereas only accused Muhammad Hashim reco rded his statement on oath under
section 342, Cr.P.C. and also produced defence witnesses Dr. Qazi Taqi -ud-Din Adil,
Consultant Physician Cardiology National Medical Centre Karachi as D.W.1, Ahsan Ali
Travel, Chief Executive Shara -e-Adalat as D. W.2, Irfan Gabol SHO as D. W.3 to disprove
allegation levelled against him: The Special Judge, ATC -II, Quetta through impugned
judgment dated 20th December, 2006 acquitted the respondents from the alleged charge,
against which the instant appeal had been filed.
4. We have heard Malik Sultan Mehmood, Special Prosecutor ATA for the appellant, while
Messrs Muhammad Qahir Shah, Iqbal Ahmed Kasi and Barrister Amir Muhammad Lehri,
Advocates for the respondents.
5. After hearing both the sides we also perused the record of the case. Learned counsel for the
appellant contended that record shows that the offence was committed at 9 -00 a.m. and the
same was reported within 25 minutes without any loss of time whereby mentioning the role
of each of the respondent/accused. Ther efore, there was no chance of false implication of any
of the accused person in the alleged offence nor the said F.I.R. was the result of any due
deliberation or consultation. Further learned Judge, ATC without any justification ignored the
evidence of the complainant, who was present on the site and whose presence also has not
been shaken from the defence side. Learned counsel while taking in discussion the rest of the
evidence stressed that the statement of complainant fully shows that deceased was shot f ire
by accused Muhammad Hashim through rifle .303 after forcibly opening the door of the
vehicle. This fact has been corroborated by the recovery of the rifle and empties as such there
was no justification for the court to discard the evidence of P.W. 1 or the evidence of rest of
the prosecution witnesses. The discarding of the evidence of P.W. 1 and the rest of the eye -
witnesses on the ground that the said prosecution witnesses being eye -witnesses narrated in
their evidences that the accused Muhammad Hashi m fired upon the chest of the deceased at
close distance but the doctor did not corroborate the statement of eye -witnesses on this point
because there was no burning or blackening spots on the chest of the deceased.
6. Learned counsel further argued that learned Special Judge, Anti -Terrorism Court -II, Quetta
only confined himself with the statement of the respondent/accused Muhammad Hashim that
he was not present on the site, and falsely implicated in the case. Learned counsel while
arguing the point cont ended that learned Judge wrongly given benefit of plea of non -presence
to the respondent No.1 Muhammad Hashim on the basis of irrelevant, concocted and
arranged record. There was no justification to rely upon the evidence so produced in defence.
Learned co unsel in this respect emphasizes that this fact has come on record that the
respondent Muhammad Hashim was permanently residing at Karachi and rarely visit his
house situated at Killi Khanan Bostan. Further he (Muhammad Hashim) himself admitted
that he was present on the day prior to the incident at Killi Khanan Bostan and there is
nothing on record that who had seen him to travel from Killi Khanan to Quetta and get a
ticket on 27th February, 2006, so receiving a ticket from a Travel Agency not at all prove s
that he had travelled on 27th February, 2006. As admittedly Ahsan Ali D.W.2/representative
of Travel Agency himself has stated that anybody can come and get a ticket for anyone. If the
contention of the respondent/accused No. I would have been correct th en he surely would
have brought the officials of Airline and list of the passengers that he actually travelled on
27th February, 2006.Admittedly the respondent claims himself elder of his tribe and a known
figure, so if on 27th February, 2006 would he had travelled by air, he surely would have
brought a single passenger to show that he had travelled with them on the day or he was
sitting next to such person, failure of him, meaning thereby that this ticket was forged and
fake. Learned counsel again emphasiz es that the accused had brought a piece of fallen or torn
boarding card and admittedly there is no stamp on it, which itself shows that the said piece of
the boarding card is also arranged one. The learned counsel contended that the Special Judge,
Anti-Terrorism Court -II, Quetta failed to consider these facts and record findings which did
not get support from the material on record.
7. The learned counsel again while adverting our attention towards the F.I.R. No.8 of 2006 of
Police Station Gabol Town Gulb erg Area Karachi, which supposedly registered by
Muhammad Hashim contended that the contents of F.I.R. itself disclosed that the respondent
No.1 was fully aware of his involvement in the alleged offence, and he tried his level best to
collect false and bog us record to save his skin. In this connection learned counsel adverting
our attention to the F.I.R.; pointing out that the respondent if would have interested to go and
register a case for commission of theft, then he naturally would have to follow up the same,
but his own statement produced by the I.O. shows that after lodging the report, the
complainant Muhammad Hashim never visited the Police Station nor got recorded his own
statement, neither gave any importance to that case. Therefore, from the conduc t adopted it
appeared that this F.I.R. was lodged with the connivance and collaboration of the officials of
said Police Station with mala fides. Learned counsel also attacked the certificate of Doctor
Exh.P/5 -A, who was described . as friend of respondent/a ccused Muhammad Hashim. It was
contended that from the contents of the certificate it is apparent that it was issued on one and
the same date i.e. 1st March, 2006. He further contended that it was neither possible nor
logical that the respondent Muhammad H ashim after recording of F.I.R. visited his doctor for
check -up with his wife. But these facts were overlooked by the trial Court and benefit of this
bogus and concocted material was given to respondent/accused Muhammad Hashim and his
other co -accused, the reby acquitted them which was neither legal nor just. Further, the
learned counsel discussing on many aspects of the case also raised contention that
Investigating Officer (I.O.) on behest of accused persons purposely conducted the
investigation of the mat ter improperly.
8. The counsel for the respondents argued the matter stating that it was the responsibility of
the prosecution to prove the case beyond any reasonable doubt, whereas if a single doubt
from the record appears in favour of any of the accuse d persons, it would be enough for
making an acquittal order in his favour. Learned counsel while discussing the evidence in
detail tried to show that the alleged eye -witnesses were not present at the site, as such, the
learned Special Judge, Anti -Terrorism Court -II, Quetta rightly has passed a sound and
reasonable judgment, which is not liable to be interfered. Learned counsel further argued that
in case of acquittal double presumption of innocence arises in favour of the accused persons,
therefore, even if , the view of this Court is contrary to the trial Court, need not to be
interfered because an appeal against acquittal is to be dealt of different footings then to the
appeal against conviction. In this respect the learned counsel presented on several auth orities
in favour of their contention, as such, the detail of the same is as under: --
(1) Abdul Khaliq v. The State' 1996 SCMR 1553
(2) Riaz Masih alias Mithoo v. The State' 1995 SCMR 1730
(3) Adrees v. The State' 2002 SCMR 1439
(4) Jaffar Ali Kha n Durani v. The State' 2004 PCr.LJ 1740
(5) 2001 PCr.LJ 1564
(6) 'Lai Khan v. The State' 2006 SCMR 1846
(7) 'Saeedullah v. Shah Nazar' 2001 PCr.LJ 1740
(8) 'Liaquat Ali v. The State' 2008 SCMR 95
(9) Dholu v. The State' 2002 PCr.LJ 690
(10) `Ha meed -ur-Rehman v. Said Rehman' 2005 PCr.LJ 53
(11) 'Allah Nawaz v. The State' 2004 PCr.LJ 1564
(12) 2002 SCMR 4139
9. After hearing both the sides, and perusing the record of the case we have observed that the
contents of F.I.R. disclosed presence of eye-witnesses at the site. One of them namely
Abdullah Jan was cited as witness, but the most important witness was Abdul Nabi, whose
name not appeared in calendar of witnesses. It was duty of the Investigating Officer during
course of investigation to gi ve the names of eye -witnesses or other material witnesses in the
list of the prosecution witnesses, and make efforts to locate them, and procure their
attendance before the court, which was not done. Even the trial Court also failed to adopt the
legal cour se neither issued summons thereby calling the material and eye -witnesses to get
acquainted with the real aspect of the case and to administer justice. The trial Court
overlooked this aspect of the case that it was evident from the contents of F.I.R. that t he
gunman of the deceased was also present with him (deceased), but at the same time he, fired
in his defence, and killed one of the assailants namely Abdul Ghani. Further, presence of one
Abdullah, who immediately reached at the site and witnessed the inc ident, was specifically
asserted, who though was cited as witness but not produced. The trial Court in the
circumstances was duty bound to call the material witnesses and record their statements. But
to this extent no efforts were made, which was an error on part of the trial Court.
10. We again may mention here that under section 265 -F, Cr.P.C. it is the duty of the court to
ascertain from the Public Prosecutor or, from the complainant, as the case may be, the names
of any person likely to be acquainted with the facts of the case and to be able to give evidence
for the prosecution, and the court shall summon such person to give evidence before it.
Legally all the witnesses which are essential to the unfolding of the narrative on which the
prosecution is b ased, must, of course be called by the prosecution, whether in the result the
effect of their testimony is for or against the .case for the prosecution. The subsection (2) of
section 265 -F of the Criminal Procedure Code empowers the trial Court to ensure t hat proper
witnesses, who are acquainted with the facts of the prosecution case are produced before it.
But this was not done in present case. The trial Court completely failed to fulfil its liability.
Therefore, in absence of material witnesses, no decisi on can be arrived in case in hand.
As such, in view of the forgoing reasons, we have no other option but to set aside the
acquittal judgment dated 20 -12-2006 and remand the case for re -trial by calling the necessary
witnesses of both the parties and wher e after decide the case afresh in accordance with law.
MH/75/Q Case remanded.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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