2012 P Cr. L J 281
[Balochistan]
Before Muhammad Hashim Khan Kakar and Muhammad Noor Meskanzai, JJ
Mst. KHAN BIBI and others ---Appellants
Versus
ABDUL MALIK and others ---Respondents
Criminal Acquittal Appeals Nos. 151 of 2007 and 221 of 2008, decided on 27th October, 2011.
(a) Penal Code (XLV of 1860) ---
----Ss. 302/147/148 & 149---Criminal Procedure Code (V of 1898), S.417(2- A)---Qatl -e-amd---
Appeal against acquittal ---Appreciation of evidence ---Prosecution witnesses who were not onl y
chance witnesses, but had also made dishonest improvements in order to strengthen the case of
prosecution had failed to inspire confidence ---F.I.R. had been lodged on the basis of suspicion,
without nominating respondent/accused ---Presence of the accused persons, while armed with
sticks, though was shown at the place of occurrence by alleged eye -witnesses, but circumstances
had belied the same and there was clash between the ocular and medical evidence ---All the
alleged eye- witnesses were closely related to the deceased and they had failed to account for
their presence at the time and place of alleged incident ---Mere relationship with the deceased by
itself though was not sufficient to discard their evidence, but the court always look for independent corroboration--- In the present case, the claim of the witnesses to have seen the
occurrence was not only a tall claim, but was enough to create serious doubts about its
genuineness ---Claimed presence of said eye- witnesses at the place of occurrence at relevant time
was replete with serious doubts ---Prosecution had failed to prove the motive ---Conduct of
alleged eye -witnesses at the time of incident was not normal, as they had not tried to save the life
of deceased and they had also not tried to catch the culprit s---Conduct exhibited by said
witnesses was offensive to normal human behaviour ---Evidence of said witnesses could not be
believed ---Findings and conclusions of the Trial Court through judgment whereby accused were
acquitted of the charge, could not be int erfered with.
(b) Penal Code (XLV of 1860) ---
----S. 302/147/148---Qatl -e-amd---Appreciate of evidence---Motive ---Prosecution, no doubt, was
not required to disclose or set up a motive, but once it chose to do so, then it would become its
obligation t o prove the same by cogent and confidence inspiring evidence ---Failure in doing so
would not only damage the credibility of the prosecution's case beyond repair, but it would also be fatal for that.
Muhammad Qahir Shah for Appellants (in both cases).
Ali Hassan Bugti, Obaidullah Quresh and Abdul Sattar Durrani, Deputy Prosecutor -General for
Respondents.
Date of hearing: 12th October, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---Mst. Khan Bibi wife of Arz Muhammad,
appellant herein, impugned the judgments dated 30th May, 2007 and 19th July, 2008, passed by
Additional Sessions, Judge -IV, Quetta, whereby private respondents, Saleh Muhammad, Abdul
Malik and Muhammad Arif, were acquitted of the charge under se ction 302 read with sections
147, 148 and 149 of the P.P.C. Since the Criminal Acquittal Appeals No.151 of 2007 and 221 of 2008 are outcome of one and same incident and that the above named respondents have been acquitted of the charge, one after the other , thus, we proposed to decide the same through this
common judgment.
2. It is the case of prosecution that on 21st July, 2005 at about 9- 30 a.m., complainant Mst.
Khan Bibi lodged Crime No.98 of 2005 with Police Station Shalkot, Quetta, alleging therein that
her son Ghulam Nabi left his house at 7- 00 p.m. and at about 9- 00 a.m. she was informed by the
police authorities regarding the murder of his son, whose dead body was lying at Civil Hospital, Quetta. On receipt of such information, she rushed to Civil Hospital along with her relatives and found the dead body of deceased Ghulam Nabi in a pool of blood, having sustained firearm injuries on different parts of the body and she showed suspicion that the murder was committed by one Muhammad Anwar and Noor Muhammad, on account of previous enmity, as the said
accused had implicated the deceased and one Malik Dad for commission of theft of their goats.
3. After usual investigation, the challan was submitted before the trial Court, where separate
charges were framed against the accused/ respondents, to which they pleaded not guilty and claimed trial. In order to substantiate the accusation and bring home the charge, the prosecution produced and examined nine witnesses. P.W.1 Mst. Khan Bibi is complainant of the case, who
brought on record her written report as Exh.P/1- A. P.W.2 Gohar Khan, P.W.3 Abdul Khaliq and
P.W.4 Noor Muhammad are the alleged eyewitnesses of the occurrence, who claimed to have seen the occurrence. P.W.5 Dr. Syed Baqir Shah is Medical Officer, who examined the dead body of deceased Ghulam Nabi and issued Medico legal Certificate Exh.P/5- A. P.W.6 Ghulam
Rasool is brother of deceased Ghulam Nabi, who had deposed about the background of enmity
existed between the parties. P.W.7 Muhammad La tif, SI, is the recovery witness of empties,
which were collected from the place of occurrence through recovery memos Exh.P/7- B and
Exh.P/7- C. He produced the site inspection note as Exh.P/7- A and blood- stained earth as well as
blood- stained clothes of dec eased as Art.P/1 and Art.P/4, whereas P.W.8 Aurangzeb, SI, and
P.W.9 Khalid Mehmood, SI, are the investigating officers of the case.
4. The accused were examined under section 342 of the Cr.P.C., wherein once again they denied
the prosecution allegation and claimed to be innocent and also recorded their statements on oath and produced Alined Jan, Asghar Ali and Moula Bakhsh in their defence.
5. On conclusion of the trial and hearing learned counsel for the parties the accused/respondents
were acquitted of the charge, one after the other through separate judgments, as initially Abdul
Malik and Muhammad Arif faced the trial and acquitted of the charge and, subsequently, Saleh Muhammad, hence these appeals.
6. Mr. Muhammad Qahir Shah, learned counsel for the appellant, in both the appeals, contended
that the respondents are real culprits and they have been wrongly let off by the trial Court and the acquittal orders have illegally been passed. It was also argued that the occurrence took place in broad dayli ght and there was no question of mistaken identity at all. The ocular account
furnished by the eyewitnesses was fully corroborated by the medical evidence as well as
circumstantial evidence and the trial Court wrongly discarded the same.
7. On the other hand. M/s. Obaidullah Quresh and Ali Hassan Bugti, learned counsel for the
private respondents, have opposed the arguments so advanced by learned counsel for the appellants and supported the impugned acquittal orders, on the ground that nothing incriminati ng
has brought on record, which could suggest the involvement of accused/respondents in the commission of the offence, thus, the trial Court has rightly acquitted the respondents, which does not call for any interference.
8. We have perused the whole evi dence with the valuable assistance of learned counsel for the
parties and after having gone through the statements of P.Ws. Gohar Khan, Abdul Khaliq and
Noor Muhammad, we have no hesitation to hold that they have failed to inspire our confidence.
They are not only chance witnesses, but have also made dishonest improvements in order to
strengthen the case of prosecution. The F.I.R. has been lodged on the basis of suspicion, that too, without nominating the present respondents. Although the presence of the re spondents, while
armed with sticks, was shown at the place of occurrence by the alleged eye- witnesses, but the
host of circumstances belied the same and there is clash between the ocular and medical evidence. Admittedly, all the alleged eye- witnesses are close related to the deceased and they
have failed to account for their presence at the time and place of alleged incident. We are mindful of the fact that mere relationship with the deceased by itself is not sufficient to discard their evidence, but the Court always look for independent corroboration, while in the instant cases, the claim of the witnesses to have seen the occurrence is not only a tall claim but tall enough that creates serious doubts about its genuineness, as such, the claimed presence of t he
aforesaid eye- witnesses at the place of occurrence at relevant time is replete with serious doubts.
The prosecution has also alleged motive in Exh.P/5- A, but has failed to prove the same.
Prosecution, no doubt, is not required to disclose or setup a mot ive, but once it chooses to do so,
then it becomes its obligation to prove the same by cogent and confidence inspiring evidence and failure in doing so would not only damage the credibility of the prosecution's case beyond repair, but it would also fatal f or it.
9. There is another important aspect of the case, which creates serious doubt about the presence
of alleged eye -witnesses at the time and place of occurrence. In this regard, we find that their
conduct, at the time of incident, was not normal, as they had not tried to save the life of the deceased and they had also not tried to catch the culprits. Although hard and fast rules about the human conduct and behaviour are not available, yet in the light of accepted standards of human
behaviour, it can s afely he said that in the normal course of events, P.Ws. 2, 3 and 4 should have
tried to save the life of their close relative and, at least, after escape of the alleged culprits,
should have shifted the injured Ghulam Nabi to hospital, instead of moving t o their respective
jobs. Admittedly, in the normal course of events, they would not have left their near and dear in a helpless injured condition. The conduct exhibited by the said witnesses is offensive to normal
human behaviour, therefore, we are not rea dy to believe their evidence.
For the aforesaid reasons, we are not inclined to interfere in the findings and conclusions arrived
at by the Additional Sessions Judge -IV, Quetta in Crime No.98 of 2005, through its judgment
dated 30th May, 2007 and 19th July, 2008, whereby the respondents were acquitted of the charge, resultantly, both the criminal acquittal appeals are dismissed, being meritless.
H.B.T./146/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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