2015 P Cr. L J 1269
[Balochistan]
Before Muhammad Ejaz Swati and Jamal Khan Mandohail, JJ
ABDUL ALEEM and others ---Appellants
versus
The STATE and others ---Respondents
Criminal Appeal No.194 and Criminal Revision Petition No. 34 of 2014, decided on 27th April,
2015.
(a) Penal Code (XLV of 1860) ---
----Ss. 302, 460, 147, 148, 149 & 34---Qatl -i-amd, lurking house -trespass or house -breaking by
night, rioting, unlawful assembly and common intention---Appreciation of evidence ---
Complainant alleged that accused persons after scaling wall of their house started firing and as a
result his nephew died at the spot while the other nephew suffered injury ---Trial court convicted
accused persons under S. 460, P.P.C. and exonerated him from other char ges---Accused persons
contended that FIR had been lodged after inordinate delay of eleven hours, no role of firing had
been ascribed to him for causing any injuries to deceased and S. 460, P.P.C. was not borne out
from prosecution evidence ---Validity ---Incident was an un- witnessed occurrence---Prosecution
witnesses, till time of medical examination, had neither nominated the accused persons nor
disclosed about happening of incident in the manner as alleged by prosecution nor disclosed
about his own injury a llegedly caused by accused persons ---No recovery of any empties of
weapon from place of occurrence was mentioned ---Having information about commission of
cognizable offences, no FIR was registered -- -Complainant failed to explain delay of eleven
hours in l odging of FIR ---Delay of eleven hours in lodging of FIR provided sufficient time for
deliberation and consultation---Failure to explain the delay made dent in case of prosecution and
false implication of accused persons could not be ruled out ---Prosecution witnesses were not
worthy of credence as they were either not present at place of occurrence or had not implicated
appellants and failed to disclose happening of incident ---Empties and recovered weapons were
not sent to Forensic Sciences Laboratory for matching to ascertain as to whether the empties
recovered from place of incident were fired from those weapons or otherwise ---Investigating
Officer did not appear for examination as witness ---Most important witnesses, who had been
found at the place occurren ce had taken place, were not produced, for which adverse inference
under Art. 129 of Qanun- e-Shahadat, 1984 had to be taken i.e. had the said witnesses been
examined in court, their evidence would have been unfavourable to prosecution--- None of
prosecution witnesses ascribed any role of firing to accused persons in respect of causing firearm
injury to the deceased, for which they were exonerated by trial court ---Circumstances arising out
of S. 460, P.P.C. were not put to accused persons during their stateme nts under S. 342, Cr.P.C.,
and such circumstances could not be used against them ---Conviction and sentence awarded to
accused persons under S. 460, P.P.C. by Trial Court was unwarranted and not sustainable as the
same were not borne out from evidence on re cord---Conviction resulted from misreading and
non-reading of evidence and incorrect appraisal thereof ---No judicial certainty and circumstantial
guarantee of participation of accused persons in occurrence existed to uphold their conviction---
Impugned judg ment was set aside and accused persons were acquitted ---Criminal appeal was
allowed in circumstances, while revision petition dismissed accordingly.
(b) Qanun- e-Shahadat (10 of 1984) ---
----Art. 129----Penal Code (XLV of 1860), Ss.460, 302, 147, 148, 149 & 34---Court may
presume existence of certain facts ---Failure to produce material witnesses ---Presumption---Most
important witnesses, who had been found where occurrence had taken place, were not produced,
for which adverse inference under Art. 129 of Qanun- e-Shahadat, 1984 had to be taken
presuming that had the said witnesses been examined in court, their evidence would have been
unfavourable to prosecution.
(c) Penal Code (XLV of 1860) ---
----S. 460 ---Criminal Procedure Code (V of 1898), S. 342---- Power to examine accused ---
Persons jointly concerned in lurking house -trespass or house -breaking by night punishable for
Qatl-i-amd or hurt caused by one of them ---Ingredients of S. 460, P.P.C.---Proof ---
Circumstances arising out of S. 460, P.P.C. were not put to accused persons during their
statements under S. 342, Cr.P.C and such circumstances could not be used against them.
Akbar Ali and others v. The State 2008 SCMR 6; Muhammad Sharifan Bibi v.
Muhammad Yasin and others 2012 SCMR 82; Riaz Ahmed v. The State 2010 SCMR 846 and
Muhammad Shah v. The State 2010 SCMR 1009 rel.
Baz Muhammad Kakar for Appellants (in Criminal Appeal No. 194 of 2014).
Miss Sarwat Hina, Additional P. -G. for the State (in Criminal Appeal No.194 of 2014).
Abdul Nasir Ka kar for Petitioner (in Criminal Revision Petition No.34 of 2014).
Baz Muhammad Kakar for Respondents Nos.1 to 3 (in Criminal Revision Petition No.34
of 2014).
Miss Sarwat Hina, Additional P. -G. for the State (in Criminal Revision Petition No.34 of
2014).
Date of hearing: 18th March, 2015.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ---The appellants were tried by the learned Additional
Sessions Judge, Killa Abdullah at Chaman (hereinafter the "trial Court") in respect of FIR No.90
of 2011 under sections 302, 147, 148, 149 and 34, P.P.C. registered with Levies Station, Chaman
on the report of complainant Abdul Samad, whereby the trial Court vide judgment dated 15th
July, 2014 (hereinafter the "impugned judgment") found the appellants guilty of the offence
under section 460, P.P.C. and sentenced for a period of 10 years each with fine of Rs.50,000
each. In default whereof, the appellants were directed to further suffer SI for six months each
with benefit of section 382- B, Cr.P.C.
The complainant has also f iled Criminal Revision Petition No.34 of 2014 for
enhancement of the sentences awarded to the appellants. Since both the matters arising out of the
same judgment, therefore, are being disposed of by means of this common judgment.
2. The facts of the pros ecution case are that the complainant Abdul Samad lodged the
aforesaid FIR on 23rd May, 2011 at about 9- 00 a.m. in respect of the incident taken place on
22nd May, 2011 at about 10- 00 p.m. The complainant alleged in the FIR that he is resident of
Killi Jab bar and 15/16 days prior to the incident, he had taken a house on rent from one
Rehmatullah Salehzai, which is situated at Killi Haji Rangeen and shifted his nephew Abdul
Wali and Shamsullah, who were residing therein. It was further alleged that on 22nd M ay, 2011
at about 10 -00 p.m., the accused Haj Bahadur, Muhammad Hanifia, Sabir, Abdul Aleem son of
Haji Rangeen and Abdul Qadir along with other four unknown persons after scaling the wall
started firing. The shot fired by the absconding accused Hanifia hi t the deceased Shamsullah,
who died at the spot. Whereas, the shots fired by the other accused could not hit his nephew
Abdul Wali and he saved from their firing.
3. During investigation, bloodstained earth, three empties of T.T. pistol, three empties of
Kalashnikov and bloodstained clothes of deceased Shamsullah were taken into possession
through recovery memo. Exh.P/4- A, Exh.P/4- B and Exh.P/4- C. The medical certificate of
injured Abdul Razaq Exh.P/5- A and deceased Shamsullah Exh.P/5- B were obtained.
4. At the trial, the prosecution examined P.W.1 Abdul Samad (complainant), P.W.2 Abdul
Wali (eyewitness), P.W.3 Abdul Razaq (eye -witness), P.W.4 Abdul Qadoos (recovery witness of
blood stained clothes, blood stained earth and empties), PW -5 Dr. Syed Zia -ud-Din, P.W.6
Abdul Wahab (recovery witness of Art: P/1 and Art.P/2 taken into possession vide recovery
memo Exh.P/6- A on 5th October, 2012), P.W.7 Abdul Khaliq Mandokhail (Investigating
Officer) and P.W.8 Syed Jalal Agha Naib Tehsildar had taken into possess ion Art.P/1 and
Art.P/2 vide recovery memo. Exh.P/6- A.
5. When examined under section 342, Cr.P.C. the appellants denied the allegations of the
prosecution. They did not record their statements under section 340(2), Cr.P.C . however,
produced D.W.1 Haji Abdul Ali, D.W.2 Abdul Latif and D.W.3 Muhammad Ahmed, who was
also examined as C.W.2.
6. The trial Court vide impugned judgment convicted and sentenced the appellants as
mentioned hereinabove.
7. The learned counsel for the appellants contended that the case of the prosecution is false
and fabricated; that the incident had taken place on 22nd May, 2011 at about 10- 00 p.m.,
whereas the FIR was registered on 23rd May, 2011 at about 9- 00 a.m. after inordinate delay of
more t han 11 hours; that it was an unseen occurrence and no direct or circumstantial evidence
whatsoever nature is available connecting the appellants with the commission of the alleged
offence; that no role of firing had been ascribed to the appellant for causi ng any injuries on the
person of the deceased; that the conviction of the appellants under section 460, P.P.C. is not
borne out from the prosecution evidence. The learned counsel for the appellants in respect of
Criminal Revision Petition No. 34 of 2014 contended that the trial Court exonerated the
appellants under section 302, P.P.C. and no case for enhancement of sentence is made out.
The learned Additional P.- G. assisted by the learned counsel for the complainant argued
that the prosecution has succee ded in proving the accusation against the appellants beyond any
shadow of doubt; that the ocular account furnished by P.W.2 and P.W.3 was further corroborated
by medical evidence of deceased and injured Abdul Razaq (P.W.3); that the appellants are
connected in the crime and they are liable to be convicted under section 302(b), P.P.C. and their
sentences may be enhanced.
8. We have heard the learned counsel for the parties and have gone through the evidence on
record. The prosecution besides producing ocul ar account furnished by P.W.2 Abdul Wali and
P.W.3 Abdul Razaq had also relied upon Art.P/1 and Art.P/2. Admittedly, the occurrence had
taken place on 22nd May, 2011 at about 10- 00 p.m. wherein the deceased Shamsullah met
unnatural death, due to firearm wound on the left eye, whilst P.W.3 Abdul Razaq had lacerated
wound on occipital area. The Investigating Officer Muhammad Shafi, Tehsildar Chaman after
receiving information about the incident reached at the place of incident from where four persons
namely R ozi Ahmed, Bacha Khan, Abdul Razaq and Ismail were found and three motorcycles
and various arms and ammunitions were also taken into possession vide Art.P/1 and Art.P/2.
Article P/1 is the complaint under section 550, Cr.P.C., whilst Art.P/2 is the recover y memo. The
contents of Art.P/1 is reproduced as under:
9. The contents of Art.P/1 reveals that the Tehsildar, Chaman on 23rd May, 2011 at about
12-30 a.m. had found four persons including P.W.3 Abdul Razaq and arms and ammunitions in a
room of the house adjacent to which the incident had taken place. The deceased Shamsullah and
injured Abdul Razaq (P.W.3) were brought to District Headquarter Hospital, Chaman. The
testimony of Dr. Syed Zia -ud-Din (P.W.5) reveals as under:
(1) Lacerated wound on occipital area.
(1) Only external examination on.
On examination fire -arm wound on left eye (inlet wound) probable cause of death was
massive bleeding due to vital organ (brain).
Injuries duration was: Fresh.
Weapon used: Fire Arm.
10. The aforesaid evidence coupled with Art.P/1 and Art.P/2 indicates that till the aforesaid
time and period, it was an un- witnessed occurrence P.W.3 Abdul Razaq at that time had neither
nominated any accused person nor disclosed about happening of the in cident in the manner as
alleged by the prosecution nor he disclosed about his own injury allegedly caused by the
appellants. There is no mention of recovery of any empties of T.T. pistol or Kalashnikov from
the place of occurrence. Moreover, the FIR was al so not registered despite having information
about the cognizable offence. In the aforesaid documentary evidence, the appellants were not in
the picture. The ocular account came into picture after registration of the FIR Exh.P/7 on the
report of P.W.1 Abdul Samad (complainant). The FIR was registered after considerable delay of
more than 11 hours i.e. on 23rd May, 2011 at about 9- 00 a.m., wherein the complainant stated
that he was told by P.W.2 Abdul Wali about the incident. Abdul Wali in his statement deposed
that he informed P.W.1 about the incident on 22nd May, 2011 at about 10- 30 p.m. The levies
station is about 20 minutes distance from the place of occurrence as disclosed by P.W.2 and
P.W.3. The complainant had failed to explain the delay in lodging the FIR. The delay of 11/12
hours in lodging of FIR provides sufficient time for deliberation and consultation particularly
when the complainant had failed to give reasonable explanation of such delay, which makes dent
in the case of prosecution and false implication of the appellants cannot be ruled out. In the case
of Akhtar Ali and others v. The State, 2008 SCMR 6, the Hon'ble Supreme Court of Pakistan
held as under:
"It is also an admitted fact that the FIR was lodged by the complainant after considerab le
delay of 10/11 hours without explaining the said delay. The FIR was also not lodged at police
station as mentioned above. 10/11 hours delay in lodging of FIR provides sufficient time for
deliberation and consultation when complainant had given no explanation for delay in lodging
the FIR. It is enough time for complainant to fabricate the story even then the complainant did
not nominate appellants and their acquitted co- convicts, therefore, possibility cannot he ruled out
qua false implication of the appe llants. It is also a settled law that delay of 10/11 hours in making
FIR not explained leads to inference that the occurrence was unwitnessed."
11. The statement of P.W.2 Abdul Wali is also not worthy of credence on many counts.
Firstly, as per Art.P/1 a nd Art.P/2, he is not at the place of the incident and the matter was taken
by the Levies authorities against unknown persons. Secondly, P.W.2 is the cousin of the
deceased Shamsullah. He had neither taken the deceased to hospital nor lodged the FIR when
according to him, the Levies Station was at the distance of 20 minutes from the place of incident.
Thirdly, his statement under section 161, Cr.P.C. was also recorded on the second day of the
incident, which further impeached the credibility of this witness . P.W.3 Abdul Razaq was found
at the place of incident in injured condition by the Investigating Officer Muhammad Shafi (not
produced) on 23rd May, 2011 at about 12- 30 a.m. but he was quite mum till 2nd day of the
incident. He neither implicated the appellants nor disclosed about happening of the incident
during preparation of Art.P/1 and Art.P/2. After second day of the incident, he recorded his
statement under section 161, Cr.P.C. but failed to explain the delay, which further impeached the
credibility of these witnesses. In the case of Muhammad Sharifan Bibi v. Muhammad Yasin and
others, 2012 SCMR 82, the Hon'ble Supreme Court of Pakistan discarded the statements of such
witnesses and held as under:
"........we find that the three witnesses who furnished the ocular account namely P.W.4
Hafiz Shahid Mehmood, P.W.7 Dost Muhammad and P.W.9 Wajahat Ali, if had seen the
occurrence, nothing prevented them to get the case registered the same day instead they waited
for 2/3 days to have their statements recorde d. Their presence becomes further doubtful as none
of them accompanied Abdul Latif deceased to the hospital for postmortem examination."
12. The other aspect of the instant case, which makes dent in the prosecution case is that
from the place of incident four persons including P.W.3 Abdul Razaq were found and as per
Art.P/1 and Art.P/2 T.T. pistol and Kalashnikov along with several rounds were recovered,
which were taken into possession. Subsequently, vide recovery memo Exh.P/4 empties of T.T.
pistol and Kalashnikov were also recovered from the place of incident. During investigation
empties and recovered weapons were not sent to the Forensic Sciences Laboratory (FSL) for
matching to ascertain as to whether the empties recovered from the place of incident were fired
from the said weapons or otherwise. Moreover, none of the said weapons was produced by the
prosecution before the trial Court. It is astonishing that during investigation only Art.P/1 and
Art.P/2, wherein the detail of said arms and ammunitions is mentioned had been taken into
possession vide recovery memo. Exh.P/6- A on 15th October, 2012 and there is also no
explanation about non- production of the said arms and ammunitions including their motorcycles.
The Investigating Officer Muhammad Shafi, Te hsildar, who conducted the investigation of the
case, did not appear nor any explanation had been put forth by the prosecution for his non -
examination. The prosecution has also failed to produce the other three most important witnesses
namely Rozi Ahmed, M uhammad Ismail and Bacha Khan, who according to Art.P/1 and Art.P/2
were found, where the occurrence had taken place, therefore, adverse inference under Article
129(g) of the Qanun -e-Shahadat Order, 1984 (hereinafter the "Order, 1984") against the
prosecut ion is to be taken. Reference in this context is made to the case of Riaz Ahmed v. The
State, 2010 SCMR 846, wherein it was held as under:
"One of the eye -witnesses Manzoor Hussain was available in the Court on 29- 7-2002 but
the prosecution did not exam ine him, declaring him as unnecessary witness without realizing the
fact that he was the most important, only serving witness, being an eye -witness of the
occurrence. Therefore, his evidence was the best piece of the evidence, which the prosecution
could have relied upon for proving the case but for the reasons best known, his evidence was
withheld and he was not examined. So a presumption under Illustration (g) Article 129 of
Qanun- e Shahadat Order, 1984 can fairly be drawn that had the eye witness Manzoor Hussain
been examined in the Court his evidence would- have been unfavourable to the prosecution."
13. The other aspect of the case, which further makes the prosecution doubtful, is that none
of the prosecution witnesses ascribed any role of firing to the appellants in respect of causing
firearm injury to the deceased. The trial Court also exonerated the appellants from such
liabilities. The conviction of the appellants under section 460, P.P.C. is not borne out from the
evidence on record. Admittedly, the appellants were charged under sections 302, 148 and 149,
P.P.C. The testimony of the prosecution witnesses is silent in respect of offence under section
460, P.P.C. The circumstances arising out of section 460, P.P.C. were also not put to the
appellants during their statements under section 342, Cr.P.C., therefore, such circumstances
cannot be used against them and the conviction and sentence awarded to the appellants under
section 460, P.P.C. by the trial Court is unwarranted and not sustainable. Reference in this
context is to be made to the case of Muhammad Shah v. The State, 2010 SCMR 1009, wherein
the Hon'ble Supreme Court of Pakistan held as under:
"It is important to note that all incriminating pieces of evidence, available on the record,
are req uired to he put to the accused, as provided under section 342, Cr.P.C. in which the words
used are "For the purpose of enabling the accused to explain any circumstances appearing in
evidence against him" which clearly demonstrate that not only the circumstances appearing in
the examination -in-chief are put to the accused but the circumstances appearing in cross -
examination or re examination are also required to be put to the accused, if these are against him,
because the evidence means examination -in -chief , cross -examination and re -examination, as
provided under Article 132 read with Articles 2(c) and 71 of Qanun- e- Shahadat Order, 1984.
The perusal of statement of the appellant, under section 342, Cr.P.C, reveals that the portion of
the evidence which appe ared in the cross -examination was not put to the accused in his statement
under section 342, Cr.P.C. enabling him to explain the circumstances particularly when the same
was abandoned by him. It is well -settled that if any piece of evidence is not put to the accused in
his statement under section 342, Cr.P.C. then the same cannot be used against him for his
conviction. In this case both the Courts below without realizing the legal position not only used
the above portion of the evidence against him, but als o convicted him on such piece of evidence,
which cannot be sustained."
In the instant case, there has been misreading and non -reading of evidence and it has
indeed occasioned failure in the correct appraisal of the evidence.
The upshot of the above discussion is that there being no judicial certainty and
circumstantial guarantee of the participation of the appellants in the occurrence to uphold their
conviction. Therefore, the instant Criminal Appeal No. 194 of 2014 is allowed, the impugned
judgment dated 15th July, 2014 passed by the learned Additional Sessions Judge, Killa Abdullah
at Chaman is set aside to the extent of appellants and they are acquitted of the charge. The
appellants Abdul Aleem, Sabir sons of Rangeen and Abdul Qadir son of Shamsuddi n shall be
released forthwith in case FIR No. 90 of 2011 registered with Levies Station, Chaman District
Killa Abdullah, if not required in any other case. With the result. the Criminal Revision Petition
No. 34 of 2014 is dismissed.
SL/60/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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