2015 P Cr. L J 1482
[Balochistan]
Before Muhammad Ejaz Swati and Jamal Khan Mandokhail, JJ
SHAH JAHAN---Appellant
versus
MUHAMMAD NOOR and another ---Respondents
Criminal Acquittal Appeal No.145 of 2011, decided on 29th June, 2015.
Penal Code (XLV of 1860) ---
----S. 302---Qanun -e-Shahadat (10 of 1984), Art.40---Criminal Procedure Code (V of 1898),
S.417(2- A)---Qatl -i-amd---Appeal against acquittal---Reappraisal of evidence ---Initially, due to
non-implication of any person in the crime, case was closed ---After about 11 months of the
occurrence, case was re- opened on application of son of the deceased, after sanction of
concerned Judicial Magistrate--- Alleged disclosure and pointation memo. of the accused was
recorded after about one year of oc currence, wherein facts related to the incident, commission of
offence and pointation of place of incident had allegedly been mentioned by accused ---Alleged
disclosure and pointation of accused, could not be termed to be a fact discovered in consequence
of information of accused and in no way fell within the ambit of Art.40 of Qanun- e-Shahadat,
1984---Recovery of Kalashnikov allegedly on the pointation of accused, in absence of non-
recovery of empties from the spot, and positive report of Forensic Science L aboratory, had no
consequence and could not be regarded as corroborative evidence ---Conduct of prosecution
witnesses, was quite unnatural as they being sons of the deceased, neither had taken their
deceased father to hospital nor to home, nor reported the matter to the Police ---Naib Resaldar, as
prosecution witness, had negated the testimony of prosecution witnesses ---Unnatural conduct of
prosecution witnesses, being real sons of the deceased, who remained mum and after 11 months
of the incident they came f orward and through application, implicated accused in the commission
of the offence, was highly doubtful ---Besides the unnatural conduct of prosecution witnesses,
they during the course of cross -examination, admitted that after the murder of their father a nd
involvement of accused, who was their brother, in the case, 200 acre landed property including
an orchard and cattle, left by their deceased father came into their possession ---Reasonable
possibility of false implication of accused, could not be exclude d---Trial Court after considering
the evidence on record by means of well reasoned judgment extended benefit of doubt in favour
of accused, which was unexceptionable, warranted no interference by High Court ---Acquittal
appeal was dismissed, in circumstances.
1992 PCr.LJ 2119 and Muhammad Sharifan Bibi v. Muhammad Yasin and others 2012
SCMR 82 ref.
Nemo for Appellant.
Nemo for Respondent No.1.
Miss Sarwat Hina, Addl. Prosecutor -General for the State.
Date of hearing: 22nd April 2015.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ---On 5th January 2009 Muhammad Essa, Naib
Resaldar (PW -9) the than SHO Police Station Akhtarzai, District Killa Saifullah during special
ghasht at Killi Akhtarzai, he along with other Police officials reached there and f ound a dead
body having bullet injuries in a ground situated towards western side of the said Killi. The
people of the Killi who identified the dead body of Nizam -ud-Din, but people gathered at the
spot including relatives of the deceased, had neither seen the incident, nor willing to become
complainant of the case. So FIR Ex.P/9- B was registered on the Murasilla Exh.P/9- A sent by
PW-9 against unknown person, site plan Exh.P/9- C and inquest report Exh.P/5- A were prepared.
Due to non- implication of any perso n in the crime, case was closed vide report Exh.P/9- D dated
1st July 2009.
It appears that on the application dated 28th December 2009 Exh.P./9- E of Shah Jehan
PW-1, the son of deceased, after sanction of concerned Judicial Magistrate, case was reopened ,
whereafter, Shah Jehan and another son of deceased, namely, Sarwer PW -2 submitted their
respective affidavits Exh.P/9 -G and Exh.P/9- H, wherein, it was averred that on 5th January 2009
they along with their brother i.e. respondent were present in bazar, t he respondent told them that
he (respondent) will murder his father Nizam -ud-Din, thereafter they on a motorcycle proceeded
towards their home and saw that the respondent in a ground situated in the back side of their
home was making firing upon deceased N izam -ud-Din. As a result of firing Nizam -ud-Din fell
down and died. After that the respondent escaped from the spot. They did not disclose name of
their brother just to avoid his arrest. According to PW -1 the respondent remained away and due
to his threat of dire consequences, they remained silent. Respondent was arrested on 29th
December 2009 and during investigation on 7th January 2010 a disclosure memo. Exh.P/3- A of
respondent was prepared. On the pointation of the respondent, a Kalashnikov Exh.P/3- B was
taken into possession from a room of an abandoned place. During investigation, PW -1 Shah
Jehan also recorded his confessional statement on 29th December 2009, wherein he reiterated his
contention mentioned in his affidavit.
2. At the trial prosecution e xamined PW -1 Shah Jehan, PW -2 Sarwer Jan, PW -3 Siraj -ul-
Haq, PW -4 Haji Gulab, PW -5 Haji Hamdullah, PW -6 Attaullah, PW -7 Muhammad Shabbir,
PW-8 Dr. Jamal Abdul Nasir, PW -9 Muhammad Essa, Naib Tehsildar (Investigating Officer).
3. When examined under secti on 342, Cr.P.C., the respondent denied the prosecution
allegation. He neither recorded his statement under section 340(2), Cr.P.C. nor produced any
witness in defence.
4. The trial Court vide impugned judgment acquittal the respondent of the charge.
5. The learned Additional Prosecution General contended that the ocular account furnished
by PW -1 and PW -2 coupled with recovery of crime weapon on the pointation of the respondent
were altogether ignored by the trial Court, therefore, the findings rendered by the trial Court are
perverse, arbitrary and reflect misreading and non -reading of evidence.
6. We have heard the learned Additional Prosecution General and have gone through the
record of the case. The case of the prosecution is based on the ocular ac count furnished by PW -1
Shahjehan and PW -2 Sarwer Jan, recovery of Kalashnikov on the pointation of the appellant,
disclosure and pointation of the appellant and the confessional statement of PW -1 Shahjehan.
The deceased Nizam -ud-Din left 200 acre land inc luding an orchard and cattle, which after the
murder of deceased Nizam -ud-Din and arrest of the respondent in the instant case exclusively
came into possession of PW -1 and PW -2, therefore, their statements require deep scrutiny.
Before dilating upon the st atement of PWs, it is necessary to consider the admissibility of
disclosure of the respondent Exh.P/3- A, recovery of Kalashnikov vide recovery memo. Exh.P/3-
B, pointation memo of place of incident Exh.P/3- C and confessional statement of PW -1
Shahjehan. The disclosure Exh.P/3- A and pointation memo Exh.P/3- C of the respondent was
recorded on 7th January 2010, wherein the facts related to the incident, commission of the
offence and pointation of place of the incident had been allegedly mentioned by the respond ent.
Admittedly, all these facts and place of incident had already been brought into the knowledge of
police by PW -1 and PW -2 on 28th December 2009, the place of the incident was also into the
knowledge of the Police on 5th January 2009 i.e. prior to discl osure of the respondent, therefore,
the alleged disclosure and pointation of the respondent cannot be termed to be fact discovered in
consequence of the information of the respondent, thus the alleged disclosure and pointation of
the respondent. in no way fall within the ambit of Article 40 of the Qanun -e-Shahadat Order,
1984, whereas the confessional statement Exh.P/1 -E of PW -1 Shahjehan is concerned. It is come
on record through PW -4 that the respondent was arrested on 29th November, 2012 and the
confessi onal statement Exh.P/7- C reflect that no notice as required under section 265- J Cr.P.C.
was given to the respondent, therefore, in absence of any such notice the said statement having
no evidentiary value, as held in the judgment reported in 1992 PCr.LJ 2119. The recovery of
Kalashnikov allegedly on the pointation of the respondent in absence of non- recovery of empties
from the spot and positive report of FSL, had no consequence and cannot be regarded as
corroborative evidence.
7. Now adverting to the ocular account furnished by PW -1 and PW -2 according to them, the
respondent on 5th January 2009, in bazar told them that he will kill his father Nizam -ud-Din and
on the same day when at about 4- 30 p.m. they reached home, they found that the respondent is
maki ng firing upon the deceased Nizam -ud-Din in a ground situated behind their house. As a
result of firing, deceased fell down and died at the spot. The conduct of these witnesses are quite
unnatural, they being real son of deceased Nizam -ud-Din neither had t aken his father to hospital
nor to home nor reported the matter to the Police. PW -9 Muhammad Essa Naib Resaldar
altogether negates the testimony of PW -1 and PW -2, who stated that on 5th January 2009, during
patrolling at about 11:00 p.m. he received inform ation about a dead body. When he reached at
the spot, the dead body of the deceased Nizam -ud-Din was lying on the ground and the people of
the Killi Akhtarzai including the relatives of deceased were gathered there, who neither disclosed
about the happening of the incident nor any one came forward to become complainant of the
case, therefore, through Murasilla Exh.P/9- A, the FIR Ex.P/9- B was registered on his report.
PW-2 Sarwer Jan during the course of cross -examination stated that on 5th January 2009, the y
reached home at 4:30 p.m. where they witnessed the incident. Had PW -1 and PW -2 witnessed
the incident at 4:30 p.m. they would have not let the dead body of his father unattended till 11:00
p.m. PW -6 Dr. Jamal Abdul Nasir stated that the dead body of the deceased was brought in
hospital by the Police constable on 5th January 2009 at about 11:00 p.m. The unnatural conduct
of PW -1 and PW -2 being real son of deceased who remained mum and after 11 months of the
incident they at once came forward and through the application Exh.P/9 -E and their affidavits
Exh.P./9- G and Exh.P/9- H dated 28th December 2009 implicated the respondent in the
commission of the offence, which in the aforesaid circumstances of the case, is highly doubtful.
In the case of Muhammad Sharifan Bibi v. Muhammad Yasin and others, 2012 SCMR 82, the
Hon'ble Supreme Court of Pakistan in respect of unnatural conduct of a prosecution witness who
neither lodged the FIR nor taken the deceased to hospital held as under:
"We find that the three witnes ses 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 s tatements recorded. Their presence becomes further doubtful as none of them
accompanied Abdul Latif deceased to the hospital for postmortem examination."
8. In the instant case besides the unnatural conduct of PW -1 and PW -2, they during the
course of cro ss-examination admitted that after the murder of their father and involvement of the
respondent in the instant case, 200 acre landed property including an orchard and cattle left by
their deceased father came into their possession, therefore, the reasonabl e possibility of false
implication of the respondent cannot be excluded. The trial Court after considering the evidence
on record by means of well -reasoned -judgment extended benefit of doubt in favour of the
respondent, which is unexceptionable, warrants no interference by this Court.
In view of the above, the Criminal Acquittal Appeal No. 145 of 2011 having no merits is
dismissed.
HBT/78/Bal. 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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