2016 P Cr. L J 522
[Balochistan]
Before Muhammad Noor Meskanzai, C.J. and Muhammad Ejaz Swati, J
The STATE through Public Prosecutor, ATA and others ---Appellants
Versus
ABDUL BARI and others ---Respondents
Criminal Acquittal Appeals Nos.285 to 297 of 2012, decided on 26th November, 2015.
Penal Code (XLV of 1860) ---
----Ss. 302, 324, 436, 147, 148 & 149 ---Anti-Terrorism Act (XXVII of 1997), Ss. 7(a) & 25 ---
Pakistan Arms Ordinance (XX of 1965), S.13- D---Criminal Procedure Code (V of 1898), Ss . 417
& 540--- Qatl-i-amd, attempt to commit qatl- i-amd, mischief by fire or explosive, rioting armed
with deadly weapons, terrorism and recovery of unlicensed weapons ---Appreciation of evidence -
--Appeal against acquittal ---Failure to produce case property ---Material witness, summoning of --
-Negligence of Special Prosecutor ---Accused persons were arrested and after recovery of
unlicensed weapons from their possession, recovery memos were attested by prosecution
witnesses, who were cited as prosecution witness es in challan ---Due to negligence of Special
Prosecutor neither those material witnesses were examined nor case property was produced ---
Trial Court after conclusion of trial acquitted all accused persons ---Validity ---Trial Court while
dealing/passing judgment had completely ignored the principal objective with which provision
under S.540, Cr.P.C. was brought into the statute ---Trial Court while conducting trial had not
even bothered to verify whether prosecution exhausted its material witnesses along with t he case
property, therefore, judgment passed by Trial Court could not be sustained and the same was set
aside--- High Court directed Trial Court to declare complainant as hostile and record the
statements of attesting witnesses of recovery memos along with case property ---High Court
further directed Trial Court to provide opportunity to parties to produce their evidence and to
decide the case afresh ---Appeal was allowed accordingly.
1972 SCMR 672; Farrukh Sayyar and 2 others v. Chairman, NAB Islamabad and others
2004 SCMR 1; AIR 1976 SC 202; Mukhtar Ahmad v. The State 2003 SCMR 1374 and
Muhammad Zahar v. Muhammad Iqbal and others PLD 1984 SC 95 rel.
Malik Sultan Mehmood, Special Prosecutor, ATA for Appellants (in Criminal Acquittal
Appeals Nos. 285 to 297 of 2012).
Mudassir Nadeem and Adnan Ejaz for Respondents Nos.1, 2, 3, 10 and 11 (in Criminal
Acquittal Appeal No. 285 of 2012).
Sardar Ahmed Haleemi for Respondents Nos.4 to 9 (in Criminal Acquittal Appeal No.
285 of 2012).
Mudassir Nadeem and Adnan Ejaz for Respondents (in Criminal Acquittal Appeals Nos.
286, 287, 289 and 297 of 2012).
Sardar Ahmed Haleemi for Respondents (in Criminal Acquittal Appeals Nos. 288, 292
and 293 of 2012).
Muhammad Ashraf Bazai for Respondents (in Criminal Acquit tal Appeals Nos. 290, 291,
294, 295 and 296 of 2012).
Date of hearing: 30th October, 2015.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ---On 9th March 2012 at about 4:55 a.m. a team
comprising of Levies Force, Anti -Terrorist Force (ATF) and Frontier Corps (FC) was constituted
for the arrest of the absconding accused involved in Crime No. 33 of 2009 under sections 302,
324, 436, 147, 148 and 149, P.P.C. read with section 7- A of the Anti -Terrorism Act, 1997
(hereinafter the "Act, 1997"). As soon the team surrounde d the houses of the said accused
persons situated at Killi Choori Maizai Addah, the accused persons started firing upon the
Forces, as a result of firing, an FC employee namely Muhammad Azhar (Naik) sustained bullet
injury, besides the official vehicle had been damaged. Due to firing of accused persons, their
own accomplice/ companion also received bullet injuries and died. The Forces in defence also
started firing and entered into the Killi. Two nominated accused persons of FIR No. 33 of 2009
namely Abdul Bari and Abdul Wadood were arrested and the other absconding accused persons
escaped from the spot. Besides, following accused persons, who were making firing upon the
Forces were apprehended along with their weapons/explosives:
i. Haji Abdul Bari along with Kalashnikov No. B.A -1627 with two spare Magazines
loaded + three Fuze Hand Grenade HE/36.
ii. Abdul Wadood along with Kalashnikov No. Q.K -8003 with two spare Magazines
loaded.
iii. Sirajuddin along with Kalashnikov No. G.H - 1923 with one spare Magazine
loaded.
iv. Haji Muhammad Shah along with Kalashnikov P.Q -3387 with one spare
Magazine loaded.
v. Dost Muhammad (dead person) along with Kalashnikov No.247555 with one
Magazine with Anarga (the Grenade throwing).
vi. Sadam (dead person) along with Kalashnikov No. A.P 3650 with one spare
Magazine loaded.
vii. Syed Ali along with Kalashnikov No. K.T.- 6309 with one spare Magazine.
viii. Abdul Wali along with Kalashnikov No. J.K -7164 with one spare Magazine
Loaded.
ix. Sardar along with Kalashnikov No. 240138 with one spare Magazine loaded.
x. Rustam along with Kalashnikov P.B -9882 with one spare Magazine loaded.
xi. Sarwar along with Riffle No. 1549922 M4 with 113 Live Rounds 10 Magazines.
2. The aforesaid weap ons/explosives were produced by PW -4 Muhammad Yousaf Naib
Subedar and taken into possession vide recovery memo. Ex.P/5- A attested by two marginal
witnesses namely Shams -ud-Din (Naik) and Ghulam Sarwar. On the complaint of Muhammad
Ilyas Dafedar Levies, an FIR No. 5 of 2012 dated 9th March 2012 at about 7:30 a.m. was
registered with Thana Levies Killa Abdullah under sections 302, 324, 353, 186, 147, 148, 149
read section 7 of the Act, 1997. Besides above FIR, since the accused persons could not produce
any l icenses or permit for keeping the aforesaid weapon in their possession, FIRs Nos. 6 to 17 of
2012 under section 13- D of the Arms Ordinance, 1965 (hereinafter the "Ordinance, 1965") were
registered at same Levies Thana Killa Abdullah.
3. At the trial, in respect of FIR No. 05 of 2012, the prosecution examined ten witnesses.
When examined under section 342, Cr.P.C. the accused persons denied the allegations of
prosecution. They did not record their statements under section 340(2), Cr.P.C. however,
produced three witnesses in defence.
4. The learned Special Judge Anti -Terrorism Court -II, Quetta (hereinafter the "trial Court")
vide judgment dated 12th November, 2012 (hereinafter the "impugned judgment") acquitted the
private respondents of the charge.
5. The prosecution by way of filing Criminal Acquittal Appeal No.285 of 2012 challenged
the aforesaid acquittal of the private respondents in respect of FIR No. 05 of 2012. The
prosecution in respect of FIRs Nos. 6 to 17 of 2012 under section 13 -D of the Ordin ance, 1965
examined five witnesses. When examined under section 342, Cr.P.C. the accused persons denied
the allegations of prosecution. The private respondents neither recorded their statements under
section 340(2), Cr.P.C. nor produced any witness in defe nce.
6. The trial Court vide impugned judgment of even date acquitted each respondents of the
charge.
7. The prosecution by way of filing Criminal Acquittal Appeals Nos. 285, 286, 287, 288,
289, 290, 291, 292, 293, 294, 295, 296 and 297 of 2012, had challenged the acquittal of the
private respondents. The matter related to FIR No. 05 of 2012 under sections 302, 324, 353, 186,
147, 148, 149 read with section 7 of the Act, 1997 and FIRs No. 6 to 17 of 2012 under section
13-D of the Ordinance, 1965 are i nterconnected, therefore, all the aforesaid Criminal Acquittal
Appeals are being disposed of by means of this common judgment.
8. The learned Special Prosecutor, ATA in pursuance to Criminal Acquittal Appeal No. 285
of 2012 contended that the impugned judgment of acquittal passed by the trial Court reflects
misreading and non- reading of evidence; that the injured witnesses (PW -6) Muhammad Azhar
specifically implicated the private respondents in the commission of offence, but his statement
has been ignored by the trial Court without assigning any cogent reason; that no point for
determination was framed in respect of unnatural death of two persons and causing of injury to
PW-6; that PW -1 Muhammad Ilyas complainant deliberately concealed the facts of the inc ident
and resiled from the contents of the FIR, but the request of the prosecution for declaring him
hostile, was turned down, by the trial Judge and thus, deprived the prosecution to cross -examine
the said witness; that hand grenades were also recovered f rom the accused persons, which have
been supported through expert report, but the trial Judge neither charged the accused for
explosive substance nor any determination was framed therefrom; that the ocular account was
further corroborated through the medic al, recovery of weapon coupled with expert's report,
which were unnoticed by the trial Court.
9. The learned Special Prosecutor, ATA in respect of Criminal Acquittal Appeals Nos. 286,
287, 288, 289, 290, 291, 292, 293, 294, 295, 296 and 297 of 2012 conte nded that the recovery
witnesses of the unlicensed weapons were neither summoned nor called for by the trial Court,
despite of the fact that the said witnesses were cited in challan; that the case property i.e.
unlicensed weapons were also not examined dur ing the trial and in this respect, the trial Court
has failed to exercise jurisdiction under section 540, Cr.P.C; that examining of the material
witnesses of the case in a trial has not been conducted in accordance with law; that opportunity
of fair trial has been withheld and the public prosecutor including the trial Court without
verifying the record of the case concluded the trial, which caused grave miscarriage of justice.
The learned counsel for the private respondents in rebuttal contended that none of the
prosecution witnesses have implicated the private respondents in the crime; that the ocular
account furnished by PW -1 and PW -2 including the injured witness PW -6, neither identified the
private respondents nor assigned any role to constituting the offence in question.
The learned counsel for the private respondents in respect of Criminal Acquittal Appeals Nos.
286, 287, 288, 289, 290, 291, 292, 293, 294, 295, 296 and 297 of 2012 contended that neither the
case property i.e. the alleged weapons wer e produced nor any witness of prosecution supported
the case; that mere production of photocopy of recovery memo. without any corroborative
evidence cannot be made basis for conviction; that after acquittal double presumption of
innocence is attached to th e acquittal of the private respondents; that the findings of the trial
Court neither reflect misreading or non- reading of evidence, hence liable to be sustained.
10. We have heard the learned counsel for the parties and have gone through the record of th e
case. The private respondents were tried by the learned Special Court under the Act, 1997 for the
charge under sections 302, 324, 353, 186 in respect of FIR No. 05 of 2012 registered with Levies
Thana Killa Abdullah on the complaint of Dafedar Muhammad I lyas (complainant), who alleged
indiscriminate firing on the part of the private respondents resulting death of two persons and
causing bullet injury to PW -6 Azhar Ali, an FC employee. During arrest of private respondents,
unlicensed weapons were also reco vered from them, which were taken into possession vide
recovery memo. Ex.P/5- A. Besides aforesaid charge, the private respondents were also tried and
charged under section 13 -D of the Ordinance, 1965 in respect of FIRs mentioned hereinabove.
The trial Cour t vide impugned judgment acquitted the private respondents of the charge in
respect of FIR No. 05 of 2012 and of charge under section 13- D of the Ordinance, 1965. It is
settled proposition that interference in an appeal against acquittal be rare and in exc eptional
circumstances. Generally, the order of acquittal shall not be interfered with, because the
presumption of innocence of the accused is further strengthened by acquittal. The settled
principle of administration of justice in criminal cases is that if, two views are possible on the
evidence adduced in the case, the view, which is favourable to the accused, shall be adopted. In
case where admissible evidence is ignored or disregarded, a duty is cast upon the appellate Court
to reappraise the evidence. The appeal against the judgment of acquittal is interfered with only
when there are compelling and substantial reasons for interference. In the case judgment reported
in 1972 SCMR 672, the Hon'ble Supreme Court of Pakistan observed that "when the appeal is
admitted, the entire case is reopened both on fact and law. No limitations are laid down in the
Code of Criminal Procedure on the appellate power of High Court against the order of acquittal,
if the reason given by the trial Judge in rejecting the prosecu tion evidence are of speculative and
artificial nature or the findings rendered are based on no evidence or misinterpretation. of
evidence thus resulting in miscarriage of justice".
11. In the instant case, the impugned judgment arising out of Criminal A cquittal Appeal No.
285 of 2012, is bad in law. It was the allegation of prosecution that as a result of indiscriminate
firing of the private respondents, two persons namely Dost Muhammad and Saddam had died
while PW -6 Azhar Ali sustained bullet injuries. The trial Court in the impugned judgment
neither framed any point for determination in respect of unnatural death of deceased persons and
injury of the victim nor any finding had been given therefrom. In the case of Farrukh Sayyar and
2 others v. Chairman, NAB Islamabad and others, 2004 SCMR 1, the Hon'ble Supreme Court of
Pakistan remanded the case to the trial, Court, due to non- framing of point for determination and
observed as under:
"It is a mandatory requirement of section 367, Cr.P.C. that a Court while writing a
judgment shall refer to the point or points for determination, record decision thereon and
also give reasons for the decision. The Court shall also specify the offence of which, and
the section of the Pakistan Penal Code or other law under which, the accused is convicted
and the punishment to which he is sentenced. In the present case the learned trial Court
overlooked the mandatory provisions of section 367, Cr.P.C. and rendered a judgment
which falls short of the requisite standard. Failur e to specify the points for determination
as required under section 367, Cr.P.C. is an omission which is not curable under section
537, Cr.P.C."
12. The other aspect of the case is that PW -1 Muhammad Ilyas (complainant) an eye -witness
of the incident mad e a statement against the prosecution and resiled from the contents of FIR,
which was duly recorded under section 154, Cr.P.C. carrying the signature of the complainant.
The trial Judge without assigning any cogent reason had declined the prosecution to cr oss-
examine its own witness and thus, did not declare him hostile witness as provided under Article
150 of the Qanun- e-Shahadat Order, 1984 (hereinafter the "Order, 1984"), which reads as under:
"150. Question by party to his own witness.---The Court may , in its discretion, permit
the person who calls a witness to put any question to him which might be put in cross -
examination by the adverse party."
Article 150 of the Order, 1984 provides that the Court may in its discretion permits the
person who calls a witness to put any question to him, which might be put in cross -
examination by the adverse party, which is only a source under the law to find out the
truth. In the judgment reported in AIR 1976 SC 202, it is held that "where the Court gives
permission to the prosecution to cross -examine his own witness, the evidence remains
admissible in the trial and there is no bar to base a conviction upon his testimony, if
corroborated by other reliable evidence".
In the case of Mukhtar Ahmad v. The State, 2003 SCMR 1374, the Hon'ble Supreme Court of
Pakistan in respect of a witness, who during cross -examination supported the defence version
observed as under:
"If it is held that Easa Kochwan was won over, the prosecution ought to have had got him
declared hostile. It never resorted to such process."
13. In the instant case, on the complaint of PW -1 Muhammad Ilyas, who was an eye -witness
of the incident, the FIR was registered, wherein besides allegation of committing murder of two
persons and causing of firearm injury to FC employee, huge quantity of unlicensed weapons
were alleged from the possession of the private respondents. The said recovery was taken into
possession through recovery memo. Ex.P/5- A., which was produced by PW -5 Ghulam Sarw ar.
PW-1 not only resiled from his previous statement, but also disowned the contents of the FIR. It
appears that PW -1 concealed the truth, thus it was the duty of the trial Judge to have exercised its
discretion under the provisions of Article 150 of the Order, 1984, but it had failed to do so, thus
grave miscarriage of justice had been caused to the prosecution. PW -1 Muhammad Ilyas was
ought to be declared hostile and ought to be cross -examined on behalf of the prosecution. Non-
providing of such opportuni ty to the prosecution amounts to deprive the prosecution from a
valuable legal right and thus committed glaring illegalities, on this ground too, the impugned
judgment cannot be sustained.
14. Adverting to Criminal Acquittal Appeals Nos. 286, 287, 288, 289, 290, 291, 292, 293,
294, 295, 296 and 297 of 2012, we find that pursuant to FIR No. 05 of 2012, vide recovery
memo. Ex.P/5- A, unlicensed weapons mentioned hereinabove were recovered from the
possession of the private respondents. Marginal witnesses of recovery memo. namely Shams -ud-
Din (Naik) and Ghulam Sarwar were cited as prosecution witnesses in the challan filed against
the each accused persons/respondents. During trial, neither the aforesaid material prosecution
witnesses were summoned nor examined at the trial nor the case property i.e. unlicensed
weapons allegedly recovered from the possession of the private respondents were produced
before the trial Court which ultimately resulted in acquittal of the private respondents. The order
sheet dated 16t h October, 2012 of the trial Court reads as under:
"Called. Accused is in custody. D/counsel is present. S.P.P is present 2nd I.O. Ayaz
Haider is present. Examined and cross -examined by D/Counsel. Prosecution side is
closed. Adjourned for statement of ac cused under section 342, Cr.P.C. on 18- 10-2012."
15. From the above, it reveals that without examining the record of the case, without
assigning any reason, without examining and producing the case property i.e. unlicensed
weapons recovered from the poss ession of the private respondents, the prosecution side was
closed.
The provisions of section 540, Cr.P.C. cast a legal duty upon the Court/Judge to see that the
witnesses, who have been cited by the prosecution, are produced by it or, if summons are iss ued,
they are actually served on the witnesses, if the trial Court is of the opinion that the material
witnesses have not been examined. It should not allow the prosecution to close the evidence.
There can be no doubt that the prosecution may not examine a ll its witnesses, but that does not
necessarily mean that the prosecution can choose not to examine any witness. The public or
Special Prosecutor, who conducts the trial, has a statutory duty to perform. He is not supposed to
be negligent or take thing in a light manner. The Court also is not expected to accept the version
of the prosecution as if it is sacred. It has to apply its mind on every occasion. Non- application of
mind by the trial Court has the potentiality to lead to the paralysis of the conception of fair trial.
The trial Court cannot be a silent spectator or a mute observer. If evidence of any witness
appears to the Court to be essential to just decision of the case it is the power of the Court to
summon and examine or recall and reexamine any s uch person.
Section 540, Cr.P.C. should be resorted to only with the object of finding out truth or obtaining
proper proof from such facts which will lead to a just and correct decision of the case. The object
of aforesaid provision simultaneously impose s a duty on the Court to determine the truth and to
render a just decision. Section 540, Cr.P.C. has two parts; in the first one the discretion lies with
the Court to examine or not to examine any person as a witness, but according to second part of
the section, the Court is bound to examine any person as a witness, if his evidence appears to be
essential for just decision of the case irrespective of the fact that any party had requested for it or
not. This legal proposition has been explained by the Hon'bl e Supreme Court of Pakistan in the
case of Muhammad Azhar v. Muhammad Iqbal and others PLD 1984 SC 95. It had been
observed at page 118 of the judgment:
"The duty nevertheless lay squarely on the trial Court to summon the entire available
evidence on thi s controversy and record/admit the same by virtue of power under section
540, Cr.P.C. It reads as follows: "Power to summon material witness or examine person
present. Any Court may, at any stage of any inquiry, trial or other proceeding under this
Code, s ummon any person as a witness, or examine any person in attendance, though not
summoned as a witness, or recall and re -examine any person already examined; and the
Court shall summon and examine or recall and re -examine any such person if his
evidence appe ars to it essential to the just decision of the case."
"This provision is divided into two parts: one where it is only discretionary for the Court
to summon a Court witness suo motu or on application, and the second part where it is
mandatory for the Court to do so. The main condition to be satisfied with regard to the
second part is that the evidence to be summoned under this part should appear to the
Court to be essential to the just decision of the case. As has already been observed the
evidence in que stion relating to Nikah was undoubtedly essential for the just decision of
the case. In the circumstances of this case the failure of the learned trial Judge to act
under the said part of section 540, Cr.P.C. has not only deprived the appellate Courts of
essential material for the justice decision of the appeal, but has also occasioned
miscarriage of justice."
The observation at page 120 of the above judgment read as under:
"The failure of the parties to produce sufficient evidence after introducing thi s subject
should not have deterred the trial Court in performing the duty under the second part of
Section 540, Cr.P.C. The trial Court has, as discussed above, failed to do so and therefore
on this account also the case merits remand for fresh trial."
The legal position was further explained at page No.121 which is reproduced:
"It needs to be observed that .for purpose of acting under Section 540, Cr.P.C. (whether
the first or second part), it is permissible to look into the material not formally admitted
in evidence, whether it is available in the records of the judicial file or in the police file or
elsewhere. The perusal of both these records would show that if evidence in connection
with the items already noticed, would have been properly entertain ed the reasoning and
decision of the learned two Courts might have been different."
16. In the instant case, the private respondents were arrested in the case FIR No.5/2012 and
after recovery of unlicensed weapons from their possession through recovery m emo. attested by
the prosecution witnesses namely Shams - ud-Din (Naik) and Ghulam Sarwar, who were also
cited as witnesses in the challan under section 13 -D of the Ordinance, 1965, but due to
negligence of special prosecutor neither aforesaid material witn esses were examined nor the case
property was produced. The trial court while dealing/passing the impugned judgment has
completely ignored the principle objective with which the provision under section 540, Cr.P.C.
has been brought into the statute. The tr ial court while conducting the trial had not even bothered
to verify whether the prosecution exhausted its material witnesses along with the case property,
thus the impugned judgments cannot be sustained.
In view of the above, the Criminal Acquittal Appe als Nos. 285 of 2012 and Criminal Acquittal
Appeals Nos. 286, 287, 288, 289, 290, 291, 292, 293, 294, 295, 296 & 297 of 2012 are allowed,
the impugned judgment dated 12th November 2012 passed by the learned Special Judge Anti -
Terrorism Court -II, Quetta are set aside and the cast pursuant to Criminal Acquittal Appeal No.
285 of 2012 is remanded to the trial Court with direction to declare PW -1 Muhammad Ilyas
(complainant) hostile and provide opportunity to prosecution for cross -examination. After
recording s tatement of the private respondents and providing opportunity of recording statement
under section 340(2), Cr.P.C. or defence witness decide the case in accordance with law.
The case pursuant to Criminal Acquittal Appeals Nos. 286, 287, 288, 289, 290, 291, 292, 293,
294, 295, 296 and 297 of 2012, the matters are remanded to the trial Court with direction to
record the statements of the attesting witnesses of recovery memo. along with the case property.
After recording the statement of the accused under section 342, Cr.P.C. and providing
opportunity of recording statement under section 340(2), Cr.P.C. or defence decide the cases in
accordance with law within a period of six months.
MH/3/Bal. 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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