2017 P Cr. L J 1061
[Balochistan]
Before Jamal Khan Mandohail and Zaheer -ud-Din Kakar, JJ
ABDUL MALIK ---Petitioner
Versus
HAZRAT ALI alias LALAI and another ---Respondents
Crl. Acq. Appeal No. 396 of 2009, decided on 13th March, 2017.
(a) Penal Code (XLV of 1860) ---
----Ss. 302 & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Appeal against
acquittal ---Material contradictions in the statement of witnesses ---Effect ---Prosecution case was
that accused persons made indiscriminating firing on t he brother of the complainant, who was
seriously injured and succumbed to injuries on the spot ---Record showed that prosecution had
relied upon the statements of eye -witnesses including the complainant ---Statements of said
witnesses had contradicted each o ther on material points ---No flaw was found in the judgment
passed by the Trial Court ---Appeal against acquittal was dismissed accordingly.
(b) Penal Code (XLV of 1860) ---
----Ss. 302 & 34---Qatl- i-amd, common intention---Appreciation of evidence ---Intere sted
witness ---Ocular account furnished by witnesses having relationship with the deceased ---
Reliance---Scope ---Allegation against the accused persons was that they fired at the brother of
complainant, who was seriously injured and succumbed to injuries on the spot ---Ocular account
was furnished by two witnesses, one was brother and other was nephew of the deceased, said
eye-witnesses, therefore, were interested witnesses and reliance could not be placed thereon ---
Appeal against acquittal was dismissed in circumstances.
(c) Penal Code (XLV of 1860) ---
----Ss. 302 & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Appeal against
acquittal ---Weapon of offence was not recovered---Effect ---During investigation, nothing had
been recovered from the possession of accused persons ---Circumstances suggested that
prosecution had failed to connect the accused persons with the commission of offence ---Appeal
against acquittal was dismissed.
(d) Penal Code (XLV of 1860) ---
----Ss. 302 & 34---Criminal Proced ure Code (V of 1898), S. 417(2 -A)---Qatl -i-amd, common
intention ---Appeal against acquittal ---Appreciation of evidence ---Principles ---Findings of Trial
Court could not be reversed unless the same were perverse, and illegal ---Trial Court had found
that "per usal of evidence showed that no other decision could be given except that the accused
was guilty"---Trial Court committed complete misreading of evidence leading to miscarriage of
justice ---Appeal against acquittal was dismissed accordingly.
Azhar Ali v. The State PLD 2010 SC 632 rel.
(e) Criminal Procedure Code (V of 1898) ---
----S. 417---Appeal against acquittal ---Appreciation of evidence ---Principles ---Accused after his
acquittal by Trial Court would enjoy double presumption of innocence in his favour ---Court
seized with appeal under S. 417, Cr.P.C. was obliged to be very careful in dislodging such
presumption.
Iftikhar Hussain and others v. The State 2004 SCMR 1185 and Haji Paio Khan v. Sher
Biaz and others 2009 SCMR 803 rel.
Muhammad Aslam Chishti for Appellant.
Syed Ayaz Zahoor and Shams -ud-Din for Respondent No.1.
Ameer Hamza Mengal, DPG for the State.
Date of hearing: 8th November, 2016.
JUDGMENT
ZAHEER -UD-DIN KAKAR, J. ---This appeal has been directed against the judgment
dated 19.11.2009 "the impugned judgment" passed by the learned Additional Sessions Judge -II,
Quetta "the trial Court", whereby respondent/accused has been acquitted of the charge.
2. The prosecution story as given in the impugned judgment stated as follows:
"The case of prosecution is that the complainant Abdul Malik is the brother of deceased,
recorded in the Fard -e-Bayan that he resides at Killi Umar Quetta and on 25.9.2008 at
about 7:30 p.m., he got prepared for paying visit to his ailing sister. He asked his brother
Abdul Qadir (deceased) on phone as if he wants to accompany him. Abdul Qadir
conceded to and invited him at Alamo Chowk for company. The complainant (PW -1) set
out from home on his vehicle and met Abdul Qadir at Alamo Chowk. There Abdul Qadir
told them for coming on his own vehicle. So they went to the house of their sister at
Brewery Road and at quarter to nine by night they left for home. In their way back to
home, Abdul Qadir halted at Askari Pump for filling diesel in his vehicle AAF -990-
Quetta, the complainant also filled patrol in his car. The complainant alleged that as
Abdul Qadir proceeded ahead, a white Jeep went in his pursuit. Four persons were sitting
in that Jeep viz, Murtaza, Hazrat Ali (accused facing trial), Ahmed Khan and an
unidentified to which he can identify on coming across. The complainant also followed
them promptly. At about half past nine, when he reached at a road in front of Askari Park
he saw those persons after intercepting the vehicle of his brother, accused Hazrat Ali alias
Lalai and Ahmad Khan came out of the Jeep having Kalashnikovs in their hands and
started indiscriminate firing on his brother Abdul Qadir who was sitting in vehicle. His
brother became seriously injured and succumbed to his injuries on the spot. The Accused
persons fled the spot on the said Jeep having no number plate on it. The motive behind
this wardat, as per complainant, is an old blood feud between them".
3. After registration of FIR, the investigation of the case was entrusted to PW -7 Syed
Nazeer Shah SI, who proceeded to Civil Hospital, made superficial inspection of the dead body
of the deceased Abdul Qahir, conducted proceedings under section 174, Cr.P.C., recorded
statements of the witnesses and thereafter, visited the site and found vehi cle No.AAF -990 having
broken glasses of left side and also found bullet sign on the left rear side of the vehicle. He took
into possession the blood stained articles, prepared memo of site inspection, obtained death
certificate, arrested the accused and th ereafter, in pursuance of letter of the PPO, the
investigation was transferred to Crimes Branch, where PW -8 Din Muhammad SIP conducted
investigation, received FSL report Ex -P/8-A, recorded statements of witnesses and after
completion of investigation prepa red challan Ex. P/8 -B.
4. On the stated allegations, a formal charge was framed on 24.11.2008 and read over to the
respondent, to which he did not plead guilty and claimed trial. To prove the accusation, the
prosecution produced following eight (8) witness es:
PW-1 Abdul Malik, complainant, produced his fard- e-bayan Ex P/1.
PW-2 Shah Farooq, eye -witness.
PW-3 Hafeezullah SIP, witness of the memo of site inspection Ex P/3
PW-4 Sardar Khan SIP is witness to recovery memo of blood stained articles Ex -P/4.
PW-5 Dr. Muhammad Ibrahim, examined the dead body of the deceased and found the
following injuries on his person:
1. Firearm wound of entrance on the right side of the face diameter 1/2 cm. Exit of
the firearm wound on the left side of the face. Diameter of about 1 cm.
2. Multiple firearm wound of entrance on the neck.
3. Firearm wound of entrance on the right side of the chest near the clavicle.
4. Firearm wound of entrance on the right arm.
PROBABLE CAUSE OF DEATH : was haemorrhage and shock by the discharge of
firearm so the death was certified.
He issued certificate Ex -P/5-A.
PW-6 Azizullah Patwari prepared site map Ex -P/6-A.
PW-7 Syed Nazeer Shah IP and PW -8 Din Muhammad SIP are investigating officers.
Then the prosecution closed its side.
5. The accused was examined under sections 342 and 340(2), Cr.P.C, wherein he denied the
prosecution allegations leveled against him. He also produced Wali Khan as DW -1.
6. On conclusion of the trial and hearing the arguments advanced by the learned counsel for
the part ies, the trial Court acquitted the respondent vide impugned judgment dated 19.11.2009,
hence the instant appeal.
7. The learned counsel for the appellant/complainant contended that the trial Court has
miserably failed to appreciate the evidence available o n record in its true perspective; that the
ocular account of the eye -witnesses, medical evidence and circumstantial evidence have fully
corroborated each other on material points and made a complete chain of evidence, which
establishes that the accused/res pondent committed murder of deceased; that the prosecution had
proved its case beyond any reasonable doubt but the learned trial Court without any lawful
justification acquitted the respondent, so it has been prayed that while accepting this appeal,
impugned judgment passed by the trial Court be set aside and respondent be convicted in
accordance with law.
8. On the other hand, the learned counsel for the respondent supported the impugned
judgment and stated that the learned trial Court taking into consider ation the evidence on record,
on the basis of cogent reasons acquitted the respondent; so it has been prayed that this appeal is
liable to be dismissed.
9. We have heard learned counsel for the parties and have gone through the impugned
judgment and also r ead the evidence brought on record by the prosecution. It may be noted that
the trial Court has thoroughly examined the evidence available on record and concluded that the
prosecution has failed to establish accusation against the accused/respondent. Perus al of the
record shows that in the instant case the prosecution relied upon the statements of PW -1 Abdul
Malik and PW -2 Shah Farooq (brother and nephew of the deceased, respectively), but their
statements contradicted each other on material points, which w ere highlighted by the trial Court
in paras -18 and 19 of the impugned judgment. Furthermore, being brother and nephew, they are
interested witnesses. Further during investigation nothing has been recovered from the
possession of the respondent/accused.
10. It is settled principle of law that in appeal against acquittal, judgment of the learned trial
Court cannot be reversed unless the same is perverse, completely illegal and that from the
perusal of evidence no other decision can be given except that the ac cused is guilty or there has
been complete misreading of evidence leading to miscarriage of justice. In exercising this
jurisdiction, this Court is always slow unless it feels that grave injustice has been done in
administration of criminal justice due to incompetency and perversity of trial Court culminating
into distorted conclusion. In this regard reliance is placed on the judgment of august Supreme
Court of Pakistan reported as "Azhar Ali v. The State" (PLD 2010 SC 632).
11. From perusal of the record w e are of the considered view that the judgment of learned
trial Court is neither perverse, illegal, nor it was based on complete misreading of evidence
leading to miscarriage of justice. The conclusion arrived at by the learned trial Court were based
on cogent reasons. There was no infirmity or illegality found by us in the impugned judgment. In
these circumstances, we have not been able to take a view different from the one taken by
learned trial Judge. Even otherwise, it is settled principle of law that the accused, after his
acquittal by trial Court, enjoys double presumption of innocence in his favour and Courts seized
with acquittal appeal under section 417, Cr.P.C. are obliged to be very careful in dislodging such
presumption. Reliance can advantageous ly be made to the case of "Iftikhar Hussain and others v.
The State" (2004 SCMR 1185), wherein at page 1194 the Hon'ble apex Court pleased to observe
as under:
"It is well- settled principle of criminal administration of justice that when an accused is
acqu itted of the charge, he enjoys double presumption of innocence in his favour and
Courts seized with acquittal appeal under section 417, Cr.P.C. are obliged to be very
careful in dislodging such presumption. Undoubtedly, two views are always possible
while appreciating the evidence available on record, therefore, for such reason and in
order to avoid the multiplicity of litigation, it is always insisted that the Court should
follow the recognized principles for interference in the acquittal judgment as held in the
case of Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 that
the Appellate Court seized with the acquittal appeal under section 417, Cr.P.C. is
competent to interfere in the order challenged before it provided it has been estab lished
that the trial Court has disregarded the material evidence or misread such evidence or
received such evidence illegally."
12. In this regard, further reliance can be placed on the case of "Haji Paio Khan v. Sher Biaz
and others" {2009 SCMR 803}, wherein the afore -referred view was further reiterated by the
Hon'ble apex Court. Keeping in view the above circumstances coupled with guidelines given by
the Hon'ble apex Court in the above quoted precedent cases, this Court is of the firm view that
there is nothing arbitrary, capricious, fanciful, or against the record to warrant interference with
the acquittal of the respondent/accused.
13. Resultantly, we find no merit in this appeal, which is hereby dismissed.
JK/26 -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,
let us know.