2017 P Cr. L J 832
[Balochistan]
Before Muhammad Ejaz Swati and Nazeer Ahmed Langove, JJ
MUHAMMAD ISHAQUE ---Appellant
Versus
The STATE---Respondent
Criminal Appeal No. 275 of 2016, decided on 2nd January, 2017.
(a) Penal Code (XLV of 1860) ---
----Ss. 302, 324, 504, 506 & 34---Qatl -i-amd, attempt to commit qatl- i-amd, intentional insult
with intent to provoke breach of the peace, criminal intimidation, common intention---
Appreciation of evidence ---Benefit of doubt ---Consultation and deliberation in lodging FIR---
Accused was nominated in FIR ---Said FIR was registered after engaging advocate, which was
not only above board but seemed to be lodged after consultation and deliberation---No plausible
or justifiable explanation in that regard was available on recor d--- Said circumstances rendered
whole of the prosecution version doubtful, benefit of which would resolve in favour of accused--
-Conviction and sentences recorded against accused by Trial Court were set aside in
circumstances.
(b) Penal Code (XLV of 1860) ---
----Ss. 302, 324, 504, 506 & 34---Qatl -i-amd, attempt to commit qatl- i-amd, intentional insult
with intent to provoke breach of the peace, criminal intimidation, common intention---
Appreciation of evidence ---Benefit of doubt ---Prosecution case was that the accused along with
co-accused persons made firing with Kalashnikovs on the complainant party, resultantly, one
person died and two were injured during the occurrence ---Statement of all the prosecution
witnesses made it clear that allegation against the accused was that of ineffective firing ---Neither
any prosecution witness received injury nor the deceased died on account of firing made by the
accused ---Circumstances cast doubt on the prosecution case, benefit of which would resolve in
favour of accus ed---Conviction and sentences recorded against accused by Trial Court were set
aside in circumstances.
(c) Penal Code (XLV of 1860) ---
----Ss. 302, 324, 504, 506 & 34---Qatl -i-amd, attempt to commit qatl- i-amd, intentional insult
with intent to provoke br each of the peace, criminal intimidation, common intention ---
Appreciation of evidence ---Motive not proved--- Effect ---In the present case, accused had not
been attributed firing on the person of deceased or any injured witness ---No evidence on record
was av ailable to substantiate that the incident was premeditated or accused was connected with
the motive part of the prosecution story ---Conviction and sentences recorded against accused by
Trial Court were set aside.
(d) Penal Code (XLV of 1860) ---
----Ss. 302, 324, 504, 506 & 34---Qatl -i-amd, attempt to commit qatl- i-amd, intentional insult
with intent to provoke breach of the peace, criminal intimidation, common intention---
Appreciation of evidence ---Weapon of offence was not recovered from the accused ---Negligence
on the part of Investigating Officer ---Effect ---Prosecution had failed to recover the Kalashnikov
with which the accused allegedly made firing ---Prosecution was bound to collect all the
incriminating evidence during investigation but in the present case, it did not discharge its legal
duty---Conviction and sentences recorded against accused by Trial Court were set aside.
(e) Penal Code (XLV of 1860) ---
----Ss. 302, 324, 504, 506 & 34---Qatl -i-amd, attempt to commit qatl- i-amd, intentional insult
with intent to provoke breach of the peace, criminal intimidation, common intention---
Appreciation of evidence ---Benefit of doubt ---Scope---Prosecution had failed to bring home the
charge against the accused beyond any shadow of doubt ---Trial Court, while co nvicting the
accused, had failed to apply its judicial mind---Circumstances and facts had created sufficient
doubts in the case of prosecution, benefit of which would be extended in favour of accused ---
Conviction and sentences recorded against accused by T rial Court were set aside.
Muhammad Aamir Rana for Appellant.
Habibullah Gul, Additional P.- G. for the State.
Date of hearing: 12th December, 2016.
JUDGMENT
NAZEER AHMED LANGOVE, J. ---Instant appeal is directed against the judgment
dated 30th June, 2016 passed by the learned Sessions Judge, Pishin whereby the appellant was
found guilty under section 324, P.P.C., as such convicted and sentenced to suffer 10 years' RI
with fine of Rs. 20,000/ - (Rupees Twenty Thousand only). In default of payment of fine the
appellant was directed to further undergo two months' SI. Benefit of section 382- B, Cr.P.C., was
extended in favour of appellant.
2. Brief facts leading to file instant appeal are that on 15th May, 2013 at 12:00 noon the
complainant Shaukat Ali, lodged FIR No.12/2013 with Levis Station, Barshore alleging therein
that on the fateful day Barkat Ali, Shaukat, Hazrat Ali and Ameer Jan went to Marjan Mountain
when accused Amanullah armed with Kalashinkov, Barged, Ishaque and Bismillah equipped
with Kalashink ov came there. Accused Amanullah made firing on Barkat owing to which he
received serious injuries and later on died. The accused Barged made firing with Kalashinkov on
Hazrat Ali due to which he received injuries on his right arm. Accused Bismillah made f iring
with Kalashinkov on Amir Jan who received injury on his leg. Accused/appellant Ishaque made
firing upon Sarwar Jan but he succeeded to hide himself behind the boulders of mountains and
luckily remain unhurt. The motive behind occurrence was stated to be property dispute.
3. On the above written report FIR No. 12/2013 under sections 302, 324, 504, 506 and 34,
P.P.C. was registered and investigation commenced. During course whereof the Levis authorities
could not lay hand on rest of the co accused, howe ver, the present appellant was arrested.
4. On 08th July, 2015 charge was read over to the appellant to which he pleaded not guilty
and claimed trial. The prosecution in order to substantiate the accusation against the appellant
produced 11 PWs. Thereafter the appellant was examined under section 342, Cr.P.C., wherein he
denied all the incriminating pieces of evidence and pleaded innocence. The appellant opted to get
himself examined as envisaged under section 340(2), Cr.P.C., and also produced two DWs in his
defence. The learned trial court after hearing the parties and evaluating the evidence found the
appellant guilty, as such; convicted and sentenced him as mentioned hereinabove.
5. Learned counsel for the appellant argued that the appellant is innocent. He has committed
no offence whatsoever. No incriminating article has been recovered from the appellant. The
learned trial court while convicting the appellant failed to take into consideration the delay in
lodging FIR. The learned counsel stressed that there are contradictions and discrepancies in the
statements of PWs, as such their testimony cannot be made basis for recording conviction against
the appellant. During the trial the defence has fully succeeded to create serious dents and doubts
in prosecuti on case but the learned trial court erred in law by not extending the benefit of doubt
in favour of appellant. The judgment impugned is result of misreading and non- reading of
evidence. The PWs have not corroborated each other on important points but this aspect of the
case escaped notice of the trial court.
On the other hand the learned Additional P.G strongly opposed the appeal by submitting
that the appellant was nominated in the FIR. The prosecution proved guilt of the appellant
beyond any reasonable s hadow of doubt. All the PWs have fully supported the prosecution case.
No illegality or irregularity could be point out by the learned counsel in the judgment impugned.
The trial court after proper appraisal of evidence and taking into consideration all as pects of the
case passed the impugned judgment which is not open to any exception.
6. We have considered the arguments advanced by the learned counsel for the parties and
perused the record of the case with their assistance. It may be noted that though the appellant has
been nominated in the FIR but the same was registered after engaging advocate which is not only
above the board but also seems to be lodged after consultation and deliberation and there is no
plausible or justifiable explanation in this regard. According to PW -1 the appellant made firing
on Sarwar but he remained unhurt. PW -2 stated that appellant made firing at him but he hidden
himself and remained saved. PW -3 also deposed that the appellant made firing at Sarwar but he
succeeded to hide himself and remained unhurt. PW -5 and PW -6 also reiterated the statement of
PW-1, PW -2 and PW -3 to the extent of appellant. Perusal of statements of all the PWs makes it
crystal clear that the allegation against the appellant is regarding in effective firing due to which
neither any PW received injury nor the deceased Ali Muhammad died on acc ount of firing made
by the appellant. Perusal of FIR further reveals that minute details in respect of role of appellant
has been incorporated therein which, in our opinion does not appeal to a prudent mind. There is
another aspect of the case which cannot be left un- attended i.e. the appellant had not been
attributed firing on the person of deceased or any injured witness. There is also no evidence on
record to substantiate that the incident was premeditated nor appellant was connected with the
motive part of the prosecution story.
Needless to mention here that during investigation the prosecution failed to recover the
Kalashinkov with which the appellant allegedly made firing upon Sarwar Jan. The prosecution
was bound to collect all the incriminating evid ence during investigation but in the instant case it
did not discharge its legal duty. The appellant has allegedly made ineffective firing, therefore, his
case is on different footings than that of the rest of accused persons. If we keep the prosecution
as well as defence plea in juxta position the plea raised by the defence is more plausible,
convincing and near to real facts, as such; we have no hesitation in our mind to hold that the
prosecution failed to bring home the charge against the appellant beyond any shadow of doubt
and the trial court while convicting the appellant failed to apply its judicial mind.
For the foregoing reasons, we are of the considered opinion that the prosecution failed to
prove guilt of the appellant to the hilt. On the contrar y the defence has fully been able to create
dents and doubts in the prosecution case, as such, while extending the benefit of doubt we accept
the appeal, set aside the judgment dated 30th June, 2016 passed by the Sessions Judge, Pishin
and acquit the appel lant Muhammad Ishaque son of Gul Baraan in case FIR No. 12/2013
registered under sections 302/324, 504, 506 and 34, P.P.C. with Levis Station Barshore. He be
released forthwith if not required in any other offence.
Before parting with the judgment we feel it necessary to mention here that observations,
made here in above, are only to the extent of appellant and the same shall have no impact on
merits of main case qua the absconding accused.
JK/19/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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