2018 P Cr. L J 866
[Balochistan]
Before Abdullah Baloch, J
ALI BAKHSH alias ALI DOST ---Appellant
Versus
The STATE---Respondent
Criminal Appeal No. 117 of 2015, decided on 30th October, 2017.
(a) Penal Code (XLV of 1860) ---
----Ss. 324 & 337- F(v)--- Attempt to commit qatl- i-amd, causing Hashimah ---Appreciation of
evidence ---Benefit of doubt ---Prosecution case was that the accused had made firing through
T.T. pistol upon the cousin of the complainant and caused serious injurie s to him ---Motive
for the occurrence was an old enmity of harsh words exchanged between the accused and
victim a month earlier ---Case was registered by the complainant, who in his fard- e-bayan had
mentioned that he was informed by his uncle through mobile phone that his son had been injured by the accused ---Complainant appeared in the court and made some improvements
and contradictions to his earlier deposition---Complainant in his examination -in-chief had
failed to mention the source of information; he als o failed to mention the exact time of
occurrence as well as the time when he was informed about the occurrence---Record was silent as to why the FIR was not lodged either by the injured or by his father, when allegedly, the father of injured had reached at the spot and taken the injured to hospital prior to the
complainant ---Such fact created doubt about the presence of father of victim at the place of
occurrence---Complainant, admittedly, did not witness the crime directly ---Occurrence
allegedly had taken place at about 9.40 a.m. and FIR was lodged at 10.30 a.m.---Complainant in his cross -examination had admitted that he reached hospital at 9.40 a.m. and thereafter
went to Police Station at about 10.55 a.m.--- If the complainant reached Police Station at
about 10.55 a.m. for lodging FIR, then as to how the FIR was lodged prior to his arrival at
Police Station and submitting his fard -e-bayan for lodging the FIR ---Complainant remained
silent about the motive part of the occurrence in his court statement, which also created doubt ---Prosecution witness had disclosed the fact that he had not witnessed the crime
directly and at the time when he reached at the place of occurrence, the victim was already in injured condition and he along with the father of injured took him to the hospital ---Statement
of another prosecution witness was similar to the statement of prosecution witness and said witness could not justify his presence at the place of occurrence--- Injured witness
contradicted the statements of all the prosecu tion witnesses with regard to the date of
occurrence---Prosecution had not furnished any explanation as to why statement of injured had been recorded after delay of more than forty five days ---Admittedly, all the witnesses
made contradictory statements to each other and made certain dishonest improvements in their depositions regarding their arrival at the scene of occurrence and shifting the injured to hospital ---Said witnesses could not justify their presence at the place of occurrence and it
appeared that they had given false statements being closely related with the victim---Prosecutions had failed to produce any independent witness, thus, the case of prosecution lacked independent corroboration---No medical reports from hospital were brought on record
to ascertain that injured got treatment from the said hospital or remained under treatment for
a long time ---Injured did not mention as to how many injuries were caused to him ---Such
glaring lacunas had broken the chain of evidence ---Circumstances establish ed that
prosecution had failed to prove the charge against the accused beyond any shadow of doubt,
benefit of which would be extended to the accused--- Appeal was allowed and accused was
acquitted in circumstances by setting aside conviction and sentences r ecorded by the Trial
Court.
Tariq Pervaiz v. The State 1995 SCMR 1345 rel.
(b) Penal Code (XLV of 1860) ---
----Ss. 324 & 337- F(v)---Attempt to commit qatl- i-amd, causing Hashimah---Appreciation of
evidence ---First Information Report was lodged by a stran ger---Effect ---In presence of
victim, who was in senses and his father, who reached at the spot prior to the complainant
and took the victim to hospital along with other eye -witnesses, the registration of FIR by the
stranger, was not justifiable.
Naseema Bibi v. The State 2008 PCr.LJ 613 and Sikandar Hayat v. The State 2003
PCr.LJ 310 rel. (c) Penal Code (XLV of 1860) ---
----Ss. 324 & 337- F(v)--- Attempt to commit qatl- i-amd, causing Hashimah --- Appreciation of
evidence ---Recovery of weapon of offence ---Reliance---Scope ---Police Official/witness
stated that on the pointation of accused, a licensed pistol was recovered from the road side
bushes with empty magazine on 29.9.2013---Another Police Official/witness stated that on 15.8.2013, he along with Investiga ting Officer visited the site and took two empties into
possession ---Investigating Officer stated that two empties were sent to Forensic Science
Laboratory for chemical analysis on 1.10.2013---Parcels for Forensic Science Laboratory were received by Ballis tic Expert on 10.10.2013 and report was prepared on 25.11.2013 after
lapse of 1 -1/2 months of its receipt and after three months of the occurrence ---Report showed
that T.T. pistol with five .30- bore live cartridges and two 7.62MM -bore empties were found,
which were not at all case property, therefore such, Forensic Science Laboratory's report had
no evidentiary value.
Shehbaz Tariq for Appellant.
Abdul Karim Malghani, State counsel for the State.
Date of hearing: 25th October, 2017.
JUDGMENT
ABDULLAH B ALOCH, J.---This judgment disposes of Criminal Appeal No.117 of
2015 filed by the appellant Ali Bakhsh alias Ali son of Abdul Jaleel, against the judgment dated 26th October, 2015 (hereinafter referred as, "the impugned judgment") passed by learned Additional Sessions Judge Lasbella at Hub (hereinafter referred as, "the trial Court"), whereby the appellant was convicted under section 324, P.P.C. and sentenced to suffer R.I. five (05) years with fine of Rs.10,000/ - or in default thereof to further suffer S.I . for two (02)
months; under section 337- F(v) hashimah Q&D Ordinance and sentenced to suffer one (01)
year's R.I. with fine of Rs.100,000/ - as Daman to the victim Umid Ali, whereas in default of
payment of Daman amount he shall remain in custody till the p ayment of Daman is made,
with the benefit of section 382- B, Cr.P.C.
2. Facts of the case are that on 15th August, 2013, the complainant Muhammad Ayub,
lodged FIR No.31/2013 at Police Station Bela District Lasbella, under section 324, Q&D
Ordinance, stating therein that on the day of occurrence at about 9:40 a.m., he was coming
from his house to Bela Bazar, in the way his uncle Attaullah has informed him through mobile phone that the convict/appellant Ali Bakhsh near to Sabrani Goth Road has made firing thro ugh T.T. pistol upon his son Umid Ali and caused serious injuries to him and
escaped from the place of occurrence and he along with Muhammad Qasim and Master Muhammad Jamil is taking his son to Civil Hospital Bela, so he immediately reached at Civil Hospit al Bela, he saw his cousin Umid Ali, who has sustained one bullet on right leg and two
bullets on left leg. Motive between the occurrence is an old enmity of harsh words exchanged
to each other before one month.
3. Pursuant to above FIR, the investigation was entrusted to PW -10 Mahvial Khan,
I.P/IO, who during investigation inspected the site and prepared site map; secured blood
stained earth from the place of occurrence and took into possession the blood stained clothes of injured; secured four empties from the place of occurrence; recorded the statements of witnesses under section 161, Cr.P.C.; obtained Medical Certificates of injured; arrested the appellant and conducted investigation from him; on completion of investigation submitted the challan in the t rial Court.
4. At the trial, the prosecution produced Ten (10) witnesses, whereafter the
convict/appellant was examined under section 342, Cr.P.C. The appellant neither recorded his statement on oath under section 340(2), Cr.P.C. nor produced any witness i n his defence. On
conclusion of trial and after hearing the arguments, the trial Court convicted and sentenced the appellant as mentioned above in para No.1. Whereafter the appellant has filed the instant appeal.
5. Learned counsel for appellant contended that the impugned judgment suffers from
misreading and non- reading of evidence available on record; that the statements of the
prosecution witnesses are not consistent, the same are suffering from material contradictions, dishonest improvements and infirmi ties rendering their testimony doubtful; that in presence
of victim and his blood relation, the FIR was lodged by a stranger, which has created doubts in the case of prosecution; that since the ocular evidence is not confidence inspiring, thus the supporti ng evidence i.e. medical evidence, disclosure of appellant and the recovery of crime
weapon are not helpful to the case of prosecution; that all the prosecution witnesses are interested being close related with the complainant party and no independent witness was produced by the prosecution.
6. Learned State Counsel while supporting the conviction, contended that the
prosecution through solid ocular evidence coupled with the medical evidence and
circumstantial evidence has proved the charge against the appe llant beyond any shadow of
doubt; that the prosecution evidence is not suffering from material contradictions, infirmities or dishonest improvements rather based upon concrete and solid evidence and the learned trial Court after dilating upon all aspects o f the case has come to a right conclusion by
awarding sentence to the appellant through impugned judgment, which otherwise is not open
for interference by this Court.
7. Heard the learned counsel for parties and perused the available record. The
prosecution in order to establish the charge has adduced the evidence of ten witnesses,
perusal of statements of said witnesses would not justify the impugned judgment passed by the trial Court and minute scrutiny of evidence would establish the fact that while delivering the impugned judgment the trial Court has not appreciated the evidence in its true perspective. Admittedly, the case in hand was registered by the complainant Muhammad Ayub, who in his fard- e-bayan Ex.P/1- A has mentioned that he was informed by his uncle
Atta Ullah through mobile phone that his son Umid Ali has been injured by the present appellant. The complainant Muhammad Ayub appeared in the Court as PW -1, who made
some improvements and contradictions from his earlier deposition. PW -1 in his exami nation
in chief has failed to mention the source of information, who informed him about the occurrence and simply stated that he was informed about the occurrence. PW -1 has also
failed to mention the exact time of Occurrence as well as the time when he was informed
about the occurrence. Even otherwise, it is not understandable as to why the FIR was not lodged either by the injured Umid Ali or by his father, when allegedly according to the case of prosecution the father of injured reached at the spot and took the injured to hospital prior
to the complainant and the complainant reached at hospital subsequently, which creates doubt
about the presence of his father at the place of occurrence. PW -1 in his cross -examination
admitted that he did not witness the crime directly. It has further been observed that according to the case of prosecution (as mentioned in the FIR) the alleged occurrence had taken place at about 9.40 a.m. and the FIR was lodged at 10.30 a.m., but while confronted the prosecution case, PW -1 in his cross examination admitted that he reached hospital at 9.40
a.m. and thereafter went to police station at about 10.55 a.m. Now the question arises that if
the complainant reaches police station at about 10.55 a.m. for lodging the FIR, then as to how the FIR was lodged prior to his arrival at police station and submitting his fard- e-bayan for
lodging the FIR. The PW -1 also mentioned in fard- e-bayan the motive behind the occurrence
is old exchange of harsh words between the appellant and victim, but his Court statement is
silent in this regard, which also creates doubt.
8. The statement of PW -2 discloses the fact that he has also not witnessed the crime
directly rather at the time -when he reached at the place of occurrence, the victim was already
in injur ed condition and he along with the father of the injured took him to hospital. As
mentioned earlier, according to PW -1 he reached hospital at about 9.40 a.m., meaning
thereby that the injured had already been taken to hospital by PW -2 and other witnesses p rior
to reaching of complainant/PW -1 at hospital, but PW -2 in his cross -examination contradicted
the statement of PW -1 and stated that he departed from his house at about 10.00 a.m. and
after passing through certain villages he reached at the place of occu rrence. The statement of
PW-2 shows that if he had departed from his house at 10.00 a.m. and certainly after spending
some time, he reached at the place of occurrence and thereafter the injured was taken to
hospital, hence admittedly from the place of occurrence and shifting of injured to hospital again took some time, thus evidently he along with other witnesses shifted the injured to hospital after 10.00 a.m. Now again question arises that if the injured had been taken to hospital after 10.00 a.m. then under such circumstances as to how PW -1 reached hospital at
about 9.40 a.m. and also saw the victim in injured condition. Admittedly, PW -1 could not
justify his own presence at the place of occurrence and taking the injured to hospital. The statement of PW -3 Muhammad Ajmal is similar to the statement of PW -2 as this witness also
could not justify his presence at the place of occurrence. PW -4 is the brother of the injured,
who handed over the blood- stained clothes of injured to the Investigating Officer after 10-
days of occurrence i.e. 25th August, 2013.
9. The most important witness of the the prosecution case is the injured PW -5 Umid Ali.
This witness contradicted the statements of all the above referred witnesses and stated that the
occurrence was taken place on 15th January 2011, whereas the perusal of FIR a nd the
statements of PW -1 to PW -4 reflect that the occurrence was dated 15th August, 2013. In his
cross -examination, the victim/PW -5 made further contradictions that his statement was
recorded on 29th September, 2013 in his house. There is no explanation on the part of prosecution that if the injured was in his senses in the hospital of Lasbella and thereafter in Karachi then as to why his statement has been recorded after delay of more 45 -days.
However, to such extent the Investigating Officer while appear ing as PW -10 has corroborated
the statement of PW -5/victim and stated that his statement was recorded in his house.
10. Admittedly, all the witnesses made contradictory statements to each other and also
made certain dishonest improvements in their depositi ons regarding their arrival at the scene
of occurrence and shifting the injured to hospital. All the witnesses could not justify their presence at the place of occurrence and it appears that they gave false statements being closely related with the victim and besides the relative and interested witnesses, the prosecution has failed to produce any independent witness, thus the case of prosecution is lacking independent corroboration.
11. As discussed in the preceding paras, the injured at the time of occurre nce and after
shifting to hospital was in his senses and also his father allegedly reached at the place of
occurrence immediately, thus they ought to have lodged the FIR directly, but unnecessarily, PW-1 being stranger lodged the FIR. I am conscious of the fact that the FIR is lodged just to
bring the State machinery into motion to apprehend the culprits and to assist the Court for doing justice, but in presence of victim, who is in senses and also in presence of his father, who had also reached at the spot prior to the complainant and taken him to hospital along
with other so- called eye witnesses, the registration of FIR by the stranger, is not justifiable.
Reliance in this regard is placed on the case of Naseema Bibi v. The State 2008 PCr.LJ 613. The relev ant portion is reproduced herein below:
"I have given my dispassionate thought to the arguments addressed at Bar, perused the record and the case- law cited with care. It, will be relevant to note that FIR in the
instant case has not been proved by the pros ecution which is a foundation stone of a
criminal case although it is not a piece of substantive evidence but it is always used for contradicting under Article 140, The Qanun- e -Shahadat Order, 1984 and
corroborating under Article 153 of the Qanun- e-Shahad at Order. Furthermore, when
some infirmities or irregularities are found in an FIR it certainly affects the final determination of the case especially when it is lodged by a mere stranger and not by an eye -witness."
Similar view has also been taken in the case of Sikandar Hayat v. The State, reported
in 2003 PCr.LJ 310. The relevant portion reads as follows:
"... It is very strange that Muhammad Nawaz who was real brother of Allah Yar in whose presence and also in the presence of Ahmad Yar P.W.2 the deceas ed was lastly
seen did not lodge any report with any police station for the recovery of Muhammad Nawaz deceased for a long two months, brother of the deceased even did not approach this Court through a writ petition for registration of a case against the
culprits. He even did not submit any application to any higher Police Officer in this
regard, even the FIR which was lodged after two months of the occurrence was
lodged by a stranger and not by the brother of the deceased. This main fact demolishes the prosecution story."
12. The PW -6 is Dr. Javed Hassan, Medical Officer, Civil Hospital Bela, who examined
the injured and found two bullet injuries on his left knee area and one bullet injury on his right sheft of Tibia below fracture and thereafter referred t he injured to Karachi and
mentioned that final MLC will be issued after receiving report from Civil Hospital Karachi. He deposed in his cross -examination that the injured was brought before him at 10.40 a.m.,
which again negates the deposition of PW -1 as p er him he reached at 9.40 a.m. in hospital
and saw the injured. He mainly deposed in his cross -examination that it is correct that I have
not issued the final MLC due to non- availability of certificate of Civil Hospital Karachi. Even
otherwise, no medical reports from Hospitals of Karachi brought on record to ascertain the
injured have got treatment from Karachi and remained under treatment for such a long period
in which hospital and thereafter recorded his statement. Besides, the injured PW -5 did not
ment ion how many injuries caused to him. Such glaring lacunas further broken the chain of
evidence.
13. The PW -7 is Muhammad Haroon Hashim, ASI, in whose presence the appellant made
disclosure on 29th September, 2013 and on his pointation a licensed pistol No.PAC -55074
was recovered from the road side bushes with empty magazine and sealed in parcel No.4
through EX.P/7- K. On the other hand, PW -9 S.I. Muhammad Hakeem stated that on 15th
August, 2013 I along with I.O. visited the site and taken two empties into possession and sealed in parcel No.1, while I.O. in his statement stated that two empties sealed in parcel No.4 sent to FSL on 1st October, 2013 for Chemical analysis, which again creates doubt
whether the empties were sealed in parcel No.1 or 4.
14. The FSL report Ex.P/10- F was received to Ballistic Expert on 10th October, 2013 and
prepared on 25th November, 2013 after lapse of 1- 1/2 months of receiving and after three
months of occurrence the perusal whereof further shows the following position, for
conveni ence report is reproduced as under:
"01. QUESTION : Whether recovered empties were fired from recovered weapon or
not
02. OPINION : The microscopic examination of the case has led that:
i. One .30 bore crime empty now marked as "C" was 'fired' from the above mentioned 30 pistol No.PAC -55074, in question, in view of the fact that major
pins i.e. striker pin marks, breech face marks and chamber marks are 'similar'.
ii. One .30 bore crime empty now marked as "C2" was 'not fired' from the above mentioned 30 bore pistol No. PAC -55074, in question, in view of he fact that
major points i.e. striker pin marks, breech face marks and chamber marks are 'Dissimilar'.
iii. Two 7.62 mm bore crime empties now marked as "C3 AND C4" are 'fired' empties of 7.62 mm bore fire ar m/weapon.
15. The above report shows entire different picture of the case. Firstly, the T.T. pistol
with five .30 bore live cartridges and two 7.62 mm bore empties, besides the parcel number
were not mentioned in the report in access five live cartridges and two empties of Kalashnikov were found, which are not at all case property, as such, the FSL report has no evidentiary value.
16. It has further been observed that the medical evidence along with circumstantial
evidence produced in the shape of recording the disclosure of the appellant as well as
effecting the recovery of crime weapon are considered as supporting pieces of evidence and if the direct ocular testimony is not confidence inspiring or doubtful, alone the supporting evidence would not be helpful to establish the charge against the accused. The bare perusal of impugned judgment reveals that the same is suffering from mis -reading and mis -appreciation
of material available on record, hence the prosecution has failed to prove the charge against the appellant beyond any shadow of doubt as the statements of the related and interested
witnesses are lacking independent corroboration rather the statements of the prosecution
witnesses are not consistent, the same are suffering from material contradictions, dishonest
improvements and infirmities rendering their testimony doubtful and sufficient doubts are
available in the cases of prosecution, benefits whereof were not extended to the appellant. Reliance in this regard is placed on the case of Tariq Pervaiz v. The State 1995 SCMR 1345,
wherein the Hon'ble Supreme Court has held that, "The concept of benefit of doubt to an
accused is deep -rooted in our country. For giving him benefit of doubt it is not necessary that
there should be many circumstances creating doubt if there is a circumstance which creates
reasonable doubt in a prudent mind about the guilt of the accused then accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
For the above reasons, the appeal is accepted. The impugned judgment dated 26th
October, 2015 passed by learned Additional Sessions Judge Lasbella at Hub is set aside. The appellant Allah Bakhsh alias Ali son of Abdul Jaleel, is acquitted of the charge in FIR No.31/2013 at Police Stat ion Bela District Lasbella. The appellant is on bail, his bail bonds
are discharged after lapse of appeal period.
JK/168/Bal. Appeal accepted.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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