2019 P Cr. L J 1539
[Balochistan]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
Naib Subedar NASABUDDIN, FRONTIER CORPS (SOUTH) and others ---Appellants
Versus
ALI NAWAZ and others ---Respondents
Criminal Acquittal Appeals Nos. 231 and 254 of 2018, decided on 29th April, 2019.
(a) Penal Code (XLV of 1860) ---
----Ss. 320 & 279---Qatl -i-Khata, rash driving on public way--- Appreciation of evidence ---
Appeal against acquittal ---Prosecution case was that accused -respondent, driver of oil tanker,
had collided with Frontier Constabulary Post, resultantly, five persons died at the spot, the
official vehicle and official weapons were damaged and driver and conductor fled away from
the scene--- Prosecution, in order to establish the charge had produced nine witnesses, which
were not consistent and confidence- inspiring ---Complainant of the case mostly reiterated the
contents of his fard -e-bayan ---Evidence of said witness was not helpful to the case of
prosecution for the reasons that he himself had not witnes sed the crime rather at the time of
alleged occurrence he was 80 kms. away from the place of occurrence and received
information through wireless set ---Entire statement of said witness was silent to the effect as
to who had told him the story of the incide nt in such a sequence---Admittedly, the statement
of said witness was hearsay and the same was only to the extent of setting criminal machinery into motion--- Statements of both the alleged eye- witnesses were contradictory
with each other on certain counts ---Both the witnesses had unanimously brought on record
that they witnessed the crime directly ---Both the said witnesses had admitted in their cross -
examination that their statements under S. 161, Cr.P.C. were recorded after delay of 13 -days
of the incident , though they were very much present in the area ---Admission of both the
prosecution witnesses depicted the complete failure of the Investigating Officer to record the statements of both the said witnesses immediately ---No explanation was available on the
record as to why such statements were delayed for 13- days and till that the accused -appellant
had voluntarily surrendered him before the police ---No solid or concrete evidence was
available against the accused/respondent connecting him with the commission of alleged
offence---Trial Court after proper appreciation of evidence in its true perspective had rightly acquitted the accused -respondent of the charge ---Appeal was dismissed accordingly.
(b) Criminal Procedure Code (V of 1898) ---
----S. 161--- Delay in recording the statement of witnesses under S. 161, Cr.P.C.---Effect ---
Such evidence could not be given that sanctity as was generally given to the evidence of a witness whose statement had been recorded promptly soon after the occurrence ---Statements
of pr osecution witnesses under S. 161, Cr.P.C. recorded after the arrest of the accused
created reasonable doubt in the case of prosecution ---Witnesses appeared to have been
planted by the prosecution subsequently after the arrest of the accused/respondent.
(c) Penal Code (XLV of 1860) ---
----Ss. 320 & 279---Qanun- e-Shahadat (10 of 1984), Art. 22---Qatl -i-Khata, rash driving on
public way---Appreciation of evidence ---Identification parade ---Scope ---Identification of the
accused/respondent in the Trial Court was doubtful ---According to the case of prosecution,
soon after the occurrence the culprits decamped from the place of occurrence---Investigating
Officer arrested five persons on the basis of suspicious, who were subsequently discharged from the case under th e provisions of S. 169, Cr.P.C.--- Circumstances suggested that the
Investigating Officer as well as the alleged eye -witnesses were not sure about the culprit ---
First Information Report was silent with regard to physique and personal appearance of the escap ed accused persons ---Investigating Officer after the arrest of the accused/respondent
was supposed to have conducted the identification parade of the accused/respondent which was not done ---Material dent caused to the case of prosecution due to failure to hold
identification parade during the course of investigation, which was not curable.
Khawar v. The State 2014 YLR 2120 rel.
(d) Criminal trial ---
----Benefit of doubt ---Principle ---Single circumstance if creating reasonable doubt in a
prudent mind was sufficient for acquittal of accused not as a matter of grace, but as a matter
of right.
Ghulam Qadir and 2 others v. The State 2008 SCMR 1221 rel.
(e) Criminal Procedure Code (V of 1898) ---
----S. 417 --- Appeal against acquittal --- Presumption --- Double pr esumption of innocence
was attached to the order of acquittal ---Interference in acquittal was unwarranted unless the
same was arbitrary, capricious, fanciful or against the record.
Abdul Mateen, DPG assisted by Talat Waheed Khan for Appellants.
Muhammad Riaz Ahmed for Respondents.
JUDGMENT
ABDULLAH BALOCH, J. ---This common judgment disposes of Criminal Acquittal
Appeal No.231 of 2016 filed by the complainant Naib Sobedar Nasab- ud-Din and Criminal
Acquittal Appeal No.254 of 2018 filed by the Stat e through Prosecutor General Balochistan,
against the judgment dated 17th May, 2018 (hereinafter referred as, "the impugned judgment") passed by the learned Additional Sessions Judge, Kharan (hereinafter referred as,
"the trial Court"), whereby the accused -respondent Ali Nawaz son of Abdul Khaliq was
acquitted of the charge, under section 320, Q&D read with section 279, P.P.C.
2. Facts of the case are that on 30th December, 2017 the complainant Nasab -ud-Din
lodged FIR No. 31 of 2017 at Levies Station Kharan under above mentioned offences, stating
there that on the day of occurrence at about 5.00 a.m. the F.C. patrolling party stopped an Oil
Tanker bearing registration No.ITD -642 at the area of Patkin mountain, while another Oil
Tanker came from back side, th e G.C.O. went towards said Truck and in the meanwhile the
Driver started the said Oil Tanker and collided it to F.C. vehicle, however, the said Oil Tanker was tried to stop, but the Driver accelerated the vehicle and went towards road. It is further averre d in that FIR that they tried to stop him by means of firing but he did not stop
due to which the F.C. vehicle tried to chase it and crossed the same, but the Driver caused the oil tanker to ascend upon F.C. vehicle, resultantly Sobedar Badshsh, Lance Naik Syed
Badshah son of Masal Khan No.56842, Lance Naik Muhammad Yousaf No.12675, Lance Naik Naeem Ullah No.76661 and Naik Muhammad Yousaf son of Muhammad Rafiq No. 41826 died at the spot as well as the official vehicle and official weapons were damaged while the said driver and conductor fled away from the scene. Besides a Mazda Truck
bearing registration No.TKY -677 and Double Cab vehicle No.PAC -059 were taken into
possession and the Driver Abdul Rauf, conductor Asmat Ullah, Muhammad Ghayas and Haji Mujib -ur-Rehman were arrested.
3. Pursuant to above FIR, investigation was carried out and the arrested persons namely
Abdul Rauf, conductor Asmat Ullah, Muhammad Ghayas and Haji Mujib- ur-Rehman were
discharged under section 169, Cr.P.C., while the accused Ali Nawa z was subjected to
investigation and on completion thereof, he was challaned before the trial Court, where the
charge was indicated to him, which was refuted, thus the prosecution has produced the evidence of nine (09) witnesses. The appellant was examined under section 342, Cr.P.C.
However, neither he recorded his statement on oath under section 340(2), Cr.P.C. nor produced any evidence in his defence. On conclusion of trial and after hearing arguments, the learned trial Court through impugned judgment acquitted the accused -respondent whereafter
instant appeals have been filed.
4. Heard the leaned counsel and perused the available record. Perusal of impugned
judgment and record justifies the impugned acquittal order passed by learned trial Court in favour of accused/ respondent. It is evident from the record that the prosecution in order to establish the charge has produced the evidence of nine witnesses, but the same are not consistent and confidence inspiring. The complainant of the case namely Nasab- ud-Din
appeared as PW- 1, who mostly reiterated the contents of his fard- e-bayan. However, the
evidence of this witness is not helpful to the case of prosecution for the reasons that he himself had not witnessed the crime rather at the time of alleged occurrence he was 80 -kms.
away from the place of occurrence and received information through wireless set. The entire statement of this witness is silent to the effect that who had narrated him the story of the incident in such a sequence. Admittedly, the statement of this witness is hearsay and the
same is only to the extent of criminal machinery into motion.
5. Adverting to the statements of most important witnesses of the prosecution i.e. PW -2
Muhammad Sheraz and PW- 3 Mohsin Raza. The statements of both the witnes ses are
contradictory with each other on certain counts. Both the witnesses have unanimously
brought on record that they witnessed the crime directly. Both the witnesses have admitted in their cross -examination that their statements under section 161, Cr.P .C. were recorded on
12th January 2018 i.e. after delay of 13- days of the incident though they were very much
present in the concerned area. The admission of both the prosecution witnesses depicts the
complete failure of the Investigating Officer to record the statements of both the witnesses
immediately. There is no explanation at all on the record that as to why such statements were
delayed for a considerable time of 13- days and till that time the appellant had voluntarily
surrendered him before the polic e. It is well settled proposition of law that in a criminal case
when 161, Cr.P.C. statement is delayed; such evidence may not be given that sanctity as is generally given to the evidence of a witness whose statement has been recorded promptly soon after t he occurrence. Thus, recording the statements of PWs under section 161, Cr.P.C.
after the arrest of the accused creates reasonable doubts in the case of prosecution and it appears that the witnesses were planted by the prosecution subsequently after the ar rest of
the accused/respondent.
6. The identification of the accused/respondent Ali Nawaz in the trial Court is also
doubtful. According to the case of prosecution, soon after the occurrence the culprits decamped from the place of occurrence and en the bas is of suspicious the Investigating
Officer arrested five persons, who were subsequently discharged from the case under the provisions of section 169, Cr.P.C. Meaning thereby that the Investigating Officer as well as the PW- 2 and PW -3 were not sure about the culprit that's why on the basis of suspicion
irrelevant persons were arrested and subsequently they were released. The perusal of FIR also reflects that the same is silent with regard to physique and personal appearance of the
escaped accused persons. Ho wever, after the arrest of the accused/respondent the
Investigating Officer must have conducted the identification parade of the accused/respondent through both the alleged eye witnesses i.e. PW -2 and PW -3, but this has
not been do so, while in such like c ases where the accused as well as the witnesses are not
previously known to each other, the carrying out of the identification parade is mandatory. Non conduct of the identification parade of the accused/respondent through both the PWs during the course of investigation and identifying the accused/respondent in the Court as
culprit by both the alleged eye -witnesses has created reasonable doubts in the case of
prosecution and material dent caused to the case of prosecution due to non- conduct of the
identific ation parade during the course of investigation, which is neither justifiable nor
curable under the law. Reliance, in this regard is placed on the case of Khawar v. The State 2014 YLR 2120.
7. The reappraisal of the entire prosecution evidence coupled with the fact that the
statements of eye witnesses were recorded after delay of 13 -days without any justifiable
explanation and non- conduct of identification parade in the matter has created reasonable
doubts in the case of prosecution and the learned trial Court has taken into account all the facts and circumstances of the case and has reached to just and proper decision by recording acquittal in favour of the accused/ respondent. It is settled law that a single circumstance creating reasonable doubt in a prudent mind is sufficient for acquittal of accused not as a matter of grace, but as a matter of right. In the case of Ghulam Qadir and 2 others v. The
State 2008 SCMR 1221, a bench of three Hon'ble Judges of Supreme Court held that for the
purpose of benefit of doubt to an accused single infirmity regarding the truth of charge
makes the whole case doubtful. The relevant portion thereof reads as under:
"It needs no reiteration that for the purpose of giving benefit of doubt to an accused person, more than one infirmity is not required, a single infirmity creating reasonable
doubt in the mind of a reasonable and prudent mind regarding the truth of the charge -
makes the whole case doubtful. Merely because the burden is on the accused to prove his innocence it does not absolve the prosecution from its duty to prove its case
against the accused beyond any shadow of doubt end this duty does not change or vary in the case. A finding of guilt against an accused person cannot be based merely on the high probabilities tha t may be inferred from evidence in a given case. Mere
conjectures and probabilities cannot take the place of proof. Muhammad Luqman v. The State PLD 1970 SC 10."
8. If the entire prosecution evidence is taken into consideration together, it would
become cr ystal clear that the entire prosecution evidence shows that there is no solid or
concrete evidence available against the accused/respondent connecting him with the commission of alleged offence. The trial Court after proper appreciation of evidence in its
true perspective has rightly acquitted the accused -respondent of the charge. It is a settled
principle of law that double presumption of innocence is attached to the order of acquittal
and interference is unwarranted unless the acquittal is arbitrary, capr icious, fanciful or
against the record. In the instant case the order of acquittal passed by the trial Court is neither arbitrary, capricious, fanciful nor contrary to the evidence on record, warranting interference by this Court.
For the above reasons, t he appeals being devoid of merits are dismissed.
Above are the reasons of our short order dated 23rd April 2019.
JK/32/Bal. Appeals 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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