2020 P Cr. L J 124
[Balochistan]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
ADAM KHAN---Appellant
Versus
ABDUL KHALIQ and another ---Respondents
Criminal Acquittal Appeal No. 248 of 2016, decided on 24th July, 2019.
(a) Penal Code (XLV of 1860) ---
----Ss. 302, 324, 97 & 100---Qatl -i-amd, attempt to commit qatl- i-amd---Appeal against
acquittal ---Appreciation of evidence--- Benefit of doubt ---Right of private defence of the
body extending to cause death--- Scope ---Prosecution case was that a qu arrel had taken place
between deceased and injured, due to which, exchange of firing was made between both of
them and one person died ---Record showed that the prosecution in order to establish the
charge had produced the evidence of twelve witnesses, but the statements of all the witnesses
were based upon hearsay evidence and the prosecution had failed to produce any single direct or circumstantial evidence in support of charge---Admittedly, the law was set on motion on the basis of fard- e-bayan of the com plainant/Police Officer, who appeared in the
Trial Court, but the fact remained that he had not witnessed the crime directly ---Statement of
complainant, therefore, was not helpful to the case of prosecution---Record transpired that on the day of occurrence , the deceased entered the jewelry shop of accused/respondent, took out
pistol and handed over an empty bag to accused/respondent for putting gold ornaments therein, accused/respondent made resistance and during exchange of firing both the deceased and the accused/respondent received bullet injuries on their persons ---Licensed pistol was
recovered from the accused/respondent, while an unlicensed pistol was recovered from the possession of the deceased---Recovery of unlicensed pistol from the possession of t he
deceased depicted of his malice intention for committing decoity ---Circumstances suggested
that accused/respondent had used the right of his self -defence as envisaged under provisions
of Ss. 97 & 100, P.P.C.---Nothing incriminating had come on record that the accused/respondent in any manner had misused the right of self -defence---Entry of deceased
in armed condition in jewelry shop of the accused/respondent was certainly not for any good reason but for illicit purposes ---Accused/respondent could not be convicted for such charges
when all the facts and circumstances clearly suggested that the deceased entered into the shop for dacoity---Trial Court had rightly recorded the acquittal order in favour of accused/respondent ---Order of acquittal passed by the Trial Court was neither arbitrary,
capricious, fanciful nor contrary to the evidence on record warranting interference by High Court ---Appeal was dismissed, in circumstances.
(b) Penal Code (XLV of 1860)---
----S. 100 ---Self -defence of property and person, right of ---Scope ---Law had given right to
the occupant of any property to expel the intruder or trespasser ---If the intruder or trespasser
had made his entry for illicit purpose then the right of self -defence of property and person
was further fortified even to the extent of causing death of intruder or trespasser if he did not retreat after having been told or alarmed to retreat ---Right of self defence was recognized by
law, but it was to be exercised if circumstances so warrant ---Every citizen was entit led to
resist attack and defend himself and his property when he or his property faced the danger and State machinery was not readily available ---Citizen was entitled to protect himself and
his property, in circumstances ---Legally the right of self -defence would arise where danger
to person or property was imminent and would remain available as long as such danger
exists.
Mazhar Iqbal v. The State 2017 SCMR 2036 rel.
(c) Criminal Procedure Code (V of 1898) ---
----S. 417--- Appeal against acquittal --- Presumption --- Double presumption of innocence is
attached to the order of acquittal and interference is unwarranted unless the acquittal is
arbitrary, capricious, fanciful or against the record.
Rafiullah Barech for Appellant.
Habibullah Gul, Additional Pr osecutor General for the State.
Date of hearing: 18th July, 2019.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal Acquittal Appeal
No.248/2016 filed by the appellant Adam Khan son of Nadir, against the judgment dated
19th May 2016 (here inafter referred as "the impugned judgment") passed by learned Sessions
Judge (Ad hoc) Quetta (hereinafter referred as, "the trial Court"), whereby the accused/respondent No.1 Abdul Khaliq was acquitted of the charge under sections 302, 324, P.P.C.
2. Facts of the case are that complainant Muhammad Saleem SI/SHO lodged FIR
No.241 of 2012 at Police Station City Quetta, under sections 302, 324, P.P.C., stating therein that on the day of occurrence he along with other police officials was on area patrolling, when received wireless message about the incident, hence he along with other police officials
reached at the place of occurrence i.e. Abdul Ali Jewelers Liaquat Bazar Quetta. On query it revealed that Abdul Khaiiq had been shifted to Civil Hospital in injur ed condition by other
shopkeepers, while another person was lying in dead condition at London Street, Liaquat Bazar, who was holding a pistol in his left hand. The said person was found to have sustained
bullet entrance at left side of his chest and exit at left side near kidney, besides he had also sustained minor injuries at his forehead and nose. The pistol recovered from the dead body was having no number and displaying with words "SPECIAL MODIFIED AS CHINA MADE PISTOL .30 BORE" on its barrel. During further search of the dead body, from his wearing Kameez's pocket one magazine along with six live cartridges were also recovered. His service card, CNIC and cash amount of Rs.21160/ - were also recovered from which it
revealed that his name was Mujeeb -ur-Rehman. All the recovered articles were taken into
possession through recovery memo. On further inquiry, it has come to knowledge that some quarrel had taken place between the owner of "Abdul Ali Jewelers" namely Abdul Khaliq and deceased Mujeeb -ur-Rehman and about 1.00 p.m. exchange of firing was made between
both of them.
3. On receipt of challan, the charge was indicated to the accused/respondent and on
denial; the prosecution produced twelve (12) witnesses. The accused -respondent No.1 was
examined under se ction 342, Cr.P.C. However, he neither recorded his statemert on oath
under section 340(2), Cr.P.C. nor produced any witness in his defence. On conclusion of trial and after hearing arguments, the learned trial Court vide impugned judgment acquitted the accused -respondent of the charge. Whereafter, the instant appeal has been filed.
4. Heard the leaned counsel and perused the available record. Perusal of impugned
judgment and the record justifies the acquittal order passed by the learned trial Court in favour of the accused/respondent. It is evident from the record that the prosecution i n order
to establish the charge has produced the evidence of twelve witnesses, but the statements of
all the witnesses are based upon hearsay evidence and the prosecution has failed to produce
any single direct or circumstantial evidence in support of char ge.
5. Admittedly, the law was set on motion on the basis of fard- e-bayan Ex.P/1- A of the
complainant Muhammad Saleem, SI, who appeared in the trial Court as PW -1, but the fact
remains that he had not witnessed the crime directly rather according to him at the time of
occurrence he along with other police officials were patrolling the area, when informed about
the incident and after reaching at the place of occurrence he made inquiry and it revealed to
him that exchange of firing was made in between the inj ured and deceased. Thus, the
statement of complainant is not helpful to the case of prosecution. PW -2 Muhammad Arshad,
SI, is the recovery witness of bloodstained clothes of accused- respondent. PW -3 Haji
Muhammad Razzaq was the uncle of the deceased, who w as informed about the incident by
one Ghulam -ud-Din, while the Investigating Agency has neither investigated the said
Ghulam -ud-Din nor he was produced in the Court for recording his statement. PW -4
Muhammad Umer received the dead body of the deceased from hospital. PW -5 Abdul
Majeed handed over the blood stained clothes of deceased to I.O. PW -6 Bismillah, ASI, is
the witness of recovery memos of pistol from the possession of deceased. Besides, he is also recovery witness of Service Card, CNIC, ATM Card, Ca sh amount, Nokia Mobile and wrist
watch etc. PW- 7 Muhammad Taqi is site inspection memo witness. He is also recovery
witness of .30 Bore pistol recovered from the accused -respondent. PW -8 is the recovery
witness of blood stained clothes. PW -9 Atta -ur-Rehma n is the brother of deceased.
According to him, on the preceding night of occurrence his deceased brother had come to his house to spent night and in the morning he went to Bazar for changing/replacing gold ornaments and at about 2.20 p.m. he received information about the murder of his brother by the accused -respondents. Admittedly, the evidence of this witness is also based upon hearsay
evidence as he himself heard from someone else about the occurrence, thus his statement is
also not helpful in any manne r to the case of prosecution. PW -10 Dr. Muhammad Jaffar,
Senior Medical Officer, examined the deceased and issued death certificate Ex.P/10 -A. He
also appeared as PW- 11 and brought on record the MLC of the injured Abdul Khaliq. PW -12
is the Investigation O fficer of the case, who counted the steps taken by him during the course
of investigating. The Investigating Officer produced the legal opinion of legal section of police department as Ex.P/12- G.
6. The accused/respondent has taken the plea that on the pre ceding day the deceased had
come to his Jewelry Shop and he was staring the gold ornaments inside the shop, whereafter he after inquiry the price of a Ring, left the shop on the pretext that the same is on higher rate. However, on the day of occurrence aga in the deceased entered in the shop, took out
pistol and handed over a shopper to accused/respondent for keeping the gold ornaments, thus the accused/respondent made resistance and during exchange of firing both the deceased and the accused/respondent received bullet injuries on their persons and during course of investigation a licensed pistol was recovered from the accused/respondent, while an unlicensed pistol was recovered from the possession of the deceased Mujeeb- ur-Rehman.
The recovery of unlicensed pistol from the possession of the deceased depicts of his malice intention for committing dacoity. Perusal of legal opinion (Ex.P/12,G) fully supported the plea taken by the appellant as the said opinion was drawn after recording the statements of certain persons including the statement of employee of the shop namely Amjad Ali son of
Mian Khan, who also confirmed the statement of accused -respondent that a day before the
incident the accused/respondent had come to shop. The statement of one Muhammad
Dawood s on of Muhammad Ibrahim being adjacent shopkeeper was also recorded.
According to whom, on the day of occurrence the deceased was roaming outside the shop of
accused/respondent for more than an hour and when he observed that the accused/respondent is alone, he entered into shop, whereafter he heard firing shots. The deceased came out from
the shop and started running towards London Street thus he (shopkeeper) went inside the
shop of the accused/respondent and found him in injured condition. According to lega l
opinion brought on record as Ex.P/12- G the incident was the result of dacoity.
7. We have scrutinized the entire evidence from all angles and observed that nothing has
come on record except that the deceased was died in the attempt of dacoity. His presence in
the jewelry shop along with an unlicensed pistol proves his mala fide intention. We have no hesitation to hold that the accused/respondent has used the right of his self -defence as
envisaged under the provisions of sections 97 and 100, P.P.C. and not hing incriminating has
come on record that the accused/respondent in any manner has misused the right of self -
defence. The entry of deceased in armed condition in Jewelry Shop of the accused/respondent was certainly not for any good reason but for illicit purposes then how the accused/respondent could be convicted for such charges when all the facts and circumstances clearly suggest that the deceased entered into the shop for dacoity purposes. Law gives right to the occupant of any property to expel the int ruder or trespasser and if the
intruder or trespasser has made his entry for illicit purpose, then the right of self -defence of
property and person is further fortified even to the extent of causing death of intruder or trespasser if he does not retreat af ter having been told or alarmed to retreat. The right of self
defence is recognized by law, but it is to be exercised if circumstances so warrant. Every citizen is entitled to resist attack and defend himself and his property when he or his property is fac ed with danger and when immediately State machinery is not readily available. Citizen
is entitled to protect himself and his property in circumstances. Legally the right of self -
defence would arise where danger to person or property is imminent and would r emain
available as long as such danger exists. Reliance in this regard is placed on the case of Mazhar Iqbal v. The State 2017 SCMR 2036, wherein it was held as under:
"Mst. Rashidan was a middle aged lady of 45 years and was also widow and when the compl ainant and PWs have admitted that the deceased was maintaining illicit
relations with her, the entry of the deceased to the house of Khuda Bukhsh deceased/accused was certainly not for any good reason but for illicit purposes then how the petitioner could be convicted for such charges when all the facts and
circumstances clearly tell that the deceased has trespassed into the house for no other but for that purpose. The provisions of law give right to the occupant of any property to expel the intruder/trespa sser and if the trespasser has made a trespass for illicit
matters then, the right of self -defence of property and person is further fortified even
to the extent of causing death of trespasser if he does not retreat after having been told or alarmed to ret reat."
8. The minute perusal of the prosecution case from all angles, it has been established
that the deceased had entered in the shop of the accused/respondent with illicit intention to commit dacotiy and during exchange of firing he was murdered. The le arned trial Court has
rightly appreciated the evidence in its true sense and has recorded the acquittal order in favour of accused -respondent. It is a settled principle of law that double presumption of
innocence is attached to the order of acquittal and i nterference is unwarranted unless the
acquittal is arbitrary, capricious, 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, the appeal being devoid of merits is dismissed.
Above are the reasons of our short order dated 18th July 2019.
JK/71/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,
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