2017 Y L R 1779
[Balochistan (Turbat Bench)]
Before Abdullah Baloch, J
KAREEM BUKHSH alias SULEMAN ---Applicant
Versus
The STATE---Respondent
Cr. Appeal No.(T) 51 of 2016, decided on 24th March, 2017.
(a) Penal Code (XLV of 1860) ---
----Ss. 324, 398, 353, 186 & 34---Attempt to commit qatl- i-amd, attempt to commit robbery or
dacoity when armed with deadly weapon, assault or criminal force to deter public servant from
discharging of his duty, obstructing public servant in discharge of public functions, common
intention ---Appreciation of evidence ---Ocular account did not corroborate medical evidence ---
Allegations against accused were that he along with co -accused looted ten drums of diesel from
the vehicle of prosecution witness and loade d the same in their vehicle ---Complainant who was
on patrolling duty along with other officials, after receiving information, had erected Naka and
tried to stop the vehicle of accused persons ---Accused persons made firing on police party, in
self-defence, police party also made firing and chased the vehicle of accused, which overturned
and fell straight---Co -accused fled away whereas the accused -appellant was arrested in injured
condition---Prosecution in order to establish the charge, produced six witnesse s including
complainant as well as the victim---Complainant reiterated the contents of fard -e-bayan and
contended that accused -appellant was arrested in injured condition---Prosecution witness
deposed that after arrest of accused -appellant, he had taken hi m to hospital for medical treatment
but no medical certificate or the doctor was produced, who had examined and medically treated
the accused -appellant ---Medical evidence was necessary to have been produced to corroborate
the prosecution case ---No explanat ion for non- production of medical evidence had been tendered
by the Investigation Officer --- Investigating Officer stated that victim informed him about the
occurrence and accused was arrested after chasing him, in injured condition---Victim identified
the accused -appellant at the spot after his arrest ---Victim while appearing as witness stated that
he informed one of his relative about the occurrence and he had informed the police ---Witness
had stated that at the time of offence, accused had muffled their faces, thus he could not identify
the accused -appellant present in the court ---Statements of witness and victim (witness) were not
only contradictory to each other but both narrated a different story, due to which, their testimony
could not be termed to be worth credence---Victim/witness had not supported the prosecution
version, thus he was required to be declared hostile, but this had not been done so---
Circumstances established that in no way, the statements of either of the said witnesses was
helpful to the case of prosecution but a serious and irreparable dent and damage had been caused
to the case of prosecution, benefit of which would resolve in favour of accused ---Accused -
appellant was acquitted in circumstances by setting aside conviction and senten ces awarded by
the Trial Court.
(b) Criminal trial ---
----Witness ---Impartial and dis -interested witnesses --- Reliance--- Scope--- Not necessary that an
impartial and independent witness, who was neither related to complainant nor inimical towards
accused , always spoke true ---Court was duty bound to scrutinize the statement of such witness
with utmost care and caution.
Muhammad Saleem v. The State 2010 SCMR 374 rel.
(c) Criminal trial ---
----Appreciation of evidence ---General rule---Statement of witness was to be in consonance with
the probabilities fitting in the circumstances of the case and also confidence inspiring and
appealing to reasonable prudent person--- In the presence of said elements, the statement of a
worst enemy of the accused could be accepted and relied upon without corroboration---When
said elements were missing, the statement of a pious person could be rejected without a second
thought.
(d) Penal Code (XLV of 1860) ---
----Ss. 324, 398, 353, 186 & 34---Attempt to commit qatl- i-amd, attem pt to commit robbery or
dacoity when armed with deadly weapon, assault or criminal force to deter public servant from
discharging of his duty, obstructing public servant in discharge of public functions, common
intention --- Appreciation of evidence ---Recov ery of looted property ---Allegation against accused
was that he along with co -accused looted/snatched ten drums of diesel from the vehicle of
prosecution witness and loaded the same in their vehicle ---Complainant stated that only two
empty drums were recov ered from the vehicle of accused ---Recovery witness had stated nothing
with regard to presence of full or empty drums in the vehicle or taking the same into possession
by the Investigating Officer ---Other recovery witness stated that two drums of petrol fr om the
vehicle and eight drums of petrol fell from the vehicle on way while chasing the vehicle on
account of over -speed ---Victim stated that he was informed by the police that they had recovered
ten drums of diesel from the accused -appellant ---Circumstanc es established that statements of
witnesses with regard to the recovery of alleged snatched drums of diesel were contradictory to
each other ---Prosecution had failed to establish the recovery of drums from the exclusive
possession of the accused- appellant in circumstances ---Accused -appellant was acquitted by
setting aside conviction and sentences awarded by the Trial Court.
(e) Penal Code (XLV of 1860) ---
----Ss. 324, 398, 353, 186 & 34---Attempt to commit qatl- i-amd, attempt to commit robbery or
dacoity w hen armed with deadly weapon, assault or criminal force to deter public servant from
discharging of his duty, obstructing public servant in discharge of public functions, common
intention ---Appreciation of evidence ---Identification parade, absence of ---Record showed that
the alleged occurrence had taken place in episodes, commencing from snatching of drums of
diesel from victim, subsequently police official/witness signaled him to stop but accused
accelerated the speed of his vehicle and made indiscriminate firing upon police party and lastly
when the vehicle of accused was overturned and accused was arrested in injured condition---
Admittedly, accused -appellant was not known by the witnesses nor they knew his name ---
Circumstances suggested that after the arr est of accused, his identification parade was essential --
-In absence of identification parade, the identity and involvement of accused in the commission
of offence was doubtful ---Accused -appellant was acquitted in circumstances by setting aside
conviction and sentences awarded by the Trial Court.
Khalil Ahmed v. The State 2015 MLD 236; Khawar v. The State 2014 YLR 2120 and
Iqbal Zada v. State 2014 PCr.LJ 1397 rel.
(f) Penal Code (XLV of 1860) ---
----Ss. 324, 398, 353, 186 & 34---Attempt to commit qatl- i-amd, attempt to commit robbery or
dacoity when armed with deadly weapon, assault or criminal force to deter public servant from
discharging of his duty, obstructing public servant in discharge of public functions, common
intention ---Appreciation of evidence ---Benefit of doubt ---Prosecution case was that three
persons armed with Kalashnikovs snatched drums of diesel, made firing upon police party and
the police had made counter firing upon the accused persons ---Admittedly, neither any police
official, police or public vehicles, buildings, passerby or any of the government or private
property had received any bullet nor any bullet hit either to the vehicle of accused or any of the
accused received any bullet injury ---Only five empties of SMG were taken into pos session by the
police ---Investigating Officer in order to establish the charge of firing, should have sealed the
recovered Kalashnikov at the spot and thereafter sent the same along with empties to the
Forensic Expert to establish that the recovered weapon was functional or otherwise or that such
empties matched with the recovered weapon ---No such evidence had been collected by
Investigating Officer which rendered the case of prosecution as doubtful, benefit of which would
resolve in favour of accused---Accused -appellant was acquitted in circumstances by setting aside
conviction and sentences awarded by the Trial Court.
Obaidullah v. The State 2015 MLD 1105 rel.
(g) Criminal trial ---
----Prosecution had to prove the charge against the culprits by standing on its own legs and it
could not take any benefit from the weaknesses of the case of the defence.
Khalil Ahmed for Appellant.
Muhammad Rustam Baloch, Additional P.G. for the State.
Date of hearing: 3rd March, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal Appeal No.(T)51 of
2016 filed by the appellant Kareem Bakhsh alias Suleman son of Ghulam Nabi, against the
judgment dated 23rd December 2016 (hereinafter referred as, "the impugned judgment") passed
by the learned Incharge Sessions Judge/ Additional Sessions Judge Panjgoor, (hereinafter
referred as, "the trial Court"), whereby the appellant was convicted under Section 398/34, P.P.C.
and sentenced to suffer seven (07) years R.I. with fine of Rs.50,000/ - or in default thereof to
further suffer three months S.I.; he was also convicted under Section 353, P.P.C. and sentenced
to suffer two (02) years R.I. with fine of Rs.10,000/ - or in default thereof to further suffer one
(01) month S.I. and under Section 186, P.P.C. for three mont hs with fine of Rs.1500/ - or in
default thereof to further suffer fifteen (15) days S.I., with the benefit of Section 382(B), Cr.P.C.
2. It is the case of prosecution that on 21st August 2016, the complainant Muhammad Sharif
Barech, IP/SHO lodged FIR No.166/2016 at Police Station Panjgoor under Sections 324, 353,
394, 186, 34, P.P.C., stating therein that on the day of occurrence he along with other police
officials was patrolling the area, when at about 5.50 p.m. one Siraj son of Raheem Bakhsh
informed him that three persons armed with Kalashnikov de -loaded 10- drums of diesel from his
vehicle and loaded the same in their vehicle blue in colour. On such information, a Naka was
erected and found coming a vehicle 2000cc blue colour, which was signaled to stop, but instead
the speed of the vehicle was accelerated and firing was started upon the police party, hence in a
self defence the police party also made counter -firing and chased the vehicle, whereas the other
patrolling party was also informed through wirel ess. It is further averred that at about 7.00 p.m.
whilst chasing the vehicle of accused, the same was overturned and fell straight, when in the
meanwhile two of the accused alighted from the vehicle and escaped by disguising themselves
nearby the populati on, while one of the accused was arrested from the vehicle in injured
condition, who was having Kalashnikov. On query, the said person disclosed his name as
Kareem Bakhsh, while he disclosed the names of his accomplices as Abdul Ahad and Odaam.
3. In pursuance of above FIR, investigation was entrusted to PW -6 Taufeeq Ahmed, SI/IO,
who during investigation visited the place of occurrence and prepared site plan of New Chatkan
Bazar and Panchi; took into possession the empties of SMG, vehicle; he has also take n into
possession ten drums of Diesel; recorded the statements of witnesses under section 161, Cr.P.C.;
on completion of investigation, submitted the challan for trial of the accused.
4. At the trial, the accused Odaam and Abdul Ahad were declared as procl aimed offenders.
The prosecution produced six 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 witness in his defence. On conclusion of trial and hearing the arguments, the trial Court
convicted and sentenced the appellant as mentioned above, whereafter the instant appeal has
been filed.
5. Learned counsel for appellant contended that the impugned judgment passed by the trial
Court suffers from mis -reading and mis -appreciation of evidence available on record; that all the
witnesses made contradictory statements to each other and even made certain dishonest
improvements, creating certain reasonable doubts, but the benefit of the such doubts have
wrongly been withheld in favour of the appellant; that the alleged recovery of drums of Diesel
and to that of arms and ammunition is doubtful; that no medical certificate of appellant has been
obtained, or produced in the Court to corroborate the prosecution version; that no identification
parade of the appellant was carried out; that the impugned judgment on the face of material
available on record is not sustainable, thus the appellant is entitled to be acquitted of the charge.
6. On the other hand, learne d Additional Prosecutor General while supporting the impugned
judgment contended that sufficient incriminatory evidence has come on record connecting the
appellant with commission of crime and the learned trial Court after proper appraisal of material
available on record has rightly convicted and sentenced the appellant through impugned
judgment, which otherwise is not open for interference by this Court. When confronted with the
contradictions and discrepancies in the statements of prosecution witnesses, t he learned
Additional P.G. contended that the prosecution has produced impartial and dis -interested
witnesses to substantiate the charge and the appellant has failed to point out any mala fide or ill-
will against such witnesses to falsely implicate him, th us their testimony cannot be discarded
merely on the basis of minor discrepancies, hence prayed for dismissal of appeal.
7. Heard the learned counsel and perused the available record. Perusal of record reveals that
the prosecution in order to establish the charge has produced the evidence of six witnesses. The
complainant of the case appeared as PW -1, who reiterated the contents of fard- e-bayan Ex.P/1- A.
According to PW -1 while chasing the vehicle of accused party, the vehicle of the accused was
capsized/ o verturned and fell straight, hence two of the accused alighted from the vehicle and
disguised in the nearby population, whereas the present appellant was in injured condition, hence
was arrested in injured condition, whereas PW -4 stated that after arrest o f the appellant he has
taken him to hospital for medical treatment. Considering such portion of the statements of PW -1
and PW -4, an idea develops in a prudent mind that after capsizing or felling straight of the
vehicle of accused, two of the accused being in normal condition or being minor injured
succeeded in fleeing away, while the condition of the appellant was serious to such extent that he
could not move or flee away. Hence, was shifted to hospital for medical treatment, but the
prosecution has failed to produce the medical certificate or the concerned doctor, who had
examined and medically treated the appellant. The medical evidence was necessary to have been
produced to corroborate the prosecution case, but no such evidence was produced. Even
otherwi se, no any explanation in such behalf has been tendered by the Investigating Officer to
justify the non -production of medical evidence, hence a dent has been caused to the case of
prosecution.
8. The statements of PW -1 Sharifullah Barech, complainant as we ll as PW -5 Siraj are also
contradictory to each other. According to PW -1, on the day of occurrence at about 5.50 p.m. he
along with other police officials was patrolling the area of Panchi, when a person namely Siraj
(PW-5) came and informed about snatchin g of 10 -drums of Diesel by unknown accused from
him in the area Chakul and loading the same in their vehicle. However, after chasing the vehicle
of accused and arresting the appellant, said Siraj at the spot identified the appellant as one of the
culprit, who had snatched the drums of Diesel.
9. But, to the contrary PW -5 Siraj stated that on the day of occurrence three muffled face
persons by show of weapon snatched 10- drums of Diesel in the area of Chukal and loaded the
same in their vehicle, thereafter he informed one of his relatives, who had subsequently informed
the police. According to PW -5 when he was going ahead, he found the police and the accused
near the Airport and the police informed him that they have recovered 10- drums of Diesel from
the accus ed. PW -5 further stated that since at the time of crime the accused were muffled faces,
thus he cannot identify the appellant present in the Court.
10. The comparison of the statements of both the witnesses establishes the facts that not only
the statement s of both the witnesses are contradictory to each other, but they both altogether
narrated a different story and in such like situation it will be difficult for a prudent mind to
ascertain that who was placing the actual facts, when otherwise under the facts and
circumstances of the case, both the witnesses are the star witnesses of the prosecution and being
the central figures, the entire prosecution case revolves upon their testimony, but due to above
mentioned glaring contradictions, their testimony cann ot termed to be worth credence. The
statement of PW -5 leads this Court to the conclusion that he has never directly approached the
police nor stated the facts of the case. Even otherwise, he has failed to identify the appellant in
the Court. It has further been noticed that PW -5, who has not supported the prosecution version
thus he was required to be declared hostile, but this has not been done so. Thus, in no way the
statements of either of the witnesses is helpful to the case of prosecution and a serious and
irreparable dent and damage has been caused to the case of prosecution.
11. So far as, taking into consideration the contention of learned Additional Prosecutor
General that the prosecution has produced impartial and dis -interested witnesses to establ ish the
charge, thus their testimony cannot be discarded merely on the basis of minor discrepancies;
suffice to observe here that it is not necessary that an impartial and independent witness, who is
neither related to complainant nor inimical towards the accused, always speaks true, but it is the
duty of the Court to scrutinize the statement of such witness with utmost care and caution. In this
regard, I am fortified by the dictum of the Hon'ble Supreme Court in the case of Muhammad
Saleem v. The State 201 0 SCMR 374, wherein it has been held, as under: --
" ...The acid test of veracity of a witness is the inherent merit of his own statement. It is
not necessary that an impartial and independent witness, who is neither related to the
complainant nor inimical towards the accused would stamp his testimony necessarily to
be true. The statement itself has to be scrutinized thoroughly and it is to be seen as to
whether in the circumstances of the case the statement is reasonable, probable or
plausible and could be relied upon. The principle that a disinterested witness is always to
be relied upon even if his statement is unreasonable, improbable and not plausible or not
fitting in the circumstances of the case then it would lead to a very dangerous
consequence. Refe rence is invited to Muhammad Rafique v. State 1977 SCMR 457 and
Haroon v. State 1995 SCMR 1627. ... Applying the test to the prosecution witnesses, we
find that their statements do not come within the ambit of above rule of acceptance of
evidence, therefor e, no implicit reliance can be placed on such type of evidence without
any corroboration which is lacking in the present case."
In the above referred judgment of the Hon'ble Supreme Court, it has also been held that
according to settled principle of appre ciation of evidence, the statements of witnesses should
have been in consonance with the probabilities fitting in the circumstances of the case and also
confidence inspiring in the mind of a reasonable prudent man. If such elements are present, then
the st atement of the worst enemy of an accused may be accepted and relied upon without
corroboration, but if these elements are missing, then statement of a pious man may be rejected
without second thought.
12. Now adverting to the recovery of snatched drums of Diesel. suffice to observe here that
according to the case of prosecution the accused had snatched 10- drums of Diesel and loaded the
same in their vehicle, but all the witnesses narrated different stories with regard to recovery. PW -
1 being complainant of the in his cross -examination stated that only two empty drums were
recovered from the vehicle of accused, whereas to the contrary PW -2 has kept complete mum
with regard to presence of full or empty drums in the vehicle or taking the same into possession
by the Investigating Officer. However, PW -4 contradicted the prosecution case by mentioning
the recovery of two drums of petrol from the vehicle and eight drums of petrol from the way
while chasing the vehicle due to its falling from the vehicle on account o f overspeed. Similarly,
PW-5 stated that he was informed by the police that they have recovered ten drums of Diesel
from the appellant. Besides, the Investigating Officer appeared as PW -6 and stated that they have
recovered ten drums of Diesel from the vehicle.
13. The comparative study of statements of witnesses with regard to recovery of snatched
drums of Diesels divulges the fact that the same are contradictory to each other as all the
witnesses narrated a different story with regard to its recovery and in this manner the prosecution
has badly failed to establish the recovery of drums of vehicle from the exclusive possession of
the appellant. Hence, the recovery of snatched articles and its exhibit before the Court is not
helpful to the case of prosecutio n.
14. Another vital aspect of the matter, which has badly damaged the case of prosecution is
not conducting the identification parade of the appellant through the witnesses especially PW -5.
It is observed that the alleged incident has been taken in episodes, commencing from snatching
of drums of Diesel from PW -5 Siraj; subsequently when PW -4 Sallah -ud-Din, Constable, who
signaled the accused to stop the vehicle, but instead the accused accelerated the speed by making
indiscriminate firing upon the police a nd lastly when the vehicle of the accused was overturned
and the appellant was arrested from the vehicle in injured condition. Admittedly, the appellant
was not earlier known by the witnesses nor they knew his name, hence after the arrest of the
accused, h is identification parade was essential to have been carried out in view of the facts and
circumstances of the case, in absence of identification parade the identity and involvement of the
appellant in the commission of offence is doubtful. Reliance, in thi s regard is placed on the case
of Khalil Ahmed v. The State 2015 MLD 236, Khawar v. The State 2014 YLR 2120 and Iqbal
Zada v. State 2014 PCr.LJ 1397.
15. It has also been observed that according to the case of prosecution three accused initially
snatched t he articles from PW -5 armed with Kalashnikovs and they were also making continuous
firing upon the police and the police has also made counter firing upon the accused, but
astonishingly neither any of the police official, police or public vehicles, buildings, passerby or
any of the government or private property has received any bullet nor any bullet hit either to the
vehicle of the accused or any of the accused received any bullet injury. Even otherwise, only five
empties of SMG were taken into possession by the I.O. Be that as it may, the Investigating
Officer in order to establish the charge of making firing should have sealed the recovered
Kalashnikov at the spot and thereafter sent the recovered Kalashnikovs along with empties to the
Forensic Expert to establish that the recovered weapons were functional or otherwise or that such
empties match with the recovered weapons, but no such evidence has been collected by the
prosecution, rendering the case of prosecution as doubtful. Thus, mere recovery of Kalas hnikovs
or empties is not helpful to the case of prosecution. Reliance in this regard is placed to the case
of Obaidullah v. The State 2015 MLD 1105.
16. It has been established from the facts and circumstances of the case discussed
hereinabove, that the prosecution has miserably failed to establish the charge of snatching drums
of diesel from PW -5 or making firing upon the police by the appellant along with his other
accomplices. The case of prosecution is defective on all counts. PW -5 has not identified t he
appellant in the Court and all the remaining witnesses made contradictory statements to each
other, and thus have created reasonable doubts in the case of prosecution. Furthermore, no
identification parade has been carried out, which otherwise was essen tial in such like cases.
Besides, neither the recovered crime weapons were sealed at the spot nor were sent to laboratory
along with the recovered empties. Even no medical evidence has been produced. According to
settled principle of law, the prosecution has to prove the charge against the culprits by standing
on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In
the instant case, the prosecution has failed to discharge its responsibility of proving the case
again st the appellant. Sufficient and reasonable doubts have been created in the case of
prosecution, but the same were over -looked by the learned trial Court. The Hon'ble Apex Court
in a case titled Tariq Pervez v. The State reported in 1995 SCMR 1345, has hel d that "...The
concept of benefit of doubt to an accused person is deep- rooted in our country. For giving him
benefit of doubt it is not necessary that there should be many circumstances creating doubts. If
there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the
accused, then the 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 23rd
December, 2016 passed by the learned Incharge Sessions Judge/Additional Sessions Judge
Panjgoor, is set aside and the appellant Kareem Bakhsh alias Suleman son of Ghulam Nabi, is
acquitted of the charge. The appellant being in custody, is ordered to be releas ed forthwith, if not
required in any other case.
JK/35/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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