2018 Y L R 1745
[Balochistan]
Before Mrs. Syeda Tahira Safdar and Zaheer- ud-Din Kakar, JJ
AKHTAR JAN ---Appellant
Versus
SHAH MURAD through Levies Thana, Harnai and another ---Respondents
Criminal Acquittal Appeal No.293 of 2017, decided on 9th November, 2017. (a) Penal Code (XLV of 1860) ---
----Ss. 302 & 34 ---Qatl -i-amd, common intention---Appreciation of evidence---First
Information Report was lodged after the delay of two days ---Effect ---Record showed that the
alleged occurrence took place on 17.2.2014 at about 1.00 p.m. but the matter was reported at
the police station on 19.2.2014 at about 4.00 p.m. with the delay of about two days ---
Prosecution had failed to explain satisfactorily the delay in lodging of FIR regarding the incident ---Distance between the place of occurrence and the police station was about eight
kilometers ---Unexplained delay in lodging of FIR, would be presumed that the same was result
of deliberation, negotiation, discussion and after thought with sole drive and ulterior mot ive to
get the accused convicted ---Such delay could not be ignored in circumstances.
(b) Penal Code (XLV of 1860) ---
----Ss. 302 & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Appeal against
acquittal ---Benefit of doubt ---Charge against accused was that he, along with co -accused
persons, armed with Kalashnikov fired upon victim, due to which he died at the spot ---Motive
behind the incident was stated to be a dispute over kinship---Ocular account was furnished by three witnesses, claiming themselves to be eye -witnesses of the occurrence---Said witnesses
had stated that they were present in the area of place of occurrence and were grazing their cattle, while deceased was also present at some distance--- Accused persons made firing upon him,
due to which, he died at the spot ---Statements of all the said eye -witnesses showed that the
same were full of improvements and contradictions ---Said witnesses contradicted each other
on material points, as such, their statements were not confidence inspiri ng---Statements under
S.161, Cr.P.C. of the witnesses were recorded after three days of the incident ----No postmortem
of the dead body of the deceased was conducted nor any inquest report was made in order to ascertain the cause of death or the number of i njuries sustained by the deceased ---Recovery
witness admitted in his cross -examination that there was no sign of bullet on the blood stained
clothes of the deceased ---No recovery was affected from the accused ---Circumstances
established that prosecution ha d failed to prove its case against the accused beyond the shadow
of doubt ---Appeal against acquittal was dismissed in circumstances.
(c) Criminal trial ---
----Witness ---Improvements in the statements of prosecution witnesses ---Effect ---If a witness
improved his statement to strengthen the prosecution case and the moment it was concluded that the improvement was made deliberately and with mala fide intention, the testimony of such witness did not remain reliable.
Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 and
Muhammad Rafiq and others v. The State and others 2010 SCMR 835 rel.
(d) Criminal Procedure Code (V of 1898) ---
----S. 417---Appeal against acquittal/ conviction ---Distinction ---Appeal against acquittal was
distinguishable from appeal against conviction, because, presumption of double innocence was
attached in the case of appeal against acquittal ---Appeal against acquittal could only be
interfered with, when it was found on the face of it as capricious, perverse or arbitrary in nat ure.
Inayatullah Butt v. Muhammad Javed and others PLD 2003 SC 562 rel.
Abdul Zahir Noorzai for Appellant.
Date of hearing: 2nd October, 2017.
JUDGMENT
ZAHEER -UD-DIN KAKAR J. --- Through instant appeal, appellant Akhtar Jan
challenged the validity of t he judgment dated 30.8.2017 (the impugned judgment), passed by
the Additional Sessions Judge, Harnai (the trial Court), whereby the respondent Shah Murad
was acquitted of the charge.
2. Precisely, the prosecution case is that on 17.2.2014 at about 1:00 p.m . at Sheedan
Mouza Peero Kachi, District Harnai respondent No.1 (accused) along with co -accused persons,
armed with Kalashinkov fired upon Zaitullah, due to which he died at the spot. Consequently, FIR No.02 of 2014 dated 19.02.2014, under Sections 302, 34, P.P.C. was registered at Levies Thana, Delkuna, District Harnai. Motive behind the incident was stated as dispute over kinship.
3. After usual investigation, challan was submitted against respondent No.1 and
absconding accused. A formal charge was framed to which he pleaded not guilty and claimed
to be tried. The prosecution, in order to substantiate the accusation produced eight witnesses.
PW-1 Akhtar Jan is the complainant of the case, who placed on record his written report as Ex -
P/1-A. PW -2 Muhammad Z aman, PW -3 Muhammad Hashim and PW -5 Raz Muhammad were
stated to be the eye- witnesses. PW -4 Tawoos Khan Levies Sepoy is witness to recovery memos
Ex-P/4-A, Ex -P/4-B, Ex -P/4-C and Ex -P/4-D in respect of memo of site inspection, memo of
receiving dead body, r ecovery memo of empties and recovery memo of blood stained clothes,
respectively. PW -6 Khalil Ahmed Naib Tehsildar is the Investigating Officer, who produced
FIR as Ex -P/6-A, site sketch Ex -P/6-B, affidavit of legal heirs in respect of non -conducting
post-mortem of the deceased Ex -P/6-C, list of legal heirs of the deceased Ex -P/6-D and
incomplete challan Ex -P/6-E. PW -7 Muhammad Imran Levies Sepoy is witness to personal
search memo Ex -P/7-A of respondent No.1. PW -8 Ameer Khan Naib Tehsildar is the second
Investigating Officer, who produced supplementary challan Ex -P/8-A.
4. On completion of the prosecution's evidence, the respondent (accused) was examined
by the trial Court, as per requirement of section 342 Cr.P.C., during course while replying to the questi ons, the respondent not only denied the commission of the offence, but also denied
his involvement in the instant case. He did not opt to make statement on oath, nor produced evidence in his defence.
5. After hearing the learned counsel for the parties, th e trial Court acquitted the respondent
(accused) vide impugned judgment dated 30.8.2017, hence this appeal.
6. Learned counsel for the appellant (complainant) contended that acquittal of the
respondent was based on mis -appreciation and misreading of the evidence; that the eye -
witnesses specifically implicated the respondent with commission of the alleged offence; that the trial Court while acquitting the respondent considered the irrelevant aspect of the prosecution evidence while ignoring the vital aspects ; that there were various illegalities,
irregularities in the impugned judgment with regard to the acquittal of respondent on the basis of which the same was not sustainable and liable to be set aside and respondent be convicted and sentenced as per law.
7. We have heard learned counsel for the appellant/complainant and also gone through the
evidence available on the record as well as the impugned judgment. As per prosecution version, the alleged incident took place on 17.2.2014 at about 1:00 p.m., but the matter was reported to Levies Thana on 19.2.2014 at about 4:00 p.m. i.e. with the delay of about two days and the prosecution failed to satisfactorily explain the delay in lodging of the FIR regarding incident of this case, whereas the distance between the place of occurrence and the Levies Thana was
about eight Kilometers. It is well settled law that the factum of delay caused in lodging of FIR must be explained by the complainant plausibly, if he failed to furnish the circumstance beyond his control or sound justification in this regard, the allegations leveled in FIR would be presumed the result of deliberation, negotiation, discussion and after thought with sole drive and ulterior motive to get the accused convicted, therefore, such deliberate delay cannot be ignored by the Court in routine manner.
8. Perusal of the record shows that the entire prosecution case hinges upon the statements
of PW -2 Muhammad Zaman, PW -3 Muhammad Hashim and PW -5 Raz Muhammad, who
stated that on 17.2.2014, they were present in the area of Killi Shedan and were grazing their cattle while deceased Zaitullah was present at some distance. The accused persons made firing
upon him due to which he died at the spot. Perusal of the statements of all the three witnesses shows that the same are full of improvements and contradictions. During their statements, they tried to improve their version by making dishonest improvements. They also contradicted each other on material points. After having gone through their evidence, we have no hesitation in observing that they have failed to inspire our confidence. It is a settled law that when a witness
improves his statement to strengthen the prosecution case and the moment it is concluded that
the improvement was made deliberately and with mala fide intention, the testimony of such witness does not remain reliable. While holding so, we are fortified by the dictum of law laid down by the Hon'ble Supreme Court in the cases reported as Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 and Muhammad Rafiq and others v. The State and others
2010 SCMR 835, wherein, at page 396, the Hon'ble apex Court has been pleased to observe as under: --
"This Court in the case of Saeed Muhammad Shah v. The State 1993 SCMR 550, observed that if a witness improves his statement on material aspects of the cas e, then
such improvement is not worthy of reliance and the evidence of such witness requires corroboration. In the case of Khalid Javed v. The State 2003 SCMR 1419, while reiterating the above rule, it was further observed that such witness is to be considered to be wholly un -reliable and it is not advisable to place explicit reliance upon his
evidence.
9. Furthermore, the statements under Section 161, Cr.P.C. of the witnesses were recorded
after three days of the incident. Though the allegations against the appellant is heinous in nature, but at the same time this Court is conscious of the fact that conviction can only be maintained if the prosecution has proved its case beyond and shadow of doubt.
10. Apart from above, no post -mortem of the dead body was c onducted nor any inquest
report was made in order to ascertain the cause of death or the number of injuries sustained by
the deceased. Whereas, PW -4 Tawoos Khan (recovery witness) in his cross -examination
admitted that there was no sign of bullet on the bl ood stained clothes of the deceased. No
recovery was effected from the respondent. Thus we are of the confident view that the prosecution, indeed, failed to prove its case against the respondent beyond the shadow of doubt and the trial Court, after proper scrutiny of record, through well reasoned judgment has acquitted the respondent of the charge.
11. Even otherwise, an appeal against acquittal as distinctive features and the approach to
deal with the appeal against acquittal is distinguishable from appeal against the conviction,
because, presumption of double innocence is attached in the former case. An order of acquittal can only be interfered with when it is found on the face of it as capricious, perverse or arbitrary in nature, which are lacking in this case. In this regard reference is placed on case Inayatullah
Butt v. Muhammad Javed and others (PLD 2003 SC 562). There is hardly any improbability or infirmity in the impugned judgment of acquittal recorded by the trial Court, which being based on sound and cogent reasons does not warrant any interference by this Court and is accordingly maintained, hence this petition having no merit is dismissed in limine.
JK/162/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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