2018 Y L R 304
[Balochistan]
Before Muhammad Ejaz Swati and Abdullah Baloch, JJ
GHOUS -UD-DIN---Appellant
Versus
ABDUL MANAN alias MANO and another ---Respondents
Criminal Acquittal Appeal No.175 of 2015, decided on 2nd October, 2017.
(a) Penal Code (XLV of 1860) ---
----Ss. 302, 324, 337- A, 337- D, 337- F, 147, 148 & 149---Qatl -i-amd, attempt to commit qatl-
i-amd, shajjah, jaifah, ghayr -jaifah, rioting, rioting armed with deadly weapon, unlawful
assembly ---Appreciation of evidence ---Appea l against acquittal ---Ocular account was
supported by medical evidence ---Prosecution case was that the accused/respondent along
with co -accused persons assaulted upon the nephew of complainant, made firing, due to
which one person died and three were injur ed---Motive behind the occurrence was stated to
be earlier dispute ----Admittedly, it was a case of cross version and both the parties had
registered FIRs against each other, wherein alleged commission of offence of fighting/firing
against each other had taken place ---Ocular account was furnished by four witnesses
including complainant ---Complainant appeared as a witness and reiterated contents of FIR ---
Injured witness stated that on the day of occurrence the accused/respondent along with absconding accused persons arrived at the place of occurrence in three vehicles, armed with pistol, Kalashnikov and kalakov and made firing on the nephews of complainant ---After
hearing firing shots, the said witnesses came over there and the accused persons started beating the cousin and son of the complainant, which seriously injured them ---Statement of
injured witness was corroborated by eye -witnesses in respect of time, place of occurrence,
manner in which the occurrence took place, arrival of accused persons in three vehicles armed and equipped with weapons and specific role attributed to the accused/respondent and absconding accused ---Despite lengthy cross -examination, the statements of all the eye -
witnesses were not shaken by defence except admission of cross FIR agains t the complainant
party ---Counter FIR reflected that the accused/respondent party had lodged the FIR as a
counterblast just to save their skin---Medical Officer, who conducted postmortem of the deceased and examined injured persons, produced medical certif icates and found firearm
injuries on the body of deceased and one injured, while injuries of two persons were caused by means of blunt weapon---Nothing could be brought on record by the defence by recording evidence in the Trial Court in support of their c ross versions ---Trial Court was bound to
decide each case separately on its own merits, but the said court had made an erroneous assumption by mingling both cases in one trial which was not permissible ---Record
transpired that injured witness was present w ith the deceased, when the accused party made
fire upon them ---Injured witness specifically nominated the accused/ respondent and his
companions for commission of offence, which established the vicarious liability of the accused persons ---Act of accused/ r espondent and his companions fully attracted the
provisions of Ss.302, 324, 337- A, 337- D, 337- F, 147, 148 & 149, P.P.C. and the
accused/respondent was liable to be convicted and sentenced for the said offences ---Findings
of the Trial Court showed misreading and non -reading of material evidence resulting into a
wrong conclusion while acquitting the accused/ respondent ---Circumstances established that
finding of the Trial Court was based on arbitrary, capricious and imaginary, thus appeal
against acquittal wa s allowed by setting aside the impugned judgment and
accused/respondent was convicted and sentenced accordingly.
Mst. Dur Naz and another v. Yousuf and another 2005 SCMR 1906 rel.
(b) Penal Code (XLV of 1860) ---
----Ss. 302, 324, 337- A, 337- D, 337- F, 147, 148 & 149---Qatl -i-amd, attempt to commit qatl-
i-amd, shajjah, jaifah, ghayr -jaifah, rioting, rioting armed with deadly weapon, unlawful
assembly ---Appreciation of evidence ---Recovery of empties and other articles ---Reliance---
Record showed that seven empties of TT pistol, four empties of Kalakov and three empties of Kalashnikov were recovered from the place of occurrence ---Said recovery supported the case
of prosecution that the firing by the accused/respondent and his companions had been proved---Prima f acie, it appeared that the deceased and the injured persons received firearm
injuries on their persons made by the accused persons ---One car was taken into possession
from the place of occurrence along with a 30 -bore TT pistol which was left by the accused
persons in the said vehicle ---Said recoveries could be relied in circumstances.
Jameel Ahmed Babai for Appellant.
Muhammad Riaz Ahmed for Respondents.
Muhammad Yahya Baloch, D.P.G. for the State.
Date of hearing: 21st August, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal Acquittal Appeal
No.175 of 2015 filed by appellant Ghous -ud-Din son of Sultan Muhammad, against the
judgment dated 25th May 2015 (hereinafter referred as, "the impugned judgment") passed by the learned Addit ional Sessions Judge -IV Quetta (hereinafter referred as, "the trial Court"),
whereby the accused -respondent was acquitted of the charge.
2. Facts of the case are that on 19th May 2009, the complainant -appellant Haji Ghous -
ud-Din son of Sultan Muhammad lodg ed FIR No.65 2009 at Police Station Airport Road
Quetta under sections 302, 324, 337/ADF, 147, 148, 149, P.P.C., stating therein that on the day of occurrence at about 8.00 p.m. he was present in his house, when heard gun shots and he with his son Bashir A hmed and Mir Ahmed came out from house and saw his nephew
Sharaf ud Din and Sardar Muhammad lying in injured condition adjacent to the shop, who were assaulted by Abdul Manaf, Qayyum, Abdul Manan and Wahab by means of firing and with butt of Kalashnikov. I t is further alleged that accused -respondent Abdul Manan alias
Mano and other accused persons have come to the place of occurrence in three vehicles and after occurrence they fled away in two vehicles, while the third one was left over there and a pistol w as also lying in the said vehicle. The motive behind the occurrence was stated to be
earlier dispute took over between the children.
3. Pursuant to above FIR, the investigation of the case was carried out and the 2.D Car
along with pistol allegedly left by the accused, were taken into possession, site map was
prepared, the statements of witnesses were recorded, obtained MLC of deceased and injured,
took into possession the blood stained cloth of deceased and injured and blood stained earth and other articles. The accused Abdul Manan was arrested and was subjected to investigation. On completion of investigation challan of the case was submitted before the trial Court.
4. At the trial, the accused Abdul Qayyum son of Muhammad Ali, Abdul Wahab son of
Haji Kama l and Abdul Manaf were declared as proclaimed offenders and proceedings under
Sections 87 and 88, Cr.P.C. were also carried out against them.
5. The prosecution produced the evidence of fifteen (15) witnesses. The appellant was
examined under Section 342, Cr.P.C. he also recorded his statement on oath under Section 340(2), Cr.P.C. and produced his MLC as well as the MLCs of absconding accused as D - to
D-5, who were injured in the said incident. However, the accused- respondent did not produce
any witness in his defence. On conclusion of trial and after hearing arguments, the trial Court vide impugned judgment dated 25th May 2015, acquitted the accused- respondent of the
charge under sections 302, 324, 337/ADF, 147, 148, 149 P.P.C. Whereafter, the complainant -
appellant has preferred the instant appeal against the acquittal of accused -respondent Abdul
Manan alias Manoo.
6. The learned counsel for the appellant contended that the impugned judgment passed
by the learned trial Court suffers from misreading, non- reading and misappreciation of
evidence; that the prosecution has produced confidence inspiring witnesses against the respondent; that the ocular evidence was supported by the medical evidence as well as
circumstantial evidence; that the learned trial Court d iscarded the ocular evidence as well as
medical evidence of the prosecution without assigning any cogent reason; that the learned trial Court without any defence evidence by itself reached to a wrong conclusion; that the complainant party was aggressor; that a crime weapon 30 bore T.T pistol and crime vehicles of the accused persons were also taken into possession, but the learned trial Court did not appreciate the said evidence; that despite lengthy cross -examination their statements were not
shaken; that the impugned judgment suffers from material illegality and irregularity, which is liable to be set aside.
7. On the other hand, the learned DPG appeared on behalf of the State has also
supported the version of the learned counsel for the appellant.
8. Conversely, the learned counsel for the respondent Abdul Manan vehemently opposed
the contention of the appellant and contended that the prosecution has failed to prove its case through confidence inspiring evidence; that the ocular evidence was not supported by the medical evidence and there are glaring contradictions, dishonest and material discrepancies found in the statements of the prosecution witnesses; that there is a cross version case and the appellant/complainant party was aggressor while attacked upon the respondent's party and the respondent itself received injuries and hospitalized; that no recovery was effected from the respondent; that the extra judicial confession allegedly recorded by the respondent is not admissible as the same was recorded bef ore the police; that the learned trial Court after
proper appreciation of evidence has rightly acquitted the respondent from the charge, as such, impugned judgment does not warrant for interference by this Court.
10. We have heard the learned counsel for t he parties with their valuable assistance and
perused the record minutely. Admittedly, the case of the appellant/ prosecution is a case of
cross version and both the parties have registered FIRs against each other, wherein alleged commission of offence of and fighting/ firing against each other. The FIR No.65/2009 was registered by the appellant/ complainant party against the accused/ respondent's party with Police Station Airport on 19th May 2009 at 09:30 p.m., through complainant Haji Ghous -ud-
Din, wherei n stated that on the day of occurrence at 08:00 pm, he was present in his house,
when on hearing of gunshots he along with his sons Bashir Ahmed and Mir Ahmed came out from their house and saw their nephew Sharaf -ud-Din and Sardar Muhammad are lying in
injured condition adjacent to the shop, who were assaulted by Abdul Manan, Abdul Qayyum,
Abdul Manaf and Abdul Wahab by means of firing and with butt of Kalashnikov. He further alleged that accused/ respondent Abdul Manan alias Mano comes to the place of occu rrence
along with others in three vehicles thereafter fled way in two vehicles while the third vehicle was left at the place of occurrence one pistol was also lying in the said vehicle. The motive beyond the occurrence was stated to be earlier dispute took over between the children. The
appellant/complainant Ghous -ud-Din also appeared as PW -5, who has almost reiterated
contents of FIR. The case of the prosecution mainly rests upon the statements of eye -
witnesses PW -1 Bashir Ahmed son of Ghous -ud-Din, PW -2 Sardar Muhammad son of Haji
Ghulam Dastagir, PW -3 Mir Ahmed son of Ghous -ud-Din all the three witnesses including
PW-5 claimed to be star eye -witnesses of the prosecution case and all of them i.e. PW -1, 2
and 3 had received injuries by the respondent and hi s companions. All the eye -witnesses in
line deposed that on the day of occurrence, the accused/ respondent along with absconding accused persons arrived at the place of occurrence and armed with pistol, Kalashnikov and Kalakof and mainly the PW -2 Sardar Mu hammad stated that on the fatal day, the respondent
along with absconding accused arrived in front of his cousin Sharaf -ud-Din's shop at 08:00
pm in three vehicles i.e. one Vigo, Alto and one 2.D black colour. The respondents Abdul
Manan alias Mano and Abdul Manaf were armed with pistol, Abdul Wahab equipped with Kalakov, Qayyum armed with Kalashnikov and two other unknown persons were armed with pistol while alighted from the vehicle accused Abdul Wahab had fired upon him and one bullet was hit his right k nee while Sharaf -ud-Din coming to him then respondent Abdul
Manan alias Mano and Abdul Manaf started firing upon Sharaf -ud-Din by means of pistols.
After hearing firing shots our cousins PW -1 Bashir Ahmed and PW -3 Mir Ahmed came over
there and the accused respondents Abdul Manan, Abdul Manaf, Abdul Wahab, Qayyum and
other two unknown persons by means of pistol, Kalashnikov and Kalakovs, started beating of Bashir Ahmed and Mir Ahmed, which caused them serious injuries and thereafter all of them were taken by their relatives in private vehicles to the Civil Hospital. The motive behind the
occurrence was quarrel between the children.
11. It is pertinent to mention here that the statement of this injured eye -witness was fully
corroborated by PW -1 Bashir Ahmed and PW -3 Mir Ahmed on all counts i.e. time, place of
occurrence, manner in which the occurrence took place, arrival of accused persons in three vehicles armed and equipped with Kalakov, Kalashnikov and pistol and specific role attributed to the respondent No.1 Abdul Manan alias Mano and absconding accused Abdul Manaf for indiscriminate firing upon Sharaf -ud-Din. Despite lengthy cross -examination, the
statements of all eye -witnesses were not shaken by defence except admission of cross FIR
against the complaina nt party registered by the accused / respondent party as counterblast.
12. We have also perused the cross FIR lodged by the respondent/ accused Abdul Manan
vide FIR No.66/09 with Police Station Airport on 19th May 2009 at 10:00 pm under sections 337/ADF, 147, 148, and 149 P.P.C., wherein alleged that on the fatal day at 08:00 pm he along with his brother Abdul Manaf, nephew Abdul Wahab in vehicle No.ASA -553
travelling to their home, in the switchboard of vehicle Rs.1200,000/ - and a licensed pistol
was lying. When they reached near the general store of Abdul Aziz the accused person
Sharaf -ud-Din, Bashir Ahmed, Mir Ahmed, Noor Ahmed, Zareef, Rehmatullah, Shamsullah
and Ghous -ud-Din, which were equipped with arms and dandas on seeing attacked upon
them. As a result whereof complainant Abdul Manan, Abdul Wahab received serious injuries
and become unconscious at the spot and he further alleged that they have also made firing
upon them through Kalashnikov and they luckily saved from firing. The perusal of above FIR reflects that the accused/ respondent party lodged such FIR as a counterbl ast just to save their
skin from the commission of offence registered against them vide FIR No.65/2009, which was lodged by the appellant against them prior to counter FIR No.66/2009 and thus, have not denied their presence and firing.
13. The ocular accou nt of the prosecution case is further supported by the medical
certificates produced by the PW -8 Dr. Muhammad Jaffar, MLO Sendeman Provincial
Hospital, Quetta, who appeared as PW -8 and produced the medical certificates of the
deceased and injured persons, who stated in his statement that on 19th May 2009 at 09:55 pm, he was posted as MLO, Samdeman Provincial Hospital, Quetta. One Sharraf -ud-Din age
22 years with history of gunshots wounds brought before him, who conducted his medical
examination and found t he firearm injuries on his body. The deceased remained under
treatment from 19th May 2009 till his death on 24th May 2009 and his MLC showing his
injuries and cause of death exhibited as P/8- A and cause of his death was shown as, "injury of
vital organ (abdomen, cavity and chest cavity, Hemorrhage Shock septicemia CRF and death. The PW -8 also produced the medical certificates of injured PW -1 Bashir Ahmed, PW -2
Sardar Ahmed and PW -3 Mir Ahmed, wherein the injuries caused by Sardar Ahmed were
opined as, firea rm injuries while injuries of Bashir Ahmed and Mir Ahmed were opined
caused by means of blunt weapon.
14. Pursuant of MLC of deceased Sharaf -ud-Din Ex.P/8- A reflects the cause of' death of
deceased as unnatural.
15. The case of prosecution is further supported by the recovery of Seven empties of TT
pistol, four empties of Kalakov and three empties of Kalashnikov from the place of occurrence through recovery memo Ex.P/7- A, which further strengthen the case of
prosecution that the firing alleged to the accuse d/respondent and his companion by means of
Kalakove, Kalashnikov and TT pistol has been proved, prima facie, it appears that the deceased and the injured Sardar Muhammad received firearm injuries on their persons made by the accused persons. The case of pr osecution is further strengthen from recovery of 2.D
Car No.ASA.553 was taken into possession from the place of occurrence along with a 30 bore TT pistol which was left by the accused persons in the switchboard of said vehicle.
16. The prosecution further taken into possession the blood stained clothes of the
deceased and injured persons and the same were sent to the FSL for chemical examination and found Human blood on the said articles.
17. Now the question arises that in presence of all above evidence h ow the trial Court has
acquitted the respondent No.1 from the charge of the heinous offence, to resolve this question, it is important to revisit the impugned judgment passed by the trial Court.. The learned trial Court while formulated four points for det ermination as under: --
Point No.1:
"Whether on 19.05.2009 at about 8:00 P.M at Nawan Killi Bazar neared Abdul Aziz
General store Last Stop, Quetta accused Abdul Manan along with his absconding accused Persons namely Abdul Qayyum, Abdul Wahab, Abdul Manaf and two other known accused persons in furtherance of their common object attacked upon the complainant party, injured Sharaaf -u-Din, Sardar Muhammad, Mir Ahmed and Bashir
Ahmed, later on Sharaaf -u-Din succumbed to his injuries?
Point No.2:
Whether accused party did not attack upon the complainant party but the complainant party itself/ themselves attacked and also injured the accused party (Abdul Manan, absconding accused Persons namely Abdul Qayyum, Abdul Wahab, Abdul Manaf)?
Point No.3:
Whether deceased Sharaaf -u-Din died only due to firearm injury/ injuries?
Point No.4:
What offence has been committed by the accused and what would be result?
18. While diligence to decide the point No.1 firstly taken into consideration that who
is/was the aggressor and who was the aggressed party, wherein without taking into consideration the above stated evidence and without proper appreciation of record by itself comes to the conclusion that, in Paras Nos.13, 14 and 15 its judgment, for connivance the aforesaid par as are produced as under: --
"13. It is an admitted and proved fact that there was a fighting between the parties, but as I see the evidence and natural course of evidence and same is believable by a prudent mind that fight was started by the complainant pa rty upon the accused party.
The real aggressors were/are the complainant party; they admit it that the children of the accused party quarreled with children of the complainant party then naturally it was/is the complainant party who attacked upon the accus ed party in retaliation/ to
take revenge.
14. There is conflict in medical and ocular accounts as one bullet injury was shown by police on belly of deceased Sharaaf -u-Din, also one empty was allegedly recovered
from crime scene and there is/was only hole -sign of bullet on trouser of the said
deceased, but medical evidence 'shows another picture.
15. No recovery of any kind effected from the possession or on pointation of the accused.
19. The above findings of the trial Court may be relevant for the quantum of sentence, but
in the aforesaid circumstances, the accused cannot be absolved for the criminal act done by
them in the commission of the offence. The findings of the trial Court with regard to conclusion that complainant parties were aggressor is also ba sed on presumption as no such
evidence came on record from defence side in respect of FIR No.66/09. There is no iota of evidence brought on record by the defence by recording evidence in the trial Court in support of their cross versions as stated in the F IR No.66/2009, even otherwise, besides the cross
version, the learned trial Court was duty bound to decide each case separately on its own
merits, but the learned trial Court has made an erroneous assumption by mingling both cases in one trial which was no t permissible.
20. Now the next important question remains for this Court as to whether which piece of
evidence from the face of record is available against the respondent No.1, which connects him for commission of offence with furtherance of common intent ion to resolve this very
material question. It is necessary to again separately revisit the ocular evidence.
21. The PW -5 Haji Ghous -ud-Din/ complainant in its fard -e-bayan Ex.P/1- A specifically
stated that:--
" ً�� تت
�� وز�ا 8 ر� ا� � � �� د��ف ۔ �ئر
�� ف��ہر ا�با� �
� � ۔� ہر�با� � گ� � � � ا� اور� ا� � ے� ۔� آواز آ�
دار� اور��اف ا� � ے� � � د� � ہر �با� ۔� � � روا� � ان
� ا� ں� ے� ۔� ے� � ت�� �ىد ز�� �� � ن� دو�
ب�م اور و� ف،�ا� ،� ف� ن�ا� ن� � � د� � ا� اور
� اور� ا� ں� ں�ے دو� � ۔� � � ز� � ف�ئر
�� � ں�
۔� � � د� � ۔ و� � ز� � وار�� � ببٹ� ف�� � � �ا
� اور� � ان� روزا � � ں� �� ٰنف اور�ح�
ىفر ا�� � ے�
ب�م اور و� ،� ف� ن��ا� ف،�ا� ن� � �� ۔� �� � ا� ں�ڑ� ۔ دو� � آ� ں�ڑ� � اہ� � ں�� � د�ا
ى � ا� �� � � گ� � �� اہ� � ں�� �د2D ف�بر� ر�
� ۔� � � فرار
� � ڑ� � � پٹ� ى�ر ا� ا� � "ہ
22. He further corroborated the same contents of his fard -e-bayan in his statement
recorded in the Court.
23. The next piece evidence against the accused/respondent is the statement of PW -1
Bashir Ahmed and in his examination in chief he stated.
24. Accordingly, PW -3 Mir Ahmed narrated the same story as deposed by PW -1 and PW -
5. The main star eye -witness of the case is PW -2 Sardar Muhammad, who was present with
his cousin deceased Sharaf -ud-Din while the accused party made fire upon them. He has
specifically nominated the accused/respondent No.1 and his companion for commission of
offence in its Court statement, the relevant portion whereof is reproduced as under: --
25. The above ocular account furnished by the aforesaid witnesses including injured
witness, clearly shows that the accused persons came in three vehicles at the spot equipped
with deadly weapons and started indiscriminate firing, then preplan and meeting of mind for commissio n of the offence by virtue of vicarious liability had also been established. The act
of respondent No.1 and his companions fully attracts the provision of Sections 302, 324, 337-
ADF, read with Sections 147, 148, and 149, P.P.C. and the respondent No.1 was liable to be
convicted and sentenced for the above offences, but the findings of learned trial Court reflects misreading and non- reading of material evidence resulted a wrong conclusion while acquitted
the respondent No.1 from the charge. Reliance is placed on the case of Mst. Dur Naz and another v. Yousuf and another 2005 SCMR 1906, which reads as under: --
"The evidence of eye -witnesses was corroborated by medical evidence and
absconsion of accused. It is also settle principle of law that when defence ple a is
raised by an accused, the burden to prove the same lies on his shoulders. In the instant
case when said plea is examined in juxtaposition to the case of prosecution seems to
be untrue. Reference can be made to the case of Abdul Wahid v. The State 2003
SCMR 668 wherein it was held that the initial burden to prove the guilt against the accused lies upon the prosecution, but when a specific plea has been raised by the accused in defence then both are to be considered in juxtaposition and the one which
is nearer to the truth is to be given weight.
"It is no doubt open to the Appellate Court to reach a conclusion different from the
one arrived at by the trial Court on reappraisal of the evidence on record on a point of
fact but in doing so the Appellate Cour t cannot totally ignore the reasoning given by
the trial Court in support of its conclusion. The Appellate Court while disagreeing
with the conclusion of the trial Court, on the point of fact, will have to take into
account the reasons advanced by the tria l Court and if it disagrees with the reasons of
the trial Court it must give its own reasons for such disagreement which sought
proceed on some logical basis. If the Appellate Court merely says that it does not agree with the conclusion of the trial Court without adverting in the reasons given by
the trial Court in support of the conclusion and without disclosing any logical basis for the such disagreement, such finding by the Appellate Court which is at variance with trial Court's finding, cannot be binding. In the case before us the reasons given by the trial Court for holding that the eye -witnesses in the case were present at the
time of occurrence at the spot, were not only convincing but the evidence of these witnesses remained totally unshaken in spite of lengthy and searching cross -
examination by the counsel for respondent. The learned Judges of the High Court while disagreeing with the trial Court have totally ignored the reasons given by it in believing these witnesses."
26. We are of the firm view t hat the impugned judgment passed by the learned trial Court
suffering from serious misreading and non- reading of evidence was totally unjustified and
based on arbitrary, capricious and imaginary, consequently the instant appeal is allowed and the impugned judgment is set aside to the extent of respondent No.1 Abdul Manan alias
Mano son of Sultan Muhammad he is convicted and sentenced under section 302(b) for R.I
life imprisonment with compensation of Rs.500,000/ - to be paid to the legal heirs of the
deceased Sharaf -ud-Din as envisaged under section 544- A, Cr.P.C. in default whereof to
suffer SI for Six months and further convicted under sections 324, and 337- ADF read with
sections 147, 148 and 149, P.P.C. for murderous assault and causing injuries to Sardar Muhammad, Mir Ahmed and Bashir Ahmed sentenced to suffer R.I for seven years (07) (sic) in case of default to further suffer SI for Six (06) months with benefit of Section 382- B
Cr.P.C. extended in favour of accused/respondent No.1. All the sentences are directed to run
concurrently. He be taken into custody and send to Central Jail Mach to serve his sentence is awarded above.
JK/150/Bal Order accordingly.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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