2019 Y L R 1791
[Balochistan]
Before Abdullah Baloch, J
MUHAMMAD ALIM ---Petitioner
Versus
The STATE--- Respondent
Criminal Revision No. 6 of 2019, decided on 12th March, 2019.
Penal Code (XLV of 1860) ---
----Ss. 337- A(i), 337- H(2), 427, 147, 148 & 149---Qanun -e-Shahadat (10 of 1984), Art.
129(g) ---Shajjah -i-khafifah, hurt by rash or negligent act, mischief causing damage, rioting
armed with deadly weapon and common object ---Appreciation of evidence ---Benefit of
doubt ---Plea of alibi ---Withholding of material witness ---Presumption ---Prosecution case
against accused was that he along with others attacked the sons of the complainant with
knives and sticks; caused them serious injuries and also broke glasses of the vehicle ---
Validity ---Accused disputed his presence at the time of occurrence, took the plea of alibi and
produced a witness in his defence who stated that he was accompanying the accused throughout the day--- Complainant had not witnessed the crime and his entire statement was
based on hearsay evidence---Complainant admitted that he was informed on the telephone by another person but he failed to name the said person---Incident took place on 11th May, 2016 while complainant in his statement alleged the same as 11th August, 2016 ---Injured
witnesse s made improvements in their earlier depositions and admitted that the occurrence
took place near Levies Thana, which confirmed the presence of Levies employee at the spot --
-Investigating officer in his court statement admitted that statement of Levies emp loyee
recorded under section 161, Cr.P.C. did not show presence of accused at the time of occurrence--- Perusal of statement of Levies employee showed that the accused was not
present at the place of incident at the relevant time ---Levies employee was an in dependent
witness of the occurrence and despite availability his evidence was withheld by the prosecution without any plausible reason or justification, whereas his evidence was the best piece of evidence which could have been relied upon for proving the c ase---Presumption
under illustration (g) of Art. 129 of Qanun- e-Shahadat, 1984 could fairly be drawn that if the
said witness was produced in court he would not have supported the prosecution version---Prosecution was not bound to produce each and every wi tness, but if the prosecution failed to
produce such witness who was the central figure and entire story revolved around him then the prosecution story became doubtful ---Prosecution failed to prove the presence and
participation of accused in the occurrenc e---Non-production of Levies employee created
reasonable doubts in the case of prosecution ---Petitioner was aquitted from the charge, in
circumstances.
Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327 and Tariq Pervaiz v.
The State 1995 SCMR 1345 rel.
Mir Attaullah Langove for Petitioner.
Saeed Ahmed Kakar, State Counsel.
Date of hearing: 6th March, 2019.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal Revision :Petition
No.06 of 2019 filed by the petitioner Muhammad Alim son of Raheem Bakhsh, against the
judgement dated 24th October 2018 passed by learned Judicial Magistrate MFC Dalbandin
(hereinafter referred as "the trial Court") whereby the petitioner along with co- accused were
convicted under Section 337- A (i) Q&D Ord inance for ten (10) months' R.I. with Daman of
Rs.10,000/ - each, which in case of recovery was directed to be paid to the injured/victims
equally and in default thereof they were directed to be kept in simple imprisonment, with the benefit of section 382- B, Cr.P.C. While the appeal filed by the petitioner and others was
dismissed with certain modifications in the convictions and sentences by the appellate Court i.e. Additional Sessions Judge Dalbandin, who vide judgment dated 4th January 2019 reduced the sentence of imprisonment to that of already undergone and the amount of Daman
was also reduced to Rs.8000/ -. Besides, the appellate Court also convicted the petitioner and
co-accused under Section 427 read with Section 149, P.P.C. for the period already unde rgone
with fine of Rs.2000/ - each and in default thereof to further suffer four (04) days S.I. They
were further convicted under Section 147 read with Section 149, P.P.C. for a period already undergone with fine of Rs.1000/ - each and in default thereof to further suffer four (04) days
S.I. with the benefit of Section 382- B, Cr.P.C.
2. Facts of the case are that on 11th May 2016, the complainant Muhammad Murad son
of Haji Nawab Shah, lodged FIR No.11/2016 at Levies Thana Chaghi" under Sections 337-H(2), 337( A) Q&D Ordinance read with Sections 147, 148, 149, P.P.C., stating therein that
on the said date at about 8.00 a.m. his sons namely Jameel Ahmed and Murad Shah along with his relatives in a Siracha vehicle were on their way towards Dalbandin to attend the Court hearing at Dalbandin, but in the way towards Dalbandin the accused persons namely Noor Ahmed, Saleh Muhammad, Noor Shah, Basham, Muhammad Alam and Sattar in a double door vehicle bearing registration No.KT -5439 came in front of them and started
firing. Due to which his sons runaway and reached at Levies Check Post, then the accused
persons reached there and attacked upon them with knives and sticks and caused them serious injuries and also broken the glasses of the vehicle.
3. On completion of investi gation; challan was submitted in the trial Court, which
indicated the charge to the petitioner and co -accused, who denied the same. Hence, during
trial the prosecution produced seven witnesses. On close of prosecution side the petitioner
and co -accused wer e also examination under Section 342, Cr.P.C. None of the accused
recorded their statements on oath under Section 340(2), Cr.P.C., while only the petitioner produced a witness in his defence. On conclusion of trial and after hearing arguments, the petition er along with co -accused were convicted and sentenced by the trial Court as
mentioned above. The appeal filed by the petitioner was also dismissed with certain
modifications in the conviction and sentences. Whereafter, instant petition has been filed.
4. Heard the learned counsel and perused the available record. The prosecution in order
to establish the charge has produced the evidence of seven witnesses, perusal of which reflect
that the same are suffering from contradictions and dishonest improvements to the extent of
petitioner. The petitioner throughout the case has disputed his presence at the time of occurrence and has taken the plea of alibi and in this regard he has also produced a witness in his defence, who stated that the petitioner was in Noushk i on the day of occurrence and he
was accompanying him throughout the day.
5. The admitted feature of the case is that the FIR has been lodged by the complainant
(PW -1) Muhammad Murad, who otherwise had not witnessed the crime and his entire
statement is b ased upon hearsay evidence. Even otherwise, he himself admitted that he was
informed on telephone by any other person, but he has failed to name the said person. Even otherwise, the incident had taken place on 11th May 2016, while PW -1 in his statement has
alleged the same as 11th August 2016.
6. Likewise, the most important witnesses of the occurrence are PW- 2 Jamil Ahmed and
PW-3 Murad Shah, who were brothers and have been injured in the incident. However, the
witnesses have uttered the occurrence in a di fferent manner to the extent of the petitioner.
Both the witnesses have made improvements from their earlier depositions to the extent of petitioner and both the witnesses including the complainant of the case have admitted that the occurrence had taken pl ace near the Levies Chain, whereby they confirmed the presence of
Levies employee Muhammad Kareem. Moreover, the Investigating Officer of the case in his Court statement has admitted that the statement of levies employee Muhammad Kareem under Section 161 C r.P.C. has not shown the presence of the petitioner Muhammad Alam at
the time of occurrence. I have also perused the 161, Cr.P.C. statement of said Muhammad Kareem, who in specific terms had stated that the petitioner was not present at the time of occurrence.
7. The above contentions of PWs have confirmed the presence of Muhammad Kareem
Levies employee in the place of occurrence, who had not only witnessed the crime directly, but also the Investigating Officer had recorded his statement under Section 161, Cr.P.C., thus
the said Muhammad Kareem was an independent witness of the occurrence and despite availability, his evidence was withheld by the prosecution without any plausible reason or justification, whereas the evidence of said witness being an independent witness was the best piece of the evidence, which the prosecution could have relied upon for proving the case, but for the reasons best known, his evidence was withheld and he was not examined, therefore, a presumption under Illustration (g) of Article 129 of Qanun- e-Shahadat Order, 1984 can fairly
be drawn that if the said witness is produced in the Court he would not support the
prosecution version. Although, the prosecution was not bound to produce each and every
witness, but if the prosecution failed to produce such witness who was the central figure and entire story revolved around him, then the prosecution story would become doubtful. The Hon'ble Supreme Court in the case of Khalid alias Khalidi and 2 others v. The State reported in 2012 SCMR 327, has held as under: --
"The prosecution has not, for the reasons best known to it, produced Mst. Jannat Bibi,
an injured witness, from which an inference could be drawn against the prosecution that if she is produced she would have not supported the prosecution ver sion. We,
therefore, find that the ocular account is not of such a character which could be relied upon in order to convict a person on a capital charge when the same is not corroborated by any other independent evidence as the presence of both the eye -
witnesses at the place and time of occurrence is not established as their statements
have been disbelieved by the learned appellate court regarding Sultan Mehmood acquitted accused."
8. The overall reappraisal of evidence would establish that the prosecution has failed to
prove the presence and participation of the petitioner in the occurrence. The non- production
of levies employee Muhammad Kareem has created reasonable doubts in the case of
prosecution. The Hon'ble Supreme Court in the case of Tariq Pervaiz v. The State 1995 SCMR 1345, has held that, "The concept of benefit of doubt to an accused is deep- rooted in
our country. For giving him benefit of doubt it is not necessary that there should be many circumstances creating doubt if there is a circumstance w hich creates reasonable doubt in a
prudent mind about the guilt of the accused then accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
For the foregoing reasons, the petition is accepted and both the impugned judgments
dated 24th October, 2018 and 4th January, 2019 passed by Judicial Magistrate Dalbandin and Additional Sessions Judge Dalbandin, respectively, are set -aside to the extent of petitioner
namely Muhammad Alim son of Raheem Bakhsh. Accordingly, the petitioner Muhammad Alim son of Raheem Bakhsh, is acquitted of the charge in case FIR No.11/2016 of Levies Thana Chaghi, under Sections 337- H(2), 337(A) Q&D Ordinance, 427, 147, 148, 149, P.P.C.
SA/15/Bal. Petition 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,
let us know.