2019 Y L R 240
[Balochistan]
Before Mrs. Syeda Tahira Safdar and Abdullah Baloch, JJ
NABI BAKHSH ---Appellant
Versus
ABDUL HAKEEM and another ---Respondents
Criminal Acquittal Appeal No.234 of 2017, decided on 14th February, 2018.
(a) Penal Code (XLV of 1860) ---
----Ss. 302 & 34---Anti Terrorism Act (XXVII of 1997), S. 7---Qatl -i-amd, common
intention, act of terrorism ---Appreciation of evidence---Appeal against acquittal ---Delay
of about eight hours in lodging of FIR ---Record showed that occurrence took place at
about 7.00 a.m. but the FIR was lodged on the same day at 3.00 p.m.--- Complaint in
writing was received by the Investigating Officer at 8.00 a.m. who departed for the place
of occurrence at 10.00 a.m. and arrived there at 11.00 a.m., remained at t he place of
occurrence at about 45 minutes ---First Information Report was lodged at 3.00 p.m.,
whereas complainant had received information about the occurrence at 2.00 p.m.---If the complainant had received information about the occurrence at 2.00 p.m. then as to how
the Investigating Officer stated that he had received the written report for lodging the FIR, at about 8.00 a.m., when otherwise the complainant himself was informed at 2.00 p.m.---Admittedly, Investigating Officer had carried out all the inve stigation prior to
lodging of FIR, for which he had no authority or jurisdiction--- Prosecution had not
furnished explanation as to why the FIR was not lodged promptly, which was fatal for the prosecution case.
(b) Criminal Procedure Code (V of 1898) ---
----S. 154---First Information Report ---Delay in lodging of FIR ---Effect ---Law enforcing
agencies had no authority to delay the registration of FIR once information regarding the commission of cognizable offence had been given.
Mst. Shehnaz alias Asma alia s Rani and another v. The State 2010 PCr.LJ 231 rel.
(c) Penal Code (XLV of 1860) ---
----Ss. 302 & 34---Anti Terrorism Act (XXVII of 1997), S. 7---Qatl -i-amd, common
intention, act of terrorism---Appreciation of evidence ---Appeal against acquittal ---
Prosec ution case was that unknown persons made firing upon the brother of complainant
and his friend, due to which his brother died at the spot, and his friend informed him
about the incident ---Record revealed that deceased was taken to the hospital, where he
was examined by the Medical Officer, who after examination had opined that the
deceased had received multiple bullet injuries on the skull, leg and other parts of his body
and his cause of death was due to bullet injuries ---Medico Legal Certificate was issued
which confirmed the unnatural death of the deceased---Ocular account was furnished by
three witnesses including complainant ---Complainant initially lodged the FIR on the day
of occurrence against the unknown accused persons, however, after delay of about forty
days through his supplementary statement he nominated the accused and the absconded
accused ---Complainant had stated that accused was debtor of his brother, who in lieu of
the borrowed amount had agreed to give sacrificial animal ---Accused had asked his
brother and his friend to sit in his house and went out and did not return till morning ---
Deceased and his friend had taken animal from the house of accused and were returning to his house, when on the way they were intercepted by the accused and absconded accused and murdered his brother ---No explanation on the part of complainant was
furnished as to who had informed him about the incident and details ---Complainant had
narrated the story in such a manner as he had directly witnessed the crime, whereas the
fact remained that neither he had accompanied his brother to the house of the accused nor he directly witnessed the crime---If all those facts were already in the knowledge of the complainant then why he had lodged the FIR against unknown accused pers ons by not
nominating the culprits ---Nomination of accused and absconded accused through
supplementary statement after delay of about forty days did not seem to be logical ---
Prosecution had produced real brother of deceased and his cousin as eyewitnesses of the occurrence---Both the witnesses had claimed in their statements that they had witnessed the crime directly, when the accused and absconded accused made firing upon the deceased, but they kept quiet at the time of registration of FIR ---Said witnesses could not
justify their presence at the time and the place of occurrence--- Circumstances did not
appeal to the logic that one's brother or cousin had been murdered in their presence, but
they neither made any resistance nor nominated the real culprits in t he FIR and kept quiet
for considerable long period--- Conduct of both the witnesses were unnatural, thus they
were planted at the subsequent stage after consultation by the complainant party ---
Evidence of both the said witnesses did not appeal to the logic to be true nor on the basis
of such shaky statement either the conviction could be awarded or maintained---Order of acquittal passed by the Trial Court was neither arbitrary, capricious, fanciful nor contrary
to the evidence on record, warranting interference---Appeal against acquittal was
dismissed accordingly.
(d) Penal Code (XLV of 1860) ---
----Ss. 302 & 34---Anti Terrorism Act (XXVII of 1997), S. 7---Qanun -e-Shahadat (10 of
1984), Art. 129(g) ---Qatl -i-amd, common intention, act of terrorism ---Appreciat ion of
evidence--- Appeal against acquittal ---Withholding of material witness --- Presumption---
Friend of the deceased, had not only accompanied the deceased at the house of accused,
but also directly witnessed the crime ---Prosecution had not produced said important
witness at the trial for the reason best known to it ---Said witness was investigated and his
name also appeared in the calendar of witnesses ---Withholding the evidence of such
important witness had not been justified, whereas the evidence of said witness was the
best piece of the evidence---Presumption, in circumstances, could be drawn that had the said witness been examined in the court, his evidence would have been unfavourable to the prosecution.
Hunar Shah alias Anar Shah and another v. Khan Zad Gul and another 2014 YLR
1180 and Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327 rel.
(e) Criminal trial---
----Benefit of doubt ---Principle ---If there was a circumstance which created reasonable
doubt in a prudent mind about the guilt of the accused, the accused would be entitled to its benefit not as a matter of grace and concession but as a matter of right.
Muhammad Akram v. The State 2009 SCMR 230 and Tariq Pervez v. The State
1995 SCMR 1345 rel.
(f) Criminal Procedure Code (V of 1898) ---
----S. 417 --- Appeal against acquittal ---Presumption ---Double presumption of innocence
was attached to the order of ac quittal and interference was unwarranted unless the
acquittal was arbitrary, capricious, fanciful or against the record.
Shoaib Ahmed Mengal for Appellant.
Date of hearing: 19th December, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of C riminal Acquittal
Appeal No.234 of 2017 filed by the appellant Nabi Bakhsh Son of Maya, against the
judgement dated 18th July 2017 (hereinafter referred as, "the impugned judgment") passed by the learned Additional Sessions Judge Awaran at Khuzdar (hereinafter referred as, "the trial Court"), whereby the accused/respondent Abdul Hakeem son of Noor Muhammad alias Habibullah was acquitted of the charge under Sections 302, 34, P.P.C.
2. Facts of the case are that on 18th July 2016, the complainant/appellant lodged FIR
No.08/2016 at Levies Thana Awaran, under Section 302, P.P.C. read with Section 7 of
Anti-Terrorism Act, 1997, against unknown accused persons, stating therein that on the
previous day his brother (Muhammad Hussain son of Maya) along with his friend Lal
Bakhsh son of Hussain had gone to Waja Bagh Larandari on a motorcycle for taking
sacrificial animal for Eid and he at night stayed at someone's home over there. It has been alleged that today at morning time his brother after taking sacrificial anima l was coming
back towards his home, when on the way some unknown accused persons made indiscriminate firing upon him, due to which his brother Muhammad Hussain died at the spot, whereafter Lal Bakhsh came and informed him about the incident.
Subsequently the complainant/ appellant through supplementary statement dated
28th August 2016 nominated present accused/respondent Abdul Hakeem son of Noor Muhammad alias Habibullah along with absconding accused Javid son of Habibullah and Imam Bakhsh son of Urs.
3. Pursuant to above FIR, investigation of the case was entrusted to PW -8
Muhammad Raheem, who during investigation reached at the place of occurrence; took into possession the dead body of deceased and taken him to hospital; prepared site map; took into posse ssion two empties of Kalashnikov, the motorcycle of deceased Hussain;
prepared inquest report; recorded the statements of witnesses; obtained MLC; arrested the accused/ respondent and after completion of investigation the challan of the case was submitted before the trial Court.
4. At the trial, the prosecution produced eight witnesses. The accused/ respondent
was examined under Section 342 Cr.P.C. However, neither the accused/ respondent recorded his statement on oath under Section 340(2), Cr.P.C. nor prod uced any witness in
his defence. On conclusion of trial and hearing the arguments, the trial Court acquitted
the accused/respondent of the charge under Sections 302, 34, P.P.C., vide impugned
judgement, whereafter instant Criminal Acquittal Appeal has been filed.
5. Learned counsel for appellant contended that the learned trial Court while
recording acquittal in favour of the accused/respondent has not at all considered the evidence produced by the prosecution and has arrived at a conclusion, which is contr ary
to material available on record; that the prosecution has produced the evidence of two eye-witnesses, who have directly witnessed the crime coupled with the circumstantial
evidence, which has fully supported the case of prosecution; that the direct and the
circumstantial evidence has also been supported by the medical evidence besides the motive the occurrence has also been established, thus there was no reason for the learned trial Court to record acquittal in favour of the appellant; that the impugned judgment
suffers from misreading and non -reading as well as suffers from mis -appreciation of
evidence available on record, thus the impugned judgment deserves to be set -aside and
the accused/respondent is entitled to be punished in accordance with law.
6. Heard the learned counsel for the appellant and perused the available record. We
have analyzed the prosecution evidence from all angles, but we find ourselves unable to agree with the prosecution evidence rather it has been observed that the impugned acqu ittal order passed by the trial Court in favour of the accused/ respondent is based
upon deep and proper appreciation of evidence. It has further been observed that the case of prosecution is doubtful from very beginning, when the alleged occurrence accord ing to
the PWs had taken place at about 07.00 a.m. (early morning), but the FIR was lodged on the said date at 03.00 p.m. i.e. after delay of 9- hours. According to the Investigating
Officer the complaint in written was received to him at 8.00 a.m. and he d eparted for the
place of occurrence at 10.00 a.m. and arrived there at at 11.00 a.m.; remained at the place of occurrence at about 45 -minutes. The perusal of FIR reflects that the FIR was lodged at
3.00 p.m., whereas according to the complainant he receive d information about the
occurrence at 02.00 p.m. Now question arises that if the complainant had received information about the occurrence at 02.00 p.m. then as to how the Investigating Officer says that at about 08.00 a.m. he had received written report f or lodging the FIR, when
otherwise the complainant himself was informed at 02.00 p.m. Be that as it may, if the statement of Investigating Officer is considered as true, even then he had no option to delay the lodging of FIR. Admittedly, he had carried out all the investigation prior to
lodging of FIR, for which he had absolutely no authority or jurisdiction rather the investigation could have been conducted after registration of FIR. There is no explanation at all on the part of prosecution that as to why the FIR was not lodged promptly, when otherwise it had got information promptly. The Law Enforcing Agencies have absolutely no authority or jurisdiction to delay the registration of FIR on flimsy grounds once information regarding the commission of a cogni zable offence had been given. The First
Information Report is lodged under Section 154, Cr.P.C., perusal of which reflect that the use of word 'shall' indicates that it does not provide discretionary power to the Police Officer to delay or refuse the regis tration of FIR. The element of delay in lodging the
crime report is treated with caution because there is a tendency to involve innocent people during the interval. Reliance in this regard is placed on the case of Mst. Shehnaz alias Asma alias Rani and ano ther v. The State, 2010 PCr.LJ 231. Relevant portion is
reproduced below:
"21. Considering the phraseology used in section 154 of the Code of Criminal
Procedure, I am of the view that a statutory duty is cast upon the officer incharge
of a Police Station to enter every information regarding the commission of a
cognizable offence in a book maintained by such officer in the form prescribed by
the Provincial Government. This step is, in ordinary parlance, called the
registration of first information report. The police officer, it appears, cannot delay
the recording of an FIR once information regarding the commission of a cognizable offence has been given. It may also be pointed out that violation of this
mandatory and pre -emptory duty was always considered an aberration in police
discipline. Such a deviation in police vocabulary was called Burking which was
punishable under the Police Act read with Police Rules. The use of the word "shall"
in section 154 ibid indicates that it does not give discretionary powers to the police
officer to delay or refuse registration. He has no other opt ion but to proceed with
registration of the crime report without any delay. It is the right of an aggrieved
person that his complaint about the commission of a cognizable offence shall be
registered in the police station as a preliminary step before invest igation is
undertaken.
22.
23. It is, therefore, clear that registration of crime report precedes initiation of investigation. In other words registration of first information report is a condition precedent to the launching of the investigation. Such a measure would rule out the
possibility of deliberation, consultation and enquiry before furnishing the information. The element of delay in lodging the crime report is treated with caution because there is a tendency to involve innoce nt people during the interval.
The longer the intermission the greater are the chances of false implication. Investigation that follows the registration of a crime report has more value than the investigation which precedes registration of FIR. It, therefore, means that
ordinarily there can be no investigation in a cognizable case without first
registering the crime report. Having registered the case the police officer can proceed with the investigation without a formal permission from the Court which
has t he territorial jurisdiction to try that case."
7. Prior to dilating upon ocular evidence, it would be appropriate to first discus the
medical evidence. The unnatural death of the deceased has been established by the
prosecution. The deceased was taken to h ospital, where he was examined by PW -7 Dr.
Ameer Bakhsh, who after examination opined that the deceased had received multiple bullet injuries on his skull, leg and other parts of his body and his probable cause of death was due to such bullet injuries. PW -7 issued MLC Ex.P/7- A, perusal of which confirms
the unnatural death of deceased. The defence has also not disputed the unnatural death of deceased, but pleaded his false implication.
8. Adverting to the ocular testimony, suffice to observe here that the prosecution in
toto has produced the evidence of eight witnesses. The complainant of the case appeared as PW -1, who initially lodged the FIR on the day of occurrence against the unknown
accused persons. However, after delay of about 40- days through his supplementary
statement the appellant/ complainant nominated the accused/ respondent along with absconding accused. PW -1 in his statement before the Court has contradicted his earlier
deposition as contained in his fard- e-bayan and has stated that on 17th July 2016 his
brother Hussain along with Lal Bakhsh had gone to the house of accused Abdul Hakeem as the accused Abdul Hakeem was debtor of his brother, who in lieu of the borrowed amount had agreed to give sacrificial animal, when his brother reached to the h ouse of
accused/respondent; the accused/respondent seated him in his house and went outside and again arrived at about 8.00 p.m., hence his brother asked the accused/respondent that as to why he arrived so late and how they can go to their house, to which the accused/respondent asked them to stay in his house, hence they stayed in the house of accused/respondent, but again the accused/respondent had taken the Kalashnikov from his
house and went out and did not return throughout the night and even till morni ng, thus his
brother along with Lal Bakhsh taken an animal from his house and were coming to his
house, when in the way they were intercepted by the accused/respondent along with absconding accused and committed his murder .
9. The statement of this witness does not ring true in any sense. There is no
explanation on the part of complainant that who has informed him about all such story. The PW -1 has narrated the story in such like manner that he directly witnessed the crime,
whereas the fact remains that nei ther he had accompanied his brother at the house of
accused/respondent nor he directly witnessed the crime rather his own statement reveals that he was informed by Lal Bakhsh. However, if all these facts were already in the knowledge of the complainant the n as to why he lodged the FIR against unknown accused
persons by not nominating the culprits. The statement of this witness is without any sense and even being not directly witnessed the crime is not helpful to the case of prosecution.
The nomination of the accused/respondent along with absconding accused in the case
through supplementary statement after delay of about 40- days also does not seem to be
logical.
10. The prosecution has produced two so- called eye -witnesses of the occurrence i.e.
PW-2 Qadir Bak hsh, who is the cousin of deceased and PW -4 Abdul Hakeem, who is the
brother of both the complainant and the deceased. Both the witnesses have claimed in
their statements that they have witnessed the crime directly, when the accused/respondent along with a bsconding accused made firing upon the deceased. During cross -examination
both the witnesses admitted that they were present in the funeral of the deceased and thereafter were also sitting in Fateha, but both the witnesses kept mum at the time of
registrat ion of FIR, due to which the PW -1 lodged the FIR against unknown accused
persons and even they kept complete silence for 40- days and did not disclose about the
occurrence and after 40 -days of the occurrence the accused/respondent along with
absconding accu sed were nominated in the FIR. Both the witnesses did not justify their
presence at the time and the place of occurrence. It does not appeal to the logic that one's brother or cousin has been murdered in their presence, but they neither make any resistance nor nominate the real culprits in the FIR and kept mum for considerable long
period of 40- days. The conduct of both the witnesses are unnatural, thus we have no
hesitation to hold that both the witnesses are planted at the subsequent stage after consultat ion by the complainant party. Thus, the evidence of both the interested witnesses
and even being contradictory to each other as well as in contradiction with the statement of PW -1 does not appeal to the logic to be true nor on the basis of such shaky state ment
either the conviction can be awarded nor maintained. Thus, rightly the trial Court has discarded the same.
11. The most important witness of the occurrence was Lal Bakhsh, who according to
the prosecution story not only accompanied the deceased at the house of
accused/respondent, but also, he directly witnessed the crime, but the prosecution has not produced this important witness in the trial for the reasons best known by them, when otherwise he was investigated and his name is also appeared in the ca lendar of witnesses.
Withholding the evidence of this important witness has not been justified, whereas the evidence of said witness was the best piece of the evidence, which the prosecution could have relied upon for proving the case, therefore, a presump tion under Illustration (g) of
Article 129 of Qanun- e-Shahadat Order, 1984 can fairly be drawn that had the said
witness been examined in the Court his evidence would have been unfavourable to the
prosecution. Although, the prosecution was not bound to produce each and every witness,
but if the prosecution failed to produce such witnesses who were central figure and all the story revolved around them, then the prosecution story would become doubtful. Reliance in this regard is placed on the case of Hunar Shah alias Anar Shah and another v. Khan Zad Gul and another, 2014 YLR 1180. The relevant portion is reproduced herein below:
"The inference regarding non- production of this important independent witness
would go against the prosecution that had he been produced his statement wouldn't
have been favourable to prosecution. It would also reflect that prosecution
wanted to suppress material evidence."
Similar view was also taken in the case of Khalid alias Khalidi and 2 others v. The
State, 2012 SCMR 327, whereby it was 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
version. 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."
12. The minute perusal of the prosecution case from all ang les, it has been established
that the case of prosecution is doubtful and no conviction can be awarded or maintained on the basis of such type of shaky and untrustworthy evidence. According to the settled principles and guidelines provided by the Hon'ble A ugust Court that in case of doubt, its
benefit must go to the accused not as a matter of grace but of right. The trial Court has
rightly done so. Such proposition has come -up for consideration in the case of
Muhammad Akram v. The State 2009 SCMR 230, where in it has been held that, "... It is
an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as a matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State (1995 SCMR 1345) that for giving the benefit of
doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of
grace and concession but as a matter of right." It is a settled principle of law that 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. In
the instant case the order of acquittal passed by the trial Court is either 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 in limine.
JK/23/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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