2020 Y L R 437
[Balochistan (Sibi Bench)]
Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ
WAQAS AHMED---Appellant
Versus
ARSHAD MEHMOOD and 2 others ---Respondents
Criminal Acquittal Appeal No.(s) 87 of 2019, decided on 24th June, 2019.
(a) Penal Code (XLV of 1860) ---
----Ss. 302, 147, 148 & 149--- Criminal Procedure Code (V of 1898), S. 265- K---Qanun- e-
Shahadat (10 of 1984), Art.22---Qatl -i-amd, rioting, armed with deadly weapon, common
object ---Power of court to acquit accused at any stage--- Appreciation of evidence---Appeal
against acquittal ---Benefit of doubt ---Delayed FIR ---Prosecution case against accused
persons was that they waylaid the complainant party when they were travelling in their
vehicle and killed the brother of complainant ---First Information Report was lodged with a
delay of 7 hours without plausible explanation--- Complainant had not explained as to why in
the presence of vehicle he proceeded to police station by foot for lodging the FIR ---Eye -
witness had not recognized the a ccused persons before the Trial Court ---Deceased was
brought to the hospital by the police, which indicated that the complainant was not present at the spot ---Witnesses were close relatives of the deceased ---Prosecution had not conducted
identification par ade of accused persons ---Empties and blood stained earth were secured
from the place of occurrence after 14 days of the occurrence without any plausible reason---Trial Court had passed a reasonable order, which in the absence of misreading and non-reading of evidence did not warrant interference---Trial Court had rightly exercised
jurisdiction under S. 265- K, Cr.P.C. ---Appeal against acquittal was dismissed.
Mehmood Ahmed and 3 others v. The State 1995 SCMR 127; 2017 SCMR 2002 and
Muhammad Arif v. The Sta te 2019 PCr.LJ 337 rel.
(b) Appeal against acquittal ---
----Every accused is innocent unless proven guilty and upon acquittal by a court of competent jurisdiction such presumption attains double presumption of innocence ---Strong
and cogent reasons are requ ired to dislodge such presumption.
2017 SCMR 1710 and 2017 SCMR 2007 ref.
Rahib Khan Buledi for Appellant.
Date of hearing: 12th June, 2019.
ORDER
ABDUL HAMEED BALOCH, J. ---This Criminal Acquittal Appeal is directed
against the judgment dated 27.05.2019 ("impugned judgment") passed by the Additional
Sessions Judge, Nasirabad at Dera Murad Jamali ("trial Court"), whereby the private respondents/accused were acquitted of the charge in FIR No. 20 of 2015, lodged with Police Station Baba Kot, under Sections 302, 147, 148 and 149, P.P.C.
2. Brief facts of the prosecution case are that FIR No.20/2015, on the report of the
complainant namely Waqas Ahmed was lodged on 13.08.2015 at Police Station, Baba Kot to the effect that on the fateful day at about 06:00 a.m. when he along with his brother Waqar
Ahmed and relative Dilshad Ahmed were coming towards their house from Jhal Magsi and
reached at Mouza Kanda Tehsil Baba Kot on Kacha track, suddenly six persons, armed with
deadly weapons appeared on three motorcycle s. They indentified four persons as Arshad,
Javed, Shahid and Muhammad Iqbal while could not identify rest of the two persons. The accused persons intercepted their way held them stopped and forcibly drag out his brother Waqar Ahmed from driving seat of the vehicle, advanced threats that not to alight from vehicle otherwise they would kill them. Due to fear they did not alight from the vehicle and accused persons took Waqar Ahmed to some distance away and accused Shahid instructed the accused Arshad to kill Waqar then accused Arshad opened fire at his brother, as a result
of which his brother died at the spot. Thereafter, accused persons flee away from the spot on motorcycles. The motive behind the incident is old enmity between the parties. Hence the instan t case was registered.
3. After formal investigation the challan was submitted before the trial Court. The
charge was framed and read over to the respondents/accused, to which they pleaded not guilty and claimed trial. During the trial, the persecution pro duced two witnesses namely
PW-1 Waqas Ahmed and PW -2 Dilshad, meanwhile the respondents/ accused filed an
application under Section 265- K Cr.P.C. After hearing learned counsel for both the parties
the trial Court allowed the application under Section 265 -K, Cr.P.C. and acquitted the
accused/respondents of the charge vide impugned judgment as mentioned hereinabove.
It is pertinent to mention here that in the previous round of trial on arrest of co-
accused namely Muhammad Iqbal and Javed Ahmed, the prosecut ion had produced as many
as ten witnesses including the Investigating officer of the case. Later on the trial Court vide order dated 9th March, 2016, acquitted both the co- accused of the charge while allowing an
application under Section 265- K, Cr.P.C.
4. Learned counsel for the appellant contended that the prosecution has produced ocular
witnesses as well as circumstantial witnesses, which connects the accused with the commission of the offence. The trial Court miserably failed to appreciate the prosecution evidence and without any justification discarded the statements of the prosecution witnesses and acquitted the accused/respondents on an application under Section 265- K Cr.P.C; that
the order of the trial Court is against the principle of natural justice , even otherwise the
complainant and the PW -2 has fully implicated the accused/ respondents and had assigned
specific role to them; that the accused/respondents have failed to discredit the statements of
both of the witnesses, as such they were required to be convicted by the trial Court, thus the
impugned order required interference by this Court.
5. We have heard the learned counsel for the appellant at length and have perused the
available record minutely. The perusal of impugned order as well as the sta tements of
prosecution witnesses recorded by the trial Court justify the acquittal order recorded in favour of accused/respondents. The prosecution has produced two witnesses at the trial Court including the complainant as PW- 2. The complainant lodged FIR with delay of seven (07)
hours without any plausible explanation. The deliberation and consultation on the part of the complainant cannot be ruled out. In this respect reliance is placed on Mehmood Ahmed and 3 others v. The State (1995 SCMR 127), whereby t he Hon' able Supreme Court of Pakistan did
not condone the delay of two hours with the following effects:
"Delay of two hours in lodging the FIR in the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking
instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to
implicate. Non -explanation of the delay in making the repor t to the police coupled
with the improvements and contradictions made by the eye -witnesses in their
statements had rendered their testimony doubtful and unreliable which did not inspire
confidence."
6. According to PW -1, he along with deceased coming from Jhal Magsi in Surf vehicle
were intercepted at 4:30 a.m. by six persons riding on three motorcycles, who forcibly took
his brother (deceased) with them; that the accused/respondents shouted loudly and told their
companion Arshad to kill him; that on the in struction of Shahed, the accused/respondent
Arshad fired upon deceased, as a result whereof he succumbed to injuries; that he went to
police station by foot. The complainant has not explained as to why in presence of surf vehicle he proceeded to Police Sta tion by foot for lodging the FIR. The conduct of
complainant cannot attract to the prudent mind. The conduct of complainant does not attract to a prudent mind.
7. The conduct of complainant reveals that he was neither present at the spot nor
accompanying w ith the deceased and other ocular witnesses. From the statement of PW- 1, it
appears that the dead body was lying in the Surf vehicle and accused had left the said vehicle but the complainant did not bother to take the dead body with him. From the conduct of
complainant it reveals that he did not depose truth and material improvement has been. It is
also to be noted that if the complainant was present at the spot, why accused/culprits would spare him to give evidence against them. It does not appeal to logic that a person present
with his real brother (deceased) would not be injured or killed leaving him for evidence to be hanged. The Hon' able Apex Court in a judgment reported in 2017 SCMR 2002 also discarded such fact and in this respect this Court in the j udgment in case title "Muhammad
Arif v. The State" reported in (2019 PCr.LJ 337) also held as under:
"Similarly, all the witnesses have admitted in their cross -examination that the injured
Raees Muhammad Hussain is their elder, meaning thereby that all th e persons were
belonged to the party of injured Raees Muhammad Hussain, thus all the witnesses
could also easily be targeted by the accused party, but only the deceased Muhammad
Salah and his father Raees Muhammad Hussain were hit and all the remaining
witnesses including the brothers of deceased i.e. PW -1 and PW -10 were let free by
accused party. The presence of all the witnesses especially the presence of PW- 1 and
PW-10 being the sons of injured PW -3 at the place of occurrence is absolutely
doubtful for t he reasons that the complainant/PW- 1 along with his brother PW -10
Muhammad Wafa including the deceased were on the target of the appellant having
pistol and Kalashnikov in their hands, but the deceased brother and injured father of
the complainant were hit and the complainant along with his brother PW -10 were let
free. It does not appeal to the logic that by killing a person in presence of his real brothers, the appellant would not attempt to cause any injury/kill the prosecution witnesses leaving them for evidence to be hanged."
8. Now adverting to statement of PW -2 Dilshad, who was declared hostile by the
prosecution, who did not support the prosecution case even not recognized the accused/respondents facing trial before the trial Court. The statements of both the ocular witnesses are contradictory to each other on material point as well as the prosecution and ocular account is doubtful as per Medico -legal Certificate. The deceased was brought by the
police at Hospital, which indicates that the complainant was not present at the spot and later
on with deliberation and consultation implicated the accused/ respondents. It is also an
admitted fact that both the witnesses are close relative of the deceased.
9. Without prejudice to above, even otherwise, the pros ecution did not conduct any
identification parade of the accused/ respondents, even as per record the empties of 9MM, a blood- stained earth were secured from the place of occurrence on 27th August, 2017, while
occurrence has taken place on 13.8.2015. After lodging of FIR, the investigating officer went
to the place of occurrence. He has taken into possession Surf vehicle of deceased, dead body
of deceased was lying there, prepared site plan, but failed to collect empties and blood stained earth. It is not p ossible after 14 days of occurrence on another visit, the investigating
officer secured empties of 9MM and blood stained earth, which means the prosecution conducted dishonest investigation in order to implicate the accused. Even the statement of ocular wi tness Liaquat, brother of deceased were recorded after 14 days of delay without any
plausible reason, which creates doubt in the prosecution case. It is settled principle that order of acquittal shall not be interfered because the presumption of innocence of accused is
further strengthened by acquittal. The trial Court has passed a well reasoned order, which in absence of misreading and non- reading evidence warrants no interference by this Court.
10. It is settled principle of law that in criminal cases eve ry accused is innocent unless
proven guilty and upon acquittal by a Court of competent jurisdiction such presumption attained double presumption of innocence. Very strong and cogent reasons are required to dislodge such presumption. Reliance is placed in ( 2017 SCMR 1710) and (2017 SCMR
2007). The appellant has failed to point out any illegality and irregularity in the order impugned.
Since there was no possibility of conviction even if the remaining prosecution
witnesses were examined, therefore in the cir cumstances of the case the trial court has rightly
exercised the jurisdiction under Section 265- K, Cr.P.C. The findings of acquittal cannot be
reversed, upset, except found to be perverse and ridiculous. The trial court has passed a well
reasoned judgment, which in absence of misreading and non- reading of evidence, warrants
no interference by this court.
Thus in view of above, the acquittal appeal is dismissed in limine.
SA/82/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,
let us know.