2021 Y L R 2182
[Balochistan]
Before Muhammad Hashim Khan Kakar and Muhammad Ejaz Swati, JJ
NAJEEBULLAH ---Appellant
Versus
The STATE through Prosecutor General, Balochistan ---Respondent
Criminal Appeal No. 235 of 2019, decided on 13th May, 2020.
Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Qatl -i-amd and common intention---Appreciation of evidence ---Benefit
of doubt ---Delayed FIR --- Dishonest improvement ---Withholding best evidence --- Related
witness--- Chance witness --- Scope ---Accused along with others were alleged to have
attacked upon the deceased, who took shelter in a shop but the accused persons being armed
with pistols entered into the shop and made firing upon the deceased---First Information Report was lodged with a delay of about 23 hours without any plausible reason---Accused
was nominated in the FIR but he was not assigned any role ---Accused was later on assigned
the role of holding the deceased but no reliance could be placed upon such an improved statement ---No plausible explanat ion was furnished as to why the shopkeeper or the person
who took the deceased to the hospital was not examined---Non -production of most natural
and material witnesses strongly led to an inference that they would not have supported the prosecution case ---Prosecution witnesses were closely related to the deceased and were
chance witnesses ---Prosecution case was highly doubtful and was not proved beyond
reasonable doubt ---Appeal against conviction was allowed, in circumstances.
Syed Ayaz Zahoor for Appellant .
Umar Dogar, Kamran Murtaza, Adnan Ejaz and Khalil -ul-Rehman for the
Complainant.
Habibullah Gul, A.P.G. for the State.
Date of hearing: 7th May, 2020.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---Najeebullah son of Saifullah,
appellant herein, is in rec eipt of a guilty verdict returned to him by learned Sessions Judge,
Loralai by means of impugned judgment dated 27th June 2019, whereby, after a regular trial, he was convicted and sentenced under section 302(b) read with section 34, P.P.C. to suffer
impri sonment for life and to pay fine of Rs.100,000/ - to the legal heirs of deceased Mehmood
Shah and in case of default to further undergo 6 months simple imprisonment, with benefit of
section 382- B, Cr.P.C.
2. It is case of prosecution that on the fateful day i.e. 21.11.2018 at about 1:00 p.m. near
Maddrassa Jamia Islamia Dar -ul-Aloom, the appellant and his companions, Muhammad
Rasool, Haji Habibullah and Najibullah came there and attacked upon Mehmood Shah, who in order to save himself, took shelter in the shop of one Abdul Khaliq, but the accused
persons being armed with pistols, entered in the said shop and made firing upon him, who
sustained firearm injuries and subsequently succumbed to the injuries.
3. Syed Ayaz Zahoor, learned counsel for the appellant s ubmitted that the prosecution
has miserably failed to prove the guilt of the appellant to the hilt, hence, he deserves clean acquittal. On the other hand, Mr. Kamran Murtaza, learned counsel for the complainant, duly
assisted by the Additional Prosecutor G eneral, contended that the prosecution has amply
proved its case against the appellant beyond the shadow of any doubt. The impugned
judgment does not call for any interference by this Court, so the conviction and sentences of the appellant mad be maintaine d and his appeal be dismissed.
4. We have heard learned counsel for the parties and have gone through the available
record with their valuable assistance, which reveals that the occurrence in this case took place on 22.11.2018 at about 1:00 p.m. at the shop of one Abdul Khaliq, situated at main
Quetta -Loralai road near Maddrassa Islamia. The matter was reported to police by Abdul
Latif, complainant (PW -1) by way of recording his statement under section 154 Cr.P.C.
(Ex.P/l -A) at the Police Station Saddar, Loralai on 22.11.2018 at 9:45 a.m. T he place of
occurrence is at a distance of about two kilometer from the police station. There is delay of about 23 hours in reporting the matter to the police and the complainant has not advanced any plausible justification and, thus, the possibility of de liberation prior to lodging of FIR
cannot be ruled out.
5. Abdul Latif, complainant in his report (Ex.P/1- A) has specifically mentioned that the
firing was made by co- accused Muhammad Rasool and Habibullah without assigning any
role to the appellant Najeebullah. Though appellant Najeebullah was nominated in the FIR, but without assigning role. However, the complainant, who is also allegedly an eye -witness
of the incident, in his statement before the Court, has improved the same by alleging that the appellan t and Habibullah caught hold of the deceased; whereas, Muhammad Rasool opened
fire on deceased Mehmood Shah. In the supplementary statement, which was produced
before the Court as Ex.P/1- B, it was stated by the complainant that the appellant caught hold
of the deceased Mehmood Shah and co- accused Muhammad Rasool and Habibullah made
firing. It is an admitted fact that the complainant did not assign the role of catching hold the
deceased at the time of incident in his first statement i.e. first information re port, according
to which mere presence of the appellant was shown without assigning any role or overt act at
the time of incident. The complainant had nominated the present appellant while assigning a
specific role in his supplementary statement before the Investigating Officer on the same day
coupled with the fact that the deceased was caught hold by the complainant and firing was
made by co- accused Muhammad Rasool and Habibullah. In case the contents of the first
information report and the supplementary s tatement are put in juxtaposition, then it is crystal
clear that the complainant had taken altogether u -turn from his previous stand. This fact
creates doubt in the prosecution story. It is, therefore, established that it is an improvement
made by the comp lainant in the supplementary statement, as such, his statement involving
the appellant in the case is obviously false and no reliance can be placed thereon in view of all the attending circumstances available on the record.
6. Admittedly, the incident in q uestion had taken place inside the shop of one Abdul
Khaliq and the deceased was taken to the hospital by one Muhammad Hashim. There is no plausible explanation on the record that for what reason the said material witnesses were not
examined during the course of investigation and no other shopkeepers and students of
Madrassa were examined in confirmation of statement of complainant. The prosecution is certainly not required to produce a number of witnesses as the quality and non- quantity of
the evidence is the rule but non- production of most natural and material witnesses of
occurrence would strongly lead to an inference of prosecutorial misconduct, which would not only be considered a source of undue advantage for prosecution but also an act of
suppression of material facts causing prejudice to the accused. The act of withholding of
most natural and a material witness of the occurrence would create an impression that the
witness if would have been brought into the witness box, he might not have supported the
prosecution and in such eventuality the prosecution must not be in a position to avoid the
consequences.
7. The eye- witnesses produced by the prosecution i.e. Abdul Latif, complainant, PW -1,
Muhammad Yaqoob, PW -2, Muhammad Qasim, PW -5 and Abdu1 Samad, PW -6, were
closely related to Mehmood Shah, deceased. All the witnesses were chance witnesses. It is
very strange and astonishing that PW -6 Abdul Samad, who happened to be the real cousin of
deceased and as per Medico Legal Certificate (Ex.P/4 -A) had taken th e deceased to the
hospital, has not uttered a single word regarding the incident and role of accused. Besides,
dishonest improvement in order to strengthen the case of prosecution, they have also not mentioned about the presence of each other, thus, the cl aim of the witnesses is not only a tall
claim but tall enough that it cannot be accepted without a lump of salt.
8. After scrutinizing the evidence available on record, we are of the considered view that
the ocular evidence is insufficient to convict the a ppellant. We also find that the investigation
has not been conducted honestly, false improvements have been made in order to involve the accused and with the particular object the evidence was manipulated so as to strengthen the prosecution case.
9. In the light of what has been discussed above, the prosecution case is highly doubtful
and has not been proved beyond reasonable doubt. Hence, the appellant is entitled to the
benefit of doubt, which was accordingly given to him, while passing the short order da ted 7th
May, 2020 that reads as under:
"For the reasons to be recorded later on, the instant appeal is allowed, the impugned
judgment dated 27th June, 2019, passed by the learned Sessions Judge, Loralai, is set -
aside and while extending benefit of doubt, appellant Najeebullah son of Saifullah, is
acquitted of the charge under section 302/34(b), P.P.C. in case FIR No.201 of 2018,
registered with Police Station, Saddar, Loralai. The appellant is behind the bar, he
shall be released forthwith, if not required in any other case."
SA/160/Bal. Bail granted.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.