2021 Y L R 2239
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Abdullah Baloch, JJ
Syed ZAHIR SHAH and another ---Appellants
Versus
HABIBULLAH alias SABO and others ---Respondents
Criminal Acquittal Appeal No. 290 of 2017, decided on 18th August, 2020.
(a) Penal Code (XLV of 1860) ---
----Ss. 365, 147, 148 & 149 ---Abduction with murder, rioting, rioting armed with deadly
weapon, unlawful assembly---Appreciation of evidence ---Appeal against acquittal ---Delay of
about twenty five hours in lodg ing the FIR ---Effect ---Prosecution case was that the accused
persons armed with weapons forcibly alighted the son of complainant in a vehicle and
took/abducted him and so far the whereabouts of his son were not known---First Information Report was lodged a fter unexplained delay of twenty five hours ---Fard -e-bayan showed that
the alleged incident took place on 15th March 2017 at about 4.30 p.m., but the complainant kept silent on the said date by not bringing the law into motion--- On the following day at
about 5.30 p.m., complainant approached the Tehsildar and lodged the FIR ---Delay in
lodging the FIR was not justifiably explained which showed the unnatural conduct of the complainant as his son was abducted by number of accused persons and his life was also in
danger but he did not lodge the FIR promptly--- Non-reporting the incident immediately to
the law enforcing agencies had rendered the entire case of prosecution as doubtful and it appeared that the complainant nominated a number of accused persons in the crime after
consultation and deliberation---Circumstances established that the prosecution had failed to prove its case against the accused ---Appeal against acquittal was dismissed, in
circumstances.
(b) Penal Code (XLV of 1860)---
----Ss. 365, 147, 148 & 149---Abduction with murder, rioting, rioting armed with deadly
weapon, unlawful assembly---Appreciation of evidence ---Appeal against acquittal ---
Contradictions and dishonest improvements made by complainant ---Scope ---Prosecution
case was that the accused persons armed with weapons forcibly alighted the son of
complainant in a vehicle and took/abducted him along with themselves and so far the whereabouts of his son were not known--- Contents of fard- e-bayan were silent with regard to
source of information o f the incident received by complainant but in his court statement, he
mentioned that a shopkeeper informed him that 10/11 persons in two vehicles came over there and after torturing abducted his son--- Court statement of complainant did not suggest
the name of shopkeeper, who informed him about the incident and even the said shopkeeper
had simply told him that 10/11 persons abducted his son without disclosing the names of
culprits ---Complainant had not witnessed the crime directly and even the sole eye -witne ss of
the occurrence also did not disclose the names of culprits then as to how the complainant nominated the accused persons ---Both the accused and the complainant party were known to
each other prior to incident and accordingly the complainant nominated the accused persons
in his fard -e-bayan but he did not identify them in the court ---Statement of complainant was
contradicted by the shopkeeper, who stated that about two months ago he was present in his shop when a boy came to his shop and stated that few people had abducted son of
complainant and thereafter the said child went to the house of complainant and informed him about the incident ---Shopkeeper made his ignorance with regard to the names of accused
persons --- Statement of shopkeeper fully negated the statement of complainant, who had
claimed that he was informed about the incident by the shopkeeper ---Source of information
about the names of the culprits had not been proved---Alleged abductee contradicted the statements of remaining witnesses ---Prosecution thus had failed to prove its case against the
accused ---Appeal against acquittal was dismissed, in circumstances.
(c) Penal Code (XLV of 1860)---
----Ss. 365, 147, 148 & 149---Qanun -e-Shahadat (10 of 1984), Art. 129(g) ---Abduction with
murder, riot ing, rioting armed with deadly weapon, unlawful assembly---Appeal against
acquittal ---Appreciation of evidence---Withholding of material evidence---Scope ---
Prosecution case was that the accused persons armed with weapons forcibly alighted the son
of compla inant in a vehicle and took/ abducted him along with themselves and so far the
whereabouts of his son were not known---Record showed that the alleged abductee narrated the whole story with regard to his abduction by the nominated accused persons and it had
specifically been stated by him that after three days of incident the nominated accused persons handed him over to three witnesses ---None of the said three witnesses were
associated in the investigation or produced in the Trial Court to affirm the stateme nt of
abductee--- Alleged abductee stated that the accused persons had also filmed his naked video,
however, in his cross -examination, he admitted that he himself did not watch the said video
rather he heard about the same and said video was seen by three w itnesses---No explanation
on the part of prosecution was available as to why the evidence of those witnesses was withheld, therefore, a presumption under Art. 129(g) of Qanun- e-Shahadat, 1984, could
fairly be drawn that had the said witnesses been examined in the court their evidence would
have been un -favourable to the prosecution--- Prosecution thus had failed to prove its case
against the accused ---Appeal against acquittal was dismissed, in circumstances.
(d) Penal Code (XLV of 1860)---
----Ss. 365, 147, 148 & 149 ---Abduction with murder, rioting, rioting armed with deadly
weapon, unlawful assembly---Appeal against acquittal ---Appreciation of evidence ---
Contradictory statement of abductee ---Scope ---Prosecution case was that the accused persons
armed with w eapons forcibly alighted the son of complainant in a vehicle and took/ abducted
him along with themselves and so far the whereabouts of his son were not known---Abductee, in the Court statement, implicated the accused in the commission of crime while in hi s confessional statement, he negated the whole case of prosecution that no incident of
abduction took place rather the accused came at the place of incident to commit his murder ---
Furthermore, the alleged abdcutee was not recovered by the law enforcing age ncy rather after
three days of his disappearance he came on picture and after his revelation he recorded his
confessional statement before the Judicial Magistrate wherein he negated the whole prosecution case and exonerated all the accused persons ---Prosec ution thus had failed to
prove its case against the accused ---Appeal against acquittal was dismissed, in
circumstances.
(e) Appeal against acquittal ---
----Double presumption of innocence ---Interference--- Scope --- Accused after acquittal
earned the double presumption of innocence ---Acquittal orders were not interfered with, until
and unless it was proved on record that the same was perverse, contrary to record, fanciful and not sustainable.
Masoom Khan Kakar for Appellants.
Muhammad Younas Mengal Additional P.G. for the State.
Akhtar Shah for Respondents.
Date of hearing: 13th August, 2020.
JUDGMENT
ABDULLAH BALOCH, J .---This judgment disposes of Criminal Acquittal Appeal
No.290 of 2017 filed by the appellants Syed Zahir Shah and Dawood Shah, against the judgment dated 28th August 2017 (hereinafter referred as, "the impugned judgment') passed by learned Judicial Magistrate -MFC Karezat at Khanozai (hereinafter referred as, "the trial
Court"), whereby the accused (respondents) namely Hasibullah ali as Sabo, Muhammad
Akram, Ejaz- ul-Haq, Rehmatullah, Mujeeb- ur-Rehman, Sami -ullah, Muhammad Asghar,
Najeebullah, Asmatullah, Kalla Khan and Ikramullah, were acquitted of the charge, under sections 365, 147, 148, 149, P.P.C.
2. Facts of the case are that on 1 6th March 2017, the complainant Syed Zahir Shah,
lodged FIR No.01/2017 at Levies Thana Karezat Khanozai District Pishin, under above mentioned offence, with the allegations that on the day of occurrence i.e. 15th March 2017 his son Dawood Shah was making i n order his motorcycle nearby the cabin shaped petrol
pump at Rod Mullazai, when the accused persons namely Ikram, Muhammad Akram, Rehmatullah, Mujeeb -ur-Rehman, Sabo, Samiullah, Ejaz Ahmed, Muhammad Asghar and
Najeebullah being armed with weapons arrived there in two Kabuli vehicles and on gun point
tied the hands and feet of his son, forcibly alighted him in a vehicle and took (abducted) him along with them and so far the whereabouts of his son are not known.
3. In pursuance of above FIR, investigation wa s carried out and the accused
(respondents) were challaned before the trial Court, who indicated the charge, which was
denied and the prosecution in order to substantiate the charge produced six witnesses.
Thereafter, the accused (respondents) were examine d under section 342, Cr.P.C. However,
they neither recorded their statement on oath nor produced any witness in their defence. On conclusion of trial and after hearing arguments, the trial Court has acquitted all the accused persons from the charge, vide i mpugned judgement dated 28th August 2017. Whereafter,
instant appeal has been filed.
4. Heard the learned counsel for parties and perused the record with their valuable
assistance. Perusal of record justifies the impugned judgement of acquittal recorded by the
learned trial Court in favour of accused (respondents). The prosecution in order to substantiate the charge has produced the evidence of six (06) witnesses, but the same are contradictory to each other and even the same are based upon hearsay evidence and the
witnesses have also improved from their earlier depositions. However, before parting with the statements of all the witnesses, it would be necessary to mention here that the FIR was lodged after unexplained delay of 25- hours. According to fard- e-bayan Ex.P/1 -A, the alleged
incident was taken place on 15th March 2017 at about 4.30 p.m., but after the said incident the complainant kept silent on the said date by not bringing the law into motion rather on the following day at about 5.30 p.m. he approa ched the Tehsildar Karezat and lodged the FIR.
The delay so occasioned in lodging the FIR has not been justifiably explained rather it shows the unnatural conduct of the complainant as his son was abducted by number of accused persons and his life was also in danger, but the FIR was not lodged promptly. Non- reporting
the incident immediately to the law enforcing agencies has rendered the entire case of prosecution as doubtful as it appears that the complainant after consultation and deliberation has nominat ed number of accused persons in the crime.
5. The statement of PW- 1 Zahir Shah transpires that he has made certain contradictions
and dishonest improvements from his earlier deposition contained in his fard -e-bayan Ex.P/1-
A. The Court statement of PW -1 shows that on the day of occurrence he was present in his
house when a boy came to his house and told him to come to shop, where the shopkeeper told him that 10/11 persons in two vehicles came over there and after torturing abducted his son. According to PW -1 thereafter he came back to his house and waited till 10.00 p.m.,
whereafter he lodged the report at Thana Khanozai and in his report he nominated accused Akram, Kala Khan, Sabo, Ikram, Ehsanullah, Mujeeb, Ejaz and the remaining accused persons. PW -1 also did not identify the accused Rehmatullah, Asghar Khan, Samiullah and
Asmatullah with their names.
6. It has been observed that though the contents of fard- e-bayan Ex.P/l - A are silent with
regard to source of information of the incident received by complai nant, but while making
improvement in his Court statement, PW -1 has mentioned that a boy came to his house and
asked him to come to shop and the shopkeeper informed him about the incident that 10/11 persons in two vehicles came and after torturing abducted his son. Even otherwise, the Court
statement of PW did not suggest the name of shopkeeper, who informed him about the incident and even the said shopkeeper had simply stated him that 10/11 persons abducted his son without disclosing the names of culprits. Now question arises that if the complainant had
not witnessed the crime directly and even the sole eye -witness of the occurrence also did not
disclose the names of culprits, then as to how the complainant nominated the accused
persons. Hence, we have no hesitation to hold that the delay of 25- hours so occasioned in
lodging the FIR was merely due to the reasons to make consultation to nominate the whole
family of the accused party. It is surprising that both the accused and the complainant party were known to each other prior to incident and accordingly the complainant nominated the
accused Rehmatullah, Asghar Khan, Samiullah and Asmatullah in his fard- e-bayan, but he
did not identify them in the Court.
7. The statement of PW -1 Abdul Zahir was contradicted by the shopkeeper Samiullah,
who appeared as PW- 2 and stated that about two months ago he was present in his shop
when a boy came to his shop and stated that few people have abducted Dawood Shah and thereafter the said child went to the house of PW -1 and informed him about the incident.
PW-2 made his ignorance with regard to the names of accused persons. The statement of
PW-2 fully negates the statement of PW -1, who had claimed that he was informed about the
incident by PW -2. Be that as it may, the source of information about the names of the
culprits involved in the crime has not been proved.
8. The statement of PW- 3 Sabir Shah shows that he is the brother of abductee Dawood
Shah, however, the fact remains that neither at the relevant time he w as present at the place
of occurrence nor witnessed the crime directly, rather as per own statement of PW- 3 he was
in Quetta, when receipt information about the incident and thereafter he came to Khanozai. Thus, the statement of this witness is not helpful to the case of prosecution.
9. The alleged abductee Syed Dawood Shah appeared as PW- 4 and contradicted the
statements of remaining witnesses. The alleged abductee narrated the whole story with regard to his abduction by the nominated accused persons and i t has specially been stated after three
days of incident the nominated accused persons handed over him to Noor Shah, Malik Jamil and Habibullah. However, none of the above three witnesses were associated in the investigation or produced in the trial Court to affirm the statement of PW -4. According to
PW-4 the accused persons have also filmed his naked video, however, in his cross -
examination he admitted that he himself did not watch the said video rather he heard about the same and the said video was seen b y Gul Zaman, Muhammad Rasool and Noor Shah.
Again the said witnesses were not associated in the investigation in order to affirm the statement of PW -4 that his naked video was filmed. The confessional statement under section
164, Cr.P.C. of the PW -4 was recorded by PW -5 Izhar Ahmed, Judicial Magistrate, wherein
the alleged abductee has stated that in the attempt of his abduction he succeeded in making his escape good from the clutches of the accused persons and through mountain passage he reached Muslim Bag h and stayed with his friend for three days and, thereafter they came to
Tehsildar, where he informed the Tehsildar that the accused persons wanted to kill him and they have not abducted him.
10. The comparison of confessional statement of abductee qua, hi s Court statement fully
contradicts each other. In the court statement he implicated the accused (respondents) in the commission of crime, while in his confessional statement he negates the whole case of prosecution that no incident of abduction was taken place at all rather the accused
(respondents) came at the place of incident to commit his murder. Furthermore, the alleged abdcutee was not recovered by the Law Enforcing Agency rather after three days of his
disappearance he came on picture on 18th March 2017 and after his revelation he recorded
his confessional statement before the Judicial Magistrate, wherein he negated the whole prosecution case and exonerated all the accused persons.
11. It has also been observed that PW- 4 in his Court statement has al leged that the
accused handed over his possession to the witnesses namely Noor Shah, Malik Jamil and Habibullah. It has also been alleged by the PW -4 that during his detention, the accused
(respondents) have also filmed his naked video, which was seen by G ul Zaman, Muhammad
Rasool and Noor Shah. It has been observed that the said witnesses are most important and necessary witnesses to corroborate the case of prosecution, who have allegedly not only received the custody of the abdcutee from the accused perso ns, but also seen the naked video
of the abdcutee, but none of the said witnesses neither associated in the investigation nor produced in the Court. There is no explanation on the part of prosecution that as to why the evidence of these witnesses was withh eld, therefore, a presumption 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 their evidence would have been un- favourable to the
prosecution. Although, the pros ecution was not bound to produce each and every witness. but
if the prosecution fails to produce such witnesses who are central figure and the entire story revolved around them, then the prosecution story would become doubtful.
12. The overall reappraisal of prosecution evidence is suggestive of the fact that the
prosecution has absolutely failed to produce any convincing, confidence inspiring or direct evidence against the accused (respondents) either establishing the abduction of abductee Dawood Shah or f ilming his naked video. No medical evidence has also been produced to
establish that he was tortured by the accused (respondents). Admittedly, the prosecution had
badly failed to establish the charge against the accused (respondents) beyond the shadow of reasonable doubt. The case of prosecution is doubtful and the learned trial Court while
delivering the impugned judgement of acquittal has rightly extended the benefits of such doubts in favour of the accused (respondents) and rightly they were acquitted of the charge.
It is well settled principle of law that accused after acquittal earns the presumption of double innocence and the acquittal orders are not interfered with, until and unless it is proved on record that the same is perverse, contrary to record, fanciful and not sustainable, however,
the perusal of record and in view of discussion made hereinabove it is clear that the impugned judgment is neither perverse, fanciful nor ridiculous or contrary to record rather the same is based on proper appraisal of material available on record and is not open for interfere by this Court.
For the above reasons, the appeal being devoid of merits is dismissed.
JK/150 -/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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