2022 Y L R 1353
[Balochistan (Sibi Bench)]
Before Nazeer Ahmed Langove and Rozi Khan Barrech, JJ
MEHRAB -UD-DIN ---Appellant
Versus
MOULA BAKHSH and 8 others ---Respondents
Criminal Acquittal Appeal No.(s) 64 of 2019, decided on 10th February, 2021.
(a) Penal Code (XLV of 1860) ---
----Ss. 302, 147, 148 & 149--- Criminal Procedure Code (V of 1898), S. 417 --- Appeal
against acquittal ---Qatl- i-amd, rioting, armed with deadly weapon, common object ---
Appreciation of evidence ---Appeal against acquittal ---Benefit of doubt ---Delayed FIR ---
Delayed postmortem examination---Un -natural conduct of witnesses ---Appellant assailed the
acquittal of accused persons by the Trial Court ---First Information Report was lodged with a
delay of 2 hours ---Eye -witnesses had not justif ied their presence at the place of occurrence at
the relevant time ---Presence of eye- witnesses on the spot was unnatural, had they been
present at the spot they would have received some injuries ---Mode and manner of the
occurrence advanced by the prosecuti on witnesses was not appealable to a prudent mind---
Postmortem examination was conducted after an unexplained delay of 15 hours which
pointed towards a real possibility that the time was consumed by the local police and the complainant party in order to pr oduce and plant the eye -witnesses after cooking up a false
story ---Trial Court had considered all the material present on record properly and had arrived
at the conclusion which was based on proper appreciation of the facts and law thus, did not need inter ference---Appeal against acquittal was dismissed, in circumstances.
Muhammad Ilyas v. Muhammad Abib alias Billa and others 2017 SCMR 54 and
Nazeer Ahmed v. Gehne Khan and others 2011 SCMR 1473 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 302, 147, 148 & 149---Qatl -i-amd, rioting, armed with deadly weapon, common
object ---Appreciation of evidence ---Appeal against acquittal ---Recovery of weapon ---Scope -
--No bullet empties of 9mm pistol were taken into possession from the place of occurrence ---
No report of F orensic Laboratory was tendered in evidence by the prosecution so as to
ascertain that the weapon recovered from the accused was the same by which the deceased was done to death ---Recovery of weapon was held to be inconsequential, in circumstances.
(c) Cr iminal Procedure Code (V of 1898) ---
----S. 154--- Registration of FIR ---Prompt FIR ---Purpose ---Main object of prompt registration
of FIR is to rule out the possibility of deliberation, consultation and inquiry ---Element of
delay in lodging the crime report is treated with caution because there is a tendency to
involve innocent people during the interval.
(d) Criminal trial ---
----Duty of prosecution--- Scope ---Prosecution is bound to prove its case against the accused
beyond any shadow of reasonable doubt.
(e) Criminal trial ---
----Benefit of doubt ---Scope ---Multiple doubts in the prosecution case are not required to
record the judgment of acquittal but a single reasonable doubt is sufficient to extend benefit
of the same to the accused.
(f) Criminal Procedure Code (V of 1898) ---
----S. 417---Appeal against acquittal ---Reversal ---Scope ---Acquittal is reversed only when
the judgment is found to be blatantly perverse, resting upon fringes of impossibility and results in miscarriage of justice.
Inayatullah Khan (absent) for Appellant.
None present for Respondents Nos.1 to 8.
Abdul Mateen, Deputy Prosecutor General ("D.P.G.") for Respondent No.9.
Date of hearing: 6th January, 2021.
JUDGMENT
ROZI KHAN BARRECH, J. ---This Criminal Acquittal Ap peal was filed to question
the validity of the judgment dated 01.04.2019 (hereinafter "the impugned Judgment") passed by the learned Sessions Judge, Nasirabad at Dera Murad Jamali, (hereinafter "the trial court") whereby the private respondents were acquit ted of the charge by the trial court in FIR No.02
of 2016 of Police Station, Aziz Bulo Shaheed, Nutal District Nasirabad under sections 302, 147, 148, 149, P.P.C.
2. Brief facts for disposal of the instant appeal are that on 14.01.2016 the complainant
Mehr ab-ud-Din son of Chakar Khan 1) lodged FIR No.02 of 2016 with Police Station, Aziz
Bulo Shaheed Notal District Nasirabad under sections 302, 147, 148, 149, P.P.C. with the averments that on 13.01.2016 he along with his relatives namely Saifullah son of Muhammad Azeem (deceased) and Zakriya son of Moula Bakhsh were present in their house situated at Mouza Jatoi, at about 11:30 p.m. The accused/ respondents along with 20/22 unknown persons came on 10/11 motorcycles and tractor armed with deadly weapons made a firing
upon the deceased, who received injuries and later on succumbed to the injuries. The motive
behind the occurrence was dispute between the parties in respect of the property. Hence, the crime report.
3. After completion of the usual investigation, c hallan of the case was submitted before
the trial court. The charge was framed against the accused/respondents to which they pleaded not guilty and claimed trial, whereby after full dressed trial, the trial court acquitted the accused/respondents vide impu gned judgment dated 01.04.2019. Hence, this appeal.
4. Despite repeated calls, neither the appellant nor his counsel was in attendance. In such
circumstances, we have left with no option but to decide the matter on the basis of material available on record.
5. We have heard the learned D.P.G. and have gone with his able assistance.
6. A variety of reasons weighed with the learned trial judge to acquit the
accused/respondents from the charge, which includes; the occurrence took place at night. The accused were identified on the basis of torch light is a weak type of evidence and there are major contradictions in the statements of the witnesses as well as base of a case against accused/respondents with no evidence. None of the reasons cited by the learned tria l Judge
has been found by us as artificial or unrealistic. Even otherwise on independent analysis, the
genesis of prosecution case does not appear to be free from doubt. The record transpires that
the alleged occurrence took place on 13.01.2016 at 11:30 p.m., (night) and the FIR was lodged on 14.01.2016 at 1:30 a.m., (night) with delay of two hours without any explanation despite the fact that the distance between the place of occurrence and the police station is
only 12 kilometers. No explanation has been tendered as to why the complainant party waited for more than two hours for lodging of the FIR and nominated the present respondents. Hence, under such circumstances, the element of deliberation and consultation cannot safely be ruled out of consideration. A question also arises that if the complainant
knew about the culprits then why he did not lodge the FIR promptly. The main object of prompt registration of an FIR is to rule out the possibility of deliberation, consultation and inquiry. The element of de lay in lodging the crime report is treated with caution because
there is a tendency to involve innocent people during the interval.
7. Apart from the above, the prosecution case raised upon testimony of PW -1 Mehrab-
ud-Din who is complainant and eye -witness of the occurrence and PW -4 Zakriya is eye -
witness of the occurrence were highly interested, who have inimically deposed against the respondents. First reasons for disbelieving them is that their presence on the spot was unnatural because had they been pre sent at the spot they would have received some injuries
by the shots fired by the accused/respondents. It appears that they have tried to suppress their interestedness. Both the eye -witnesses did not justify their presence at the time and place of
occurren ce. It does not appeal to the logic that the persons whose relative and cousins had
been murdered, neither made any resistance nor raised hue and cry for help despite the fact that the alleged occurrence took place near the village. Even otherwise, the cla im of the
above PWs that the accused/respondents along with 20/22 other unknown persons made a firing upon them from the distance of thirty (30) steps and according to PW -4 the accused
made firing upon them for 15 minutes. How the PW -1 and PW -2 were not re ceived any
single injuries and according to them they have also dispute with the accused/respondents.
8. If the statement of the above witnesses is believed to be true for a moment, then the
question arises as to why and how the respondents and absconding accused spared them and
did not even try to kill them, when the respondents have easily killed them because they were empty handed and at their mercy, coupled with the fact that they could depose against them as eye- witnesses being relative of t he deceased. The mode and manner of the occurrence,
advanced by the prosecution witnesses is not appealable to the prudent mind.
9. The presence of the above witnesses becomes further doubtful, first they lodged the
FIR with delay, secondly, the dead body of the deceased was examined on 14.01.2016 at
2:45 p.m., by PW -5 Dr. Muhammad Naseer Umrani brought by Ali Nawaz constable to
hospital with delay of after 15 hours of the occurrence. For the sake of arguments it presumed that the PW- 1 and PW -4 were present at the place of occurrence whey they did not
shift the dead body of the deceased to hospital or police station within time. This aspect of the matter also create reasonable doubt in the prosecution case.
10. Even otherwise, the unexplained delay of 15 hours in conducting post -mortem
examination on the dead body of the deceased points out a real possibility that the time had been consumed by the local police and the complainant party in order to producer and plant the eye- witnesses after cooking up a fal se story for the prosecution. A reference can be made
to the case titled Muhammad Ilyas v. Muhammad Abib alias Billa and others (2017 SCMR 54), wherein it has been held as under: -
"Post -mortem Examination of the dead body of Muhammad Shahbaz deceased had
been conducted after nine hours of the incident which again was a factor pointing towards a possibility that time had been consumed by the local police and the complainant party in procuring and planting eye -witnesses and cooking up a story for
the prosecu tion".
11. According to the prosecution story set forth in FIR (Ex.P/1- A) the occurrence in this
case has taken place during night and Mehrab- ud-Din (complainant/PW -1) and Zikriya (PW -
4) claimed to have been seen the occurrence in the light of the torch, b ut this fact also does
not appeal to the mind and if Mehrab- ud-Din (PW - 1/complainant) and Zikriya (PW -4) were
watching the accused/respondents and co- accused in the light of torch when the accused/
respondents allegedly fired on the deceased, then what wa s the circumstances that none of the
accused took notice of their presence at the spot and had not fired even a single shot towards
them. The story narrated by the complainant in the aforesaid FIR itself shows that the occurrence has not taken place in the manner as narrated therein because during night if a
person holds torch in his hand he can be noticed easily from a long distance, therefore, it is not believable that the respondents along with co- accused would commit the murder of
deceased at the time w hen somebody was watching them with torch light. Even otherwise,
during investigation of this case torch has not been taken into possession to prove this specific
aspect of prosecution case. In such like situation the Hon'ble Supreme Court in the case of
Nazeer Ahmed v. Gehne Khan and others (2011 SCMR 1473) has held as under: -
"Having heard learned counsel for the petitioner at some length, we find that in
disbelieving the prosecution evidence, learned High Court was persuaded by the fact that there was an unexplained delay of seven hours in lodging the FIR; that the two eye-witnesses resided at the distance of six/seven acres from the place of
occurrence; that the respondents were declared innocent during investigation; that it was a night occurrence an d the source of light was allegedly a torch which was never
taken into possession and that there was a delay even in having postmortem conducted, which adversely reflected on the credibility of the prosecution version".
12. As far as the recovery of alleged weapon of offence is concerned, allegedly on
16.06.2016, on the pointation of the accused/respondent Nasrullah 9mm pistol was recovered. On the other hand, no bullet empties of 9mm pistol was taken into possession from the place of occurrence. The prosec ution produced PW -2 Abdul Latif constable who is recovery witness of a
bullet empties which were taken by the investigation from the place of occurrence i.e. seven bullet empties of rifle, shotgun from the place of occurrence and the said witness did not s tate a
single word that any empty of 9 mm pistol was taken from the place of occurrence.
13. Admittedly, no report of Forensic Science Laboratory (FSL) has been tendered in
evidence by the prosecution as to ascertain that the weapon recovered from the respondents was the same which the deceased was done to death and in this situation, the recovery of weapon i.e. 9mm pistol is inconsequential and cannot be used against the respondents.
14. It is settled law that the prosecution is bound to prove its case beyond any shadow of
reasonable doubt against the accused persons and it is also settled principle of law that
multiple doubts in the prosecution case are not required to record judgment of acquittal but a single reasonable doubt is sufficient to extend benef it of the same to the accused as a matter
of right.
15. It is by now well settled that acquittal carries with its doubt presumption of
innocence; it is reversed only when found blatantly perverse, resting upon fringes of impossibility and resulting into mi scarriage of justice. It cannot be set aside merely on the
possibility of a contra view.
16. In our humble view, the trial court has considered all the material present on record
properly and arrived to the conclusion which is based on proper appreciation of the facts and law, thus does not need interference by this court.
The appellant has failed to point out any defect in the impugned judgment, which
needs re- appraisal of the case; therefore, the appeal being devoid of merit is accordingly
dismissed in l imine.
SA/68/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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