2023 Y L R 1241
[Balochistan]
Before Muhammad Ejaz Swati and Sardar Ahmed Haleemi, JJ
BIBI SAKINA and another ---Appellants
Versus
ZAKIR HUSSAIN alias SHAH WALI and 3 others ---Respondents
Criminal Acquittal Appeal No. 17 of 2019, decided on 24th October, 2022.
(a) Penal Code (XLV of 1860) ---
----Ss. 302 & 34---Criminal Procedure Code (V of 1898), Ss. 417 & 161---Qatl -i-amd and
common intention---Appreciation of evidence ---Appeal against acquittal --- Delayed
supplementary statement ---Effect ---Compl ainant assailed the acquittal of accused persons ---
Complainant had witnessed the occurrence and had reported the matter promptly against
unknown persons, but no description of the accused persons was mentioned in his written report ---Supplementary statemen t was filed by complainant after 62 days wherein he
nominated the accused--- Supplementary statement had lost its evidentiary value in the eyes
of law, as in such period consultation and concoction could not be ruled out, as besides the complainant had init ially lodged the FIR against unknown persons ---Two of the alleged
witnesses of the incident had not appeared despite issuance of bailable and non- bailable
warrants ---Another alleged eye -witness had got recorded her statement after 26 days of the
incident w ithout any explanation and there was nothing on record to show as to why she
remained mum for such period---Statement of such witness was not admissible in the eyes of law---Since description of accused persons was not given in the FIR, therefore, there ar ose
no question of identification of accused persons ---Appeal was dismissed.
Shahid Hussain alias Multani v. The State and others 2011 SCMR 1673 and Rahat Ali
v. The State 2010 SCMR 584 rel.
(b) Criminal Procedure Code (V of 1898) ---
----S. 417--- Appeal against acquittal ---Scope ---Law regards the conviction of a single
innocent person as infinitely more serious than the acquittal of many guilty persons ---Appeal
against acquittal is an extraordinary remedy and is restricted to cases of a grave miscarriage of justice ---Accused is presumed to be innocent in law and if after the regular trial he is
acquitted, he earns a double presumption of innocence and there is a heavy onus on the prosecution to rebut the said presumption---Under Article 9 of the Constituti on of Pakistan
right to life and liberty is a fundamental right guaranteed to a person, therefore, once an accused, duly tried and acquitted by the court of competent jurisdiction, his acquittal cannot be easily interfered with ---Moreover, very exceptional and compelling reasons are required
to dislodge the double presumption of innocence attached to that person, which he acquires
after his acquittal.
(c) Criminal trial ---
----Benefit of doubt ---Scope ---If there is a circumstance, which creates reasonable doubt in a
prudent mind about the guilt of the accused, then the accused would be entitled to the benefit
of such doubt, not as a matter of grace and concession, but as a matter of right ---Such
principle is based on the maxim; it is better that ten guilty persons be acquitted rather than one innocent person be convicted.
Muhammad Mansha v. The State 2018 SCMR 772 rel.
Adnan Ejaz Sheikh and Babar Abbas, for the State.
Syed Ayaz Zahoor for Respondent No.1.
Liaquat Ali Hazara and Khawaja Tariq Mehmood for Respondent No.2.
Tahir Hussain Khan for Respondent No.3.
Ms. Noor Jahan Kahoor, Additional P.G. for the State.
Date of hearing: 12th October, 2022.
JUDGMENT
SARDAR AHMED HALEEMI, J. ---This appeal is directed against the judgment
dated 31st December 2018 (hereinafter the "impugned judgment") passed by the learned Additional Sessions Judge -I, Quetta (hereinafter the "trial Court"), whereby the respondents
Nos. 1 to 3 were acquitted of the charge.
2. The prosecution case, in brief, is that on 2 0th September 2016, the complainant Syed
Abbas got registered an FIR No.254 of 2016 at Police Station Brewery, Quetta under section 302, Q&D read with section 34, P.P.C. to the effect that on 20th September 2016, he was going to the medical store for buying medicines; at about 10:30 p.m. when reached the corner of Doctor Lal Street, he saw Syed Karim coming alone towards his home in his vehicle bearing registration No. BD -7778; at the same time, three persons of the Hazara tribe came
on two motorcycles, and intercepted him; one of them, sitting on a rare seat started firing
upon Syed Karim and fled away; it was further alleged by the complainant that his relatives namely Syed Ghulam Abbas and Javed Ali also witnessed the incident; on the way towards the hospital, the injured succumbed to the injuries, hence this report.
3. PW-22 Syed Zahid Hussain Shah, SP CIA, Quetta, deposed that the initial
investigation was conducted by Mr. Riaz Hussain SI, thereafter he entrusted the investigation of the case; he perused the record, which revealed that an accused Zakir Hussain had already
been arrested, who during investigation implicated accused Ramzan Ali in the instant case;
the accused Ramzan Ali was arrested after the rejection of his pre- arrest bail; during his
personal search, a Nokia mobile black colour was recovered, which was taken into
possession; and recorded the statements of witnesses; On 24th November 2016, the complainant PW- 1 submitted an affidavit wherein he implicated accused Ramzan Ali; on
11th December 2016. On 3rd December 2016, the identification parade of accused Ramzan
Ali was conducted by PW -15 learned Judicial Magistrate -VIII, Quetta in the courtroom
through PW -2 Syed Ghulam Abbas, the accused Ramzan Ali in his disclosure told the name
of co -accus ed Abdul Khaliq. In pursuance of the disclosure of accused Ramzan Ali, the
accused Abdul Khaliq was arrested in front of BMC on 15th December 2016. Complete challan was submitted before the trial court and the trial commenced.
4. The trial Court read over the charge to respondents 1 to 3, to which they pleaded not
guilty and claimed trial.
5. The prosecution examined as many as 22 witnesses. After the completion of
prosecution evidence, the respondents Nos.1 to 3 were examined under Section 342, Cr.P.C., wherein they denied the allegations levelled against them. They did not record their
statements under section 340(2), Cr.P.C. nor produced any witness in defence, however, the respondent Zakir Hussain alias Shah Wali produced a CD in his defence, which conta ined
data shared by PW -2 on Facebook.
6. After hearing the arguments of the parties, the trial Court acquitted respondents Nos.1
to 3 vide impugned judgment, hence this appeal.
7. Learned counsel for the appellant contended that the trial Court despite ocu lar,
circumstantial evidence available on record coupled with specific role to respondents Nos.1 to 3 has failed to consider the same in its true perspective; that the trial Court has also failed to take into consideration the recovery effected from the re spondents as well as the
identification parade, wherein the respondents were identified in the identification proceedings carried out before the Judicial Magistrate; that the trial Court while passing the acquittal order erred in law, as the prosecution wi tnesses have fully supported its case and
there was not a single contradiction in their statements.
8. On the other hand, the learned Additional Prosecutor General assisted by the learned
counsel for respondents Nos. 1 to 3 supported the impugned judgment and submitted that the trial Court has passed a well -reasoned judgment after attending all aspects of the matter and
there is no misreading or non- reading of evidence warranting interference by this Court; that
under the law, the respondents carry the double presumption of innocence after their acquittal, as such the impugned judgment is liable to be sustained.
9. We have heard the learned counsel for the parties and perused the available record.
10. Perusal of the record reveals that the incident took plac e on 16th September 2016 at
about 10:30 p.m. and the PW -1 had witnessed the occurrence and reported the matter
promptly against the unknown person, but no description of the accused persons were
mentioned in his written report (Ex.P/1- A). PW -1 submitted af fidavit / supplementary
statement (Ex.P/1 -B) on 24th November 2016 after the delay of sixty two (62) days without
any plausible explanation, wherein he nominated the acquitted co- accused Ramzan Ali, the
supplementary has lost its evidentiary value in the e ye of law, as in such period consultation
and concoction cannot be ruled out, as besides the complainant initially lodged the FIR
against unknown persons without the description of accused persons. In the case of Shahid
Hussain alias Multani v. The State a nd others 2011 SCMR 1673, the Honorable Supreme
Court has held as under;
"The petitioner had not been nominated in the FIR in any capacity whatsoever and his
name had surfaced in this case for the first time through a supplementary statement made by the complainant on 20- 5-2010, i.e. almost a month and a half after the
alleged occurrence. A perusal of that supplementary statement made by the complainant shows that no source of information regarding, the petitioner's involvement in the alleged occurrence had been disclosed or divulged therein by the complainant."
11. PWs 1 and 2 along with one Javed Ali claimed to witnessed the incident but said
Javed Ali did not appear despite the issuance of his bailable and non -bailable warrants, as
according to IP/I O Abdul Rauf, who appeared as CW- 1 and stated that he was not traceable.
Likewise, PW- 11 Latifa, who also claimed to be an eye -witness of the incident deposed
before the trial court that she is a divorced lady and Syed Karim (the deceased) used to help her; at the time of the incident, she was sick and contacted deceased Syed Karim to take her
to hospital. The deceased Abdul Karim who told her to come to the door, he is coming; in the same time, three persons came on two motorcycles, out of them one had a p istol; the
deceased told her that he would not stop the vehicle, she asked the deceased about them and
the deceased told the name of one accused as Shah Wali, who had a pistol, thereafter she heard firing shots and mobile of the deceased disconnected. Furt hermore, she went to the
venue, where the deceased was lying in a pool of blood, and his vehicle collided with the wall and some people were gathered there. She identified the accused Shah Wali present in
the Court. PW -11 statement under section 161, Cr.P. C. was recorded on 16th October 2016
after a delay of 26 days, without any explanation, and there is nothing on record to show that being an eye- witness of the incident as to why she remained mum for a belated period also
fatal the prosecution case. Relian ce is placed
in the case of Rahat Ali v. The State 2010 SCMR 584, wherein it was held as
under:
"Delay of 24 hours, 4 days and 15/20 days in reporting the matter to the police or recording the statement of witnesses by the police has been found adversel y affecting
the veracity of witnesses as held in the cases of Muhammad Sadiq v. The State PLD 1960 SC 223, Sahib Gul v. Ziarat Gul 1976 SCMR 236 and Muhammad Iqbal v. State 1984 SCMR 930, respectively. It has also been observed by this Court that delay in recording the statement without furnishing any plausible explanation is also fatal to the prosecution case and the statement of such witness was not relied upon in the case of Syed Muhammad Shah v. State 1993 SCMR 550. Therefore, the evidence of P.W.2
is coming within the scope of above rules laid down by this Court. Hence, his
statement cannot be safely relied upon in the peculiar facts and circumstances of the
present case."
12. From the dictum laid down above, the statement of PW -11 is also not admissible in
the eye of law, which creates reasonable doubt. It is well settled of law that if there is a circumstance, which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of s uch doubt, not as a matter of
grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance is placed
on the case of Muhammad Mansha v. T he State 2018 SCMR 772, wherein it was held as
under:
"Needless to mention that while giving the benefit of doubt to an accused it is not
necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the
deceased, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be
convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v.
The State (2004 SCMR 749). "
13. Coming to the question of disclosure statements made by the acquitted co- accused are
also not admissible in evidence on the ground that no recovery has been effected. The
supplementary statement of PW -1, statements under section 161, Cr.P.C. of PW -2 and PW -
11 were recorded after a considerable delay without any explanation and thereafter identification of the respondents through identification parade before the police and before the Judicial Magistrate also created a reasonable doubt in the case of the prosecution, as in
the FIR, no description of accused has been given, as such, there remain no question of identification of accused persons. Reliance is made to the case of State/Government of Sindh through Advocate -General, Sindh, Karachi v. Sobharo 1993 SCMR 585, wherein it has been
observed as under:
"..................that identification test need not be held if eye -witnesses are able to
identify the accused before the trial Court even in murder cases. If this view is accepted, then whole legal infrastructure of identification test made under the law and supported by case -law would collapse and become redundant. Legal position stated in
the other two rulings is correct but would not apply to the facts of the present case in
which the eye -witnesses did not give name of the accused to the complainant nor gave
description of his features for the reason that he was not known to them from before and was seen by them for the first time. We, therefore, agree with the trial Court that identification test has no value for want of description of respondent in FIR."
14. The law regards the conviction of a single innocent person as infinitely more serious
than the acquittal of many guilty persons. Appeal against ac quittal is an extraordinary
remedy and is restricted to cases of a grave miscarriage of justice. An accused is presumed to
be innocent in law and if after the regular trial he is acquitted, he earns a double presumption of innocence and there is a heavy on us on the prosecution to rebut the said presumption.
Under Article 9 of the Constitution of Pakistan, 1973, right to life and liberty is a fundamental right guaranteed to a person, therefore, once an accused, who is presumed
innocent until proven guilty, duly tried and acquitted by the court of competent jurisdiction,
his acquittal cannot be easily interfered with. Moreover, very exceptional and compelling
reasons are required to dislodge the double presumption of innocence attached to that person, which he acquires after his acquittal. Superior Courts of this country have been found to be
reluctant to interfere with a judgment of acquittal.
For the above reasons, the appeal is dismissed.
SA/191/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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