2024 Y L R 2069
[Balochistan (Sibi Bench)]
Before Nazeer Ahmed Langove and Iqbal Ahmed Kasi, JJ
ABDUL RAZAQ ---Appellant
Versus
BABAL and 5 others ---Respondents
Criminal Acquittal Appeal No.( s) 47 of 2016, decided on 14th March, 2023.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b), 396 & 397---Criminal Procedure Code (V of 1898), S.417----Qatl -i-amd,
committing robbery or dacoity, at the time of committing dacoity or robbery the offender
uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person---Appeal against acquittal ---Appreciation of evidence ---
Delay of about 05 hours in lodging the FIR ---Consequential ---Accused were charged for
committing murder of the uncle of complainant and causing firearm injuries to a minor baby girl during dacoity---Record showed that the occurrence had taken place at 11:00 p.m, whereas, the report was lodged on the next date at about 04:00 p.m ---Complainant of
present case charged the respondents along with co- accused ---On the face of it, there was
inordinate delay of 05 hours in lodging the report by the complainant ---Astonishingly
when the deceased succumbed to his injuries then question was what prevented complainant to lodge report in Police Station, despite the fact that distance of Police Station from place of occurrence was 5/6 kilometers, which created serious doubt in the prosecution story---Needless to say that delay in lodging report cannot simply be brushed aside, as it has assumed great significance and it can be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the assailants open for involving such persons, who ultimately, the prosecution may wish to nominate ---
Appeal against acquittal was accordingly dismissed.
Muhammad Rafique v. The State 2014 SCMR 1698 rel.
(b) Penal Code (XLV of 1860) ---
----Ss. 302(b), 396 & 397---Criminal Procedure Code (V of 1898), S.417---Qatl -i-amd,
committing robbery or dacoity, at the time of committing dacoity or robbery, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person---Appeal against acquittal ---Appreciation of evidence ---
Identifications of the accused ---Accused were charged for committing murder of the uncle
of complainant and causing firearm injuries to a minor baby girl during dacoity ---
Complainant in his first report clearly mentioned that soon after occurrence, he along with his relatives followed the culprits who ran away from the scene of occurrence by foot and reached the guest house, where they had seen two accused present with other assailants, who threatened them by showing weapons and compelled them to return from their guest house ---Meaning thereby, that the accused persons were identified by complainant and an
eye-witness at the place of occurrence and they chased their footprints up to the house of
accused, where they found the accused present in their house duly armed--- In such
circumstance why was there delay in lodging the FIR and not taking the Police for their arrest, just after the incident, when they were present in their house with crime weapons ---
Version taken by the complainant did not appeal to a prudent mind---Complainant in his cross -examination admitted that he did not inform the Police, while they were chasing the
footprints of assailants ---Such unbelievable version of complainant party would not
influence a prudent mind, as in a tribal setup where incident occurred, and where the father of eye- witness and uncle of complainant had been murdered and his dead body was
lying on the road or in the hospital, and the murderers were caught and seen along with their weapons in a thickly populated city, just some distance away from Police Station, but the culprits were neither apprehended at the same night of incident nor the report was
lodged in time for their arrest ---Appeal against acquittal was accordingly dismissed.
(c) Penal Code (XLV of 1860) ---
----Ss. 302(b), 396 & 397 ---Criminal Procedure Code (V of 1898), S.417 ---Qatl -i-amd,
committing robbery or dacoity, at the time of committing dacoity or robbery the offender uses
any deadly weapon or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person--- Appeal against acquittal ---Appreciation of evidence--- Eye-
witness not produced--- Consequential ---Accused were charged for committing murder of the
uncle of complainant and causing firearm injuries to a minor baby girl during dacoity--- As per
record, one eye -witness stated that he was also present along with complainant party in the
same car, when the incident took place ---In the first report of complainant, it had been also
mentioned that amount of Rs.3150/ -and ID Card had been snatched from said witness by the
assailant but surprisingly such witness of the incident was not produced by the prosecution, which also created doubt in the prosecution story---Appeal against acquittal was accordingly dismissed.
(d) Criminal trial---
----Benefit of doubt ---Conviction---One could not be and should not be convicted under
the umbrella of doubt and cloud.
Mst. Jallan v. Muhammad Riaz and others PLD 2003 SC 644 and Muhammad Zafar
and another v. Rustam Ali and others 2014 SCMR 1639 rel.
(e) Criminal Procedure Code (V of 1898) ---
----Ss. 410 & 417(2- A)---'Appeal against conviction' and 'appeal against acquittal'---
Distinction ---In an appeal against conviction, appraisal of evidence is done strictly, and in
appeal against acquittal, the same rigid method of appraisement is not to be applied, as
there is already finding of acquittal given by the Trial Court after proper analysis of evidence on record ---In an appeal against acquittal, interference is made only when it
appears that there has been gross misreading of evidence amounting to miscarriage of justice ---Ordinarily scope of appeal against acquittal of accused is considered narrow and
limited.
Muhammad Usman and 2 others v. The State 1992 SCMR 498 and The State v.
Muhammad Sharif and others 1995 SCMR 635 rel.
Khurshed Anwar Khosa for Appellant.
Jameel Akhtar Gajani, Additional Prosecutor General for the State.
Date of hearing: 23rd February, 2023.
JUDGMENT
IQBAL AHMED KASI, J .---The appellant has questioned the judgment dated 27th
February, 2016 ("the impugned judgment") of learned Sessions Judge, Jaffarabad at Dera Allah Yar ("the trial Court"), whereby, the respondents, namely, Mureed son of Shah Nawaz, Babal son of Abdul Lateef, Muhammad Yaqoob son of Juma Khan, Samandar Khan son of Muhammad Ayoub, Muhammad Sharif son of Ali Gul and Qurban son of Shah Nawaz, were acquitted of the charge.
2. The brief facts arising out of the instant appeal are that an FIR bearing No.37/2013,
dated 19.02.2013, was registered with Police Station, Dera Allah Yar, under Sections 302, 396, 397, P.P.C., on the report of one Yasir Ali, against accused persons named above, with the allegations that on the night of incident, complainant, his uncle Fareed Khan, cousins Naseebullah and Abdul Razaq and minor Nadra Bibi, proceeded for Jacobabad on his vehicle from his house and when they reached Jamali bypass National H ighway road, found a vehicle
parked at Khan Petrol Pump, at about 10:00 p.m who chased them and intercepted their car, where two persons armed with weapons, alighted from the car, 9/10 persons armed with
shotguns and Kalashnikovs turned up and started firing at their car, as a result of which, his
uncle Fareed Khan and minor Nadra Bibi, sustained serious injuries. The accused persons also snatched Rs.10550/ - and I.D Card from his pocket, cash Rs.3150/ - and I.D Card from
the pocket of Naseebullah, while cash Rs.5200/ - and I.D Card from the pocket of Abdul
Razaq. On the light of car complainant party identified the accused Mureed and his brother
Rafique Bhatti, Koura,Anwar, Qalandar Bakhsh alias Qalandaro, Naseer, Babal, whereas,
four persons were unknown. Accused persons Mureed, his brother Rafique and three
unknown persons boarded on their vehicle, while remaining accused persons were on foot, escaped towards Jhat Pat. The accused persons Mureed and Rafique raised lalkara that the motive behind the occurrence was active participation of Sanaullah Khoso, District Attorney in case against them. The complainant informed his uncle Sanaullah and other relatives through mobile phone of a passerby driver of truck, who reached on spot, later on, Nadra Bibi and Fareed Khan were taken to Civil Hospital, Dera Allah Yar, where Fareed Khan succumbed to his injures, consequently, the FIR was lodged and the accused persons were arrested.
3. After completion of usual investigation, challan of the case was submitted before the
Court and the trial was commenced.
4. On 26th June 2013, and 22nd December, 2014 charges under above mentioned
offences were framed and read over to the accused persons, to which they did not plead guilty and claim for trial.
5. In order to prove its case, the prosecution examined the following fifteen witnesses:
i. PW -1 Yasir Ali, complainant.
ii. PW -2 Abdul Razzaq.
iii. PW -3 Dr. Muhammad Din Jakhrani, Medical Officer.
iv. PW -4 Dr. Nair Firdous, Lady Medical Officer.
v. PW -5 Ali Hassan, Constable.
vi. PW -6 Nadra daughter of Fareed Khan.
vii. PW -7 Muhammad Ishaque, Head Constable.
viii. PW -8 Muhammad Jamal, Constable.
ix. PW -9 Muhammad Ismail, Constable.
x. PW -10 Nazar Muhammad, Constable.
xi. PW -11 Muhammad Ali, Constable.
xii. PW -12 Muhammad Ashraf, S.I.
xiii. PW -13 Nabi Bakhsh, Constable.
xiv. PW -14 Allah Ditta, S.I.
xv. PW -15 Paind Khan S.I/ Investigation Officer.
6. After closing the prosecution side, all the accused persons facing trial were examined
under Section 342, Cr.P.C wherein, they once again denied the prosecution case, however, they did not opt to be examined on oath under section 340(2), Cr.P.C., nor produced any witness in their defence.
7. After hearing the parties, the learned trial Court, vide impugned judgment, acquitted
respondents Nos.1 to 6 of the charge, hence this appeal.
8. Order sheet dated 02.06.2016, reflects that during pendency of the instant appeal,
respondent No.1 (Mureed son of Shah Nawaz) had been died and the counsel for the appellant does not press the appeal to the extent of respondents No.3, 4, 5 and 6, consequently, to their extent the instant appeal stood dismissed, as not pressed. Now, the present appeal is only to the extent of respondent No.2 (Babal son of Abdul Latif).
9. Learned counsel for the appellant contended that respondent No.2 was nominated in
the FIR and there is no recovery of shotgun on his pointation. He further argued that there
are eye- witnesses of the occurrence in the case, but the trial Court while acquitting the
respondent No.2, brushed aside all the evidence of the prosecution, hence committed glaring illegality and irregularity.
10. Learned Additional Prosecutor General, Mr. Jameed Ahmed Gajani, opposed the
contention of counsel for the appellant on the ground that the FIR was lodged after a delay of 05 hours without any plausible explanation. He further contended that case of prosecution is after thought and no specific role has been assigned to the respondent No.2, hence the instant petition liable to be dismissed.
11. We have heard learned counsel for the parties and perused the available record. It
appears from the FIR that in the present case the occurrence had taken place at 11:00 p.m, whereas, the report was lodged on the next date at about 04:00 p.m. PW -1, Yasir Ali is the
complainant of present case and charged the respondents along co- accused. On the face of it,
there is inordinate delay of 05 hours in lodging the report by the complainant. It is astonishing that when the deceased succumb to his injuries then what prevented complainant to lodge report in Police Station, despite the fact that distance of Police Station from place of occurrence as mentioned is 5/6 Kilo -meters, which creates serious doubt in the prosecution
story. Needless to say, that delay in lodging report cannot simply be brushed aside, as it has assumed great significance, and it could be attributed to consultation, taking instructions and calculatedly preparing the report keeping in view the names of the assailants opened for involving such persons, who ultimately, the prosecution might wished to nominate. In this respect reliance is placed to the case of "Muhammad Rafique v. The State" (2014 SCMR 1698).
12. The complainant PW- 1 in his first report, clearly mentioned that soon after
occurrence, he along with his relatives followed the culprits who run away from the scene of
occurrence by foot and reached to the guest house of Mureed Bhatti, where they saw Mureed
Bhatti and Rafiquee Bhatti, present with other assailants, who threatened them by showing
weapons and compelled them to return from their guest house, meaning thereby, if the accused persons were identified by complainant and PW -2 (eye -witness) at the place of
occurrence and they chased their footprints up to the house of accused Mureed Bhatti, where they found the accused present in their house duly armed, then the delay of lodging the FIR and not taking the Police for their arrest, just after the incident, when they were present in their house with crime weapons. The version taken by the complainant is not applicable to a prudent mind for their intentionally, deliberation and consultation for lodging the FIR of their own choice. The complainant PW -1 in his cross -examination admitted that he did not
inform the Police, while they were chasing the footprint of assailants. This version was fully supported by Abdul Razaq (PW -2) that they chased the footprint on their sides and the
footprints went to the house of accused Mureed Bhatti, Rafique Bhatti and all other accused persons were found present at the house of accused Mureed Bhatti duly armed, they extended threats to them and make them returned back. This unbelievable version of complainant party, would not influence the prudent mind, as in this tribal setup and where the father of PW-2 and uncle of PW -1 have been murdered and his dead body was lying on the road or in
the hospital, the murderer were caught and seen along with their weapons in a thickly populated city of Dera Allah Yar, just some distance away from Police Station, but neither culprits were apprehended at the same night of incident nor the report was lodged in time for arrest of accused persons. As according to the PW- 1 and PW -2 they were chased and found
in the house of accused Mureed Bhatti. It is also very important that one eye -witness,
namely, Naseebullah stated that he was also along with them in the same car, when the incident was taken place. It has been also mentioned in the first report of complainant that amount of Rs.3150/ - and I.D Card had been snatched from him by the assailant but
surprisingly that victim of the incident was not bothered to produce by the prosecution,
which also creates doubt in the prosecution story. It is further exposed from the record that
all the prosecution witnesses are silent regarding role of respondent No.2 (Babal). Mere his presence is on record, but nothing else. None of the eye -witness attributed any role to him in
the incident, nor any overt act done by respondent No.2 during the incident.
13. What has been referred and concluded herein above, we found ourselves unable to
believe the prosecution story to be true, as the all proceedings adopted during the investigation have not been done in a good lawful manner. What soever have been alleged, in our considered
opinion, are not free from doubt and clear violation of provision of Section 103, Cr.P.C. Even
otherwise, no specific role has been assigned to the respondent No.2 that he opened fire from the alleged recovered shotgun.
14. It is also well settled principle of law and held by the Apex Courts time and again that
slightest doubt if created on the case of prosecution, the benefit of that doubt should be given to the accused and not to the prosecution. It is also very well settled principle of law that one cannot be and should not be convicted under the umbrella of doubt and cloud. In the case of "Mst. Jallan v. Muhammad Riaz and others" (PLD 2003 SC 644), it was observed by the August Supreme Court that:
"Once an accused had earned acquittal in his favour, he enjoyed double presumption of innocence and the Court while examining the case of such accused must be very careful and cautious in interfering with the acquittal order and normally should not set aside the same merely for the reason that some other view was also possible ---
Interference, however, could be made in exercise of powers conferred upon the Court under S. 417, Cr.P.C. ,if it was proved that the Court whose judgment was under scrutiny had misread such evidence".
Reference can also be made to the recent case laws reported in 2014 SCMR 1639 "Muhammad Zafar and another v. Rustam Ali and others" and 2017 SCMR 1710 "Mst. Anwar Begum v. Akhtar Hussain alias Kaka and 2 others" wherein similar view was expressed."
15. It is now settled that standard of assessing evidence in appeal against acquittal are
quite different from those laid down from appeal against conviction. There is a marked
difference between appraisement of evidence in the appeal against conviction and in the appeal against acquittal. In the appeal against conviction, appraisal of evidence is done strictly and in appeal against acquittal, the same rigid method of appraisement is not to be
applied, as there is already finding of acquittal given by the trial Court after proper analysis
of evidence on record. In the appeal against acquittal, interference is made only when it
appears that there has been gross misreading of evidence which amounts to miscarriage of justice. The ordinary scope of appeal against acquittal of accused/respondent is considered narrow and limited, as held by the August Supreme Court of Pakistan, in a chain of consistent judgments. In this behalf, reference may be made to the cases, reported as Muhammad Usman and 2 others v. The State (1992 SCMR 498) and The State v. Muhammad Sharif and others (1995 SCMR 635).
For what has been discussed above, we are of the firm view that the trial Court has
rightly extended the benefit of doubt to the accused on valid and cogent reasons by correctly appreciating the evidence on record and acquittal of the accused/respondents does not call for any interference by this Court, therefore, the judgment dated 27th February, 2016, passed by Sessions Judge, Jaffarabad at Dera Allah Yar, is upheld. Consequently, being devoid of merits, the instant appeal is hereby dismissed.
JK/90/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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