Attaullah Versus State

Muhammad Hashim Khan Kakar, C.J .--- The appellant, namely Attaullah son of Muhammad Musa was booked in Crime No.39/2022 registered at Police Station Brewery Quetta on 16.02.2022 in respect of offences under Section 302/34 P.P.C. and after a regular trial, he was convicted vide impugned judgment dated 17.04.2023, passed by the trial Court i.e. Additional Sessions Judge-X, Quetta in the following manner:

"The accused Attaullah is convicted and sentenced to imprisonment for life as Tazir under section 302(b) of the P.P.C. due to mitigating circumstances present in prosecution evidence and further to pay Rs.200,000/- (rupees two lac only) which is duly payable to the legal heirs of the deceased Ramzan Ali as compensation under section 544-A of Cr.P.C., and in case default whereof the convict shall further undergo six (06) months simple imprisonment. Benefit of section 382-B of Cr.P.C. is awarded to the convict."

2. We have heard the learned counsel for the appellant as well as the learned counsel for the State and have gone through the record with their valuable assistance. It has been argued by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt and, thus, this appeal warrants acceptance with a resultant acquittal of the appellant. As against that the learned Additional Prosecutor General maintained that prosecution had succeeded in proving the guilt of the appellant to the hilt and, therefore, the present appeal may be dismissed.

3. The occurrence in this case had taken place in broad daylight and at a place where the same could have been seen by many persons available around the place of occurrence that too adjacent to the house of deceased Ramzan Ali. Information about the said occurrence had been provided to the police within 50 minutes of the occurrence by the son of deceased namely Jawad Ali, in consequence of which FIR.P/5-A was chalked out at police station Brewery on the same day at 11:50. The place of occurrence is at a distance of 3 km from the police station. There is delay of 50 minutes in reporting the matter to police, but the fact remains that the complainant is not an eye-witness of the occurrence and in this eventuality; the FIR does not render any sort of corroboration to the case of the prosecution qua the identification of the appellant. The case of the prosecution against the appellant, Attaullah, is based on sole ocular account furnished by PW-2 Abdul Qayoom, who happened to be a chance witness and his claim to have seen the occurrence appears to be a claim which can be accepted only with lump of salt. He is the witness who had deposed with the depiction that he being a Rickshaw driver by profession, happened to arrive on the spot of the incident, as soon as passengers were leaving the seats, all out of sudden, saw a person stormed towards another person sitting on a chair in a shop, aimed at him with pistol made a fire shot, which hit on the right hand of the victim, he in retaliation tried to escape out from the reach and firing range of the accused by trying to enter into house door but the accused further made a fire of bullet, which hit on his abdominal area and another fire made upon him which stricken on the chest of the injured, the eye-witness further deposed that he made an attempt to save the skin of the victim but the offender being charged with wrath made two ineffective fire shots upon the rescuer who in narrowing escaped out from the fire shots.

4. PW-2 claimed to be present on the spot, witnessed the whole episode and he initially took the injured into the rickshaw up to Qambrani Road and subsequently brought him to the BMC hospital in a taxi but ironically, he is not identifier of the dead body of the deceased before the local police as well as before the doctor, rather it was identified by PW-1 Jawad Ali. Admittedly, the occurrence had taken place adjacent to the house of deceased and besides the said witness, many others persons, shopkeepers and neighbors also attracted to the spot, however, neither the taxi driver nor any inhabitant of the nearby had been produced as witness during the trial. If, they could furnish their account it would have strengthened the case of the prosecution. The details of injuries, disclosed by the witness are also materially different from that discernable from the medical evidence. In this context we also mindful of the usual human conduct that strangers do not poke their noses in the bloody affairs of others. Admittedly, the sole eye-witness was not familiar to the deceased as well as appellant and per his version, he came to know about the name of appellant subsequent to recording his statement under section 161 Cr.P.C but on the contrary, his 161 statement (available at page 161 of the paper book) purport the name of the appellant, which fact alone is sufficient to create doubt in the prosecution story.

5. Now reverting to the evidence of motive, a quarrel between the parties, two months prior to the incident has been alleged as motive. However, there is no evidence to show that the matter was reported to the police. Therefore it could safely be concluded that prosecution could not be able to prove the motive part of the story. It is by now settled that the prosecution is not bound to setup motive in each and every case but once, it is alleged and not proved, then the ocular account is required to be scrutinized with due care and caution and in such circumstances, the prosecution must suffer consequences and not the defense. Reliance placed on "Hakim Ali v. The State" (1971 SCMR 432)

6. So far as recovery of crime weapon is concerned, the alleged crime weapon was sent to the FSL with the previously recovered 3/4 recovered empties of 30 bore and in this regard, the report Ex.P/5-C shows that crime empties were fired from the same pistol. The perusal of record shows that the pistol and empties were sent together to the Forensic Science Laboratory after arrest of the appellant, as such, the positive report from the laboratory loses its evidentiary value. This is primarily due to the risk of foul play or tampering. Other than the above, the alleged recovered weapon of the offence has not been substantiated to be registered with the quarter concerned in the name of appellant and no pain, whatsoever, has been taken by Investigating Officer to confirm the factum of its ownership, therefore, the possibility to plant the subject weapon against the appellant can no way be ruled out. Reliance is placed on the case of "Khalil-uz-Zaman v. State" (PLD 1994 SC 885).

7. Crux of the above discussion is that the prosecution has miserably failed to bring home guilt of the appellant through cogent and confidence inspiring evidence beyond the shadow of reasonable doubt. The prosecution's evidence is pregnant with doubts and according to golden principle of benefit of doubt; one substantial doubt is enough for acquittal of accused.

For the aforesaid discussion, the subject appeal is accepted, the impugned judgment dated 17.04.2023 of learned trial Court/ Additional Sessions Judge-X, Quetta is set aside and the appellant Attaullah is acquitted of the charges levelled against him by extending the benefit of doubt. He be set free forthwith, if not required, in any other case.

Above are the reasons of our short order dated 26.11.2024.

JK/157/Bal. Appeal allowed.