SHAUKAT ALI RAKHSHANI, J. Veracity and legality of the judgment dated 09.12.2022 ("impugned judgment") handed down by learned Sessions Judge, Kalat ("Trial Court") emanating from FIR No. 19 of 2021 registered with the Police Station Surab, whereby the appellant was convicted and sentenced in the following terms; "under section 322 P.P.C. to pay diyat amount at privilege rate to the legal heirs of deceased Habib ur Rehman, sentenced under section 337-A(i) P.P.C. for six months R.I and to pay daman Rs.
20,000/- (Rupees Twenty thousand) by means Rs.10,000/- (Rupees ten thousand) to each victim and further sentenced under section 33 7-F(i) P.P.C. for six months R.I and to pay daman Rs.
20,000/- (Rupees twenty thousand) by means Rs.10,000/- (Rupees ten thousand) to each victim with the premium of section 382-B Cr.P.C to the appellant".
2. Laconically, complainant Lal Bakhsh (PW-2) got registered an FIR ibid (Ex.P/6-A) dated 21.05.2021 through his application (Exh.P/2-A) with the avernments that his cousins namely Habib-ur- Rehman (deceased) and Noor Muhammad were going towards Giddar Pump to purchase household articles and when they reached at RCD road Giddar, the accused persons namely Sibghatullah, Izzatullah, Qudratullah and Hazoor Bakhsh along with four unknown persons called them to stop, whereupon when the deceased stopped the motorcycle an unknown motorcylist in the meanwhile hit them, due to which Habib ur Rehman died at the spot, whereas Noor Muhammad got injured.
During course of investigation, co-accused persons namely Sibghatullah, Izzatullah, Qudratullah remained away from the course of justice, as such, they were declared proclaimed offenders.
3. Muhammad Yaqoob Investigating Officer (I.O) was examined as (PW-6), who visited the crime scene, produce FIR as (Ex.P/6-A), prepared site plan (Ex.P/6-B) inquest report (Ex.P/6-C), recorded the statement of witness under section 161 of the Criminal Procedure Code, 1898 ("Cr.P.C"), produced death certificate (Ex.P/6-F), took into possession the damaged motorcycle through recovery memo (Ex. P/6-J), produced FSL Report (Ex.P/6-L) and submitted incomplete challan (Ex.P/6-M).
4. On conclusion of the investigation, the appellant was put on trial, who denied the indictment, as such, to bring home the charge the prosecution produced as many as six prosecution witnesses and on close of the prosecution side, the appellant was examined under section 342 of the Criminal Procedure Code, 1898 ("Cr.P.C"); the allegations were refuted and innocence was professed by the appellant, but he neither testified on oath in his defence nor produced any defence witness, thus on conclusion of the trial the appellant was found guilty of the charge and as such convicted and sentenced in the terms ibid by the Trial Court.
5. Learned counsel for the appellant inter alia contended that the appellant is innocent and has fasely been implicated in the instant case. He maintained that the statement of prosecution witnesses namely Lal Bakhsh (PW-2) and Noor Muhammad (PW-3) does not constitute an offence under section 322 of P.P.C. and has also not coincide with the medical evidence, making the entire case of prosecution highly doubtful. He futher stated that the reasons and conclusion drawn by the trial Court is contrary to law and facts, which merits to be set at naught and in result whereof the appellant merits to the acquitted of the charge by setting aside the impugned judgment rendered by the trial Court.
Conversely, the learned APG regiously opposed and resisted the appeal and urged that the prosecution has successfully proved the case. Added further that the impugned judgment is based upon proper appraisal of the evidence and application of law, requiring no interference by this Court, thus, prayed for dismissal of the appeal.
6. Heard. Record pondered upon with the able assistance of the learned counsel for the parties. The case of the prosecution mainely rests upon the testimony of Lal Bakhsh (PW-2), who lodged the FIR on the basis of an application (Exh.P/2-A) and eye-witness Noor Muhammad (PW-3) as well as Medical evidence. Lal Bakhsh (PW-2) is not an eye-witness of the occurrence which fact has been confirmed by him in a reply during cross-examination that he had not seen the occurrence and that he was informed through phone rearding the incident. He testified with regard to the motive for commission of the offence was that Habib ur Rehman (deceased) was earlier threatened by Sibghatullah, Izzatullah, Qudratullah and the appellant and they have also ablazed his wheet crops before the occurrence, thus, Lal Baksh (PW-2) held the said nominated persons to be responsible for the death of his uncle Habir ur Rehman.
7. Noor Muhammad (PW-3) was accompanied with the deceased on the fateful day on his motorbike where he met the appellant, Sibghatullah, Izzatuilah and Qudratullah, who stopped them and made an assault upon them. He further stated that Sibghatullah caused an injury on the head of his brother Habib ur Rehman with stone and Hazoor Baksh also hit his brother with stick, wheras, accused Izzat Ullah hit him with stone, causing an injury above his left eye, and his left shoulder dislocated as at the same time Qudratullah hit him with stick, thus, he became unconscious and found him in the Hospital where he come to know that his brother had died.
8. The contents of the FIR (Exh.P/6-A) lodged on the basis of application (Exh.P/2-A) reveals altogether a different story which shows that on the fateful day at 5:00 p.m Sibghatullah, Izzatullah, Qudratullah and the appellant along with four other unknown persons stopped his uncles Habib ur Rehman and Noor Muhammad, however, in the meanwhile a motorcycle driven by some unknown person collided with the motorcycle of Habib ur Rehman and Noor Muhammad (PW-3), casuing death and injury to them respectively. He also mentioned in the said application that since he was stopped by the appellant and his companions, therefore, the unknown motorcyclist hit his uncle, otherwise accident would have not happened. The prompt application by no stretch of imagination reveals the story of assault except happening of incident at the hand of one unknown motorcycle rider, who sustained injuries and was medically treated and examined by Dr. Sami Ullah Medical Officer DHQ, Surab (PW-1) and latter known to be Sami Ullah son of Abdul Samad whose Medico Legal Certificate (MLC) was produced as (Exh.p/1-A) by Dr. Sami Ullah (PW-1), who also produced the MLC of injured Noor Muhammad (PW-3) and Medical death certificate of deceased Habib ur Rehman (Exh.p/1-C), which does not coincide with the testimony of Noor Muhammad (PW-3) at all.
9. The prosecution has also withheld the testimony of said injured Sanaullah as he was neither been produced as a witness nor was he booked as an accused who collided his motorcycle with deceased Habib ur Rehman whereby he succumbed, which offends Article 129(g) of Qanun-e- Shahadat Order, 1984 ("QSO 1984"), whereof no other inference can be drawn except that had he been produced before the court, he would have not supported the case of the prosecution and on the contrary would have testified in support of the defence. In this regard we are fortified with the judgment of Hon'ble Supreme Court of Pakistan in case of "Muhammad Naeem Khan v. Muqadas Khan" (PLD 2022 Supreme Court 99).
10. Similarly, the appellant was charged under sections 322, 147, 149 P.P.C., but while drawing the judgment impugned herein, the appellant was convicted under sections 322, 337-A (i) and 337-F (i), which demonistrates that the trial Court has travelled beyond the charge.
11. After a critical analysis of the above prosecution evidence, we believe that the prosecution has miserably failed to prove the indictment as it suffers from material contradictions and dishonest improvement, which has made the entire case of the prosecution highly doubtful, henceforth irresistibly we have reached at the conclusion that the reasons drawn by the Trial Court are based upon improper appraisal of evidence, which in no manner can be allowed to hold field and sustain.
In order to underhand section 322 P.P.C., section 321 P.P.C., which defines Qatal-Bis Sabab is reproduced here in below,- "321. Qatl-Bis-Sabab. Whoever, without any intention to cause death of, or cause harm to, any person, does any unlawful act which becomes a cause for the death of another person, is said to commit qatl-bis-sabab."
12. Bare perusal of the section ibid clearly manifests that an accused who is found guilty of the indictment of section 322 P.P.C. must be held responsible by concrete evidence for causing death while committing an unlawful act. In the instant case, the appellant or co-accused were neither driving the motorcycle which collided with the deceased, causing death of Habib ur Rehman nor inflicting injuries to Noor Muhammad (PW-3), therefore, the appellant in no way can be held guilty of doing unlawful act, culminating into death of deceased Habib ur Rehman and causing injuries to Noor Muhammad (PW-3).
Corrolarlly, the appeal is allowed; the impugned judgment dated 09.12.2022 handed down by the Trial, court is set aside and consequent thereto the appellant is acquitted of the charge. He shall be released forthwith, if not incarcerated in any other case.