' RAJA FAYYAZ AHMED, C.J.--- This Criminal Acquittal Appeal under section 417(2-A) has been directed against judgment, dated 30-6-2000 passed by the learned Judicial Magistrate, Kalat in case No,24 of 2000 whereby respondents Nos.1 to 7 hereinafter referred to as the private respondents have been acquitted of the charge under sections 337-H(ii)/427/147/ 148/149/435, P.P.C.
2. The brief facts of the case are that Case Criminal No,29 of 1999 was registered with Levies Thana Kalat, District Kalat on 23-8-1999 at 12-00 noon on the written report of P.W. Fazal Muhammad under sections 337-H(ii)/ 427/ 147/ 148/ 149/ 435, P.P.C. Wherein he alleged that on the preceding night at about 1-00 a.m private respondents Nos.1 to 11 alongwith other unknown persons duly armed launched attack and by means of firing destroyed electricity transformer of his tube-well whereafter, for two hours they continued firing and returned towards the mountains. Consequent upon registration of the case, Naib-Tehsildar, Tehsil Kalat was appointed as the Investigating Officer of the case, who after completion of Investigation submitted incomplete challan for trial of the offence against accused apprehended during the course of investigation i,e, private respondents Nos.1 to 7 as well as the absconding accused (respondents Nos.8 to 11), in the Court of learned Judicial Magistrate, Kalat.
3. The private respondents were indicted by the learned trial Court under above quoted sections of P.P.C. In view of the accusation as contained in the F.I.R. To which they pleaded not guilty and the prosecution to substantiate the accusation produced nine witnesses namely Fazal Muhammad, informant (P.W.1), Ghulam Nabi (P.W.2), Attaullah (P.W.3), Ghulam Hussain (P.W.4), Khuda Bakhsh (P.W.5), Muhammad Qasim (P.W.6), Khudai Rahim (P.W.7), Hasil Khan (P.W.8) and Khan Muhammad (P.W.9). After close of the prosecution case the private respondents were examined by the learned trial Court under section 342, Cr.P.C. In the light of the incriminating pieces of prosecution evidence and they each denied and disputed the same. It appears from the documents filed with the memo. Of appeal that accused Saleh Muhammad, Muhammad Khair, Lal Muhammad, Sabzal, Muhammad Azam and Abdul Qadir also appeared as their own witnesses in disproof of the charge within the purview of section 340(2), Cr.P.C. Wherein plea has been taken by each one of them that on account of judgment delivered by Judicial Magistrate, Kalat on 24-2-2000 and on account of enmity resting between the parties, they have been falsely involved in the case. Copy of the judgment was produced by the said accused as Exh.D.W./2. No other defence witness/evidence was produced by the accused. After close of the parties case, the learned Judicial Magistrate vide impugned judgment acquitted the private respondents of the charge.
4. We have heard the appellant's learned counsel at length. Mr. Tahir Muhammad Khan contended that:----'--.
(a) The accusation as contained in the report lodged by P.W. Fazal Muhammad has been fully supported by the ocular witness i,e, P.W. Ghulam Nabi, and, P.W. Attaullah, who immediately prior to the incident saw the nominated accused duly armed sitting in three groups near to the place of occurrence besides, prosecution also produced circumstantial evidence, consisting of recovery of empties, damages electricity transformer and the tracker's evidence through which charge against the accused has been established beyond shadow of any reasonable doubt.
(b) The accused facing trial, failed to rebut the unimpeached testimony of the prosecution witnesses nor the same could be discredited despite lengthy cross-examination conducted by the learned defence counsel.
(c) Prosecution evidence i,e, ocular account of P.W.1 and the circumstantial evidence is consistent, credible and free from any material conflict and contradiction, has been wrongly and illegally discarded on unsustainable grounds and reasons, and the trial Court wrongly extended benefit of doubt in favour of the respondents.
(d) Prosecution evidence has been totally misread and misconstrued by the learned trial Court.
(e) For the abovementioned reasons according to the learned counsel the impugned judgment deserves to be reversed.
' He placed reliance on the judgments reported in 1995 SCM R 1789 and 1992 PCr.LJ 1963.
5. We have considered the contentions of the appellant's learned counsel in the light of the documents filed alongwith the memo. Of the appeal and gone through carefully including the impugned judgment. The accusation as per report lodged by P.W. Fazal Muhammad is that on the night of 22-81999 the private respondents alongwith other unknown persons duly armed launched attack and by means of firing busted the electricity transformer of his tube-well and for two hours they continued firing and ieturned towards the mountains. The informant/Fazal Muhammad P.W.1 in his deposition stated that at about 6-00 p.m. His labourer Ghulam Nabi informed to him at the house that on the night at about 1-00 a.m. Accused Saleh Muhamad War Khan, Lal Muhammad, Muhanunad Khair, Muhammad Azam, Abdul Qadir, Muhammad, Muhammad Hayyat, Abdul Karim, Fateh Muhammad son of Mir Muhammad and Fateh Muhammad son of Umaid Khan loudly asked his labourer Ghulam Nabi as to whether any 'Alizai' is present there, and; in response thereto his labourer Ghulam Nabi came out of the tent and in electricity light available -outside the tent he identified the accused numbering about eleven, who stated to the accused that no 'Alizai' is present and thereafter, accused fired on the tent and his labourer switched off the light and the accused started firing on the electricity transformer, which was busted consequently; the electricity supply was cut ,ff. P.W. Fazal Muhammad further stated that he was told by his labourer Ghulam Nabi that he,, in order to save his life concealed himself in a ditch and the accused declared themselves to be Sumalani tribe's men, who continued firing till 4-00 a.m, and; P.W. Fazal Muhammad further stated that he was told by Ghulam Nabi that when the accused left the place, he came to inform him and at that time according to the witness he had woke up to offer 'Fajen' pra;ers anti on the abovesaid information, conveyed to him by Ghulam Nabi, he alongwith Muhammad A fzal . Attaullab, Faqir Muhammad, Ghulam A!i and Master Ghous Bakhsh left for the spot and found the electricity transformer as having been busted by means of firing whereafter he submitted a written report/ application to the Assistant Commissioner, produced by him as Exli.P/1- A.
' P.W. Ghulam Nabi, Labourer of the informant on his tube-well, stated that he has been employed on the tube-well by informant Muhammad Fazal for the last about eight months and on the date of incident at 1-00 a.m. Tube-well machine was on, and; there was a search light outside the tube- well when he came out of the tent on hearing walking noise and in the electricity light identified accused Subzal, Saleh Muhammad, Azam, Lal Muhammad, Muhammad Khair, Muhammad Hayyat, Abdul Karim and Muhammad present and armed with kalashnekovs, who allegedly enquired from him as to whether any member of 'Alizai' tribe is present there, to which he answered in negative and on account of being terrified according to the witness, he switched off the search light and in the meantime allegedly the accused opened fire on 'hip, but he concealed himself in. a trench wheretip9ri; the accused busted the transformer by means 9f firing and the electricity supply was cut-off. He further alleged that after interiali- they- continued firing up to 4-00 p.m and at that time Attaullah was present with him, who also concealed himself in the ditch and when the firing was over, the witness stated that he went to the house of Fazal Muhammad and informed to him about the incident, who alongwith other persons came to the spot and himself inspected the electricity transformer. The witness added that in the morning on 23-7-1999 his statement was recorded in Tehsil Surab and from the place of incident eight empties of Dungar/kalashnekov were taken into possession by the Tehsildar vide memo. Produced by the witness as Exh.P/2-A. He also indentified the empties and articles in Court.
' According to P.W. Attaullah on 22-8-1999 he and Fazal Muhammad together went to the tube-well which was functioning and the lands were being irrigated from the water of the tube-well and they both drank water and when they went ahead they found accused Saleh Muhammad, Sabzal, Lal Muhammad, Muhammad Khair, Fateh Muhammad, Muhammad Azam, Abdul Qadir, Muhammad and Muhammad Khan sitting in three groups, who on noticing their presence stood up and were also equipped with fire-arms. The witness added that they left afraid and about 'Maghrib' prayers they reached to their house and at about 1-00 a.m. There was a break down of electricity power in their area, and; at 6-00 a.m. In the morning he and Ghulam Nabi informed about the incident, when they were present in the house of Fazal Muhammad. According to P.W. Attaullah and Ghulam Nabi disclosed that the accused at about 1-00 a.m. Damaged the transformer of the tube-well of Fazal Muhammad and after that they i,e, Fazal Muhammad, Ghulam Ali and Ghous Bakhsh went to the spot and found the transformer having been busted by means of firing.
' Ghulam Hussain, (P.W.4) deposed that he alongwith Tehsildar Kalat namely Khuda Bakhsh besides Faqir Muhammad visited to the place of incident and found thai three bullets had hit the electricity transformer. According to P.W. Khuda Bakhsh, Naib Tehsildar, Kalat/Investigating Officer during the Courts of investigation he recorded statement of. P. Ws. Under section 161, Cr.P.C, inspected the place of occurrence and also prepared sketch map of place of wardat, which he produced as Exh.P/5-A and also took into possession eight empties of 'dungar' secured by him vide memo.
Exh.P/3-B and the damaged/busted transformer was also taken into possession.By him vide inventory prepared by him and produced by him as Exh.P/5-B. Muhammad Qadir (P.W.6) Naib Tehsildar, Kalat carried out remaining investigation of the case and submitted incomplete challan produced by him as Exh.P/6-A. Khudai Dad (P.W.7) Line-Superintendent WAPDA produced inspection report of the electricity damaged transformer as Exh.P/7-A and according to him he found three bullet holes on the transformer as a result whereof the transformer was completely damaged/ condemned. Hasil Khan, Naib Tehsildar (P.W.8) deposed that he recorded the statement of the arrested accused under section 161, Cr.P.C. And submitted supplementary challan Exh.P/8-A in Court. ' Khan Muhammad (P.W.9) Tehsildar, Kalat deposed that pursuant to application Exh.P/!-A, F.I.R. Was registered with the Levies thana which he produced as Exh.P/9-A and according to him NaibTehsildar, Khuda Bakhsh was appointed as the Investigating Officer.
6. Substance of the prosecution evidence has been given hereinabove which reveals that the case of the prosecution is based on ocular testimony of P.W. Ghulam Nabi and circumstantial evidence i,e, of P.W. Attaullah, recovery of empties from the place of 'Wardat' and the damaged electricity transformer of the tube-well of informant P.W. Fazal Muhammad. According to the ocular witness, accused 'Sabzal, Saleh Muhammad, Azam, Lal Muhammad, Muhammad Khair, Muhammad Hayyat, Abdul Karim and Muhammad were armed with Kalashnekovs and had resorted to firing at him but he rescued himself by concealing into a trench and thereafter the abovesaid accused fired at the transformer and the accused thereafter continued firing with intervals up to 4-00 p.m.
He also stated that Attaullah at that time was present with him. In cross-examination the ocular witness when confronted to his earlier statement recorded under section 161, Cr.P.C. It has been found that he had nominated accused Saleh Muhammad, Subzal and Abdul Qadir and did not mention about the presence of the remaining abovesaid accused, and; also in his earlier statement as per note recorded by the learned trial Court, firing on the transformer has been attributed only to accused Saleh Muhammad, Sabzal and Abdul Qadir and about other accused he had mentioned in his statement under section 161, Cr.P.C. That they were standing at a long distance from the accused nor he had mentioned that at the relevant time he concealed himself in a trench. He also in cross-examination stated that he does not know accused Muhammad Khair and pointing out towards accused Muhammad Khair, the witness stated that his name is Abdul Qadir. Bare perusal of the evidence of the ocular witness would go to show that he has made substantial material improvements in his evidence before the Court as against his earlier statement recorded under section 161, Cr.P.C. To which he has been confronted and secondly, according to him at that relevant time P.W. Attaullah was present with him, who also statedly concealed himself in the trench, but P.W. Attaullah did not mention in his evidence about his presence with the ocular witness at the relevant time, and thus; on such point as well necessary corroboration lacks. Since the ocular witness has made as abovesaid substantial material improvements in his evidence, therefore, in our considered view no implicit reliance can be placed on his testimony unless independently corroborated by some other circumstantial evidence of unimpeached character or by direct evidence. Admittedly except the evidence of P.W. Ghulam Nabi no other direct evidence of the alleged 'Wardat' is available in the case, although; according to P.W. Ghulam Nabi, Attaullah was present with him at the relevant time, but such witness in his evidence before the Court does not claim to be present with P.W. Ghulam Nabi and his evidence before the Court is only of circumstantial character; who deposed that in the same evening while he alongwith Fazal Muhammad was on their way back to home after drinking water from the tube- well of Fazal Muhammad, saw the accused at some distance sitting armed in three groups.
Evidence of this witness even if goes unchallenged would not be sufficient to bring home the guilt against the respondents Nos.1 to 7 unless the attributed alleged overt act against them is proved by the prosecution beyond shadow of any reasonable doubt, and; secondly, in absence of any explanation offered by this witness about his presence alongwith Fazal Muhammad on the tube- well only for drinking water and thereafter going back to him alongwith Fazal Muhammad and (sic) presence of the accused duly armed at some distance but instead of going back to his home his presence at the house of informant at 6-00 a.m. When P.W. Ghulam Nabi informed to Fazal Muhammad about the incident, appears to be highly unnatural inasmuch as; such facts deposed by this witness lead one to believe that he has been planted as a witness to render support to the ocular testimony of P.W. Ghulam Nabi, who failed to give any justification for accompanying Fazal Muhammad to his tube-well for drinking water only and coming back nor has given any reason or justification to be present with Fazal Muhammad in his house at 'Fajar' prayers time, therefore, for such reason his evidence too cannot be safely relied upon for the purpose of corroboration even.
The remaining prosecution evidence relates to the recovery of eight empties and the damaged transformer also being corroborative in nature cannot result into conviction of the private respondents Nos.1 to 7. Also, it is astonishing to note that according to the ocular witness, the accused after intervals continued firing up to 4-00 a.m. But only eight empties were recovered and secondly, it cannot be believed in the given circumstances of the case that the accused eleven in number at the relevant time from a nearby talking distance opened firing on the ocular witness, yet; he escaped unhurt and concealed himself in a trench, hence, for the aforesaid reasons it cannot be believed that even the incident had taken place in the manner in which it has been described by the ocular witness. We have also perused the impugned judgment which reveals that the entire prosecution evidence as well as the defence evidence has been appraised by the learned trial Court in its true perspective and the contentions raised by the appellant's learned counsel in the light of prosecution evidence are devoid of any substance. The case-law cited by the learned counsel also do not render any help to his pleas nor can it result in improving the case of the prosecution any further. Also, the impugned judgment does not suffer from any impropriety or illegality as on sound grounds and for plausible reasons respondents Nos.1 to 7 have earned acquittal, accordingly; the same is cannot be lightly interfered with, in view of the judgment passed by the Hon'ble Supreme Court in the case of Ghulam Sakander and another v. Mamaraz and others reported in PLD 1985 SC 11 Thus; for the foregoing reasons this acquittal appeal being without any substance is dismissed in limine.