2012 M L D 325 [Balochistan]
Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ
MUHAMMAD ALI alias KHAMISA---Appellant
Versus
THE STATE---Respondent
Criminal Appeal No.(s)17 of 2008, decided on 11th August, 2011. Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -e-amd---Appreciation of evidence ---Complainant, who was not only the
resident of village concerned, but was also accompanying the deceased at the time of incident, had fully supported the prosecution version, na rrated a straightforward and confidence inspiring
story and despite lengthy cross -examination, remained firm and nothing material was brought on
record to doubt his veracity, except a few minor contradictions not affecting the intrinsic value of his statement ---Presence of complainant at the relevant time could not be doubted, nor his
statement could be discarded only on the ground that he was related to the deceased, because he
had no ill -will or motive to falsely implicate accused in the commission of the offence ---Defence
had failed to lay down foundation for substitution of accused in place of real culprit ---F.I.R. was
promptly lodged, wherein accused was nominated---Prior to lodging of F.I.R., no deliberation was made nor any time was taken by the compl ainant to concoct the story---One of the
prosecution witnesses was dropped on the request of District Attorney, being won over by the defence---Other prosecution witness could not be produced due to his migration to some unknown destination---Non- production of said witness was neither deliberate, nor an attempt on
the part of prosecution to withhold its evidence ---Occurrence having taken place in broad
daylight, no question of mistaken identification arose at all ---Complainant's evidence did not
suffer from any material contradiction, discrepancy or inherent infirmity, his evidence was
supported by medical evidence, recovery of shotgun from the possession of accused and positive report of Firearm Expert ---Star witness, though was father of the deceased, but only on account
of relationship with deceased, he could not be termed as interested witness as he had no direct animosity with accused, who had been attributed fatal injuries to the deceased---Ocular account, furnished by the complainant was corroborated b y the alleged motive, which had been stated to
be an allegation of 'Siyah- kari'---Accused did not enter into witness box to face test of cross -
examination ---Prosecution had successfully proved that accused had committed the murder of
deceased ---Trial Court , after proper appraisal of evidence, had rightly found accused guilty of
the offence which did not call for any interference by High Court.
2000 SCMR 727 and 1999 PCr.LJ 1179 rel
Nadir Ali Chalgari for Appellant
Abdullah Kurd for the State
Date of hearing: 4th August, 2011. JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---This appeal is directed against the judgment
dated 25th February, 2008, passed by the Sessions Judge, Dera Allah Yar, whereby appellant Muhammad Ali was convicted and sentence d under section 302(b) of the P.P.C. to suffer life
imprisonment as Ta'zir on two counts, with fine of Rs.50,000 each to be paid to the legal heirs of deceased Aslam and deceased Mst. Amiran as compensation, in default whereof to further undergo one year S I, with benefit of section, 382- B of the Cr.P.C.
2. The relevant facts, arising out of instant appeal, are that on 6th December, 2005, a case vide Crime No.293 of 2005, under sections 302, 324 read with section 34 of the P.P.C. was registered at Police S tation, Dera Allah Yar, District Jaffarabad on the complaint of one Deedar Hussain. It
was alleged that on above date, at 6 -30 a.m., he, along with his son Muhammad Aslam, brother
Murad Ali and cousin Umeed Ali, came out of their house and were going for t he purpose of
harvesting the paddy crop, whereas his son Muhammad Aslam was 100/120 steps ahead from them. Meanwhile, accused persons Musa, Essa Khan and Muhammad Ali alias Khamisa Khan, duly equipped with Kalashnikov and shotguns, came out of their house and told Muhammad
Aslam that today they will not leave him alive and started firing upon him, due to which, he sustained injuries and expired at the spot. It was further alleged by the complainant that the accused persons ran away towards their house and i n the meantime, he heard fire reports from
the house of accused persons and it came to their knowledge that the accused persons also made firing upon Mst. Amiran wife of Muhammad Ali due to her illicit relationship with deceased Muhammad Aslam. Resultantly , aforesaid F.I.R. was registered.
3. After registration of the F.I.R., investigation of the case was entrusted to P.W.6 Soomar Khan, S.-I., who visited the site, prepared site inspection memo Exh.P/6- A and site sketch Exh.P/6- B,
secured blood- stained ea rth of deceased vide memo Exh.P/6- C, collected six empties of 12- bore
shotgun vide memo Exh.P/6- D, five empties of 7.62 MM vide memo Exh.P/6- E, also secured
blood- stained earth of deceased Mst.Amiran Bibi vide memo Exh.P/6- F, also collected four
empties o f 12 -bore vide memo Exh.P/6- G, prepared inquest reports of deceased persons
Muhammad Aslam and Mst. Amiran Exh.P/6- H and Exh.P/6- G, sent the dead bodies to Civil
Hospital, Dera Allah Yar, took into possession the blood- stained clothes of deceased persons a nd
on the same day arrested the accused Muhammad Ali. On 13th December, 2005, on the disclosure and pointation of accused, recovery of crime weapon i.e. shotgun single barrel .12-bore along with eight live cartridges was effected. He sent the blood- stained earth and clothes of
deceased to FSL, Quetta, whereas sent the recovered arms and ammunitions to ballistic expert, Karachi for examination and report. He received the reports of experts Exh.P/6- K and Exh.P/6- L
and thereafter incomplete challans Exh.P/6- M, Exh.P/6- N and Exh.P/6- P were prepared and
appellant was sent up to face the trial.
4. On the stated allegations, a formal charge was framed and read over to the appellant on 31st January, 2006, to which he did not plead guilty and claimed trial. The prosecution, in order to prove the accusation, produced six witnesses. P.W.1 Deedar Hussain is complainant of the case,
who produced F.I.R. as Exh.P/l -A. P.W.2 Dr. Rahila Jamali, Lady Medical Officer, D.H.Q
Hospital, Dera Allah Yar, conducted postmortem exami nation of the dead body of deceased Mst.
Amiran and produced her Medico Legal Certificate as Exh.P/2 -B. P.W.3 Fateh Muhammad,
constable, is witness to the recovery memo of crime weapon and disclosure made by appellant,
which he produced as Exh.P/3- A and Exh.P/3- B. P.W.4 Dr. Amanullah, Medical Officer, D.H.Q
Hospital, Dera Allah Yar, examined the dead body of deceased Muhammad Aslam and produced his medico legal certificate as Exh.P/4 -A.P.W.5 Muhammad Jamal, constable, is recovery
witness of blood- stained clothes, which he produced as Exh.P/5- A and Exh.P/5- B and P.W.6.
Soomar Khan, S.- I., is the Investigating Officer of the case. Then the prosecution closed its side.
5. In his examination recorded under section 342 of the Cr.P.C., the appellant denied and controverted each and every allegation of fact levelled against him by the prosecution and professed his innocence. However, he neither made any statement on oath under section 340(2) of the Cr.P.C., nor he produced any witness in his defence.
6. At the conclusion of the trial, the trial Court found the prosecution's case against the appellant to have been proved beyond reasonable doubt and, thus, the appellant was convicted and sentenced, as mentioned and detailed above. Hence, the present appeal before this Court by the convict/appellant.
7. We have heard the learned counsel for the appellant as well as learned counsel for the State and have also gone through the record with their valuable assistance. It has been submitted by learned counsel for the ap pellant that the prosecution had failed to prove its case against the
appellant beyond reasonable doubt and, thus, this appeal warrant acceptance with a resultant acquittal of the appellant. On the contrary, as against that learned counsel for the State ha s
maintained that the prosecution had succeeded in proving the guilt of the appellant to the hilt and, therefore, the present appeal may be dismissed. 8. After hearing the learned counsel for the parties and going through the record, we have arrived at a confident conclusion that the prosecution had, indeed, succeeded to prove its case against the
appellant beyond reasonable doubt. 9. As far as unnatural death of deceased Muhammad Aslam and Mst. Amiran is concerned, the same has not been seriously disputed by the defence. Even otherwise, P.W.2 Dr. Rahila
Jamali and P.W.4 Dr. Amanullah, who examined the dead bodies of deceased persons, have proved unnatural death of deceased Muhammad Aslam and Mst. Amiran Bibi by means of firearm injuries. However , the question arises, as to whether the appellant was the person, who
committed the murder of deceased persons? It is the case of prosecution that on the fateful day at about 6- 30 a.m., complainant Deedar Hussain along with Murad Ali, Umaid Ali and Muhamm ad
Aslam came out of their house for harvesting paddy crop. While Essa and Muhammad Ali, equipped with shotguns and Musa, equipped with Kalashnikov, came there and started firing
upon Muhammad Aslam, who fell down and succumbed to the injuries at the spot. Later on,
accused persons went to their house and they again heard firing. The complainant came to know
that accused persons had also committed murder of Mst. Amiran on account of allegation of `Siyahkari' with deceased Muhammad Aslam. In order to substantiate the accusation, the prosecution mainly relies on the statement of complainant Deedar Hussain, who is not only the
resident of said village, but was also accompanying the deceased at the time of incident. He has
fully supported the prosecution version and stated that on the unfortunate day, appellant and
absconding accused persons made firing upon deceased Muhammad Aslam, who fell down and
succumbed to the injuries. He narrated a straightforward and confidence inspiring story and, despite lengthy cross -examination, remained firm and nothing material was brought on record to
doubt his veracity, except a few minor contradictions, not affecting the intrinsic value his statement. Being resident to the same village, his presence at the relevant time could n ot be
doubted, nor his statement could be discarded only on the ground that he was related to the deceased, because, admittedly, he had no ill -will or motive, nor any such thing was suggested to
him during cross -examination, to falsely implicate the appellant in the commission of the
offence. On the other hand, the defence failed to lay down foundation for substitution of appellant in place of real culprits. The fact, that the F.I.R. was promptly lodged, wherein the appellant was nominated, shows that he ha s narrated truthful account of the incident. The
promptness of F.I.R. and the fact, that he had gone alone to the police station situated at a distance of 15/16 kilometers, proves that prior to lodging of F.I.R., no deliberation was made, nor there was any time for him to concoct the story. The contention of the learned counsel for
appellant, that before going to police station, he did not ask for help from neighbours, has no substance, because from a frightened, confused and empty handed aged man, who had seen the death of his young son, one could not expect to do the things in natural way, nor on such grounds, his statement could be discarded.
10. We are in agreement with the learned counsel for the appellant that in case of non- production
of witnesses, whose names figured in the FIR, adverse inference under Article 129(g) of the Qanun- e-Shahadat Order, 1984 can be drawn, but in the instant case, record reveals that P.W.
Umaid Ali was dropped on the request of District Attorney, being won over by the defe nce,
whereas Murad Ali could not be produced due to his migration to some unknown destination, as such, the non- production of P.W. Murad Ali was neither deliberate, nor an attempt on the part of
prosecution to withhold his evidence.
11. Though it is an a dmitted position of the case that murder of deceased Mst. Amiran Bibi has
not been witnessed by any one, including Deedar Hussain (P.W.1), but at the time strong evidence has formed part of the record to establish that soon after the commission of murder of Muhammad Aslam, accused Muhammad Ali along with other accused persons, equipped with firearms, went inside his house and shot his wife Mst. Amiran on account of illegitimate relationship with deceased Muhammad Aslam. It is imperative to mention here that, consequently, the dead body of Mst. Amiran Bibi from the house of appellant had proved beyond any shadow of doubt that he and none else had killed the deceased.
12. The occurrence has, admittedly, taken place in broad daylight and under such circumstances, no question of mistaken identification arise at all. The complainant's evidence is not suffering from any material contradiction, discrepancy or inherent infirmity and consistent with
probabilities materially fitting in with other evidence, more particularly medical evidence and
supported by the recovery of shotgun from the possession of appellant and positive report of firearm expert.
13. No doubt, the star prosecution witness P.W.1 Deedar Hussain is the father of deceased, but
only on account of relationship with deceased, he cannot be termed as interested witness for the
reasons that he had no direct animosity with the appellant Muhammad Ali alias Khamisa, who
has been attributed fatal i njuries to the deceased. The Hon'ble Supreme Court in a case -reported
in 2000 SCMR 727, while dealing with the proposition of interested witness, observed as under: -
-
"Moreover, we find that none of the two eyewitnesses could be termed as interested wi tnesses
because none had any previous ill -will or grudge against the petitioner. Merely because P.W.4 is
father of the deceased and P.W.5 belongs to the "Baradari" of the deceased would not make them interested as they had no reasons to substitute the peti tioner for the real killer."
14. The ocular account, furnished by the complainant has also got corroboration from the alleged motive, which has been stated to be the allegation of 'Siyahkarir. Immediately, after the murder of deceased Muhammad Aslam, Mst .Amiran Bibi was also killed and her dead body was
recovered from the house of appellant. The same motive has been deposed by complainant Deedar Hussain during trial in his deposition recorded on 7th February, 2006. In this regard, it has been held in 1999 PCr.LJ 1179 as under: --
"Where motive was specifically pleaded in the F.I.R. and was deposed at trial by the
complainant against an accused person and corroborated by another prosecution witness, the same was proved against the accused person."
15. A dditionally, the appellant did not enter into witness box to face test of cross -examination.
Though generally, no adverse inference can be inferred against the accused, if he does not record his statement on oath in disproof of charge, but in view of the f act that the dead body of Mst.
Amiran Bibi, who was legally wedded wife of appellant, was recovered from his house, he should have entered into witness box with reasonable explanation regarding the murder of his wife. It may be observed that though sole eyewitness has not stated to have seen the appellant, committing her murder, but the fact remains that the appellant was the last person, who entered in the house and at that time she was alive, but afterwards she was found dead and it can be safely concluded that she was also murdered by the appellant.
16. In view of what has been stated above, we are of the considered view that the prosecution has successfully proved that appellant Muhammad Ali alias Khamisa committed the murder of deceased Muhammad Aslam and Mst. Amiran Bibi. The trial Court, after proper appraisal of
evidence, has rightly found the appellant guilty of the offence, which does not all, for any interference by this Court.
Appeal, being meritless, is dismissed.
H.B.T./88/Q 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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