2020 M L D 2059
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Abdul Hameed Baloch, JJ
KAMAL -UD-DIN---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No.437 and Murder Reference No.11 of 2017, decided on 30th June, 2020.
(a) Penal Code (XLV of 1860) ---
----Ss. 302, 324, 147, 148 & 149---Criminal Procedure Code (V of 1898), S.161---Qatl -i-
amd, attempt to commit qatl- i-amd, rioting, rioting armed with deadly weapons, unlawful
assembly --- Appreciation of evidence ---Delay in recording t he statements of witnesses by the
police ---Effect ---Record showed that the statements of injured witnesses were recorded with
the delay of three days without offering any plausible explanation--- Evidence of ocular
account could not be discarded merely on t he ground of delay and it was the discretion of the
Investigating Officer to record statement of witnesses under S.161, Cr.P.C, but said
discretion had not to be exercised arbitrarily--- Complainant submitted application for
registration of FIR without any delay wherein he mentioned the name of injured witnesses ---
Investigating Officer was duty bound to record the statements of witnesses ---Intentional or
otherwise any concession extended to accused being lapse on the part of Investigating Agency would not be fatal to the prosecution case---Statements of injured/ocular witnesses
could not be brushed aside on the ground that the Investigating Officer recorded the same with some delay.
Muhammad Safar v. The State 2006 SCMR 1773 rel.
(b) Criminal trial ---
----W itness -- -Interested witness ---Scope ---Interested witnesses were one who had
motive for falsely implicating the accused for any act of enmity.
Nazir v. The State PLD 1962 SC 269; Khalil Ahmed v The State 1976 SCMR 161;
Allah Ditta v. The State, 1970 SCMR 734; Muhammad Akbar v. Muhammad Khan PLD
1988 SC 274 and Shehruddin v. Allah Rakhio 1989 SCMR 1461 rel.
(c) Penal Code (XLV of 1860)---
----Ss. 302, 324, 147, 148 & 149---Qatl -i-amd, attempt to commit qatl- i-amd, rioting, rioting
armed with deadly weapons, unlawful assembly ---Appreciation of evidence ---Related and
interested witnesses ---Reliance--- Scope ---Admittedly, the eye -witnesses were related to the
deceased ---Complainant, deceased and witnesses were closely related to each other, but on
that score the ir statements could not be discarded---Inter se relationship of prosecution
witnesses who stood firm on the test of lengthy cross -examination could not be discarded---
Intrinsic value of the statements of prosecution witnesses, which were to be considered.
Riaz Hussain v. The State 2001 SCMR 177 and Manawar Ali v. the State 2001 SCMR
614 rel.
(d) Penal Code (XLV of 1860)---
----Ss. 302, 324, 147, 148 & 149---Qatl -i-amd, attempt to commit qatl- i-amd, rioting, rioting
armed with deadly weapons, unlawful ass embly ---Appreciation of evidence ---Sentence,
reduction in---Prosecution case was that the accused along with co- accused while armed with
pistol, knives and churries, assaulted on complainant party, due to which four persons were
injured and the cousin of c omplainant succumbed to injuries ---Ocular account of the incident
had been furnished by five witnesses including three injured---Defence had not disputed the venue of occurrence and presence of deceased and ocular witnesses ---Evidence of eye -
witnesses prov ed that the accused fired on deceased due to which he succumbed to the
injuries ---Defence had not denied the occurrence---Eye witnesses were natural witnesses,
they were as good as any other independent witnesses ---Defence had failed to bring on
record any ill-will or grudge qua the witnesses ---Record reflected that the statements of
injured witnesses were in line with the statement of complainant--- Complainant admitted that
there was no enmity with the accused--- Evidence showed that the occurrence had take n place
suddenly when the accused party had blocked the road where the injured and deceased
reached at the place of occurrence---Complainant party insisted for opening of the way, thus scuffle took place---Accused fired on the deceased due to which he succumbed to the injuries ---Both the parties were known to each other, therefore, there was no
misidentification of the accused---All the eye witnesses were unison that the accused had fired upon the deceased ---Record showed that the accused made single fire o n the deceased,
occurrence took place suddenly and the prosecution had not alleged any motive for commission of the crime ---Circumstances in which the occurrence took place would lead to
an inference that due to something the occurrence was suddenly happen ed, thus it was not a
case of death penalty ---High Court, in circumstances, altered the conviction and sentence of
the accused from death to imprisonment for life ---Appeal was disposed of accordingly.
Notice to Police Constable Khizar Hayat PLD 2019 SC 52 7; Dr. Khalid Moin v. The
State 2006 PCr.LJ 639 and Rizwan alias Abu Bakar v. The State 2010 PCr.LJ1296. ref.
Umerzad v. The State 1990 SCMR 571 and Bashir Khan v. The State 1995 SCMR
900 rel.
(e) Criminal trial --
----Witness ---Minor discrepancies in the statement of witnesses ---Scope ---Minor
discrepancies in the testimony of prosecution witnesses in respect of exact timing of post
murder ancillary proceedings and omissions, improvement could not be termed as dishonest
without establishing animosity of the witnesses against the accused.
Sarfraz alias SAPPI v. The State 2000 SCMR 1758 rel.
(f) Criminal trial ---
----Absconsion--- Scope ---Abscondence could not altogether be ignored and its corroborative
value carried substantial weight.
Nawas Khan v. The State PLD 2004 SC 330 and Bashir Ahmed Leghari v. The State
2020 SCMR 595 rel.
(g) Penal Code (XLV of 1860) ---
----Ss. 302, 324, 147, 148 & 149---Qatl -i-amd, attempt to commit qatl- i-amd, rioting, rioting
armed with deadly weapons, unlawful assembly--- Appreciation of evidence--- Recovery of
crime weapon ---Scope ---Sentence, reduction in ---Prosecution case was that t he accused and
co-accused while armed with pistol, knives and churries, assaulted on complainant party, due
to which four persons were injured and the cousin of complainant succumbed to injuries ---
Record showed that the accused was arrested after twelve years of lodging of FIR ---Facts
showed that it was impossible that the accused retained the crime weapon with him in long span of time ---Even otherwise the factum to recover weapon of offence during the
investigation for any reason would not be sufficient to suggest that the accused was not
armed ---Recovery of crime weapon only tended corroboration to other piece of evidence ---
Appeal was disposed of with modification in sentence.
Ashfaq Asghar v. Hafeez 2013 YLR 2620 rel.
(h) Criminal trial ---
----Site plan ---Evidentiary value ---Site plan is not a substantive piece of evidence, but
confirmatory in nature ---Mere omission to mention the position of eye -witnesses in the site
plan is not fatal to the prosecution case.
Ali Sher v. The State PLD 1980 SC 317 rel.
Jamil Ramzan and Jamila Penezai for Appellants.
Muhammad Younas Mengal, Additional Prosecutor General and Iqbal Kasi and
Hassan Sherani for the State.
Date of hearing: 25th June, 2020.
JUDGMENT
ABDUL HAMEED BALOCH, J. ---This criminal appeal has been di rected against
the judgment dated 27th December, 2017 (impugned judgment), passed by learned
Additional Sessions Judge, Killa Abdullah at Chaman (trial court), whereby the appellant was convicted under Section 302(b) Pakistan Penal Code and sentenced to de ath as Tazir and
liable to pay an amount of Rs.500,000/ - (Rupees five hundred thousand) as compensation to
the legal heirs of deceased under Section 544 -A Criminal Procedure Code (Cr.P.C.) and in
default thereof to further suffer six months simple imprisonment.
2. The prosecution case as gleaned from the application submitted by PW -1A Gul Zarin
are that on 3lst May, 2003 at 8:00 p.m., his three brothers Muhammad Hanfia. Muhammad Aulia, Noor Shah and cousin Muhammad Sabir were on their way home situated at Killi
Salahuddin from border and when they reached Boghra Road bypass the accused persons Kamal, Karam, Fatah Khan, Abdul Samad sons of Umia, Dilbar son of Fateh Khan, Abdul Samad, Sher Ali, Muhammad Wali sons of Abdul Qadeer, Shaista Khan, Gaji, Janan son s of
Abdul Raheem and four unknown persons had blocked the road by parking their vehicles, on which the brother of complainant namely Hanfia told the accused persons to open the road, whereupon the accused persons became furious and attacked upon his brothers and cousins with Churries, knives and pistols. It was alleged that accused Kamal, Fateh Khan, Karam,
Abdul Samad sons of Haji Umia and Dilbar son of Fateh Khan were making firing with
pistols. It was alleged that due to firing made by accused Kamal, Mu hammad Sabir became
seriously injured and succumbed to this injuries on his way to hospital, whereas Muhammad Hanfia, Muhammad Aulia and Noor Shah were injured by knives and churries of accused persons. It was further alleged by the complainant that he can recognized the four accused
persons by their appearance. With these allegations FIR No. 68 of 2003 under Section 302, 324, 337- A, 147, 148, 149 P.P.C. was registered with Levies Thana Chaman District Killa
Abdullah.
3. After registration of FIR, the investigation was entrusted to Nazar Hussain Tehsildar,
who went to hospital along with levies personnel where vide letter Ex: P/8 -C he requested
Medical Officer for examination of the deceased Muhammad Sabir injured Muhammad Hanfia, Muhammad Aulia and Noor Shah and thereafter, handed over the dead body of deceased Muhammad Sabir to his uncle Salahuddin through receipt Ex: P/8 -B. After that the
Investigating Officer visited the place of occurrence and prepared site plan vide Ex: P/8- D
and arrested accused A bdul Samad son of Haji Omia from his house and recovered fourteen
live rounds with leather holster. On 3rd June 2003 the Investigating Officer recorded statements of Muhammad Aulia, Noor Shah, Muhammad Hanfia, Sirajuddin and Nizamuddin under Section 161 Cr .P.C., obtained blood stained clothes of deceased and injured
Muhammad Aulia from Haji Salahuddin through memo. Ex.P/6- A. On the same day the
complainant Gul Zarin handed over three empties to Investigating Officer by stating that accused Kamal has used th ese rounds by killing Muhammad Sabir, who took the same into
possession through memo. vide Ex.P/6- B. After completion of investigation and receipt of
MLCs the IO submitted incomplete challan vide Ex.P/8- E and Ex.P/8 -F to the extent of
arrested accused Abdu l Samad.
4. After framing of charge and conclusion of trial to the extent of accused Abdul Samad,
he was acquitted of the charge by learned Sessions Judge, Pishin vide judgment dated 13th
April, 2004.
5. Suffice to add here that accused Abdul Raheem was ar rested on 29th November, 2003
and after completion of investigation challan to the extent of accused Abdul Raheem was
submitted on 11th December, 2003. During trial the accused Abdul Raheem submitted an application under Section 265- K Cr.P.C and vide order dated 7th April, 2004 he was
acquitted by learned Sessions Judge, Pishin by exercising powers under Section 265- K
Cr.P.C.
6. On 24th September, 2015 the present appellant was arrested and after completion of
investigation challan was submitted against him before the trial court where charge was
framed to which the appellant denied, as such in order to substantiate its case the prosecution examined following ten witnesses:
PW-I A Gul Zarin complainant who produced his written report Ex: P/1- A to Ex: P/1-
C.
PW-2 Sirajuddin, ocular witness of the incident;
PW-3 Muhammad Hanfia injured witness produced identification parade of accused
Abdul Raheem vide Ex: P/2- A;
PW-4 Aulia injured ocular witness:
PW-5 Nizamuddin ocular witness of the incident;
PW-6 Noor Shah, ocular witness of the incident;
PW-7 Dr. Zia -ud-Din Senior Medical Officer DHQ Hospital Chaman produced
Medico Legal Certificates vide Ex: P/7 -A to Ex: P/7 -D
PW-8 Ubaidullah Levies Hawaldar, produced recovery memo Ex; P/8- A through
papers of FIR No. 81/2015, recovery memo TT pistol and cartridges and statements of
witnesses under Section 161 Cr.P.C. were taken into possession.
PW-9 Masood Ahmed Levies Dafedar, produced recovery memo of two pick up No.
QAD 5249 and WAD 992 vide Ex: P/5- A;
PW-l0 Muhammad Younas Tehsildar, the Investigating Officer, who produced
Supplementary challan Ex: P/10- A;
7. On completion of prosecution evidence the appellant was examined under Section 342
Cr.P.C, in which he denied the allegation. He also recorded his s tatement on oath as
envisaged under Section 340(2) Cr.P.C, and also produced one witness Asmatullah in his defence. On conclusion the trial court convicted and sentenced the appellant in the terms as mentioned in para -1 above, hence the appellant preferred instant appeal for his acquittal and
trial court made Reference for confirmation of the death sentence.
8. Learned counsel for the appellant contended that the statements of the prosecution
witnesses were recorded with delay of three days without affordin g any plausible
explanation. The prosecution has produced two witnesses who claimed themselves as ocular
witnesses, but neither the complainant nor the injured witnesses shown their presence at the scene of occurrence at relevant time. The statements of pr osecution witnesses are not worth
of credence and conviction could not be awarded on such type of shaky statements of witnesses. The learned counsel further stated that one Abdul Samad son of Umia was earlier
arrested in the instant case, who was acquitted by the trial court, as the statements of the
witnesses were not considered in previous trial being untruthful. The trial court convicted
and sentenced the appellant on the basis of same set of evidence and ignored the principle of falsus in uno falsus in omnibus. He relied on Notice to Police Constable Khizar Hayat PLD 2019 SC 527, Dr. Khalid Moin v, The State 2006 PCr.LJ 639. Rizwan alias Abu Bakar v. The State 2010 PCr.LJ 1296. In the end he prayed for setting aside of the impugned judgment and acquittal of the appellant.
9. Conversely the learned counsel for the complainant stated that the prosecution has
proved its case beyond any reasonable doubt. The presence of ocular witnesses has not been denied. The unnatural death of the deceased was not disputed, despite lengthy cross -
examination the prosecution witnesses remained firm. The defence has failed to point out any reason for false implication. The specific role was assigned to the appellant. The learned counsel prayed for dismissal of the appeal.
10. The learned Additional Prosecutor General supported the judgment of the trial court
and relied on the contention of learned counsel for the complainant.
11. We have heard the learned counsel for the appellant, complainant as well as
Additional Prosecutor General and also gone through the record. It appears that complainant
(PW -1) Gul Zarin submitted written application Ex: P/1- A, on the basis whereof FIR Ex:
P/8-A was registered. The record transpires that the FIR Ex: P/8 -A was registered on 31st
May, 2003 and acquitted accused Abdul Raheem was arrested on 29th November, 2003 and after examination of some witnesses the trial court vide judgment dated 11th April , 2004
acquitted the accused on an application under Section 265 -K Cr.P.C. One nominated accused
Abdul Samad son of Omia was arrested who faced the trial and on conclusion of trial the trial court vide judgment dated 13th April, 2004 acquitted him. Whereaf ter, on 25th September,
2015 the appellant was arrested and after full dress trial the trial court convicted him vide impugned judgment. The prosecution has mainly relied on the statements of injured witnesses Muhammad Hanfia (PW- 3), Olia (PW -4), Noor Shah (PW -6), statements of ocular
witnesses Sirajuddin (PW -2). Nizamuddin (PW -5) and Medical evidence Ex: P/7 -A to Ex:
P/7-D. Admittedly Gul Zarin (PW -1/ complainant) is not ocular witness. He was informed by
PW-2. on information immediately reached hospital w here PW- 2 told him the detail facts of
the occurrence. The learned counsel for the appellant at the very outset contended that the statements of injured witnesses were recorded with the delay of three days without affording any plausible explanation. The e vidence of ocular account cannot be discarded merely on the
ground of delay. It may be mentioned here that it is the discretion of Investigating Officer to record statement of witnesses under Section 161 Cr.P.C. but this discretion has not be exercised arb itrarily. PW -1 submitted application for registration of FIR without any delay
wherein he mentioned the name of injured witnesses. It was the duty of the Investigating Officer to record the statements of witnesses. It is now well settled that intentional o r
otherwise any concession extended to accused being lapse on the part of Investigating
Agency shall not fatal the prosecution case. The statements of injured/ocular witnesses could not be brushed aside on the ground that the Investigating Officer recorded the same with
some delay. In this regard reliance is placed on the case of Muhammad Safar v The State 2006 SCMR 1773. It was held by their lordship:
"9. We have also gone through the evidence of P.Ws. Muhammad Safar, Ghulam Murtaza, Ali Dost Ghulam Muham mad. Jinsar Ali Tapeddr, Dr. Amjad Ali, medical
certificates and post -mortem reports minutely. The above -said witnesses have
admitted that their statements under section 161, Cr.P.C. were recorded after 2/3 days of the incident and have also sustained injuries in the same incident and further that incident has occurred in front of house of the respondents/ accused and that hatchets were used from the blunt side. We find that the learned Single Judge of the High Court has also gone through the entire prosecution evidence and defence of the respondents/accused and has perused the same in accordance with the settled principle of law laid down by this Court. No exception could be taken to the finding with regard to appraisal of evidence arrived at by the learned Single Judge."
12. The learned counsel next contended that at the venue of occurrence so many
independent persons were available. All the witnesses are inter -related with each other. The
rule of caution requires independent corroboration of interested wit nesses. With due respect
we do not agree with the contention of learned counsel for the appellant. The relationship of PWs with the deceased per -se is no ground to discard their statements. The main thing to be
seen is whether the presence of prosecution w itnesses at relevant time was natural or not and
whether the prosecution explained the presence of P.Ws at the place of occurrence at the relevant time? The principle of accepting the testimony of interested witness is set out in
case Nazir v. The State PL D 1962 SC 269. The interested witnesses are one who had motive
for false implicating the appellant for any act of enmity. In case Khalil Ahmed v The State 1976 SCMR 161 the testimony of the deceased's son aged 15 years was accepted. His statement was consi dered corroborated by injuries on his person. In case of Allah Ditta v.
The State, 1970 SCMR 734, the testimony of four prosecution witnesses out of which two had sustained injuries was accepted although they were related with the deceased, because they we re natural witnesses. The injuries sustained by two prosecution witnesses proved their
presence and involvement in the occurrence. Reference can also be made to the case of Muhammad Akbar v. Muhammad Khan PLD 1988 SC 274 and Shehruddin v. Allah Rakhio 1989 SCMR 1461 wherein the testimony of injured witnesses were accepted.
13. Admittedly the eye witnesses were related to the deceased. The complainant,
deceased and witnesses are inter se closely related to each other, but on this score their statements could not be discarded. The inter se relationship of prosecution witnesses who
stood firm on the test of lengthy cross -examination cannot be discarded. It is intrinsic value
of prosecution witnesses' statements which is to be examined on relationship. In this r egard
reference can be made to the case of Riaz Hussain v. The State 2001 SCMR 177 and Manawar Ali v. The State 2001 SCMR 614.
14. The defence has not disputed the venue of occurrence and presence of deceased and
ocular witnesses. The evidence of eye -witnesses proved that the appellant fired on deceased
due to which he succumbed to the injuries. The defence has not denied the occurrence. The
defence has not put his plea to the witnesses rather the defence witness DW- 1 Asmatullah
admitted the occurrence, bu t had taken the plea that the appellant was not present. The eye-
witnesses were natural witnesses. They were as good as any other independent witnesses. The defence has failed to bring on record any ill will or grudge qua the PWs. Reference is
made on the case of Umerzad v. The State 1990 SCMR 571, Bashir Khan v. The State 1995
SCMR 900.
15. The question with regard to silence of the witnesses about presence of each other at
the time of occurrence cannot be termed not present at the spot or planted subseque ntly being
interested or inimical. The record reflects that the statements of injured witnesses PW -3, PW -
4 and PW -6 are in line with the statement of complainant. PW -1 admitted that there was no
enmity with the appellant. It appeared that the occurrence had taken place suddenly when the
accused party had blocked the road where the injured and deceased reached at the place of occurrence. The complainant party insisted for opening of the way. The scuffle took place. The appellant fired on the deceased due to which he succumbed to the injuries. Both the parties were known to each other, therefore, there was no misidentification of the appellant. All the eye -witnesses are unison that the appellant had fired upon the deceased. The
occurrence had taken place on 31 st May, 2003. The appellant was arrested on 24th
September, 2015 after twelve (12) years of registration of FIR. The learned counsel for the appellant contended that the statements of prosecution witnesses are contradictory which could not be based for conviction. The same contention has no force. Due to lapse of time some minor contradictions may appear in the statements of prosecution witnesses. It is by now well settled that minor discrepancies in the testimony of prosecution witnesses in respect of exact timing of past murder ancillary proceedings and omissions, improvement
cannot be termed as dishonest without establishing animosity of the witnesses against the appellant. Reliance is made on the case of Sarfraz alias SAPPI. The State 2000 SCMR 1758 wher ein it was held:
"9. To counter his arguments learned counsel for complainant Mr. Malik Saeed Hassan pointed out that P.W -1 Ahmad Khan though is the father of the deceased
Muhammad Azam but he has no personal reasons to involve the appellants in the commi ssion of offence. Besides it, his testimony gets strong corroboration from the
contents of FIR Exh.PC/1 which was lodged promptly. According to him medical evidence is not at variance to ocular evidence of PW.2 and PW.3. Learned counsel further advancing his case pointed out that as far as PW.3 Sakhawat Hussain is concerned he is an independent witness of the incident and he had strongly supported the version of PW. Ahmad Khan and there is absolutely no reason to disbelieve the testimony of this witness. Ac cording to him during cross -examination of both the
witnesses i.e. PWs. Ahmad Khan and Sakhawat Hussain no material questions were put to them to shake intrinsic value of their evidence. Therefore, testimony of both these witnesses being consistent, cohere nt and trustworthy has rightly been believed
by the learned High Court as well as trial Court."
16. The appellant was nominated in the FIR Ex.P/8 -A dated 31st May, 2003. The challan
of the case was submitted wherein the appellant was declared proclaimed of fender by the
trial court. The appellant was arrested on 20 September, 2015. It appears that all the
nominated accused and acquitted accused were nearly related. Though the trial court while
recording statement of appellant under Section 342 Cr.P.C did not ask question of willful
absconsion. The appellant opted to record statement on oath as envisaged under Section 340(2) Cr.P.C wherein admitted that he remained absconded for twelve years. Under Article 113 Qanun- e-Shahadat Order, 1984 when a fact is admitt ed the same is not to be proved. It
would be beneficial to reproduce Article 113 Qanun- e-Shahadat Order, 1984:
Article -113. Facts admitted need not be proved. No fact need be proved in any
proceeding which the parties thereto or their agents agree to admi t at the hearing, or
which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by the pleadings .
Provided that the Court may, in its discretion, require the facts admitted to be proved
otherwise than by such admissions."
17. There is no cavil to the proposition that factum of abscondence cannot altogether be
ignored and corroborative value of the absconsion curries substantial weight. Reliance is placed on Mawas Khan v. The State PLD 2004 SC 330 and Bashir Ahmed Leghari v. The State 2020 SCMR 595.
18. Now adverting to the recovery of crime weapon. As discussed supra the appellant was
arrested after twelve years of lodging of FIR. It is impossible that the accused retained the crime weapon with him in long span of time. Even otherwise the factum to recover weapon of offence during the investigation for any reason would not be sufficient to suggest that the accused was not armed. The recov ery of crime weapon only tends corroboration to other
piece of evidence. In case of Ashfaq Asghar v. Hafeez 2013 YLR 2620 Lahore, it was held:
"Recovery of incriminating material is not necessary to record conviction if ocular account is convincing and worthy of credit as in the present case which also finds support from medical evidence."
19. The learned counsel contended that the presence of witnesses not shown in the site
plan Ex.P/8 -D. The dictum laid down by the honorable apex Court that the site plan is not
substantive piece of evidence, but being confirmatory in nature, therefore, mere omission to mention the position of eye witnesses in the site plan is not fatal to the prosecution case. Reliance is placed on the case of Ali Sher v. The State, PLD 1 980 SC 317.
20. The learned counsel lastly contended that the statements of prosecution witnesses had
been discarded by the trial court in respect of the trial held against accused Abdul Samad and Abdul Raheem, whereas the appellant has been convicted and sentenced by the trial court on
the same set of evidence. The case of the appellant is distinguished to that of acquitted accused. All the eye witnesses stated that the bullet was fired by the appellant. The appellant's hand was unanimously confirmed by t he witnesses.
21. In criminal trial doctrine of abundant caution in regard of conviction and acquittal
applicable. Honorable Supreme Court in case of Muhammad Rafiq alias Neela v. The State 2020 SCMR 664 held:
"------Doctrine of abundant caution is a silver lining in our jurisprudence to ensure
safe administration of criminal justice and application thereof does not necessarily
imply destruction of entire volume of evidence, if otherwise found sufficient to sustain the centrality of the charge-----"
22. The case of the appellant is distinguishable with the nominated or acquitted co-
accused. Reliance is made on the case of Aurangzeb v. The State, 2020 SCMR 612 in which it was held:
"5. Prosecution case is primarily hinged upon ocular account furnished by Ha qnawaz
(PW -1) and Munir Hussain (PW -2); former is father of the deceased whereas the
latter is former's collateral; their close relationship notwithstanding, both of them have plausibly explained purpose of their presence at the crime scene; they had assem bled to watch a Kabaddi match, annually held by tradition at a nearby
mausoleum. To the extent of role assigned to the petitioner in the crime report, they remained consistent and straightforward: their failure qua the co- accused and
complainant's recourse to a supplementary statement in order to nominate unknown
assailants, though an embarrassing failure for the prosecution, however, does not tremor its mainstay. Assembly of the accused in the stated numbers, in a festivity, is a
possible scenario; they ap pear to have been let off by the learned trial Court out of
abundant caution, an option found by us most expedient in circumstances; their
departure does not cast away the case against the petitioner, singularly blamed for the crime."
23. The citations rel ied upon by the learned defence counsel for distinguishable. The
honorable august Court held in case Khan alias Khani v. The State, 2006 SCMR. 1744:
" ------It is a settled law that each and every case is to be decided on, its own peculiar
circumstances and fact and verdict given in a criminal case must be confined to the facts of the reported case and cannot be universally applied to all cases. --"
24. The appellant recorded his statement on oath under Section 340(2), Cr.P.C and
produced one defenc e witness. The appellant alleged he was not present at the venue of
occurrence on due time. On the other hand the prosecution produced eye -witnesses who
categorically sated that the appellant fired on deceased. This fact was supported by MLC Ex.P/7- A. The Statement of each account was found to be trustworthy, while the appellant
failed to prove plea of alibi. When the accused took plea of Alibi it was the accused who has to prove the same. Reliance is placed on the case of Khushi Muhammad v. The State 1983 SCMR 697.
25. It appears from the record that the appellant made single fire on the deceased. The
occurrence was taken place suddenly. The prosecution has not alleged any motive for commission of the crime. The circumstances in which the occurrence took place would lead to an inference that due to something the occurrence was suddenly happened, thus it was not a case of death penalty. Therefore, in view and circumstances of the case we alter the conviction and sentence of the appellant from death penalty t o imprisonment for life under
Section 302(b) P.P.C. and liable to pay compensation of Rs.500,000/ - (Rupees five hundred
thousand) within the mandate of Section 544- A Cr.P.C to the legal heirs of deceased and in
default thereof to further suffer six months simple imprisonment. Benefit of Section 382 -B
Cr.P.C is also extended to the appellant.
With the above modification/alteration in conviction and sentence of the appellant the
instant appeal is disposed of and the murder reference is answered in negative.
JK/98/Bal. Orders accordingly.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,
let us know.