2022 M L D 1346
[Balochistan (Sibi Bench)]
Before Muhammad Ejaz Swati and Rozi Khan Barrech, JJ
BADAR- UD-DIN ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No.(S)06 of 2021, decided on 14th April, 2021.
(a) Penal Code (XLV of 1860) ---
----Ss.302(b) & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Presence of
eyewitnesses at the place of occurrence was justifiable--- Scope ---Accused was charged that
he along with his co- accused committed the murder of brother of the compla inant and also
injured the witness ---Record showed that FIR was lodged within twenty- five minutes of the
occurrence and the accused, along with the absconding accused were specifically nominated
therein ---Complainant and two eyewitnesses had furnished ocul ar account of the incident ---
Said witnesses attributed the role of firing to the accused and absconding accused ---
Eyewitnesses gave a consistent and straightforward ocular account of the occurrence ---
Despite extensive and lengthy cross -examination, nothing was brought on record, which
might significantly demonstrate that the said eye -witness account was false or their presence
at the scene of the crime was doubtful or distrustful ---Presence of the said witnesses on the
spot was also proved and the name of t he witnesses were also mentioned in the promptly
lodged FIR without any delay---Investigation Officer had recorded the statement of another witness under S.161, Cr.P.C., after the occurrence ---Said witnesses gave a plausible
explanation for their presence at the spot at the relevant time ---Injured witness also
supported the prosecution witnesses, since he sustained injuries on his person and was immediately taken to the hospital where Medical Officer prepared his injury sheet and he was shifted to hospital for further treatment ---Circumstances established that the prosecution
had proved its case against the accused beyond the shadow of doubt ---Appeal against
conviction was dismissed accordingly.
Abdul Rauf and others v. Mehdi Hassan and others 2006 SCMR 1106 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34--- Qatl-i-amd, common intention---Appreciation of evidence ---Related
and interested witnesses ---Scope ---Accused was charged that he along with co -accused
committed the murder of brother of the complainant, and also injured the witness ---In the
present case, defence objected that only interested witnesses were produced by the prosecution and the case of the prosecution lacked independent corroboration---Held, mere
relation of witnesses with the deceased was no ground to discard their testimonies, if their
evidence was found entirely independent and truthful, therefore, their testimony, without looking for any other corroborative evidence, would alone be sufficient to establish the charge---Evidence of related witnesses who were not found inimical and were confidence -
inspiring would hardly need any corroboration---Complainant was the brother of the
deceased and injured and eyewitness were relatives of the complainant ---Being a close
relative of the deceased, the said witnesses were subjected to lengthy cross -examination, but
nothing advantageous was brought, rendering the case of the accused inconsistent ---No
serious enmity, whatsoever, was alleged against them and besides that being the real brother
and cousins of the deceased, the question of substitution of the real culprits with that of the
accused did not arise, which otherwise was a rare phenomena--- Circumstances established
that the prosecution had proved its case against the accused beyond the sha dow of doubt ---
Appeal against conviction was dismissed accordingly.
(c) Penal Code (XLV of 1860)---
----Ss.302(b) & 34--- Qatl-i-amd, common intention---Appreciation of evidence ---Ocular
account and medical evidence---Corroboration--- Accused was charged th at he along with co-
accused committed the murder of brother of the complainant and also injured the witness ---
Medical evidence was in complete harmony with the ocular testimony of eyewitnesses ---No
conflict could be pointed out to create a dent in the pros ecution case---Circumstances
established that the prosecution had proved its case against the accused beyond the shadow of doubt ---Appeal against conviction was dismissed accordingly.
(d) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Recovery
of crime empties and weapon of offence ---Scope ---Accused was charged that he along with
co-accused committed the murder of brother of the complainant and also injured the witness -
--Six bullet empties of T.T pistol were taken into possession by the Investigation Officer from the place of occurrence---Investigating Officer also took the blood- stained earth and
clothes of the deceased and the injured through recovery memo in the presence of witnesses --
-Investigating Officer arrested the accused and on his pointation the crime weapon, i.e. T.T
pistol was recovered from his house and the same was taken into possession through recovery memo in the presence of the witnesses ---Investigating Officer sent parcel of the
bullet empties and parcel of the crime weapon to the firearm expert and obtained a positive report ---Investigating Officer also obtained a positive report regarding blood- stained clothes
and blood stained earth of the injured and the deceased ---Testimony of the eyewitnesses had
been corroborated with the recovery of bullet empties, crime weapon, blood- stained earth
and blood- stained garments of the deceased and injured and positive report from the Forensic
Science Lab oratory and Firearm Expert ---Said recoveries had been duly proved through
recovery witnesses ---Circumstances established that the prosecution had proved its case
against the accused beyond the shadow of doubt ---Appeal against conviction was dismissed
accor dingly.
Muhammad Jameel for Appellant.
Jameel Akhtar Gajani, APG for the State.
Date of hearing: 26th March, 2021.
JUDGMENT
ROZI KHAN BARRECH, J. ----Appellant Badar -ud-Din, son of Dad Muhammad
allegedly murdered Barkat Ali and caused injuries to Abdul Ghaffar by means of firearms at
Sohbat Pur Road near A -one City Gola Petrol Pump District Jaffarabad within the precincts
of Police Station Dera Allah Yar at about 3:00 pm on 28th May 2019 in the backdrop of
motive that the son of the complainant namely G hulam Muhammad contracted court
marriage with the sister of absconding accused Abdul Rehman. For the commission of the said offence, the appellant was booked in case of FIR No. 79 of 2019, registered at the said
police station on the day of the incident at 3:25 p.m. After a regular trial, the appellant was
convicted vide judgment dated 30th December 2020 ('the impugned judgment') passed by
learned Additional Sessions Judge, Dera Allay Yar ('the trial Court') under section 302(b), P.P.C., and sentenced to su ffer life imprisonment as Ta'zir to pay compensation of
Rs.2,00,000/ - to the legal heirs of deceased in terms of section 544 -A Cr.P.C and in default
thereof to further suffer simple imprisonment for six months. The appellant was also convicted under section 324 Q&D and sentenced to suffer five years' R.I and to pay a fine of Rs.20,000/ - and in default thereof to further suffer S.I for three months with the benefit of
section 382- B, Cr.P.C.
Being aggrieved from the impugned judgment, the appellant has filed the instant
appeal.
2. We have heard the learned counsel for the appellant as well as learned APG and have
gone through the record with their able assistance. In the case, in hand, the FIR was lodged within twenty -five minutes of the occurrence, and the a ccused/appellant, along with the
absconding accused were specifically nominated therein. PW- 1 Muhammad Umer is the
complainant of the case. PW- 2 Abdul Ghaffar is injured/eyewitness of the occurrence. PW -4
Abdul Baqi has claimed to be another eyewitness of the occurrence. They stated in their
statement that on 28.05.2019, they and the deceased Barkat Ali came to Dera Allah Yar city for some domestic work. While returning home at about 3:00 pm when they reached near A -
one City Gola Petrol Pump where the compl ainant and Muhammad Aslam, went to the office
of the petrol pump while the deceased Barkat Ali, who is a brother of the complainant, and injured Abdul Ghaffar (PW -2) were filling petrol. In the meanwhile, two motorcycles ridden
by Abdul Ghaffar, Abdul Rehm an, sons of Abdul Hayi (absconding accused), Badar -ud-Din
(appellant) and two unknown culprits
armed with T.T pistols raised lalkara and started firing upon the brother of the
complainant Barkat Ali, and Abdul Ghaffar (injured) who received injuries and later on
Barkat Ali succumbed to the injuries. The above witnesses attributed the role of firing to the
appellant and absconding accused. They gave a consistent and straightforward ocular account
of the occurrence. Despite extensive and lengthy cross -exam ination, nothing was brought on
record, which may significantly demonstrate that the above eye -witness's account is false or
their presence at the scene of the crime was doubtful or distrustful.
3. The presence of the said witnesses on the spot was also proved, and the name of the
witnesses are also mentioned in the promptly lodged FIR without any delay. At the same time, the investigation officer has recorded the statement of PW -4, namely Abdul Baqi under
section 161 Cr.P.C., after the occurrence. H owever, they gave a plausible explanation for
their presence at the spot at the relevant time. PW- 2 Abdul Ghaffar, the injured witness, also
supported the prosecution witnesses since he sustained injuries on his person and was immediately taken to the hosp ital where PW -3 Dr. Shaukat Ali Khosa prepared his injury
sheet and he was shifted to Chandka Medical Hospital Larkana for further treatment.
4. It has also come on record that his statement was recorded by the investigation officer
on 02.06.2019 within four days at Chandka Medical Hospital Larkana. PW -6 Abdul Ghani,
SI, who conducted an investigation of the case also stated during cross -examination that
injured Abdul Ghaffar was in an unconscious state that is why he did not record his statement under sect ion 161, Cr.P.C., on 28.05.2019.
The other witnesses also stated during cross -examination that PW -2 Abdul Ghaffar
was in an unconscious state when he received injuries. In the above circumstances, explanation has come on record with regard to recording the statement of the injured witness with such delay. Thus the presence of this prosecution witness is also established. Under such circumstances, it cannot be further disbelieved that the present appellant was substituted
by the real culprits. In this regar d, reliance is placed on the judgment of august Supreme
Court of Pakistan titled Abdul Rauf and others v. Mehhi Hassan and others 2006 SCMR 1106, wherein it was held that" -
"Presence of eye witnesses who had received firearm injuries at the place of occur rence at the relevant time was not open to any doubt. None of the eye witnesses
was shown to have any motive or ill -will to maliciously implicate the accused in the
case".
So far as the plea of the learned counsel for the appellant that only interested
witnesses were produced by the prosecution and the case of the prosecution lacks
independent corroboration, suffice to state here that mere relation of witnesses with the deceased is no ground to discard their testimonies if their evidence is found entirely independent and truthful, therefore, their testimony without looking or for any other corroborative evidence, would alone be sufficient to establish the charge. The evidence of related witnesses who are not found inimical and are confidence- inspiring would hardly need
any corroboration. PW -1/complainant is the brother of the deceased Barkat Ali, and injured
Abdul Ghaffax (PW -2), and Abdul Baqi (PW -4) are relatives of the complainant.
Being a close relative of the deceased, the above witnesses were subjected to lengthy
cross -examination, but nothing advantageous was brought, rendering inconsistent to the case
of the appellant, who was implicated by the above PWs. No serious enmity whatsoever was
alleged against them, and besides that being the real brother a nd cousins, the question of
substitution of the real culprits with that of the appellant does not arise, which otherwise is a
rare phenomena.
5. It may be observed that the medical evidence is in complete harmony with the ocular
testimony of PW -1, PW -2 and PW-4, and no conflict could be pointed out to create a dent in
the prosecution case. PW -3 Dr. Shaukat Ali Khosa produced the medical certificate of the
deceased as well as of the injured/PW- 2 as Ex.P/3 -A and Ex.P/3- B, according to which the
deceased recei ved two injuries by means of firearms and the injured also received two
injuries by means of firearms.
6. The other corroborating piece of evidence with the ocular evidence; i.e. recovery of
six bullet empties of T.T pistol which was taken into possession by the investigation officer PW-6 on 28.05 2019 from the place of occurrence who prepared parcel No.3. He also took
the blood -stained earth and clothes of the deceased and the injured through recovery memo
in the presence of witnesses. He arrested the accu sed/appellant, and during the course of the
investigation the accused/appellant disclosed about the occurrence and on his pointation the crime weapon, i.e. T.T pistol was recovered from his house on 07.08.2019, and the same was taken into possession through recovery memo in the presence of the witnesses and prepared parcel No.6. The investigation officer sent parcel No.3 of the bullet empties and parcel No.6 of the crime weapon to the firearm expert and obtained a positive report Ex.P/6 - H. The
investigatio n officer also obtained a positive report regarding blood- stained clothes and
blood stained earth of the injured and the deceased Ex.P/6- F. The testimony of the above
eyewitnesses has been corroborated with the recovery of bullet empties, crime weapon, blood-stained earth and blood -stained garments of the deceased and injured and positive
report from the FSL and Firearm expert. The said recoveries have been duly proved though recovery witnesses, and nothing adverse could be achieved despite cross -examinatio n.
7. So far, the contention of learned counsel for the appellant to the effect that six bullet
empties were recovered on 28.05.2019 from the place of occurrence and recovery of crime weapon was alleged effected on the pointation of the appellant on 07.08.2019, and both the crime weapon and the bullet empties were sent together to the FSL on 19.09.2019 is concerned, it may be observed that the investigation officer PW -6 and recovery witness PW -
5 Muhammad Hanif have no enmity with the accused/appellant neither they are relatives of
the deceased nor inimical towards the accused, therefore, it is impossible to say that they foisted a crime weapon upon the appellant falsely and there is nothing on record to establish that either the investigation officer t empered with the alleged parcels of crime weapon. Even
if the recovery of crime weapon is excluded from consideration, it has been observed that direct evidence in the form of ocular account furnished by the complainant/PW -1, PW -2 and
eyewitness PW- 4 are c onfidence -inspiring, which is supported by the medical evidence.
8. We have no hesitation to hold that the prosecution has been successful to prove its
case against the appellant beyond reasonable doubt and concluding so, it has been observed by us that no specific role to the accused/appellant Badruddin and absconding accused was
attributed. The complainant and the eyewitness attributed general role to the accused/appellant, the nominated absconding accused and two unknown accused in the
commission of the offence, and according to the above witnesses, all the accused made firing
upon the deceased Barkat Ali and injured Abdul Ghaffar and both of them received injuries.
On the other hand, according to the medical certificates, the deceased and the injured received two injuries each, and the investigation officer took six bullet empties of T.T pistol from the place of occurrence.
9. So far as the principle of constructive liability is concerned vis -à-vis Section 34,
P.P.C., if several persons would unite with a common purpose to do any criminal offence, all
those who assist in the completion of their object, would be equally guilty. Foundation for constructive liability was the common intention in meeting the accused to do the criminal act and the doing of such act in furtherance of common intention to commit the offence. In order
to constitute an offence under section 34, P.P.C., it is not required that a person should necessarily perform any act with his own hand. If several persons had the common intention of doing a particular criminal act and if, in furtherance of their common intention, all of them
joined together and aided or abetted each other in the commission of an act, then one out of them could not actually with his own hand, do the act but if he helps by his presence or by
other act in the commission of an act, he would be held to have himself done that act within the meaning of section 34, P.P.C. Paramount consideration is whether the offence has been
committed in furtherance of the common object. In the case in hand, both the appellant and
absconding accused armed with deadly weapons waited for the deceased and injured, their presence at the scene of the crime was also corroborated by the eye -witnesses' with their
roles as a result of which one person lost his life, and the other received severe injuries.
10. Pursuant to the above, we have come to the conclusion that the prosecution has
established its case beyond the shadow of doubt and conviction and sentence recorded by the
trial Court is based on c orrect appreciation of evidence, which does not call for interference;
therefore the judgment of conviction and sentence is maintained, in result whereof Criminal Appeal No.06 of 2021 is dismissed accordingly.
JK/88/Bal. 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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