2023 M L D 1154
[Balochistan]
Before Zaheer- ud-Din Kakar and Shaukat Ali Rakhshani, JJ
ABDUL BARI alias HAKEEM BARI ---Appellant
Versus
The STATE--- Respondent
Criminal Jail Appeal No. 15 of 2022, decided on 10th October, 2022.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Ocular account supported by
medical evidence ---Accused was charged for committing murder of the brother of
complainant by firing--- Ocular account of the occurrence had been furnished by three eye -
witnesses---Testimony of said eye -witnesses had been found to be consistent, confidence
inspiring and truthful, who at no stage deviated from their version, rather during cross -
examination the occurrence got cemented, leaving no room to doubt their statements ---As far
as the medical account furnished by Medical Officer was concerned, she had confirmed the
ocular account by stating that on examination she observed an entrance wound on back of chest measuring 0.5 centimeter, making an exit - wound in front of chest measuring 1 x 1
centimeter, damaging vital organs ---During cross -examination nothing favourable could be
extracted in favour of the accused, which could diminish its evidentiary value ---In such
situations, the Court had come to a firm conclusion that the testimony of eye -witnesses were
trustworthy and confidence inspiring, which had given a fair account of the occurrence with specific role to the accused for committing murder of deceased and confirmed by the medical evidence, which was sufficient enough for the proof of the indictment ---Appeal against
conviction was dismissed, in circumstances.
(b) Penal Code (XLV of 1860)---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Recovery of pistol on the pointation
of accused ---Reliance--- Accused was charged for committing murder of the brother of
complainant by firing--- As far as recovery of pistol on the disclosure and pointation of
accused was concerned, though, the recovery through such disclosure had become relevant,
but not sufficient enough to place reliance on such piece of evidence in a case of capital punishment, despite there being a positive Forensic Science Labora tory Report ---Empty was
recovered on 28.08.2019, whereas the pistol was recovered on 12.09.2019, but instead of sending the empties and pistol separately, both were sent to Forensic Science Laboratory together on 19.09.2019, which had diminished their evidentiary value ---More -so, perusal of
the Forensic Science Laboratory Report had also been found to be inconclusive and non-speaking, giving no reason at all as to how many and which points were found similar, to
conclude that the empty shells of 30 bore were similar to the test bullet casing---Thus, on
such score as well the Forensic Science Laboratory Report was of no help to the case of prosecution--- Circumstances established that the prosecution had proved its case against the
accused through ocular account supported by medical evidence ---Appeal against conviction
was dismissed, in circumstances.
2006 SCMR 1847; 2020 MLD 1557 and 2020 PCr.LJ 1236 ref.
Mushtaq v. The State PLD 2008 SC 1 and Ali Sher v. The State 2008 SCMR 707 rel.
Barkhurdar Khan Achakzai for Appellant.
Habib -ur-Rehman Baloch, Special Prosecutor ANF for the State.
Date of hearing: 5th October, 2022.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J. ---Abdul Bari alias Hakim Bari, the appellant was
indicted in a case emanating from FIR
(Ex.P/1 -A) bearing No.119 of 2019 registered within the precincts of Police Station
Gawalmandi, Quetta, by complainant Muhammad Azam (PW -1), who was tried and found
guilty of the charge under section 302(b) of the Pakistan Penal Code, 1860 ("Penal Code") and convicted and sentenced for life imprisonment with fine of Rs.500,000/ - (Rupees five
lakhs) for committing murder of deceased Muhammad Qasim by learned Sessions Judge, Quetta ("Trial Court").
2. Condensed but relevant facts of the case are that on the fard -e-bayan (Ex.P/1- A) of
complainant Muhammad Azam (PW -1) crime report ibid was lodged that while he was
sitting in a shop near his house, he received information that his brother Muhammad Qasim has been fired at, who has been shifted to Civil Hospital, Quetta, thus, he rushed, where he found his deceased brother in a pool of blood; he was informed that while his brother Muhammad Qasim (deceased) was present along with his friends Hasti Khan, Abdul Malik, Abdul Bari alias Hakim Bari (appellant) at the house of their common friend Muhammad Rafiq (PW -8), at about 11:20 p.m., at night Abdul Bari alias Hakim Bari on some altercation
fired at his brother, whereby the bullet pierced at the back of his body, who was brought in an injured condition by Hidayatullah and Shabir Ahmed to the hospital, but he could not make it and succumbed.
After registration of the FIR (Ex.P/11- A), Muhammad Siddiq SI (PW -11) was
entrusted with the investigation; he prepared inquest report in the hospital, proceeded to the crime scene and prepared site plan and collected bloodstained articles and thereafter secured the bloodstained clothes of the deceased. Appellant Abdul Bari alias Hakim Bari was arrested, who on 12.09.2019, who made disclosure and on his pointation a TT pistol was recovered. On conclusion of the investigation, he was put on the trial, where after denial of
the indictment of murder the prosecution produced eleven witnesses and on closure of the
prosecution side, the appellant was examined under section 342, Cr.P.C., whereof the allegations made were refuted, but he did not opt to lead defence, concluding into a verdict of guilt.
3. Learned counsel for the appellant inter alia contended that the testimonies of eye -
witnesses are contradictory in nature, which does not ring true, therefore, the conviction recorded on the basis of such untrustworthy evidence, is unsustainable and no reliance can be placed thereon. He maintained that the recovery so made has been foisted against the appellant to strengthen the case of the prosecution. Added further that the FSL report is also inadmissible as the same was sent along with the empties at a belated stage, which is contrary to the dictum expounded by the apex Court, thus, no reliance can be placed upon the recovery of pistol. He relied upon the judgments reported as 2006 SCMR 1847, 2020 MLD 1557 and 2020 PCrLJ 1236.
Conversely, learned APG vigorously opposed the contentions so put forth by learned
counsel for the appellant and submitted that the prosecution has proved the case through confidence inspiring and tangible evidence furnished by Muhammad Azam (PW -1), Gul
Baran (PW- 5), Abdul Malik (PW -7) and Muhammad Rafiq (PW -8), which has been
corroborated by recovery of crime weapon and its positive FSL report. According to him, the prosecution has proved the case beyond any reasonable doubt, thus, appeal merits to be dismissed.
4. Heard. Record scanned and analyzed with the able assistance of learned counsel for
the adversarial parties. The case of the prosecution rests upon the ocular account furnished
by Gul Baran (PW -5), Abdul Malik (PW -7) and Muhammad Rafiq (PW -8), medical evidence
and recovery of the crime weapon wedded with the positive FSL report of pistol recovered on the pointation of the appellant. As far as the homicidal demise of the deceased Muhammad Qasim is concerned, the same has not been disputed by the defence in any manner, which otherwise, through MLC (Ex.P/9- A) has been proved that the deceased
succumbed by firearm injuries.
5. Gul Baran (PW -5) gave a detailed account of the occurrence by deposing that on
27.08.2019 at about quarter past 11 p.m., he was present in the guestroom of Muhammad Rafiq (PW -8), where Muhammad Qasim (deceased), Hasti Khan, Muhammad Rafiq (PW -8)
and Abdul Malik (PW -7) were present and in the meanwhile; as Abdul Malik (PW- 7) went
outside, after ten minutes, the appellant came and asked the deceased to decrease the volume of his mobile phone, which culminated into an altercation; however, the appellant wen t out
and after two minutes returned back and fired at deceased on his back, piercing into his body, making an exit from his chest; Abdul Malik tried to catch hold of the appellant, but the appellant succeeded to make his escape good. According to him, Hasti Khan and he followed the appellant, but they also failed to apprehend him; they returned back; in the meanwhile, Muhammad Bashir and Hidayatullah took the deceased to the hospital, where Muhammad Azam (PW- 1) and other family members came there. He was cross -examined with regard to
timing of the occurrence, positions of the eye -witnesses at the time of firing made by the
appellant, reaching the hospital, taking the deceased to the hospital by Muhammad Bashir
and Hidayatullah, but his testimony couldn't be shaken as he remained firm and
straightforward. He was suggested that Muhammad Rafiq (PW -8) and deceased had fought
several times, which was denied by him. Abdul Malik (PW -7) testified on the similar lines as
deposed Gul Baran (PW -5). He by all means corroborated his testimony. He also gave a
detailed ocular account of the unfortunate episode of murder, which took place amongst the
friends on a trifle matter at the spur of the moment, which obviously was not a premeditated
plan. He was taken to the task of cross -examination on various aspects of the occurrence, but
his testimony went unshaken. His statement has been analyzed by us minutely but he has
remained firm and did not deviate at all.
6. Muhammad Rafiq (PW -8) is also a crucial witness as the unfortunate incident had
taken place at his guestroom. He testified that on the fateful day, he along with Hasti Khan, Abdul Malik (PW -7), deceased Muhammad Qasim, appellant Abdul Bari and Gul Baran
(PW -5) were present in the guestroom and that in the meanwhile, when he went to fetch
water, he heard fire shots from his guestroom, thus, he and his wife rushed and saw the deceased fallen on the ground, whereas appellant Abdul Bari was running towards the street (lane), holding a pistol in hand, followed by Abdul Malik (PW -7) and other friends to
apprehend the appellant but did not succeed. Later he (PW- 8) was apprised as to how the
appellant fired at Muhammad Qasim (deceased). He was also cross -examined at length but
his testimony could not be shattered. During cross -examination, he further elaborated and
gave the details of the occurrence.
The testimony of said eye -witnesses who furnished the ocular account have been
found by us to be consistent, confidence inspiring and truthful, who at no stage deviated from their version, rather during cross -examination the occurrence got cemented, leaving no room
to doubt their statements.
7. One of the grounds of the learned counsel so agitated before us was that since one of
the eye- witness namely Hasti Khan was not produced before the court, thus, as contemplated
under Article 129(g) of the Qanun- e-Shahadat Order, 1984, inference can be drawn that had
he appeared, he would have not supported the prosecution case. In this regard it may be observed that the Hon'ble Supreme Court has time and again held that the number of prosecution witnesses does not matter, but the quality of evidence matters, which is the prime essence and that it is the prerogative of the prosecution to produce the witness of its own choice. In the instant case, aforesaid witnesses have fully established the occurrence and indictment, as such, in the peculiar circumstances of the instant case, non -production of the
said witness is immaterial and does not effect the case of the prosecution; thus, such assertion of the learned counsel is discarded.
8. As far as the medical account furnished by Dr. Ayesha Faiz (PW- 9) is concerned, she
has confirmed the ocular account by stating that on examination she observed an entrance wound left side back of chest 0.5 centimeter, making an exit wound right side front of chest 1 x 1 centimeter, damaging vital organs. During cross -examination nothing favourable could
be extracted in favour of the appellant, which could diminish its evidentiary value.
9. As far as recovery of pistol on the disclosure and pointation of appellant is concerned,
albeit, the recovery through such disclosure has become relevant, but not sufficient enough to
place reliance on such piece of evidence in a case of capital punishment, even despite there being a positive FSL report. The empty was recovered on 28.08.2019, whereas the pistol was recovered on 12.09.2019, but instead of sending the empties and pistol separately, both were sent to FSL together on 19.09.2019, which has diminished the evidentiary value as it offends
the dictum expounded in the cases of "Mushtaq v. The State" (PLD 2008 SC 1) and "Ali Sher
v. The State" (2008 SCMR 707). More -so, perusal of the FSL report (Ex.P/11- J) has also
been found by us to be inconclusive and non- speaking, having no reason at all as to how
many and which points were found similar, concluding that the empty shells of .30 bore were
similar to the test bullet casing. Thus, on this score as well the FSL report is of no help to the case of prosecution.
The case laws referred by learned counsel have been gone through, whereof there can
be no other cavil except to rely upon the dicta expounded in those cases, but since the facts and circumstances of the instant case are different, therefore, the aforesaid judgments are distinguished.
10. In view of the above discussion, we have come to a firm conclusion that the testimony
of eye -witnesses are trustworthy and confidence inspiring, which has given a fair account of
the occurrence with specific role to the appellant for committing murder of deceased Muhammad Qasim and confirmed by the medical evidence, which is sufficient enough for the proof of the indictment.
11. Thus, we concur with the findings arrived at by the Trial Court in awarding
conviction and sentence to the appellant as we have found the impugned judgment to be
based on proper appraisal of evidence, suffering from no infirmity. Suffice it to say that since the occurrence has taken place at the spur of the moment between the two friends on a trifle matter, so evident from the fact that a single fire was shot, demonstrating that murder was not a premeditated one, having no motive, therefore, we believe that the sentence of life imprisonment shall serve the purpose, hence maintained accordingly.
For what has been discussed above, the appeal being bereft of the merits is dismissed.
JK/180/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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