2023 M L D 1344
[Balochistan (Sibi Bench)]
Before Abdullah Baloch and Rozi Khan Barrech, JJ
GULZAR and another ---Appellants
Versus
The STATE--- Respondent
Criminal Jail Appeal No. (s) 24 of 2021, decided on 27th September, 2022.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b), 324 & 34---Qatl -i-amd, attempt to commit qatl- i-amd, common intention ---
Appreciation of evidence ---First Information Report lodged promptly---Accused were
charged for making firing upon two brothers of the complainant, due to which they received
injuries and later on one of them succumbed to the injuries ---Record showed that the FIR
was lodged by the complainant within thirty minutes of the occurrence and all the accused including the present accused were specifically named with definite roles assigned to each of them ---Circumstances established that the prosecution had proved its case against the
accused beyond any shadow of doubt ---Appeal against conviction was dismissed, in
circumstances.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b), 324 & 34---Qatl -i-amd, attempt to commit qatl- i-amd, common intention ---
Appreciation of evidence---Ocular account supported by medical evidence---Accused were charged for making firing upon two brothers of the complainant, due to which they received injuries and later on one of them succumbed to the injuries ---Ocular account of the
occurrence had been furnished by complainant and injured being eye -witnesses ---Said
witnesses attributed the role of firing to the accused persons ---Said witnesse s gave a
consistent and straightforward ocular account of the occurrence ---Despite conducting
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 ---Medical evidence was in complete harmony
with the ocular testimony of the complainant and injured witness, and no conflict could be pointed out to create a dent in the prosecution case ---Med ical evidence of the deceased was
produced by Medical Officer, who conducted a postmortem of the deceased---According to the postmortem report, the death occurred due to damage of vital organs, i.e. lung, major vessels and excessive blood loss ---Testimony of the said witness had also been corroborated
by recovery of blood- stained earth, blood- stained garments of the deceased, recovery of
crime empties and positive report of Forensic Science Laboratory--- Said recovery had been
duly proved through recovery wi tnesses and nothing adverse could be achieved despite
cross -examination ---Medical evidence produced by the prosecution also supported and
corroborated the testimony of the eye -witnesses and no contradiction at all could be pointed
out by the defense ---Circumstances established that the prosecution had proved its case
against the accused beyond any shadow of doubt ---Appeal against conviction was dismissed,
in circumstances.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b), 324 & 34---Qatl -i-amd, attempt to commit qatl- i-amd, common intention ---
Appreciation of evidence ---Natural witnesses present at the spot ---Accused were charged for
making firing upon two brothers of the complainant, due to which they received injuries and
later on one of them succumbed to the injuries ---Record showed that the presence of the said
witnesses on the spot was proved, and the name of the witnesses was also mentioned in the promptly lodged FIR without any delay---At the same time, the Investigation Officer recorded the statements of eye- witness/injured witness soon after the occurrence ---
Complainant and injured/eye -witness was the real brothers of the deceased ---Said witnesses
were residents of the vicinity ---Distance between the place of occurrence and the house of
the complainant was 30/35 steps ---Eye-witnesses had given a plausible explanation for their
presence on the spot at the relevant time---Injured witness also supported the prosecution case since he sustained injuries on his person and was immediately shifted to the hospital where Medical Officer examined him and issued a medical certificate according to which the injured received injuries by means of firearms ---Thus, the presence of injured witness was
also established ---Circumstances established that the prosecution had proved its case against
the accused beyond any shadow of doubt ---Appeal against conviction was dismissed, in
circumstances.
Abdul Rauf and others v. Mehdi Hassan and others 2006 SCMR 1106 and
Muhammad Waris v. The State 2008 SCMR 784 rel.
(d) Penal Code (XLV of 1860)---
----Ss. 302(b), 324 & 34---Qatl -i-amd, attempt to commit qatl- i-amd, common intention ---
Appreciation of evidence ---Related witnesses, evidence of ---Reliance ---Accused were
charged for making firing upon two brothers of the complainant, due to which they received injuries and later on one of them succumbed to the injuries ---Defence objected that only
witnesses who were real brothers of the deceased were produced, thus the case of prosecution was lacking independent corroboration--- Validity ---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---Eye -witnesses were real brothers of deceased ---Being close
relatives of the deceased, the said witnesses were subjecte d to lengthy cross -examination, but
nothing advantageous was brought on record, inconsistent with the case against the accused, who were implicated by the said witnesses ---No serious enmity whatsoever was alleged
against them, and besides that being the real brothers, the question of substitution of the real
culprits with that of accused persons did not arise, which otherwise was a rare phenomena ---
Circumstances established that the prosecution had proved its case against the accused
beyond any shadow of doubt ---Appeal against conviction was dismissed, in circumstances.
Allah Ditta v. The State PLD 2002 SC 52 rel.
(e) Penal Code (XLV of 1860)---
----Ss. 302(b), 324 & 34---Qatl -i-amd, attempt to commit qatl- i-amd, common intention ---
Appreciation of evidence ---Recovery of crime weapons on instance of accused persons ---
Reliance---Joint recovery---Not admissible ---Accused were charged for making firing upon
two brothers of the complainant, due to which they received injuries and later on one of them succumbed to the injuries ---So far as the alleged recovery of shotgun and 7mm rifle at the
instance of both the accused persons and positive report of Firearms Expert were concerned,
the prosecution produced Head Constable in that regard---According to his version on
01.10.2019, the accused made disclosure in the presence of the Investigation Officer about the commission of the offence ---On disclosure and pointation of the accused shotgun and
7mm rifle were recovered on their pointation from the bushes ---Said witness stated during
cross -examination that the accused produced shotgun and rifle ---On the other hand,
Investigating Officer stated in his statement that on 30.08.2020, the accused made a disclosure, and on their pointation 7mm rifle and a shotgun were recovered--- Major
contradictions in the statements of both the said witnesses were found in respect of the recovery of alleged crime weapons ---Investigation Officer stated during cross -examination
that both the accused were taken together for recovery of crime weapons ---According to both
the said witnesses the said recovery was jointly effected from both the accused persons
therefore, such recovery was not admissible---Said shotgun and 7mm rifle were recovered from an open area, and it was not recovered from the residence of the accused persons ---Said
aspect of the matter also caused reasonable doubt in respect of the recovery of crime weapons ---Even if the recovery of crime weapons was excluded from consideration being
legally inconsequential, direct evidence in the form of ocular account furnished by the complainant and injured/eye- witness were confidence -inspiring, which was supported by the
medical evidence--- Circumstances established that the prosecution had proved its case
against the accused beyond any shadow of doubt ---Appeal against conviction was dismissed,
in circumstances.
(f) Penal Code (XLV of 1860)---
----Ss. 302(b), 324 & 34---Qatl -i-amd, attempt to commit qatl- i-amd, common intention ---
Appreciation of evidence ---Delay of one month and twenty six days in sending the crime
weapons and crime empties for analysis ---Effect ---Accused were charged for making firing
upon two brothers of the complainant, due to which they received injuries and later on one of them succumbed to the injuries ---Occurrence allegedly took place on 01.10.2019---As per
the record the crime empties of a 7mm rifle, shotgun and T.T pisto l were recovered from the
place of occurrence on the same date---Alleged recovery of crime weapons, i.e. shotgun and 7mm rifle were effected on 03.08.2020--- As per the record the recovered shotgun and 7mm
rifle and empties were received by the Firearms Expert together on 29.9.2020 with a delay of
one month and twenty- six days ---Sending of crime weapon (shotgun and 7mm rifle) and
bullet empties recovered from the place of occurrence together with a delay of one month
and twenty- six days to Firearms Expert created reasonable doubt in the prosecution case;
therefore, the Firearms Expert report in that regard was inconsequential to the prosecution case---Even if the recovery of crime weapons was excluded from consideration being legally
inconsequential, direct evidence in the form of ocular account furnished by the complainant
and injured/eye -witness were confidence- inspiring, which was supported by the medical
evidence--- Circumstances established that the prosecution had proved its case against the
accused beyond any shadow of doubt ---Appeal against conviction was dismissed, in
circumstances.
Jameel Akhtar Gajani, A.P.G. for the State.
Date of hearing: 14th September, 2022.
JUDGMENT
ROZI KHAN BARRECH, J. ---The appellants Gulzar and Deedar, both sons of
Tahir, were involved in case FIR No.39/2019 registered under sections 302, 324 and 34,
P.P.C. at Police Station Saddar Usta Muhammad District Jaffar Abad and were tried by the learned Sessions Judge Usta Muhammad ("trial court"). The trial court seized with the matter
in terms of the judgment dated 21.09.2021 ("impugned judgment") and convicted and
sentenced the appellants in the following terms:
"8……….and found guilty accused persons Gulzar and Deedar committing the
murder of deceased Jabal with their furtherance of common intention in violation of sections 302(b), 34, P.P.C, the offence participated more convicted under sections 302(b), 34, P.P.C and sentenced to Imprisonment for Life each accused separately with compensation of Rs.200,000/ - (Rupees Two Lac) each accused separately as
envisaged by section 544 -A, Cr.P.C payable to the legal heirs of the deceased Jabal.
In default of payment of compensation, both the accused persons further undergo Six months' Simple Imprisonment for each accused separately. Further, the both accused persons jointly found in violation of section 324, P.P.C injuring Abdul Jabbar with the intention to commit his Qatl -i-amd and awarded sentences both accused for five
(05) years for each accused separately and pay to fine of Rs.100,000/ - (Rupees One
Lac) for each accused separately. In case of non -payment of fine, further undergo, one
(01) year's Simple Imprisonment for each accused separately. The conviction and sentences awarded to accused persons shall run concurrently with benefit of section 382- B, Cr.P.C."
Aggrieved from the impugned judgment, the appellants Gulzar and Deedar have
assailed their conviction and sentence through the titled appeal.
2. The prosecution story, as disclosed in the FIR (Ex.P/1- A) recorded on the statement
of complainant Mir Gul (PW -1), son of Achar Khan, is that on 01.10.2019 at 7:00 p.m. at
Goth Abdul Samad near the house of absconding accused Abul Khair, the accused/appellant Deedar and Gulzar armed with shotguns, absconding accused Abdul Khair armed with T.T
pistol made firing upon brothers of the complainant Jabal and Abdul Jabbar due to which
Jabal and Abdul Jabbar received injuries. Later on, Jabal succumbed to the injuries. Hence, the crime report.
3. After completion of the investigation, the challan was submitted before the trial court.
After a full dressed trial, the appellants were convicted and sentenced vide impugned judgment dated 21.09.2021 in the aforesaid terms, whereafter the instant appeal has been filed.
4. We have heard the learned APG and have also perused the available record with his
able assistance.
5. In order to prove its case, the prosecution produced eight witnesses. Mir Gul (PW -1)
was the complainant and an eye- witness of the case. Abdul Jabbar (PW -2) is an eye -
witness/injured witness of the occurrence. Shahzada (PW -3), who produced an affidavit
regarding the nomination of the acquitted accused Qabool. Raheem Bakhsh, Head Constable (PW -4) who produced site inspection memo, recovery memo of blood- stained earth of
deceased, recovery memo of two empties of a shotgun, T.T pistol and rifle (Ex.P/4- A to
Ex.P/4- F). Imran Ali constable (PW -5) produced blood- stained clothes of deceased and
injured (Ex.P/5- A and Ex.P/5 -B). Qaiser Khan (PW- 6) allegedly, in his presence, the crime
weapons shotgun and 7mm rifle were recovered from the appellants (Ex.P/6 -A to Ex.P/6 -F).
Dr. Allah Bakhsh (PW -7), who examined the dead body of the deceased and injured. He
produced medical certificates (Ex.P/7 -A and Ex.P/7- B). Khameesa Khan SI (PW- 8), who
conducted the investigation of the case.
6. The FIR was lodged by the complainant Mir Gul (PW -1) within thirty minutes of the
occurrence, and all the accused, including the appellants, were specifically named with definite roles assigned to each one of them. PW- 1 Mir Gul and Abdul Jabbar are claimed to
be the eye- witnesses of the occurrence. They stated in their statements that on 01.10.2019,
both the PWs along with deceased Jabal went to the house of the accused Abul Khair to patch up the quarrel between their children on which the absconding accused called them to resolve the issues among them. On their reaching to the house of Abul Khair, fighting erupted between the accused Abul Khair, who threatened of dire consequences that they (complainant, PW -2 Abdul Jabbar and deceased Jabal) would not go alive from there and at
that moment, the accused Abul Khair holding a T.T pistol, accused Gulzar was having a shotgun and accused Deedar was having a rifle, and one unknown person was holding 'Danda' in their hands. Meanwhile, they started indiscriminate firing. He took shelter from the wall and could not do anything because he was empty -handed. After indiscriminate
firing, the accused went towards the north. When he (complainant/PW -1) came out from the
shelter of the walls, his brothers Jabal and Abdul Jabbar were lying in a pool of blood. Jabal died on the spot, and he left Abdul Jabbar on the spot in injured condition and went to the police station to lodge the report.
The above witnesses attributed the role of firing to the appellants. They gave a
consistent and straightforward ocular account of the occurrence. Despite conducting extensive and lengthened cross -examination, nothing was brought on record which may
significantly demonstrate that the above eye -witness' account is false or their presence at the
scene of the crime was doubtful or distrustful.
7. The presence of the said witnesses on the spot was also proved, and the name of the
witnesses is also mentioned in the promptly lodged FIR without any delay. At the same time,
the investigation officer recorded the statements of PW -2 Abdul Jabbar (eye -witness/injured
witness) soon after the occurrence. The complainant/PW- 1 Mir Gul and injured/eye -witness
Abdul Jabbar is the real brothers of the deceased Jabal. They are residents of the vicinity. The distance between the place of occurrence and the house of the complainant is 30/35 steps. They have given a plausible explanation for their presence on the spot at the relevant time.
8. PW-2 Abdul Jabbar, the injured witness, also supported the prosecution case since he
sustained injuries on his person and was immediately shifted to the hospital where PW -7 Dr.
Allah Bakhsh examined him and issued a medical certificate (Ex.P/7 -B) according to which
the injured received injuries by means of firearms. Thus the presence of this injured PW is also established. Under such circumstances, it cannot be further disbelieved that the present appellants were substituted by the real culprits. In this regard, reliance is placed on the judgment of the august Supreme Court of Pakistan titled Abdul Rauf and others v. Mehdi Hassan and others 2006 SCMR 1106, wherein it was held that" -
"Presence of eye- witnesses who had received firearm injuries at the place of
occurrence 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".
This ratio has further been affirmed by the august Supreme Court in the case titled
Muhammad Waris v. The State 2008 SCMR 784, wherein it was held that: -
"Eye -witness had explained their presence at the place of occurrence at the relevant
time and thus, they were natural and independent witnesses of the incident. Medical
evidence was not destructive of the ocular testimony".
9. So far as the production of only witnesses who were real brothers of the deceased
Jabal and that the case of the prosecution is lacking independent corroboration is concerned, 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 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. It is stated earlier that PW -
1/complainant and PW -2 are real brothers of deceased Jabal. Being close relatives of the
deceased, the above witnesses were subjected to lengthy cross -examination, but nothing
advantageous was brought, rendering inconsistent with the case of the appellants, who were implicated by the above PWs. No serious enmity whatsoever was alleged against them, and besides that being the real brothers, the question of substitution of the real culprits with that of appellants does not arise, which otherwise is a rare phenomenon.
Reliance in this regard may be placed on the case of Allah Ditta v. The State PLD
2002 SC 52, wherein it was held as under: -
"……….It is also to be noted that admittedly prosecution, witnesses Muhammad
Sadiq and two others have no enmity of whatsoever nature against Allah Ditta and they have also no reason to falsely involve him in the commission of murder of their brother Muhammad Sabir. In addition to it, it is also not possible for them that they would allow real culprit to go scot -free and falsely involve another person for the
commission of the offence. Even otherwise it is well settled by now that substitution of real culprit is a rare phenomena in our system of criminal justice".
10. It may be observed that the medical evidence is in complete harmony with the ocular
testimony of the complainant and PW -2, and no conflict could be pointed out to create a dent
in the prosecution case. The medical evidence of the deceased was produced by PW- 7 Dr.
Allah Bakhsh. On 01.10.2019, he conducted a postmortem of the deceased Jabal Khan. According to the postmortem report (Ex.P/7- A), the death occurred due to damage of vital
organs, i.e. lung, major vessels and excessive blood loss. Testimony of the above witness has also been corroborated by recovery of blood- stained earth, blood -stained garments of the
deceased, recovery of crime empties and positive report of FSL. The said recovery has been
duly proved through recovery witnesses and nothing adverse could be achieved despite
cross -examination. The medical evidence produced by the prosecution also supported and
corroborated the testimony of the eye -witnesses and no contradiction at all could be pointed
out by the defense.
11. So far as the alleged recovery of shotgun and 7mm rifle at the instance of both the
appellants and positive report of firearms expert (Ex.P/8- H) are concerned, the prosecution
produced Qaiser Khan Head Constable (PW -6) in this regard. According to his version on
01.10.2019, the accused made disclosure in the presence of the investigation officer about the commission of the offence. On disclosure and pointation of the accused shotgun and 7mm, rifle was recovered on their pointation from the bushes at Noor Pur Shakh near Khosa Qabristan. He stated during cross -examination that the accused Gulzar Ahmed produced
shotgun and rifle. On the other hand, Khameesa Khan SI (PW -8) stated in his statement that
on 30.08.2020, the accused made a disclosure, and on their pointation 7mm rifle and a shotgun were recovered. There are major contradictions in the statements of both the above witnesses in respect of the recovery of alleged crime weapons. The investigation officer stated during cross -examination that both the accused were taken together for recovery of
crime weapons. According to both the above witnesses the said recovery was jointly effected from both the appellants; therefore, such recovery was not admissible. The said shotgun and 7mm rifle were recovered from an open area, and it was not recovered from the residence of the accused/appellants. This aspect of the matter also caused reasonable doubt in respect of the recovery of crime weapons.
12. The occurrence allegedly took place on 01.10.2019. As per the record the crime
empties of a 7mm rifle, shotgun, and T.T pistol were recovered from the place of occurrence on the same date. The alleged recovery of crime weapons, i.e. shotgun and 7mm rifle were effected on 03.08.2020. As per the record the recovered shotgun and 7mm rifle and empties were received by the firearms expert together on 29.9.2020 with a delay of one month and
twenty -six days.
13. Sending of crime weapon (shotgun and 7mm rifle) and bullet empties recovered from
the place of occurrence together with a delay of one month and twenty- six days to Firearms
Expert creates reasonable doubt in the prosecution case; therefore, the Firearms Expert report
in this regard is inconsequential to the prosecution case.
14. Even if the recovery of crime weapons is excluded from consideration being legally
inconsequential, it has been observed by us that direct evidence in the form of ocular account furnished by the complainant/PW -1 Mir Gul and injured/eye -witness PW -2 Abdul Jabbar are
confidence -inspiring, which is supported by the medical evidence.
15. 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. The foundation for
constructive liability was the common intention in meeting the accused to do the criminal act and doing such act in furtherance of the 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 appellants
armed with deadly weapons made firing upon the deceased Jabal and injured Abdul Jabbar (PW -2), and due to the firing made by the appellants, the deceased Jabal and Abdul Jabbar
received injuries, and later on, Jabal succumbed to the injuries.
16. Pursuant to the above, we have come to the conclusion that the prosecution has
established its case beyond the shadow of doubt and the conviction and sentence recorded by the trial court are based on correct appreciation of evidence, which does not call for interference; therefore the judgment of conviction and sentence is maintained, in result whereof Criminal Jail Appeal No. (S) 24 of 2021 is dismissed accordingly.
JK/182/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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