2023 M L D 766
[Balochistan]
Before Naeem Akhtar Afghan and Sardar Ahmed Haleemi, JJ
SAJID ALI ---Appellant
Versus
The STATE--- Respondent
Criminal Jail Appeal No. (T) 8 of 2021, decided on 12th October, 2022.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Accused was charged for committing
murder of the brother of the complainant ---Record showed that the complainant promptly got
registered FIR against unknown persons, but on the same day when he got kn owledge about
the involvement of the accused in the commission of offence through eye -witness, he got
recorded his supplementary statement, wherein he nominated the accused---According to
eye-witness, he had seen the occurrence while coming from bazar to h is home on his
motorcycle and when he reached near date trees, he saw the accused firing upon deceased with pistol due to which he became scared and ran away to his home on his motorcycle, and when he came to know that victim had succumbed to the injuries he went to the house of
deceased and told his brother/complainant about the occurrence and involvement of the accused ---Eye -witness of the occurrence was a natural witness and had no enmity for false
implication of accused ---Complainant had attributed spec ific role of firing to the accused
resulting in death of deceased ---Statement of eye -witness was corroborated in material
aspects with statement of witness who along with Medical Officer took the deceased to the hospital ---Deceased succumbed to the injuries on his way to hospital ---Deceased was
examined by Medical Officer who issued Medico- Legal Certificate which revealed an oral
firearm entrance wound in posterior aspect of left renal angle with no exit wound---Inquest report also supported the firearm inj ury of the deceased ---Statement of eye- witness being
natural witness of occurrence corroborated with recovery of crime empties, crime weapon, bloodstained mud and clothes of deceased and Medico -Legal Certificate ---Such
incriminating evidence was sufficient for maintaining the conviction and sentence of
accused ---Circumstances established that the prosecution had proved its case beyond any
shadow of doubt --- Appeal against conviction was dismissed accordingly.
Gulistan v. State 1995 SCMR 1789 and Niaz -ud-Din and others v. The State 2011
SCMR 725 rel.
(b) Penal Code (XLV of 1860)---
----S. 302(b) --- Qatl-i-amd---Appreciation of evidence ---Recovery of incriminating material -
-- Reliance --- Accused was charged for committing murder of the brother of the
complai nant---Statement of recovery witness corroborated the recovery of one empty of
pistol from the place of occurrence, recovery of bloodstained mud and bloodstained clothes
of deceased and the recovery of crime weapon on the pointation of accused--- Positive r eport
of the firearm expert proved that the recovered crime empty had been fired from the
recovered crime weapon ---Recovery of crime weapon on the pointation of accused from the
place which was not in knowledge of anybody was admissible in the circumstance s of the
case under Art. 40 of Qanun- e-Shahadat, 1984 ---Circumstances established that the
prosecution had proved its case beyond any shadow of doubt ---Appeal against conviction
was dismissed accordingly.
Zakir Khan v. State 1995 SCMR 1793 rel.
Zareen Dashti for Appellant.
Sudheer Ahmed, Deputy P.G. for the State.
Date of hearing: 9th September, 2022.
JUDGMENT
SARDAR AHMED HALEEMI, J. ---This Criminal Jail Appeal has been filed by the
appellant through Superintendent Central Prison, Gaddani against the judgment dated 28th
December 2020 (hereinafter the "impugned judgment") passed by the learned Sessions Judge (MCTC), Panjgur (hereinafter the "trial Court"), whereby the appellant was convicted and
sentenced in the following manner: -
"The appellant is convicted under section 302(b), P.P.C. and sentenced to suffer imprisonment for life with fine of Rs.100,000/ - (Rupees One Lac Only) as
compensation to be equally distributed among the legal heirs of deceased and in default of payment of fine, the appellant shall further suffer R.I for six (06) months.
Benefit of section 382- B, Cr.P.C. was also extended in favour of the appellant.
2. The prosecution story, in brief, is that on 26th December 2019, the complainant
namely Sajjad Fida registered an FIR No. 206 of 2019 under section 302, Q&D against
unknown persons at Police Station, Panjgur, to the effect that his brother namely Waqar was targeted by some unknown accused in date palms in Khudabadan area while he was going to his duty on his CD/70 motorc ycle at 12:00 p.m, who was shifted to hospital by Muhammad
Umar and others in injured condition, but he succumbed to injuries. Hence this report.
On the same day i.e. 26th December 2019, the complainant submitted his
supplementary statement (Ex.P/2 -B) wit h the averments that Hatim has informed him that
accused Sajid (the appellant) had made firing at deceased Waqar, due to which he succumbed to injuries.
3. After registration of FIR No.206/2019, the investigation was entrusted to PW -11 Asif
Ali SI of conce rned police station, who carried out the formal investigation.
4. PW-11 was duty officer on the said date, he received the information that someone
has got injured due to firing in the Khudabadan in date palms was shifting to hospital; on
such information he along with police officials reached Civil Hospital Panjgur, where found
dead body of deceased Waqar; prepared inquest report (Ex.P/11- D); secured the bloodstained
cloths of deceased (Ex.P/9 -B); recorded the statement of witnesses; no postmortem of
deceased was conducted; the dead body was handed over to his relatives; PW -2 brother of
deceased submitted application for registration of FIR (Ex.P/2- A); visited the place of
occurrence (Ex.P/11 -B); secured bloodstained mud (Ex.P/7- A) and an empty, one live bu llet
of pistol (Ex.P/7- B); seized the motorcycle of deceased (Ex.P/10 -A); thereafter the
complainant submitted his supplementary statement (Ex.P/2 -B); appellant was arrested on
27.12.2019; during investigation, on the pointation of appellant recovered the crime weapon i.e. 9 mm pistol with five (05) live rounds (Ex.P/7- B); prepared sitemap of recovery of pistol
(Ex.P/11- C); registered separate FIR under section 13 -e of the Arms Ordinance, 1965; sent
the pistol with empties to ballistic expert for analysis a nd bloodstained mud and clothes to
the laboratory; after receiving report of ballistic expert (Ex.P/11 -F); FSL report of
bloodstained mud and cloths (Ex.P/11- E) and on completion of investigation, the challan was
submitted before the trial Court and the tr ial commenced.
5. The trial Court framed the charge against the appellant, to which he pleaded not guilty
and claimed trial.
6. The prosecution examined as many as eleven (11) witnesses; after completion of
prosecution evidence, the appellant was examined under section 342, Cr.P.C, to which he
denied the allegations levelled against him, he neither examined himself on oath as envisaged under section 340(2), Cr.P.C, nor produced any witness in his defence.
7. The trial Court convicted and sentenced the appel lant vide impugned judgment.
Hence, this appeal.
8. Learned counsel for the appellant contended that except PW- 4, there was no other
witness to support the version of prosecution; that the appellant has falsely been involved in the instant case; that the trial Court has failed to properly appreciate the evidence on record and wrongly convicted and sentenced the appellant.
9. On the other hand, the learned Deputy Prosecutor General while supporting the
impugned judgment passed by the trial Court stated that the appellant has been involved in a
murder case; that on his pointation the crime weapon was also recovered from his possession, therefore, the appellant is not entitled for any leniency, as such the impugned judgment is liable to be sustained.
10. Arguments heard and record perused.
11. Perusal of record reveals that the complainant (PW -2) promptly got registered FIR
against unknown persons, but on the same day when he got knowledge about the involvement of the appellant in the commission of offence through PW -4 Hatim, he got
recorded his supplementary statement (Ex.P/2- B), wherein he nominated the appellant.
According to PW -4 Hatim he had seen the occurrence while coming from bazar to his home
on his motorcycle and when reached near date trees in Kh udabadan area, he saw the
appellant making firing upon Waqar Fida (deceased) with pistol due to which he become
scared and ran away to his home on his motorcycle and when he came to know that Waqar has succumbed to the injuries he went to the house of dece ased and told his
brother/complainant about the occurrence/involvement of the appellant.
PW-4 Hatim being eye -witness of the occurrence is a natural witness and has no
enmity for false implication of appellant. PW -2 has attributed specific role of firing to the
appellant resulting in death of deceased Waqar.
12. The statement of PW -4 is corroborated in material aspects with statement of PW- 3
who along with Dr. Abdul Samad took the deceased to the hospital. The deceased Waqar Fida succumbed to the injuries on his way to hospital. The deceased was examined by PW -1
Dr. Nasratullah who issued MLC (Ex.P/1- A) which reveals of an oral firearm entrance
wound in posterior aspect of left renal angle with no exit wound. The inquest report (Ex.P/11- D) also supports the firearm injury of the deceased.
13. The statement of PW -4 Hatim being natural witness of occurrence corroborated with
recovery of crime empties, crime weapon, bloodstained mud and clothes of deceased and MLC are sufficient incriminating evidence for maint aining the conviction and sentence of
appellant. The conviction and sentence of the appellant on the solitary statement of PW -4 is
supported by the case of Gulistan v. State 1995 SCMR 1789, wherein it was held as under: -
"The conviction of the appellants rested on the solitary statement of Muzaffar Khan
P.W.4. No doubt, in a criminal case the conviction of an accused can be based on the statement of one witness without corroboration but the condition is that the witness should be absolutely dependable."
Similar view was taken in the case of Niaz- ud-Din and others v. The State (2011
SCMR 725). The relevant portion is reproduced as under: -
"Even in a murder case conviction can based on the testimony of a single witness, if the Court is satisfied that he is reliable. The reason being that it is the quality of evidence and not the quantity which matters".
14. The ocular evidence further corroborates with the recovery of crime weapon on the
pointation of appellant (Ex.P/6- A) with positive report of ballistic ex pert (Ex.P/11 -E) who
opined as under: -
(i) The 9 mm bore pistol is presently in working condition/order.
(ii) The crime empty shell of 9 mm bore marked as "C" present in parcel No.3, having been fired with 9 mm bore pistol present in parcel No.5.
15. The statement of PW- 7 further corroborates the recovery of one empty of pistol from
the place of occurrence, recov ery of bloodstained mud and bloodstained clothes of deceased
and the recovery of crime weapon on the pointation of appellant. The positive report of the
firearm expert proves that the recovered crime empty has been fired from the recovered crime weapon. Si nce the recovery of crime weapon on the pointation of appellant from the
place which was not in knowledge of anybody is admissible in the circumstances of the case under Article 40 of Qanun- e-Shahadat Order, 1984. Reliance in this regard is placed on the
case of Zakir Khan v. State 1995 SCMR 1793, wherein it was held as under: -
"Article 40 of Qanun- e-Shahadat which next follows the said Articles provides that,
when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. It means that a confessional statement made to a police officer or in presence of a police officer would be inadmissible in evidence
unless it leads to discovery of a fact. In fact Article 40 operates as a proviso to the preceding Articles. However, in order to make any such information admissible, what
is required to be established by the prosecution is that any Article or such other evidence discovered during the investigation of a case in consequence of information supplied by the accused connects him with the crime. The information supplied by one accused in this case led to another accused which in consequence of the information supplied by the latter, led to the discovery of incriminating evidence against him, connecting each of them with the crime. There being no doubt about the admissibility of su ch evidence under Article 40 of Qanun- e-Shahadat, the Court was
only left to consider sufficiency of such evidence against each of the appellants to connect him with the crime. Such evidence, as pointed out earlier, was therefore, admissible under Article 40 of Qanun- e-Shahadat."
15(sic.) On reappraisal of prosecution evidence, it is concluded that prosecution has
proved that on 26th December, 2019, brother of the complainant namely Waqar was murdered by the appellant.
16. The conviction and sentence awarde d to the appellant by the trial Court is not
suffering from any illegality or irregularity warranting interference by this Court in appellate jurisdiction.
For the above reasons, the appeal is dismissed.
JK/177/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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