2023 M L D 831
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Shaukat Ali Rakhshani, JJ
RABBA and another ---Appellants
Versus
The STATE--- Respondent
Criminal Appeal No. 148 of 2021, decided on 28th October, 2022.
(a) Penal Code (XLV of 1860 )---
----Ss. 302(b), 147, 148 & 149---Qatl -i-amd, rioting, rioting armed with deadly weapon,
unlawful assembly ---Appreciation of evidence ---Ocular account supported by medical
evidence--- Accused were charged that they along with co -accused persons committed murder
of the brother of the complainant by firing--- Ocular account of the incident had been
furnished by complainant and two eye -witnesses--- Complainant reiterated what he had
narrated in the crime report, attributing specific role to the accused persons and proclaimed
offenders of firing with Kalashnikovs upon the deceased, which proved to be fatal,
culminating into the death of deceased at the spot, while he was irrigating his fields ---
Complainant was cross -examined with regard to the timing, distance of firing, registration of
the FIR, but his testimony could not be shattered as he remained firm and consistent ---
Complainant stated that firing was made at a distance of 15 -20 feet after the altercation ---
Said witness denied that he along with eye -witness es were not present at the crime scene---
Eye-witness of the occurrence corroborated the statement of complainant in clear words that
accused persons armed with Kalashnikovs came at the orchard belonging to complainant; had
an altercation with deceased and then fired at him indiscriminately, whereby after sustaining
firearm injuries, he succumbed and the said culprits fled away--- Said witness was cross -
examined, challenging his presence, but he categorically denied the suggestions made by
defence counsel ---Said witness remained firm and consistent to his deposition--- Statement of
said witness had been found to be natural and confidence inspiring---Other eye- witness
unveiled the occurrence in a similar fashion as narrated by the two eye -witnesses--- Said
witnes s also gave the similar account by nominating the accused persons for firing along
with convict and proclaimed offenders upon deceased---During cross -examination, statement
of said witness went unshaken---Presence of said witness was disputed and denied by the
defence counsel ---Complainant and eye -witnesses had proved their presence as their
statements had been found to be confidence inspiring, truthful and natural ---Incident was
stated to have taken place in a day light where the question of mis -identity d id not arise ---
Besides above, felons were well known by the complainant and eye -witnesses ---Accused had
not set up any defence, which could persuade the Court believe that the complainant and eye -
witnesses had falsely implicated the accused persons and let the real culprits go scot -free---
Prosecution through ocular account had proved the indictment to the hilt against the accused persons, leaving no room for other view ---Undisputably, the defence had not questioned and
disputed the unnatural death caused by firearms, including the nature and the locale of the
injuries ---Circumstances established that the prosecution had proved the indictment against
the accused persons beyond any glimpse of doubt --- Appeal against conviction was
dismissed, in circumstances. (b) Criminal trial ---
----Medical evidence--- Scope ---Medical evidence is not a corroborative piece of evidence,
but is meant to confirm the nature and locale of the injury and can not identify the culprit.
Hashim Qasim v. State 2017 SCMR 986 rel.
(c) Cr iminal trial---
----Motive ---Scope ---If the prosecution sets up a motive, then it has to prove it and failure
thereof will merely have an effect upon the quantum of sentence, but mere absence of the motive will not benefit the defence in any way.
(d) Pena l Code (XLV of 1860) ---
----Ss. 302(b), 147, 148 & 149---Qatl -i-amd, rioting, rioting armed with deadly weapon,
unlawful assembly ---Appreciation of evidence ---Sharing of common object and intention---
Scope ---Mitigating circumstances ---Accused were charged that they along with co- accused
persons committed murder of the brother of the complainant by firing ---Sharing of common
object and intention was a phenomenon, which couldbe gathered at spur of the moment, which could be inferred from the peculiar circumst ances of an occurrence---During course of
the instant homicidal event, the nominated accused persons came together at the crime scene, quarreled with the deceased and together made fire shots upon the deceased and without disassociating each other made the ir escape good from the crime scene, which inferred that
while sharing common object and intent, they came at the crime scene and committed murder
of the deceased ---However, since the seat of injuries caused by a specific felon was not
known, thus, this fa ctum could be taken into account as a mitigating circumstance, thus the
conviction and sentence of life imprisonment awarded by the Trial Court were sufficient
enough to serve the purpose ---Circumstances established that the prosecution had proved the
indictment against the accused persons beyond any glimpse of doubt ---Appeal against
conviction was dismissed, in circumstances.
Muhammad Akbar v. State PLD 1991 SC 923 and Askar Jan v. Muhammad Daud
2010 SCMR 1604 rel.
Kamran Murtaza for Appellants.
Syed A yaz Zahoor for the Complainant.
Yahya Baloch, Additional Prosecutor General for the State.
Date of hearing: 6th September, 2022.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J. ---Culpable Homicide of Allah Nawaz (deceased)
age 21 was reported vide application (Ex.P/1- A) submitted by complainant Sahib Jan (PW -1)
brother of deceased on the basis whereof FIR No.Nil of 2003 (Ex.P/6 -A) dated 25.06.2003
within the precincts of Levies Station Barkhan for the offence punishable under sections 302, 147, 148 and 149 of Pakistan Penal Code 1860 ("Penal Code") was registered, subsequently appellants and co -accused Sakhi Jan, Allah Bakhsh (proclaimed offenders) and Din
Muhammad (convict) were booked and after a full -fledge tri al the appellants were found
guilty of the charge, culminating into conviction and sentence in the following terms;
"I) Under section 302(b), P.P.C. as Tazir and sentenced to undergo life imprisonment RI each and to pay fine of Rs. 100,000/ - each, separately to the legal heirs of deceased
Allah Nawaz and in default of payment of the same to further undergo SI for six months each.
II) Under section 147, P.P.C sentenced to undergo six months' RI each and to pay fine of
Rs. 10,000/ - each, separately and in def ault of payment of the same to further undergo
SI for two (2) month's each.
III) Under section 148, P.P.C and sentenced to undergo six months' RI each and to pay
fine of Rs. 10,000/ - each, separately and in default of payment of the same and to
further undergo SI for one month each."
2. Unfurled facts of the case reveals that complainant Sahib Jan (PW -1) by getting
registered the FIR ibid turned the wheels of law into motion by averring therein that at 6:30 p.m., while he was sitting in his orchard along wi th his buzgers Niaz Muhammad (PW -2) and
Khair Muhammad (PW -3) and at a distance his brother Allah Nawaz (deceased) was
irrigating his lands, when appellants Rabba, Darai along with co- accused Sakhi Jan, Allah
Bakhsh (proclaimed offenders) and Din Muhammad (convict) armed with kalashnikovs and rifles came and quarreled with his brother and all of a sudden they opened fire upon his brother, who succumbed on the spot, whereas, the culprits made their way out, whereafter he along with PWs -1 and 2 took the dead body to his house. No animosity was alleged being
motive of the homicidal death of the deceased Allah Nawaz.
3. As the investigation progressed, one of the nominated accused Din Muhammad was
arrested and tried, who was found guilty of the charge on 24.08.2004 and convicted and sentenced under section 302(c) of Penal Code for 25 years' RI by the Trial Court and to pay Diyat amount of Rs.200,000/ - to the legal heirs of deceased inclusive of the section 382- B,
Cr.P.C., which judgment was assailed through an appeal bearing No.271 of 2004 before this Court, which was decided on 21.12.2005, whereby the appeal was dismissed, however, the sentence was altered from 302(c) to 302(b) of Penal Code and he was also convicted and sentenced under section 148 of Penal Code for three years' RI with the benefit of section 382- B, Cr.P.C. The judgment of this Court was impugned before the Hon'ble Supreme Court
through a Jail Petition bearing No. 35 of 2006, which was dismissed for having no merits on
18.05.2006.
4. The appellant s were arrested on and after necessary investigation were put on trial to
face the deeds of their crime and on denial of the charge, prosecution produced seven
witnesses and at close of the prosecution side, the appellants were examined under section 342, Cr.P.C., who refuted the allegations, whereafter neither the appellants stepped into the
witness box to make statement in their defence nor produced any witness in support of their version, thus the Trial Court after scrutiny and appraisal of the evidence returned a verdict of guilt and convicted and sentenced them in the terms as mentioned in para supra.
5. Mr. Kamran Murtaza, learned counsel for the appellants inter alia contended that the
impugned judgment is an outcome of misreading and non- reading of t he material evidence.
He maintained that the prosecution witnesses such as PWs -1 and 2 are chance witnesses, who
were not supposed to be there at the time of occurrence and during trial they have failed to
prove their presence but the Trial Court has unnec essarily placed reliance upon their
testimony. Added further that the recovery and site plan does not coincide with the ocular account, thus, the impugned judgment being founded on improper appraisal of the evidence merits to be set -aside and consequently the appellants deserve acquittal.
The learned APG, adversely, resisted the appeal, repelling the arguments of learned
counsel for the appellants and urged that the prosecution has proved the case and there is no doubt at all in the guilt of the convicts. He supported the judgment and requested for dismissal of the appeal.
Syed Ayaz Zahoor, learned counsel for the complainant vigorously argued that the
ocular account furnished by PWs -1 to 3 are confidence inspiring and truthful, whose
testimony have not be en shaken at all by the defence. He rebutted that there is any conflict in
the circumstancial evidence with the ocular account and that PWs -2 and 3 are chance
witnesses. He further asserted that the prosecution has proved the case to the hilt, therefore, the appeal merits to be dismissed.
6. Heard. Record pondered upon cover to cover with utmost muse and care. The case of
the prosecution mainly hinges upon the ocular account furnished by Sahib Jan complainant (PW -1), Niaz Muhammad (PW -2), Khair Muhammad (PW -3), medical evidence furnished by
Dr. Sher Zaman (PW -4). Complainant (PW -1) reiterated what he had narrated in the crime
report ibid, attributing specific role to the appellants, convict Din Muhammad and
proclaimed offenders of firing with kalashnikovs upon the deceased Allah Nawaz, which
proved to be fatal, culminating into the death of deceased at the spot, while he was irrigating
his fields. He was cross- examined with regard to the timing, distance of firing, registration of
the FIR, but his testimony c ould not be shattered as he remained firm and consistent. He
stated that firing was made at a distance of 15 -20 feet after the altercation. He denied that on
25.06.2003, he along with Niaz Muhammad (PW -2) and Khair Muhammad (PW -3) were not
present at the crime scene.
Niaz Muhammad (PW -2) being the eye -witness of the occurrence corroborated the
statement of Sahib Khan (PW -1) in clear words that Rabba, Darai, Sakhi, Din Muhammad,
Allah Bakhsh armed with kalashnikovs came at the orchard belonging to Sahib Ja n (PW -1);
had an altercation with deceased Allah Nawaz and then fired at him indiscriminately, whereby after sustaining firearm injuries, he succumbed and the said culprits fled away. He was cross -examined, challenging his presence and being buzger, but he categorically denied
the suggestions made by defence counsel. He remained firm and consistent to his deposition. His statement has been found by us to be natural and confidence inspiring. Khair Muhammad (PW -3) unveiled the occurrence in a similar fashion as narrated by the said two eye -
witnesses. He also gave the similar account by nominating the appellants with firing along with convict Din Muhammad and proclaimed offenders Sakhi Jan and Allah Bakhsh upon deceased Allah Nawaz. During cross -examination, hi s statement went unshaken. His
presence was disputed and denied by the defence counsel.
The complainant Sahib Jan (PW -1), Niaz Muhammad (PW -2) and Khair Muhammad
(PW -3) have proved their presence as their statements have been found by us to be
confidence inspiring, truthful and natural. The incident is stated to be had taken place in a
day light where the question of mis -identity does not arise. Besides above, felons were well
known by the complainant and eye -witnesses. The appellants have not set up any defence,
which could persuade us to believe that the complainant (PW -1) and eye -witnesses (PWs -2
and 3) have falsely implicated the appellants and let the real culprits go scot -free.
The contention of the learned counsel for the appellants that PWs -2 and 3 are chance
witnesses is not weightful as both of them have proved their presence through their trustworthy deposition. Had Niaz Muhammad (PW -2) and Khair Muhammad (PW -3) been
chance witnesses, even then their statements could not be brushed aside merely f or such
reason. They were buzgers, so their presence on fields and orchards is natural as their statements rings true and confidence inspiring, who have no axe to grind against the appellants.
1
7. After due scrutiny we have no doubt in mind that the prosecution through ocular
account has proved the indictment to the hilt against the appellants, leaving no room for other view. Indisputably, the defence has not questioned and disputed the unnatural de ath
caused by firearms, including the nature and the locale of the injuries. So it be, otherwise the prosecution has proved the unnatural death through medical evidence, confirming the ocular account.
We are mindful of the settled principle that the medic al evidence is not a
corroborative piece of evidence, but is meant to confirm the nature and locale of the injury
and cannot identify the culprit.2 The medical evidence confirms the homicidal death of the
deceased with firearm. Dr. Sher Zaman (PW- 4) conduc ted postmortem of deceased Allah
Nawaz on 25.06.2003 and observed the following injuries;
"1. Fire arm injury on left side of the chest below left nipple and exit back of left scapula.
2. Fire arm injuries on right side of the chest above right nipple and exit back on left
scapula.
3. Fire arm injuries on epigastria region and exit back of vertebral column.
Source of injuries: Fire arm weapon.
Cause of death : Due to damage of vital organs, for expel liver heart.
Nature of injuries : Fatal"
8. Since no motive has been set up, therefore, it may only have an impact upon the
quantum of punishment but else not. It is well settled principle of law that if the prose cution
sets up a motive, then it has to prove it and failure thereof shall merely have an effect upon
the quantum of sentence, but mere absence of the motive would not benefit the defence in
any way.
9. Sharing of common object and intention is a phenomenon, which can be gathered at
spur of the moment, which can be inferred from the peculiar circumstances of an
occurrence.3 During course of the instant homicidal event, the nominated accused persons
came together at the crime scene, quarreled with the deceas ed and together made fire shots
upon the deceased and without disassociating each other made their escape good from the
crime scene, which infers us to believe that while sharing common object and intent, they came at the crime scene and committed murder o f the deceased. However, since the seat of
injuries caused by a specific felon is not known, thus, this factum can be taken into account as a mitigating circumstance
4, thus the conviction and sentence awarded by the Trial Court in
the terms ibid are sufficient enough to serve the purpose.
10. Besides above, the Hon'ble Supreme Court while dismissing the petition on
18.05.2006 of convict Din Muhammad observed as infra;
"No reason exists why the three eye -witnesses who were found to be natural witnesses
of the occurrence being owner/cultivators of the land adjacent to the place of
occurrence, should not be believed. The two learned courts were one in placing reliance on the said ocular testimony and in returning the verdict of guilt against the petitioner.
2. We have, once again, examined the record with the able assistance of the learned
counsel for the petitioner -convict but could not find any material which could
persuade us to interfere with the said concurrent conclusions of guilt reached by the said two learned courts. The convict had already been shown leniency in the matter of
quantum of punishment.
3. In this view of the matter, we find no merit in this petition which is accordingly dismissed. Leave refused."
11. Epitome of the above critical analysi s of the evidence has persuaded us to hold that
the prosecution has proved the indictment against the appellants beyond any glimps of doubt, therefore, the appeal fails and culminates into dismissal.
JK/186/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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