2012PCr.LJ646
[Balochistan]
Before Muhammad Hashim Khan Kakar and Muhammad Noor Meskanzai, JJ
MUHAMMAD RAFIQ ---Appellant
Versus
THE STATE ---Respondent
Criminal Appeal No. 39 of 2009, decided on 30th November, 2011.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl-e-amd---Appreciation of evidence ---Ocular account of occurrence was
straightforward and confidence -inspiring--- Presence of eye-witnesses at the scene of
occurrence was not doubtful ---Parties being known to each other, misidentification of
accused was out of question--- Prosecution witnesses having no direct animosity with.the
accused, could not be termed as interested witnesses due to their relationship with the
deceased ---Ocular evidence did not suffer from any material contradiction, discrepancy or
inherent infirmity and was consistent with the probabilities fitting materially with other
evidence--- Promptly lodged F.I.R. conta ining the specific role of accused had elimingted the
chance of deliberation or consultation on the part of complainant ---Accused had not denied
the incident in his examination and statement on oath recorded under Ss. 342 and 340(2), Cr.P.C., but had dispu ted the manner of incident ---Prosecution version was more probable
than defence version ---Negative report of firearm expert being purely a corroborative piece
of evidence, was not sufficient to discard the ocular testimony corroborated by medical evidence and motive, and was not fatal to prosecution version--- Conviction and sentence of
accused were upheld - in circumstances.
Muhammad Amin v. The State 2000 SCMR 1784; Amir Khan v. The State 2000 SCMR 1885 and Sarfraz alias Sappi v. The
' State 2000 SCMR 1758 ref.
(b) Penal Code (XLV of 1860)---
----S. 302(b) --- Qatl-e-amd--- Appreciation of evidence --- Interested witness, description and
credibility of ---Interested witness is one who has a motive for false implication of accused, is a
partisan and is in volved in the matter against the accused ---Friendship or relationship with the
deceased is not sufficient to discredit a witness, particularly when there is no motive for false involvement of accused.
Muhammad Amin v. The State 2000 SCMR 1784 ref.
(c) Penal Code (XLV of 1860)---
----S. 302(b) ---Qatl -e-amd---Appreciation of evidence ---Ocular and medical evidence in
conflict ---Contradictory medical .evidence cannot outweigh the confidence -inspiring oral
evidence of a truthful witness.
Amir Khan v. The State 2000 SCMR 1885 and Sarfraz alias Sappi v. The State 2000 SCMR
1758 ref.
(d) Penal Code (XLV of 1860)---
----S. 302(b) --- Qatl-e-amd--- Appreciation of evidence --- Medical opinion---Opinion of a
doctor is not binding upon the courts ipso fact o, but court has to see the opinion expressed by a
doctor if to be acceptable in the light of well recognized principles of medical jurisprudence.
Tahir Hussain and Abdul Sattar Kakar for Appellant.
Haji Liaqat Ali for the State. .
Date of hearing: 23rd November, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---This appeal is presented against the
judgment dated 5th January, 2009, passed by the Additional Sessions Judge, Lasbella at Hub,
whereby appellant Muhammad Rafique son of Muhammad Umar was convicted and
sentenced under section 302 of the P.P.C. to suffer life imprisonment with a compensation of Rs.50,000 (rupees fifty thousand only) to be paid to the legal heirs of deceased Ali Hassan and a compensation of Rs.10,000 (rupees ten thousand only) to be paid to injured Mst. Taj Bibi and the convict/appellant was ordered to be kept in custody till realization of the aforesaid compensation amount, with the benefit of section 382- B of the Cr.P.C.
2. Complainant Ali Sher (P.W.1) in his Fard- e-Bayan (Exh.P/1- A), alleged that on 26th May,
2008 at about 5- 00 p.m., he, along with his brother Muhammad Bakhsh, returned home from
job and came to know that Mst. Maryyam, who happens to be the wife of Muhammad Bakhsh and sister of Muhammad Rafique, we nt to her brother Muhammad Rafique's house
due to annoyance. According to the complainant, at about 9- 15 p.m., his other brother Ali
Hassan also came home and as he came to know about the fact, he rushed to the house of Muhammad Rafique. Thereafter, they ( complainant and Muhammad Bakhsh) also reached
the house of Muhammad Rafique, where Muhammad Rafique was not present, however, Liaquat and Rahim were found present there. They were talking with each other regarding annoyance of Mst. Maryyam, in the meanwhil e, Muhammad Rafique, who was having a TT
pistol in his hand, came there and started abusing, whereupon Rahim and Liaquat also attacked them with fists and kicks. During the course of scuffle, accused Rafique started firing with pistol, due to which a fire hit the chest of his brother Ali Hassan, who fell down and expired on the spot, whereas Mst. Taj Bibi, who happens to be the wife of the complainant and had reached at the spot later on, got bullet injury on her head. Consequently,
a case vide F.I.R. of 20 08, under sections 302, 324 read with section 34 of the P.P.C. was
registered at police station Hub City District Lasbella.
3. After registration of F.I.R. Exh.P/9- A, investigation of the case was entrusted to P.W.9
Muhammad Rafiq, IP, who visited and in spected the site, prepared site sketch Exh.P/9- B,
collected two crime empties of TT pistol vide memo, secured blood- stained earth of deceased
Ali Hassan vide memo Exh.P/8- A, seized the dead body of the deceased vide memo,
prepared inquest report Exh.P/9- E, took the accused to police station, where in presence of
DSP, the accused during course of interrogation made disclosure regarding commission of
the offence and in consequence whereof, recovery of crime weapon i.e. TT pistol was effected on his pointation from his house, which was taken into possession vide recovery
memo. The dead body of the deceased was shifted to hospital and was released to its heirs without conducting postmortem examination on their request and the doctor concerned issued death certif icate, whereas the injured Mst. Rahima Bibi, Mst. Taj Bibi and Mst. Hajira
Bibi had already been referred to Karachi for treatment, whose statements under
.section 161,
Cr.P.C. were recorded by the Investigating Officer on their arrival. After completion of the investigation, incomplete challan Exh.P/9- F was prepared and on receiving report Exh.P/9- G
of Firearm Expert regarding pistol and empties another incomplete challan Exh.P/9- H was
prepared.
4. On the stated allegations, a formal charge was framed and read over to co -
accused/appellant, to which he did not plead guilty and claimed trial. The prosecution, in order to prove the accusation, produced and examined nine witnesses. P.W. Ali Sher is complainant of the case, who exhibited his Fard -e-Bayan Exh.P /1-A. P.W.2 Muhammad Jan,
soon after hearing the fire shots, reached at the site, found people gathered outside the house of the accused Muhammad Rafique and a TT pistol in accused's hands who asked everybody not to move forward and threatened to kill all of them. He saw the dead body of the deceased in pool of blood. P.W.3 Gul Hassan, SI, is witness to the recovery memos Exh.P/3- A,
Exh.P/3- B and Exh.P/3 -C regarding the crime empties, TT pistol and its licence as well as
disclosure memo. Exh.P/3- D of the ac cused and memo of pointation Exh.P/3- E of the place
of occurrence. P.W.4 Mst. Hajira Bibi and P.W.5 Mst. Taj Bibi (injured) alleged to have witnessed the occurrence. P.W.6 Dr. Shabbir Ahmed, Medical Officer, examined the dead body of the deceased as well a s injured and issued death certificate Exh.P/6 -A and Medico
Legal Certificate Exh.P/6 -B. P.W.7 Sikandar, ASI, is witness to the recovery of blood-
stained clothes of the deceased vide memo Exh.P/7 -A. P.W.8 Muhammad Waqas Ahmed
ASI is witness to the blood- stained earth vide memo Exh.P/8 -A and recovery memo Exh.P/8-
B regarding examination and personal search of the dead body. P.W.9 Muhammad Rafiq, IP
is the Investigating Officer of the case. Then the prosecution closed its side.
5. In his examination, recorded under section 342 of the Cr.P.C., the appellant denied and
controverted each and every allegation of fact, levelled against him by the prosecution and
professed his innocence. He recorded his statement on oath as envisaged under section
340(2) of the Cr .P.C. and produced D.W.1 Khuda Bakhsh and D.W.2 Mst. Zareena in his
defence.
6. On conclusion of the trial, the trial Court found the prosecution's case against the appellant
to have been proved beyond reasonable doubt and, thus, the appellant was convicted and
sentenced, as mentioned and detailed above.
7. We have heard learned counsel for the parties and have gone through the record with their valuable assistance. It has been submitted by learned counsel for the appellant that
prosecution had failed to prove its case against the appellant beyond reasonable doubt and,
thus this a ppeal warrants acceptance with a resultant acquittal of the appellant. On the
contrary, learned State counsel has maintained that prosecution had succeeded in proving the
guilt of the appellant to the hilt and, therefore, present appeal deserves dismissal.
8. As far as the unnatural death of deceased Ali Hassan son of Abdul Rahim is concerned, the same has not been seriously disputed by the defence. Dr. Shabir Ahmed, Medical Officer, Jam Ghulam Qadir Hospital, Hub, who had conducted the external examinati on of deceased
and examined the injured Mst. Taj Bibi wife of Ali Sher, has come forward as P.W.6 and furnished the detail of injuries, observed by him on the corpse of deceased- Ali Hassan as
well as on the person of injured Taj Bibi. According to his opin ion, there was an entrance
wound below left scapula with exit about 3 cm from right
. nipple of chest caused with
firearm and the probable cause of death was cardio respiratory failure. In this regard, he
produced the Medico Legal Certificate Exh.P/6- A as well as medico legal certificate
Exh.P/6- B regarding the injuries sustained by P.W.5 Mst. Ta j Bibi. Even otherwise, the
defence has not disputed the unnatural death of deceased Ali Hassan on account of firearm
injuries.
9. However, the question arises as to who has caused these injuries and was responsible for the homicidal death of the decease d and causing injuries to P.W.5 Mst. Taj Bibi? In this
regard, the prosecution has relied upon the statements of P.W.1 Ali Sher, P.W.4 Mst. Hajira and P.W.5 Mst. Taj Bibi, who claimed to have ^een the occurrence. In their Court -
statements, they had stated that on 26th May, 2008, complainant Ali Sher along with
deceased Ali Hassan. Mst. Hajira and Mst. Taj Bibi went to the house of the appellant so as to ask about the grievances of Mst. Maryyam Bibi wife of Muhammad Baldish, who, after
becoming angry, left her house and went to her brother 'Muhammad Rafique's house. During
the course of negotiation, appellant Muhammad Rafique refused to handover Mst. Maryyam
Bibi, who is the sister -in-law of the complainant and deceased Ali Hassan and started firing,
which hi t deceased Ali Hassan on his chest and he fell down. They were also assaulted with
kicks and fists by co -accused Rahim and Liaquat.
10. Despite lengthy cross -examination, the defence failed to create any dent in the veracity of
the aforesaid witnesses, except a few discrepancies, which are immaterial and not fatal to
their evidence. They have furnished a straightforward and confidence -inspiring account
regarding the occurrence. The statements of said P.Ws., in any manner. cannot be said to be based on mal a fide or dishonest intention with a view to falsely implicating the appellant in
the commission of the offence. It may be noted that all the above witnesses are residents of
the same village, where the occurrence in question took place, as such, there pre sence, on the
date, time and place of occurrence, could not be doubted by any degree of seriousness. The
parties are known to each other and close relatives and under such circumstances, no
question of misidentification arises all. They have successfully f aced the test of cross -
examination and could not be shaken. Their evidence is not suffering from any material
contradiction, discrepancy or inherent infirmity and consistent with the probabilities, materially fitting in with the other evidence. No doubt, t he prosecution witnesses are related
inter se as well as to the deceased, but only on account of their relationship
! with the
deceased, they cannot be termed as interested witnesses, for the, reasons that they had no direct animosity with the appellant. By holding this view, we are fortified from a case of
"Muhammad Amin v. the State" reported in 2000 SCMR 1784, wherein it has been held by
Hon'ble Supreme Court of Pakistan as under: --
"An interested witness is one who has a motive for falsely implicating an accused, is a partisan
and is involved in the matter against the accused. Friendship or relationship with the deceased
will not be sufficient to discredit a witness particularly when there is no motive to falsely
involve the accused."
The witnesses ha ve narrated a true account of the incident. The prosecution version is
probable in nature and confidence -inspiring. They, being the natural witnesses, have neither
alleged any motive, nor any enmity with the appellant. As such, they have 'no motive to
involve innocent person and to scot free the actual culprit, which, otherwise, is a very rare
phenomenon. The ocular account, furnished by the said witnesses is straightforward,
trustworthy and we cannot see any reason as to why they should not be believed. The fact that the F.I.R. was promptly lodged, wherein the appellant was nominated with a specific role of firing, shows that the complainant has narrated truthful account of the incident. Promptness of F.I.R. further proves that prior to lodging of FIR., no deliberation or
consultation was made by the complainant.
11. The appellant, as already observed, has not denied the incident in his examination and statement on oath recorded under sections 342 and 340(2) of the Cr.P.C., but disputed the manner in which incident took place. In this regard, we are conscious of the fact that during
the course of said unfortunate incident, the appellant and his mother also sustained injuries and in this
, regard F.I.R. No.106 of 2008 was also lodged by the appellant with the same
police station. If we put' both the version in juxtaposition, the prosecution version is more
probable, which is supported by the ocular evidence as well as circumstantial evidence, whereas the version advanced by the defence is neither plausible, no r fit? in the
circumstances of the case. The injuries, sustained by the appellant and his mother, are simple in nature and are
,probably the natural consequence of the present incident, as the
prosecution witnesses, in order to save the life of the decease d, grappled with the appellant
and during such grappling and' attempting to snatch the pistol from the appellant, the possibility of sustaining injuries by the appellant and his mother could not be ruled out.
12. So far as the negative report of the Fire arm Expert is concerned, the same is not fatal to
the prosecution version being purely a corroborative piece of evidence, but such defect alone is not sufficient to discard the testimonies of P.W.1 Ali Sher, P.W.4 Mst. Hajira and P.W.5 Taj Bibi, corroborat ed by the medical evidence and the motive.
13. It is the contention of learned counsel that there is a conflict in medical and ocular evidence, as such, the medical evidence is to be preferred over the ocular evidence. We may
observe that each case has t o be decided in the light of its peculiar facts and circumstances.
When ocular evidence is confidence -inspiring and the Courts consider the witness to be
truthful, then merely on the ground that the medical evidence contradicts the ocular account,
is not s ufficient to discard the testimony of such reliable witness. In this regard, reliance is
placed on a case of "Amir Khan v. the State" -reported in 2000 SCMR 1885, wherein Hon'ble
apex Court has observed as under: --
"It has time and again been held by the superior Court that if a bald statement of medical expert is opposed to the proved and admitted confidence -inspiring and reliable account of the
eye-witnesses or other material and trustworthy evidence on record, then the latter are to be
preferred against the former."
Likewise, in a case of "Sarfraz alias Sappi v. the State" reported in 2000 SCMR 1758, the
Hon'ble Supreme Court observed as under: --
"Appraisal of evidence---Ocular and medical evidence---Conflict -between ---Where there is
any variation between ocular and medical evidence, the latter does not overweigh the former type of evidence if otherwise the ocular evidence is coherent and trustworthy."
14. Furthermore, opinion of a doctor is not binding upon the Courts, ipso facto, but Court has to see the opinion expressed by a doctor if to be acceptable in the light of well -recognized
principles of medical jurisprudence. Even otherwise, we are of the considered view that in the instant case, there is no clash between the medical ev idence and that of ocular account. It
may also be observed that deceased Ali Hassan was fired at in the heat of moment when he was negotiating with the appellant and his brothers. In such circumstances, P.W.1 Ali Sher
could be naturally expected to be perp lexed and the description of the manner in which the
injury was sustained by the deceased might be the result of confusion and excitement generated by the dramatic situation. The deceased suffered fatal shot in presence of his brother P. W.1, who, obviousl y, was looking at the awful scene with great amount of tension
about fate of the victim, as such, it could not be expected from P.W. 1 to have given the exact location of the shot i.e. entrance and exit of wounds, therefore, on the basis of such contradict ion bearing no material significance in the circumstances of the case, his statement
could not be discarded, particularly when his presence at the place of occurrence has been established beyond any doubt.
For the foregoing reasons, we find no merit in the instant appeal, which is dismissed,
accordingly.
N.H.Q./161/Q
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???????????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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