2017 P Cr. L J 211
[Balochistan]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
SOBA KHAN and another ---Appellants
Versus
The STATE and another ---Respondents
Criminal Appeal No. 186 and Criminal Revision No.12 of 2015, decided on 23rd November,
2016.
(a) Penal Code (XLV of 1860) ---
----Ss. 302, 324, 337- A(v), 147 & 149---Qatl -i-amd, attempt to commit qatl- i-amd, Shajjah -i-
ammah, rioting and unlawful assembly ---Appreciation of evidence ---Ocular account
corroborated medical evidence ---Prosecution story was that accused party attacked the
complainant party, murdered the deceased and injured the prosecution witness ---Prosecution
produced two eye -witnesses, one of them received injuries during occurrence ---Injured
prosecution witness correctly identif ied accused in trial court ---Eye -witness of the occurrence
fully corroborated the statement of injured witness ---None of the witness derailed while
recording their statement in court---Statement of prosecution witnesses were in line and
corroborated each other on all material counts ---Nothing advantageous/ favouring the defence
had come on record inspite of lengthy cross -examination ---Prosecution witnesses remained firm
in their deposition with regard to date, time and place of occurrence ---Medico -legal Rep orts of
deceased/injured fully corroborated nature of injuries, weapon of offence used in the occurrence
and locale of injuries sustained by the injured/deceased --- Medical evidence was absolutely in
line with the ocular account and as such fully supported the case of prosecution--- Appeal against
conviction was dismissed accordingly.
(b) Penal Code (XLV of 1860) ---
----Ss. 302, 324, 337- A(v), 147 & 149---Qatl -i-amd, attempt to commit qatl- i-amd, Shajjah -i-
ammah, rioting and unlawful assembly ---Appreciatio n of evidence --- Abscondance of accused ---
Evidentiary value ---Prosecution story was that accused party attacked the complainant party,
murdered the deceased and injured the prosecution witness ---Occurrence took place in the year
2010----Accused was arrest ed in the case during the year 2014---Defence had failed to furnish
any plausible explanation for such long absconsion of accused---Abscondance of accused, soon
after the occurrence, for considerable long time was another significant incriminating piece of
evidence against him ---Appeal against the conviction was dismissed.
Muhammad Latif v. State 2008 SCMR 1106 and Muhammad Ameer alias Mery v.
Qadeem Gul and 2 others 2016 YLR 735 rel.
(c) Penal Code (XLV of 1860) ---
----Ss. 302, 324, 337- A(v), 147 & 149-- -Qatl-i-amd, attempt to commit qatl- i-amd, Shajjah -i-
ammah, rioting and unlawful assembly ---Appreciation of evidence ---Interested witness ---
Testimony of closely related witness ---Reliance ---Scope ---Prosecution story was that accused
party attacked the comp lainant party, murdered the deceased and injured the prosecution
witness ---Testimony of any witness could not be disbelieved solely on the ground that such
witness was related to the complainant ---Court had to see the truthfulness and credibility of such
witness --- Appeal against conviction was dismissed in circumstances.
Muhammad Ameer alias Mery v. Qadeem Gul and 2 others 2016 YLR 735; Zahoor
Ahmed v. The State 2007 SCMR 1519 and Latif v. State 2008 SCMR 1106 rel.
(d) Penal Code (XIV of 1860) ---
----Ss. 302, 324, 337- A(v), 147 & 149---Qatl -i-amd, attempt to commit qatl- i-amd, Shajjah -i-
ammah, rioting and unlawful assembly ---Appreciation of evidence ---Motive, proof of ---
Prosecution story was that accused party attacked upon the complainant party, murdered the
deceased and injured the prosecution witness ---Prosecution witnesses of ocular account had
sufficiently explained the motive ---Dispute about land and litigation was pending between the
parties ---Record showed that both the parties prior to the incident had also submitted peace
sureties ---Such circumstances and facts were admitted by accused while recording his statement
under S. 340(2), Cr.P.C.---Prosecution had successfully proved motive against the accused---
Appeal against conviction was dismissed ac cordingly.
Muhammad Aslam Chishti for Appellants.
Abdul Latif Kakar, Additional P.G. for the State.
Shaukat Ali Rakhshani for the Complainant.
Date of hearing: 15th November, 2016.
JUDGMENT
ABDULLAH BALOCH, J. ---This common judgment disposes of Crimi nal Appeal
No.186 of 2015 filed by the appellant Soba Khan son of Haji Sikandar, against the judgment
dated 26th May 2015 (hereinafter referred as, "the impugned judgment") passed by the learned
Additional Sessions Judge, Loralai (hereinafter as, "the tria l Court"), whereby the appellant was
convicted under section 302(b), P.P.C. and sentenced to suffer life imprisonment and to pay
compensation of Rs.200,000/ - (Rupees two hundred thousand) to the legal heirs of deceased
Mirza Khan as provided under section 544- A, Cr.P.C. and in default thereof to further suffer six
(06) months' S.I., with the benefit of section 382- B, Cr.P.C. The Criminal Revision Petition
No.12 of 2015 has been filed by the complainant Zareef Khan against the convict for
enhancement of his sentence from life imprisonment to that of capital punishment.
2. Facts of the case are that on 11th June 2010 the complainant Malik Zarif Khan son of
Haji Abdul Hakeem lodged FIR No.77/2010 at Police Station Saddar Loralai under sections 302,
324, 337- AF, 147, 149, P.P.C., stating therein that he alongwith his other family members and
brothers is resident of Zar Karez Loralai. It is averred that there had existed a land dispute in
between them and Soba Khan. On the day of occurrence i.e. 11th June 2010 at about 4.10 p.m.
he alongwith Allau- ud-Din and Malik Mirza after offering Juma prayer in Kakari Masjid, were
taking tea in Sher Muhammad Fruit Company. In the meanwhile, Malik Mirza Khan told him
that Soba Khan and others are roaming in their search in vehi cle and they came across with them
in Tehsil Road. Thereafter, Mirza Khan along with Allau -ud-Din went towards Nadar Market for
purchasing household articles. It is further stated by the complainant that when he (complainant)
was going towards Baqi Showroom in Tehsil Road, he saw Soba Khan, Azeem Khan, Musa
Khan, Abdul Wahid sons of Sikandar near post Office Chowk. Later on, he was informed by
Allau -ud-Din through telephonic call that accused persons have attacked them with iron fist and
knives, so he reached Nadar Market, where he found Mirza Khan and Allau- ud-Din in injured
condition. He took the injured to hospital, while in the way to hospital the injured Mirza Khan
succumbed to his injures and died.
3. In pursuance of the above FIR, the investigation of the case was entrusted to PW -8
Kazim Ali, IP/IO, who during investigation inspected the site and prepared site plan; carried out
proceedings under section 174, Cr.P.C. and prepared inquest reports; took into possession the
bloodstained clothes and cement pieces and sent the same to FSL for analysis; obtained medical
reports; the dead body was handed over to the deceased family without post mortem on their
request; recorded the statements of witnesses under section 161, Cr.P.C.; submitted incomplete
challan in the trial Court. On receipt of FSL report the same was submitted through
supplementary challan. PW -9 Mujahid Hussain SI is the second Investigating Officer of the case,
who during investigation arrested the appellant on 12th March 2014; prepared disclosure and
pointation memo of appellant and on completion of investigation submitted the challan to his
extent in the trial Court. During investigation he received information about the death of
absconding accused Azim Khan and obtained his death certificate from NADRA and submitted
the same through incomplete challan.
4. On receipt of challan, the trial Court declared the absconding accused Musa Khan, Abdul
Wahid and Abdul Wali as proclaimed offenders and proceedings under sections 87 and 88,
Cr.P.C. were ca rried out.
5. At the trial, the prosecution produced nine (09) witnesses, whereafter the appellant was
examined under section 342, Cr.P.C. He also recorded his statement on oath under section
340(2), Cr.P.C., but did not produce any witness in his defence. On conclusion of the trial and
hearing the arguments, the learned trial Court convicted and sentenced the appellant as
mentioned above, while the case file to the extent of absconding accused was ordered to be kept
in dormant. Whereafter the convict filed Criminal Appeal No.186 of 2015, while the complainant
filed Criminal Revision No.12 of 2015 for enhancement of his sentence.
6. Learned counsel for appellant contended that the convict -appellant is innocent and has
falsely been involved in the case due to previous landed dispute; that the statements of witnesses
are contradictory to each other; that only interested witnesses have b een produced, thus the case
of prosecution is lacking independent corroboration; that no crime weapon was recovered from
the possession of appellant; that the medical evidence is in conflict with the ocular testimony;
that the learned trial Court while awa rding conviction and sentence to the appellant has
committed serious illegality and irregularity, whereas to the contrary the prosecution has
absolutely failed to substantiate the charge.
7. Learned Additional Prosecutor General while supporting the impugn ed judgment has
contended that the prosecution through solid and concrete evidence has succeeded in proving the
charge against the appellant, who after commission of crime deliberately and intentionally in
order to hamper the process of investigation of the case absconded; that all the witnesses have
recorded their statements in line with each other and no material illegality or irregularity has
come on record creating doubts in the case of prosecution.
8. Learned counsel for complainant while conceding the arguments so advanced by the
learned Additional Prosecutor General further added that the case of prosecution has been proved
on all counts, thus there were no mitigating circumstances to award lesser punishment to the
appellant instead of capital punishm ent, hence prayed for modifying the sentence from life
imprisonment to that of death sentence.
9. Heard the learned counsel and perused the available record with their able assistance. It is
evident from record that the unnatural death of deceased Mirza Khan and receiving injuries by
PW-2 Allau -ud-Din are not disputed. The appellant admitted the unnatural death of deceased in
his statement under section 340(2), Cr.P.C., but pleaded false implication due to previous landed
dispute and initiating civil and cr iminal proceedings against each other. PW -6 Dr. Shah Zaman,
Medical Officer, DHQ Loralai, examined the deceased as well as the injured and confirmed that
the deceased had received multiple stab and lacerated wounds by sharp and blunt weapons on his
person and further opined the cause of death due to head injury. PW -6 issued medical certificate
Ex.P/6 -A, which confirms the unnatural death of deceased and medical certificate Ex.P/6 -B
confirms the injuries received by PW -2.
10. Adverting to the statements of p rosecution witnesses, suffice to observe that the
prosecution in order to substantiate the charge has produced the evidence of nine witnesses. The
complainant of the case appeared as PW -1, who reiterated the contents of FIR. Though PW -1 has
not directly wi tnessed the crime and he was informed by PW -2 in respect of attack launched
against them by the accused party, but his statement is corroborating the statements of injured
PW-2 and PW -4 with regard to their presence prior to commission of crime at Sher Muhammad
Fruit Company and intimation of deceased Malik Mirza Khan with regard to presence of accused
party in market and leaving the place by PW -2 and deceased Mirza Khan towards Nadar Market.
The evidence of PW -1 is further corroborating the prosecution story with regard to taking the
deceased and injured to hospital. Hence, the evidence of PW -1 cannot be discarded from
consideration in toto rather the same is corroborating the prosecution story on different counts.
11. The star witness of the prosecution is PW-2, who was accompanying the deceased and
when they were attacked by the accused party, which resulted into the death of deceased Mirza
Khan due to receiving of multiple injuries through sharp and blunt weapons. Minute scrutiny of
statement of PW -2 refl ects that he correctly named all the accused, who launched attack upon
them by stating that accused Soba Khan and Musa Khan were armed with daggers/knives
attacked upon the deceased, while the remaining accused attacked upon him. The witness
correctly iden tified the appellant in trial Court. PW -3 is the eye -witness of the occurrence, who
at the relevant time was present in Bazar for repair of his submersible machine and he directly
witnessed the crime. PW -3 fully corroborated the statement of PW 2 and state d that accused
Soba Khan and Musa Khan were attacking upon the deceased, while the remaining accused were
attacking upon the injured PW -2 and thereafter the accused flee away from the scene. PW -3
corroborated the statements of PW -1 and 2 with regard to taking the deceased and injured to
hospital in vehicle. PW -4 corroborated the statement of PW -1 and PW -2 with regard to their
presence in his shop prior to the incident.
12. The comparative study of the statements of above cited witnesses has established the fact
that none of the witness was derailed while recording their statements in the Court rather their
statements are in line and corroborating each other on all material counts. The witnesses were
cross -examined at considerable length, but nothing advantageous favouring the defence has
come on record. The witnesses remained firm in their deposition with regard to date, time, place
of occurrence. Learned counsel for the appellant made an attempt to discredit and disregard the
statements of witnesses on the b asis of some minor contradictions, which in our view are minor
in nature and will not vitiate the entire prosecution evidence. However, despite such legal
position the defence has failed to point out any major contradiction or discrepancy that renders
the statements of prosecution witnesses as doubtful.
13. So far as the abscondance of the appellant is concerned, admittedly the occurrence took
place on 11th June 2010, whereafter the appellant along with co- accused absconded and the
appellant was arrested on 12th March 2014 after sufficient abscondence of more than three years
and eight months for which the learned defense has failed to furnish any plausible explanation.
Abscondance of the appellant/accused soon after the occurrence for considerable long time is
another significant incriminating piece of evidence against him. Reliance in this regard is placed
on the case of Muhammad Latif v. State, 2008 SCMR 1106, whereby it has been held that after
the occurrence, the appellant remained at large for about 4 -1/2 years and his abscondance was
taken as an incriminating piece of evidence. Reliance can also be placed from the case of
Muhammad Ameer alias Mery v. Qadeem Gul and 2 others, 2016 YLR 735.
14. It has further been observed that the FIR was lodged promptly without any delay, thus it
cannot be stated that the registration of FIR or naming the accused in it, is the result of
consultation and deliberation. Furthermore, both the parties knew each other prior to the incident
and even remained in litigation over the landed dispute, hence no question of mistaken identity
arises at all. Even otherwise, it cannot be believed that blood relations will direct their finger at
innocents, leaving the actual culprits because such is a rare phenomenon and in normal
circumst ances this theory of substitution by blood relations at the cost of real culprit is ruled out.
The learned counsel for the appellant has objected that only interested witnesses were produced
and all the witnesses are interlinked with each other, suffice to observe here that the testimony of
any witness cannot be disbelieved solely on the ground that he is in relation with the complainant
rather the Court has to see the truthfulness and credibility of such witness. However, if for the
sake of arguments, the statements of all the witnesses are thrown -aside being interested or
planted witnesses, even then the statement of PW -2 cannot be brushed- aside as he was
accompanying the deceased at the relevant time and he himself received serious injuries on his
person and his condition was so serious that he remained in unconscious condition for a
complete day. Hence, his presence and witnessing the crime is natural, therefore, the objections
so taken by the defence in such behalf is also not helpful to the case of pros ecution. Reliance can
be placed on the above cited case of Muhammad Ameer alias Mery v. Qadeem Gul and 2 others,
2016 YLR 735. The relevant portion is reproduced herein below:
"12. Further, complainant Qadem Gul and P.W. Azam Khan are real brothers of the
deceased, therefore, it cannot be believed that blood relations will direct their finger at
innocents, leaving the actual culprits because such is a rare phenomenon and in normal
circumstances this theory of substitution by blood relations at the cost of r eal culprit is
ruled out. As regards the plea of witnesses, being related inter se; it would suffice to say
that mere relationship is no ground at all, to disbelieve the evidence unless and untill it is
established by defence that those witnesses have such enmity or other consideration
which could justify the witnesses to be not of truth. The reference, if any, can well be
given to case- law of Hon'ble Supreme Court, reported in case titled "Zahoor Ahmed v.
The State" (2007 SCMR 1519) wherein it is held that :-
"The petitioner and the complainant party are undisputedly closely related to each other.
The petitioner is a maternal cousin of the deceased, as also the first cousin of the
deceased through paternal line of relationship and thus, in the light of the e ntire evidence
it has correctly been concluded by the learned High Court that the blood relation would
not spare the real culprit and instead would involve an innocent person in the case."
Similar view has also been taken by the Hon'ble Supreme Court of P akistan in the case of
Latif v. State, 2008 SCMR 1106, whereby it has been held that, "Testimony of both the
aforementioned witnesses cannot be doubted because they being close relatives of the deceased
would not like to let go the real offender or substit ute him with the appellant just to take revenge.
Their presence at the place of occurrence was also natural. The evidence of both the eye -
witnesses is corroborated by the medical evidence in all material particulars."
15. Now adverting to motive behind the occurrence, which is stated to be a landed dispute,
suffice to add here that the prosecution has succeeded in establishing the motive behind the
occurrence being a land dispute and litigations were already pending in between the parties.
Besides, it has f urther come on record that both the parties prior to the incident had also
submitted peace sureties. Thus, such facts and circumstances of the case establishes the motive
behind the occurrence to be a landed dispute existing in between the parties prior the incident
and such fact was admitted by the defence and even the appellant while recording his statement
under section 340(2), Cr.P.C. has admitted the existence of landed dispute in between the parties.
16. We have also perused the impugned judgment deli vered by the learned trial Court and
observed that the appellant was rightly found guilty of the charge. The learned trial Court has
rightly appreciated the evidence so brought before him and each and every aspect of the case was
discussed in detail, hence for the above said reasons the impugned judgment is not open for any
interference by this Court.
17. So far criminal revision petition filed by the petitioner -complainant for enhancement of
the sentence of the appellant from imprisonment of life to death to the appellant is concerned, we
are of the view that five accused have been charged for murder of single deceased and it is not
discernable from the available evidence as to who hit on the head of the appellant and the head
injury proved fatal, which would be a mitigating circumstance in the prosecution case and in the
circumstance the condign punishment provided for the offence would not be a step justified in
law. Thus, the learned trial Court was justified by sentencing the appellant to imprisonment fo r
life. The learned counsel for the petitioner -complainant has failed to make out a case for
enhancement of sentence.
For the above reasons, the appeal as well as the connected criminal revision petition,
stand dismissed.
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