2018 P Cr. L J 1032
[Balochistan]
Before Muhammad Ejaz Swati and Abdullah Baloch, JJ
HASSAN GUL ---Appellant
Versus
The STATE---Respondent
Criminal Appeal No. 223 and Murder Reference No. 16 of 2015, decided on 15th November,
2017.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b), 324, 337- A, 337- D, 337- F & 34 ---Qatl-i-amd, attempt to commit qatl- i-amd,
shajjah, jaifah, ghayr -jaifah, common intention---Appreciation of evidence ---Medical
evidence ---Scope---Medical Officer had found multiple bullet injuries on the person of
deceased ---Unnatural death of the deceased was not disputed by the defence ---Medical
Officer also examined the injured and found three injuries on his person and opined that the
said injuries were caused with fire arms ---Nature of injuries r eceived by injured, in
circumstances, could not be said to be self -inflicted when even the defence had not disputed
the same to be self -inflicted or old injuries.
Farooq Khan v. State 2008 SCMR 917 and Nallamsetty Yanadaiah v. State of Andra
Pradesh 1994 SCMR 588 rel.
(b) Penal Code (XLV of 1860) ---
----Ss. 302(b), 324, 337- A, 337- D, 337- F & 34 ---Qatl-i-amd, attempt to commit qatl- i-amd,
shajjah, jaifah, ghayr -jaifah, common intention---Appreciation of evidence --- Sentence,
reduction in--- Mitigating circ umstances ---Ocular account ---Proof ---Prosecution case was
that the accused along with co -accused armed with Kalashnikovs made firing upon the
complainant party, due to which one person died at the spot and other received bullet injuries -
--Ocular account wa s furnished by the complainant and injured---Complainant of the case
appeared as witness and recorded his statement, which was in line with his earlier deposition
contained in the fard -e-bayan ---Complainant had correctly mentioned the time, date, the
place of occurrence and the manner in which the alleged occurrence had taken place---
Complainant had correctly identified the accused in the court as assailant, who along with co-accused made firing upon the deceased and injured ---Defence despite lengthy cross -
examination had failed to give dent, jolt or shaken the testimony of the complainant ---Injured
had recorded his statement in line with statement of complainant and had correctly identified the accused in the Trial Court ---Presence of injured witness could not be rebutted in any way
as he had received three bullet injuries on his person, thus his presence at the relevant time was natural ---Injured was cross -examined at sufficient length, but he remained firm in his
deposition and nothing advantageous or bene ficial had come on record favouring the defence -
--Occurrence had taken place at about 4.00 p.m. in day light; the accused was resident of the same vicinity and had a landed dispute as well as litigations were pending between the
parties ---Prudent mind woul d not accept that the accused had been mistaken by the
witnesses ---Defence objection that statement of complainant did not ring true as he was not
injured despite sitting in the vehicle, which faced indiscriminate firing with automatic
weapons by four accused persons ---Not necessary that all the persons sitting in the vehicle
would receive bullet injuries ---Even otherwise, the statement of complainant had been
corroborated by the injured witness, which was enough to establish the charge against the accused ---Prosecution had succeeded in proving the charge against the accused, however,
Trial Court had treated the accused harshly while awarding capital punishment by ignoring the fact that admittedly landed dispute existed between the parties ---Said fact consti tuted
mitigating circumstances, thus sentence of accused was reduced from death to imprisonment for life.
(c) Penal Code (XLV of 1860) ---
----Ss. 302(b), 324, 337- A, 337- D, 337- F & 34 ---Qatl-i-amd, attempt to commit qatl- i-amd,
shajjah, jaifah, ghayr -jaifah, common intention---Appreciation of evidence ---Interested
witness, testimony of ---Scope ---Defence objected that prosecution had produced only
interested witnesses, thus case lacked independent corroboration---Record showed that all the prosecution witne sses were not interested witnesses ---Injured was most natural witness of the
occurrence, who had received multiple bullet injuries on his person--- Injured witness faced
life threatening attack and survived death, thus in such circumstances, it would not be
justified to declare him as interested witness or to believe that he might have involved innocent persons instead of real culprits, who made extreme attempt to take his life ---
Evidence of witnesses could not be discarded from consideration on ground of their relationship with the complainant or deceased ---Testimony of the prosecution witnesses was
found independent and truthful, therefore, their deposition, which corroborated each other on all material counts, were sufficient to establish the charge.
(d) Criminal trial---
----Witness --- Related witness --- Testimony of --- Reliance--- Scope ---Evidence of related
witnesses who were not found inimical towards accused and were confidence inspiring would hardly need any corroboration.
(e) Penal Code (XLV of 1860) ---
----Ss. 302(b), 324, 337- A, 337- D, 337- F & 34 ---Qatl-i-amd, attempt to commit qatl- i-amd,
shajjah, jaifah, ghayr -jaifah, common intention---Appreciation of evidence ---Minor
discrepancies in the statements of witnesses ---Effect ---Minor discrepancies i n the present
case, which were not substantive enough to create reasonable doubt in the case of prosecution
about the involvement and guilt of the accused could not be discredited.
(f) Penal Code (XLV of 1860) ---
----Ss. 302(b), 324, 337- A, 337- D, 337- F & 34--- Qatl-i-amd, attempt to commit qatl- i-amd,
shajjah, jaifah, ghayr -jaifah, common intention---Appreciation of evidence ---Crime weapon --
-Non-recovery of ---Effect ---Record showed that accused remained absconded for a long
period and was arrested in another case and was investigated in jail ---Accused during the
intervening period had got sufficient time to conceal the crime weapon, besides, the recovery of crime weapon could be only a supporting piece of evidence ---Prosecution had proved its
case independently through direct ocular evidence ---Mere non- recovery of crime weapon was
no ground to discredit or disbelieve the entire prosecution case.
Sikander Teghani alias Muhammad Teghani v. The State 2016 YLR 1098 and
Muhammad Nadeem alias Deemi v. State 2011 SCMR 872 rel.
Abdul Haq Kasi and Shehnaz Rana for Appellant.
Habibullah Gul, Additional P.- G. for the State.
Muhammad Akram Shah for the Complainant.
Date of hearing: 8th November, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal Appeal No.223 of
2015 filed by the appellant Hassan Gul son of Sultan, against the judgment dated 29th June
2015 (hereinafter referred as, "the impugned judgment") passed by the learned Sessions Judge Musakhail Loralai (hereinafter referred as "the trial Court"), whereby the appellant was convicted under section 302(b), P.P.C. and sentenced to death as Tazir and it was ordered that he shall be hanged by neck until he is dead; he was also convicted under section 324, P.P.C. and sentenced to suffer seven ( 07) years' R.I. with fine of Rs.50,000/ - (Rupees Fifty thousand
only), while in default thereof he has to further suffer six (06) months' S.I.; under section
337-ADF, P.P.C. and sentenced to suffer three (03) years' R.I. with fine of Rs.50,000/ - or in
default thereof to further suffer six (06) months' S.I. The benefit of section 382- B, Cr.P.C. has
also been extended in favour appellant. The murder reference No.16 of 2015 has been made
by the Sessions Judge Musakhail at Loralai.
2. Facts of the case are that on 15th November 2009, the complainant Sher Zaman son of
Dasmal, lodged FIR No.02/2009 under sections 302, 324, 337 -ADF/34, P.P.C. at Levies
Station Head Quarter Tehsil Musakhail, stating therein that on the day of occurrence at about 4.00 p.m. the complainant along with Azad Khan Asoot proceeded for Drugg on the vehicle of deceased Saleem and when they reached near Sarri Bridge, two persons came on the road with Kalashnikovs and two other accused were sitting on the other side of the road. The accused Nawaz Khan and Hassan Gul made firing upon them, due to which Saleem received
injuries and died at the spot, while Azad Khan Assot received bullet injuries. The persons sitting on the other side of the road also made firing.
3. Pursuant to the above FIR, the investigation of the case was carried out by PW -5
Muhammad Akram, Tehsildar Musakhail, who during investigation recorded the statements of witnesses under section 161, Cr.P.C.; taken the injured and the deceased to hospital and took into possession the ir blood stained clothes; visited the site on the following day and took
into possession one empty and one shell; prepared site sketch; obtained the bail warrants of arrest of the accused and thereafter submitted incomplete Challan in the trial Court. PW -6
Ghulam Haider, Tehsildar Musakhail, is the second I.O. of the case, who during investigation arrested the appellant and carried out investigation from him and on completion of investigation submitted the challan in the trial Court.
4. On receipt of challan, the trial Court issued warrants of arrest of absconding accused
namely Nawaz Khan son of Akhtar, which were not executed, thus proceedings under
sections 87 and 88, Cr.P.C. were carried out and he was declared as proclaimed offender.
5. During the trial, the prosecution produced five (05) witnesses, whereafter; the
appellant was examined under section 342, Cr.P.C. The appellant neither recorded his statement on oath under section 340(2), Cr.P.C. nor produced any witness in his defence. On conclusion of t rial and after hearing arguments, the trial Court awarded him death sentence as
mentioned in para -1 above, against his conviction and sentence, the appellant has preferred
the instant Criminal Appeal, whereas the trial Court has forwarded Murder Reference No.16 of 2015, for confirmation of death sentence or otherwise.
6. Learned counsel for the appellant contended that the prosecution has miserably failed
to establish the charge against the appellant through solid or concrete evidence and the evidence of on ly interested witnesses have been recorded and no independent witness was
produced; that being related and interested witnesses, their testimony are not admissible,
reliable and liable to be discarded; that all the witnesses made contradictory statements to
each other and also made dishonest improvements in their earlier depositions; that the case of prosecution is full of doubts and discrepancies, but the benefit of such doubts were not extended to the appellant and the appellant was treated very harshly; that no recovery of crime weapon has been effected from the possession of appellant; that the PW -1/complainant
is planted witness as he was sitting in the vehicle, but not received a single bullet injury; that in existence of mitigating circumstances in th e case of prosecution, award of capital
punishment is unwarranted.
7. Learned Additional Prosecutor General assisted by learned counsel for the
complainant while supporting the impugned judgment had vehemently opposed the
arguments so advanced by the learn ed counsel for the appellant and contended that the
appellant along with other absconding accused made indiscriminate firing upon the vehicle, in which the deceased along with injured witness and the complainant were seated, which resulted into murder of deceased Saleem and causing injuries to Azad Khan Assot; that the appellant has absolutely failed to point out any ulterior motives and ill -will on the part of
PWs with regard to his false implication, hence the appeal deserves dismissal as the trial Court has rightly awarded penalty of death to the appellant through impugned judgment,
which is not open for any interference by this Court.
8. Heard the learned counsel and perused the available record. Perusal of record reveals
that the unnatural death of dece ased Muhammad Saleem is not disputed. After the
occurrence, the dead body was shifted to hospital, where PW -4 Dr. Muhammad Rahim,
Medical Officer, Civil Hospital Musakhail has examined the dead body of deceased
Muhammad Saleem and opined that the deceased died by unnatural death. On examination, PW-4 found multiple bullet injuries on the person of deceased caused with fire -arm and the
cause of death was mentioned as Haemorrhagic shock. PW -4 after complete and thorough
examination issued MLC Ex.P/4- A, which confirms the unnatural death of deceased. PW -4
has also examined the injured Azad Khan son of Naseeb Khan and found three number of injuries on his person. PW -4 opined that the said injuries were fresh and grievous in nature as
well as caused with firm arm s. PW -4 issued MLC Ex.P/4- C, which, confirms the bullet
injuries caused with fire arm. The defence has also not disputed the unnatural death of deceased, but pleaded his false implication.
9. Adverting to ocular testimony produced by the prosecution, which is in the shape of
direct, circumstantial and medical evidence. The medical evidence has already been
discussed above, hence it would be appropriate to discuss the direct evidence produced by the prosecution through- statements of PW -1 and PW -2, who are the star witnesses of the
prosecution. PW -1 Sher Zaman, is the complainant of the case and was accompanying the
deceased and the injured at the time of alleged occurrence. PW -1 has recorded his statement
accurately, correctly and in line with his earlier dep osition contained in the fard- e-bayan
Ex.P/1 -A. PW 1 has correctly mentioned the time, date, the place of occurrence and the
manner in which the alleged occurrence has taken place. He has also correctly identified the appellant in the Court as assailant, w ho along with co- accused made firing upon the deceased
and the injured. The defence despite lengthy cross -examination has failed to give dent, jolt or
shaken the testimony of the complainant.
10. Adverting to the statement of PW -2 Azad Khan Assot, suffice to observe here that
PW-2 has recorded his statement in line to the statement of complainant of the case and he
correctly identified the appellant in the trial Court. PW -2 is the most reliable and trust worthy
witness of the prosecution and his presence ca nnot be rebutted in any way as he had also
received three bullet injuries on his person, thus his presence at the relevant time was natural and in no manner the defence can claim that this witness is a planted witness or that he was
arranged subsequently. The occurrence had taken place at about 4.00 p.m. during day light,
the appellant was the resident of the same vicinity and having a landed dispute as well as litigations were also pending in between the parties, thus it would not be appealable to a prudent mind that the appellant has mistakenly been identified by the witnesses. Besides, this witness has also been cross -examined at sufficient length, but he remained firm in his
deposition and throughout in examination in chief or during cross -examination he remained
in same track and nothing advantageous or beneficial has come on record favouring the
defence.
11. So far as, the objections of learned counsel for the appellant that the statement of PW -
1 does not ring true as he was not injured despite his sitt ing in the vehicle, which faced
indiscriminate firing with automatic weapons by four accused persons and the same resulted into the death of deceased Muhammad Saleem and injuring the PW -2 is concerned, it is
suffice to observe here that the objection so ta ken is without any substance for the reason that
if the statement of PW -1 is discarded at all from the consideration, given then the statement
of victim i.e. PW -2, who received several bullet injuries on his person is sufficient to
establish the charge against the appellant, it is not incumbent that all the persons sitting in the vehicle must have been received bullet injuries. Even otherwise, the statement of PW -1 has
been corroborated by the injured witness PW -2, which is enough to establish the charge
against the appellant.
12. The next objection taken by the defence is that only the interested witnesses have
been produced and thus the case of prosecution is lacking independent corroboration, suffice to state here that all the witnesses are not interested witnesses rather PW -2 is most natural
witness of the occurrence, who has also received multiple bullet injuries on his person, if for the sake of arguments, it is admitted that the witnesses were having any relationship with the complainant or deceased, even then their evidence cannot be discarded from consideration merely on such ground because testimony was found entirely independent and truthful, therefore, their deposition without looking for any other corroborative evidence despite of the fact both th e witnesses have corroborated each other on all material counts, their statements
are 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 necessary to
mention here that PW -2 faced life- threatening attack and luckily, survived from the death,
thus under the circumstances it would not be justified to declare him as interested witness or
to believe that he may involve innocent persons leaving the real culprits, who made extreme attempts to also take his life. PW -4 being Medical Officer examined the injured and found
multiple bullet injuries on his person. The nature of injuries received by PW -2 cannot be said
to be self -inflicted and even the def ence has not disputed the same to be self -inflicted or the
same were old injuries, as such, legally the statement of an injured witness cannot be challenged. Reliance in this regard is placed on the case of Farooq Khalil v. State 2008 SCMR 917, wherein it has been held that,"
7. We have heard learned counsel for the parties and have perused the available record with their assistance. There is no denying the fact that it was a broad -daylight
occurrence..... Farooq Khan, appellant injured the deceased with Chhuri hitting him on the left side of his chest. The presence of the injured P.Ws. at the place of occurrence is intrinsic and could not be doubted because it was unchallenged. Statement of P.W.8 is consistent, straightforward and trustworthy with no cogent
reason in evidence to disbelieve the same.
8. The defence has also not doubted or challenged the injuries sustained by the injured P.W. in cross -examination. The injuries sustained by P.W.8 have been duly supported
by medical evidence furnished by P.W.10 Dr. Humayun Khan who ruled out that the injuries on person of Namoos Khan P.W.8 were self -inflicting injuries.
9. As to the argument of learned counsel for the appellant that the solitary statement of injured P.W.8 was the basis of conviction, suffice it t o observe that the injured
prosecution witness had given the number of injuries caused to the deceased in the incident by attributing the responsibility to the appellant. Evidence of this witness has been supported by medical evidence furnished by Dr. Muha mmad Maqsood P.W. 6
who conducted post -mortem examination on the dead body of the deceased Zahir
Khan. The evidence of injured witness is worthy of credence, independent and natural and there was no lawful justifiable cause to discard his evidence. The credence of statement of solitary witness has already been examined by this Court in a number of cases. In this context reference can be made to Mali v. The State 1969 SCMR 76; Muhammad Ashraf v. The State 1971 SCMR 530, Muhammad Siddique alias Ashraf alias A chhi and 3 others v. The State 1971 SCMR 659 and Muhammad Mansha v.
The State 2001 SCMR 199".
Similar view has been taken by the Hon'ble Supreme Court of India in the case of
Nallamsetty Yanadaiah v. State of Andra Pradesh 1994 SCMR 588, wherein it has be en held
as under:
"Learned counsel also submits that the eye -witnesses were all interested witnesses and
they tried to implicate many innocent persons and that it would be highly unsafe to accept their evidence. We see no substance in his submission. Here is a case where a large number of persons armed with deadly weapons, like guns and other cutting weapons, participated in the occurrence during which four persons were killed and many of the witnesses who were present were also injured. It may be that they are all
interested witnesses. But on that ground alone their evidence cannot be rejected. Their evidence is to be subjected to close scrutiny. As a matter of fact, the learned Sessions Judge, as well as the High Court have considered evidence of each of t he witnesses
with great care and caution. Both the Courts below have acquitted such of those
accused against whom the Court felt the prosecution case is not good beyond all
reasonable doubt."
13. In view of above referred judgments and according to settled norms of justice, we at
our utmost care, caution and by applying judicious minds analyzed the statements of both the eye witnesses and found the same reliable, because both the witnesses being seated in the vehicle and moreover one of the witnesses was al so injured, their presence at the time of
incident is natural. Besides, both the PWs will never raise their fingers on innocent person leaving the actual and real culprits, who had made attempt to take their lives. Thus, in our view both the witnesses are independent and credible witnesses. Although, the learned counsel for the appellant attempted to discredit the case of prosecution on the basis of some minor discrepancies in the evidence of prosecution witnesses but in our opinion, those are not substanti ve enough to justify or create reasonable doubt in the case of prosecution about the
involvement and guilt of the appellant.
14. Insofar, the non- recovery of crime weapon is concerned, the same is immaterial in the
case in hand. As the incident had taken place on 15th November 2009 and thereafter the appellant absconded for a long period and he was arrested in another case, when on getting information, his hand was taken from district Jail Loralai and he was investigated in Jail, thus the appellant during t he intervening period had got sufficient time to conceal the crime
weapon. Besides, the recovery of crime weapon can only be a supporting piece of evidence, whereas the prosecution has proved its case independently through direct ocular evidence. Mere non -recovery of crime weapon is no ground to discredit or disbelieve the entire
prosecution case. Reliance in this regard is placed to the case of Sikander Teghani alias Muhammad Teghani v. The State 2016 YLR 1098, whereby it has been held that where the charg e is proved by other direct, natural and confidence inspiring evidence then non- recovery
of the crime weapon was not held to be fatal even. The Hon'ble Supreme Court in case Muhammad Nadeem alias Deemi v. State 2011 SCMR 872, held as under:
"...the recover y of crime weapon in a criminal case is not at all material. It can only be
a piece of supporting evidence. If other evidence goes to prove the case independently, the recovery is not essential at all."
15. The reappraisal of entire prosecution evidence es tablishes that the prosecution has
succeeded in proving the charge against the appellant through direct evidence coupled by medical and circumstantial evidence. No major contradiction or dishonest improvement has been pointed out by the learned defence counsel in the statements of prosecution witnesses. Throughout the proceedings the appellant has not taken any specific plea with regard to his false implication nor he has brought any ill -will or ulterior motives for his false implication
by the witnesses an d specially against the PW -1 and PW -2, who being natural witnesses
directly witnessed the crime. The learned trial Court has discussed and dilated upon each and every aspect of the case and had rightly found the appellant guilty of offence, but while recor ding judgment has treated harshly to the appellant by awarding him capital punishment,
ignoring the fact that admittedly a landed dispute exists between the parties. Thus in view of the mitigating circumstances, the sentence of appellant is reduced/convert ed from death
sentence to imprisonment for life with compensation of Rs.300,000/ - to be paid to the legal
heirs of deceased Muhammad Saleem as envisaged under section 544- A, Cr.P.C. and in
default the appellant shall further suffer three years' S.I. While, the remaining sentences shall
remain intact. The benefit of section 382- B, Cr.P.C. is also extended in favour of appellant.
For foregoing reasons, after above modification of judgment of trial Court, the appeal
stands dismissed. Consequently, the Murder Reference is answered in negative.
JK/167/Bal. Order accordingly.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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