2018 P Cr. L J 117
[Balochistan (Sibi Bench)]
Before Muhammad Ejaz Swati and Abdullah Baloch, JJ
LAL BAKHSH aka LAL MUHAMMAD ---Appellant
Versus
The STATE---Respondent
Criminal Appeal No. S -89 of 2016, decided on 31st July, 2017.
(a) Penal Code (XLV of 1860) ---
----Ss. 302 & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Medical
evidence ---Scope---Medical Officer, who conducted external examination of the dead body
of the deceased and found injuries on his person, which were mentioned in his medical and
death certificate---Said certificates showed that all the injuries were received by the deceased by fire arm ---Unnatural death of the deceased was not disputed by the defence ---
Eyewitnesses had fully corroborated each other to the effect that deceased was murdered by the firing of the accused and co -accused and no question of natural death of the deceased was
put to the witnesses by the defence and even to the Investigating Officers ---Circumstances
established that the death of deceased was unnatural.
(b) Penal Code (XLV of 1860) ---
----Ss. 302 & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Accused and
co-accused were charged for the murder of father of the complainant by firing shots ---Victim
succumbed to the injuries at t he spot ---Ocular account was furnished by three witnesses
including complainant ---Complainant was son of the deceased and his presence at home was
natural and nowhere it was disputed by the defence ---Complainant at the relevant time of
occurrence, reported the case to the police through written complaint, wherein it was
specifically mentioned the presence of eye- witnesses ---Presence of eye -witnesses including
complainant was proved and all the three witnesses had corroborated each other on all material coun ts---Record showed that certain discrepancies were available in the statements
of witnesses, which would not materially effect the case of prosecution---Said witnesses deposed the scene of occurrence in line and their statements despite lengthy cross -
exami nation were not shaken by the defence on material counts ---Defence did not put a
single question to any of the witnesses of ocular account with regard to their presence and false implication of accused ---Statements of all the three eye -witnesses remained f irm against
the accused ---Appeal against conviction and sentences was dismissed in circumstances.
(c) Penal Code(XLV of 1860) ---
----Ss. 302 & 34 ---Qatl-i-amd, common intention---Appreciation of evidence ---Testimony of
closely related witnesses ---Reliance---Scope ---Defence had objected that only the interested
witnesses had been produced by the prosecution---Effect ---Eye -witnesses were related to the
deceased but such relation did not render them interested witnesses until and unless it was
proved that the y were inimical to the opposite party.
Irshad alias Shada v. The State 1992 PCr.LJ 2273 rel.
(d) Penal Code (XLV of 1860) ---
----Ss. 302 & 34---Qatl -i-amd, common intention---Recovery of crime empties and blood-
stained articles ---Reliance---Scope---Eight empties of T.T. pistol were collected and taken
into possession from the scene of occurrence ---Blood- stained earth and blood- stained clothes
of the deceased were taken into possession and were sent to the Forensic Science Laboratory
for chemical analysis and reports were received in affirmative---T.T. pistol was recovered at the instance of accused, which was sent to the Ballistic Expert for chemical analysis ---Report
of Ballistic expert showed that the recovered pistol was in working condition and the empties recovered from the place of occurrence were tested and matched with the said pistol, which were found being fired from the said pistol ---Recoveries could be relied in circumstances.
(e) Penal Code (XLV of 1860) ---
----Ss. 302 & 34---Qanun -e-Shahadat Order (10 of 1984), S. 40---Qatl -i-amd, common
intention ---Appreciation of evidence ---Disclosure of accused ---Effect ---Record showed that
after the arrest of accused, he disclosed to the witnesses that deceased was blamed for wall chalking of their walls, written abusive words and deceased often had quarrel with his son;
due to said reasons, he killed the deceased ---After recording said disclosure, police on his
pointation, recovered the crime weapon T.T. pistol along with two live cartridges from the house and beneath the bed of the accused, which were taken into possession---Such
disclosure of the accused and recovery of crime weapon from his residential room connected the accused with the commission of offence.
(f) Penal Code (XLV of 1860) ---
----Ss. 302 & 34 ---Qatl -i-amd, common intention ---Appreciation of evidence ---Motive, proof
of---Effect ---Motive of the crime had been established from the disclosures of the accused---
Accused was aggrieved and was annoyed with the deceased on account of strained rela tions
with each other, which was result of murder of the deceased ---Motive as disclosed by the
accused was proved for committing the murder of the deceased.
Muhammad Amjad v. The State PLD 2003 SC 704 rel.
Bahlol Khan Kasi for Appellant.
Muhammad Yahya Baloch, D.P.G. for the State.
Ahsan Rafiq Rana for the Complainant.
Date of hearing: 24th July, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This appeal is directed against the judgment dated 31st
May, 2016 (hereinafter referred as, "the impugned judgment") pa ssed by learned Sessions
Judge Sibi Division Sibi (hereinafter referred as, "the trial Court"), whereby the appellant Lal
Bakhsh aka Lal Muhammad son of Abdul Majeed was convicted under section 302(b), P.P.C. and sentenced to suffer imprisonment for life a s Tazir, with compensation of Rs. 10,00,000/ -
(One million rupees), which in case of recovery was directed to be paid to the legal heirs of deceased Sabzal Khan as envisaged under section 544- A, Cr.P.C., whereas in default thereof
the appellant shall furth er suffer two years' R.I., with the benefit of section 382- B, Cr.P.C.
2. Facts of the case are that on 11th October, 2011 the complainant Misri Khan son of
Sabzal Khan lodged FIR No. 102 of 2011 at Police Station city Sibi district Sibi under section 302, 34, P.P.C. stating therein that he along with his parents is residing at Char Moori Sibi. On the day of occurrence, he along with his father Sabzal, uncle Mitta Khan both sons of Mirza Khan and maternal brother Bahadar son of Rasool Bakhsh wer e present in their house,
when at about 9.30 a.m. the main door was knocked. At the same time, his father was ready on his motorcycle for proceedings towards Sibi City, hence he went out on his motorcycle,
when suddenly they heard firing shots, thus he along with his uncle and cousin when rushed
outside, found his father along with motorcycle lying on the ground in pool of blood, while
the appellant along with absconding accused Mir Muhammad armed with pistols escaped away on motorcycle, whereafter his fath er succumbed to the injuries.
3. After registration of FIR, PW -6 Abdul Hameed, SI/IO carried out the investigation of
the case, who during investigation rushed to the place of occurrence, inspected the site and prepared site map, recovered eight empties of pistol, blood stained earth and blood- stained
clothes and dispatched the same to FSL for analysis: recorded the statements of witnesses under section 161, Cr.P.C.; prepared inquest report: obtained death certificate of deceased and submitted the challan under section 512, Cr.P.C. in the trial Court. PW -7 Maqsood
Akbar, is the second Investigation Officer of the case, who arrested the appellant on 18th August 2015; recorded the disclosure of the appellant and pursuant to the same effected the recovery of cr ime weapon i.e. T.T. pistol along with magazine containing two bullets. On
completion of investigation the challan of the case was prepared by Muhammad Mukhtiar, SHO, which was submitted in the trial Court for trial of the appellant.
4. At the trial the ac cused Mir Muhammad could not be arrested, thus he was declared as
proclaimed offender by initiating proceedings under sections 87 and 88, Cr.P.C. The prosecution produced seven witnesses in support of charge, while the appellant was examined under section 342, Cr.P.C. However, he neither recorded his statement on oath under section 340(2), Cr.P.C. nor produced any witness in his defence. On conclusion of trial and after hearing arguments, the appellant was found guilty under section 302(b), P.P.C. and was sentenced as mentioned in para No.1, while the case file to the extent of absconding accused
was directed to be kept on dormant. Whereafter, instant appeal has been filed.
5. Learned counsel for appellant contended that the judgment passed by the learned tr ial
Court is suffering from misreading and non- reading of evidence; that the learned trial Court
while a awarding life imprisonment to the appellant has failed to appreciate the evidence of
prosecution, based upon circumstantial evidence and the criteria l aid down for convicting any
person upon circumstantial evidence is entirely different than that of convicting a person upon substantive evidence, which is lacking in the case in hand; that the prosecution has failed to prove its case beyond any reasonable doubt: that the statements of PWs have not
been corroborated each other; that the ocular evidence did not corroborate the medical evidence; that the disclosure being made before the police is not admissible and cannot be based for conviction of the appella nt; that the alleged eye -witnesses are interrelated with each
other and are interested witnesses; that no recovery was effected from the appellant; that the
so-called disclosure memo was prepared after delay without any plausible explanation by the
prosecu tion that the learned trial court has failed to discuss and consider the defence version
in juxtaposition; that the impugned judgment suffers from material improbabilities and liable to be set aside.
6. On the other hand, the learned D.P.G. assisted by the counsel for the complainant
vehemently opposed the arguments advanced by the learned counsel for appellant and contended that the prosecution has proved its case against the appellant through confidence inspiring evidence; that on the disclosure of the appellant recovery of pistol along with live cartridges was effected: that the appellant was remained fugitive from law, such a long period of unexplained absconsion of the appellant itself connects the appellant with the commission offence; that the ocular evidence produced by the prosecution was supported by the medical evidence and recovery and collection of the incriminatory articles and empties from the scene
of occurrence; that the defence has failed to put any question to the PWs with regard to false
implication of the appellant; that the learned trial Court after proper appreciation of evidence
had rightly convicted the appellant. They prayed for dismissal of the appeal.
7. Heard the learned counsel for parties and perused the record with their able as sistance.
The record reveals that to substantiate its case, the prosecution has produced as many as
seven witnesses. PW -1 Misri Khan is the complainant of the case, who on the day of
occurrence i.e. 11th November, 2010 reported the case at Police Station C ity Sibi, with the
averments that on the said date at about 9.30 p.m. he along with his father deceased Sabzal Khan, his uncle Mitha Khan, his maternal brother Bahadur Khan were present in the house of deceased when the deceased was riding on motorcycle went out from the gate while firing
was started, he along with Mitta Khan and Bahadur Khan came out and seen his father lying on the ground with the pool of blood, while two persons namely Lal Muhammad (appellant) and Mir Muhammad (absconding accused) armed with pistol fled away on a motorcycle and his father was succumbed to the injuries at the spot. On such report Ex.P/1- A, the FIR No.102
of 2011 was lodged at about 10.15 a.m.
8. PW-2 Dr Manzoor Ahmed, Medical Officer who was posted on the day of occurrence
at DHQ Hospital Sibi when at about 10.40 a.m. the dead body of Sabzal Khan was brought
by the police authorities, which was externally examined by PW -2 and found the injuries as
mentioned in the Medical Certificate Ex.P/2 -A. PW -3 is Mitta Khan is also an eye -witness
and he has also corroborated the deposition of PW -1, he is also witness of the recovery
memos of blood stained earth and eight empties of pistol as well as witness of blood stained clothes of the deceased, which were taken into possession by the prosecution on the said date. PW-4 is Bahadur Khan, who was also an eye -witness of the occurrence. He has also
corroborated the statements of the PW -1 and PW -3 on all material counts and also, he is
witness of the site inspection memo. PW -5 is Rab Nawaz Head Constable, who is the witness
of disclosure memo made by the appellant on 2nd September, 2015 and he is also witness of the recovery of crime weapon i.e. pistol on the pointation of the appellant. PW -6 is Abdul
Hameed SIP, who is first Investigating O fficer of the case and he counted the steps taken by
him during the course of investigation and submitted the initial challan under section 512, Cr.P.C. PW -7 is Maqsood Akbar, SIP, is the second Investigation Officer of the case, who
arrested the appellant on 19th August, 2015 and the appellant recorded his disclosure memo
before him on 2nd September, 2015, which was resulted into recovery of pistol along with two live cartridges from beneath of bed of the appellant's room on his pointation.
9. The case of prosecution mainly rests upon following evidence:
Ocular evidence
Medical Evidence
Recovery of Crime weapon
Disclosure and pointation of appellant
Recovery of blood stained articles and affirmative FSL report.
10. As far as the unnatural death of deceased Sabzal Khan is concerned, the prosecution
has produced PW -2 Dr. Manzoor Ahmed, who conducted the external examination of the
dead body of the deceased on the said day at about 10.40 a.m. and found injuries on his
person, which are mentioned in the medical and death certificate Ex.P/2 -A wherein it was
mentioned that all the injuries were received by the deceased by fire arm while in cross -
examination the unnatural death of the deceased was not disputed by the defence. Even
otherwise, the star eye -witnes s i.e. PW -1 complainant Misri Khan, PW -3 Mitta Khan and
PW-4 Bahadur Khan, who have fully corroborated each other, that on the same day at about
9.30 a.m. the deceased was murdered by the firing of the appellant and co accused Mir Muhammad and no question of natural death of the deceased was put to the witnesses by the defence and even to the I.Os, who appeared as PW -6 and PW -7, so it can safely be said that
the death of deceased was unnatural.
11. Besides, the case of prosecution mainly relies against the appellant on the basis of
ocular evidence, which was recorded by PW -1/complainant. He is also the son of deceased
Sabzal Khan. His presence in his home was natural and nowhere it was disputed by the defence. On the other hand. PW -1 at the very relevant tim e of occurrence reported the case
with the Police Station through written complaint Ex.P/1 A. wherein specifically mentioned the presence of PW -3 Mitta Khan and PW -4 Bahadur Khan, therefore, the presence of PW -1,
PW-3 and PW -4 was proved and all the three witnesses have corroborated each other on all
material counts, though certain discrepancies have been observed in their statements, but such discrepancies would not thresh out of materially affect the case of prosecution on material counts. It is important to mention here that all the three witnesses deposed the scene of
occurrence in line and their statements despite lengthy cross -examination were not shaken by
the defence on material counts. Even the defence did not put a single question to any of the aforesaid three eye -witnesses with regard to their presence and false implication of the
appellant, in such circumstances the statements of the all three eye -witnesses remains firm.
12. The objection of the defence that only interested witnesses have been pro duced,
suffice to observe that it does not appeal to the logic that in front of blood relations, if one person is murdered, his relatives by letting the actual culprit and involve an innocent person. Even otherwise being the inhabitants of same vicinity coupled with the fact that the occurrence took place during day light, hence there was no chances of mistaken identity or false implication, while the parties were well known to each other. Through PW -1, PW -3 and
PW-4 were related to the deceased Sabzal Khan , but such relation does not render them
interested witnesses until and unless it is proved that they are inimical with the opponent party. In this regard, reliance is placed upon case of Irshad alias Shada v. The State 1992 PCr.LJ 2273, relevant portion i s reproduced herein under:
There is no force in this argument as well. Mere relationship of a witness with a party
does not render him as an interested witness. He becomes interested witness only if he besides being related to the party producing him is al so inimical with the opposite
party and that too when his evidence does not inspire confidence. In the instant case no doubt Mst. Rehmat Bibi (P.W.8) being the mother of the deceased. Mst. Seeman (P.W.9) being her maternal niece and Bashir Ahmad (P.W.10) being her brother -in-
law were closely related witnesses but they cannot be doubted as "interested witnesses" because they had no previous animosity with the opposite -party. So
excepting the testimony of Bashir Ahmad (P.W.10) which can be discarded as that of a chance witness, the evidence of two other eye -witnesses does not suffer from any
legal infirmity, including that of interestedness."
13. The prosecution case is also further supported by the recovery of crime empties, there
are eight empties of T.T. pi stol were collected and taken into possession from the scene of
occurrence and blood- stained earth and blood- stained clothes of the deceased was also taken
into possession on the same day and the same were sent to the FSL for chemical analysis and the repo rts were received in affirmative.
14. It has further been observed that the recovered crime weapon i.e. T.T. pistol was also
sent to the Ballistic Expert for Chemical analysis, who after examining the same, opined that the same was in working condition and the eight empties, which were recovered from the
place of occurrence was also tested and matched with the said pistol, which were found being fired from the said pistol, as such, the crime weapon, which was recovered on the pointation of the appellant was also matched with the crime empties recovered from the scene of
occurrence.
15. The case of prosecution has further been strengthened by the disclosure of the
appellant recorded on 2nd September, 2015 while he was arrested on 19th August, 2015 and made hi s disclosure before the witnesses and disclosed some new facts in the disclosure
memo Ex.P/1 -A that the deceased was blamed for wall chalking of their walls written abusive
words and often the deceased had made quarrel with his sons as a result whereof he killed the deceased. After recording his disclosure the police on his pointation recovered the crime weapon i.e. T.T. pistol along with two live cartridges from the house and beneath of bed of the appellant, which were taken into possession. Such disclosur e of the appellant coupled
with disclosure of new facts and recovery of crime weapon from his residential room connected the appellant with the commission of offence as envisaged under Article 40 of Qanun- e-Shahadat Order, 1984.
16. The learned counsel for appellant has raised objection on the admissibility of the
disclosure memo and recovery of the crime weapon and matching of the recovered empties after delay of 4 to 5 years, but such objection of the defence has not sustained for the reasons that the app ellant after commission of crime remained fugitive from law for a such long
period and was arrested on 19th August, 2015 and soon after his arrest on 2nd September, 2015, he made such discourse, which was resulted into recovery of crime weapon on his point ation and certain new facts were arrived in the knowledge of the prosecution, which
were never available on record prior to the disclosure of the appellant. Even otherwise, not only recovery of crime weapon and discovery of new facts have been made in the disclosure memo, but also the motive behind occurrence has first time came into picture. Hence, in our view such objection of the defence is without any legal substance. In the case titled Muhammad Amjad v. The State PLD 2003 SC 704. Hon'ble Supreme Court held as under:
"Further it is noted that as per Article 40, corresponding to section 27 of the Evidence
Act, when any fact is revealed in consequence of information received from any accused in custody of a police officer, such information whether it amounts to a confession or not as it relates distinctly to the fact thereby discovered, may be proved. The information supplied by the appellant under Article 40 ibid relating to incriminating articles is admissible."
17. The motive behind the crime has been es tablished from the disclosure of the appellant
that he was aggrieved and annoyed from the deceased on account of such strained relations with each other, which resulted into murder of the deceased. On the other hand the defence despite availability of opportunities to produce any evidence in his defence, but neither the appellant himself recorded his statement on oath nor produced any defence witnesses in rebuttal of prosecution evidence. Even otherwise, the appellant simply stated in his statement under se ction 342, Cr.P.C. in reply to the question No. 12. "I am innocent and has not
committed any offence". Even then not stated a single word towards his false implication by
the prosecution. The case laws relied upon by the learned counsel for the appellants are
distinguishable and not helpful to the appellant.
18. In view of the aforesaid discussion, we are of the firm view that the prosecution has
fully succeeded to prove its case against the appellant beyond shadow of any doubt and the
learned trial Court a fter proper appreciation of evidence had rightly convicted the appellant
for commission of crime/murder of deceased. Though lenient view was taken by the learned trial Court while recording life imprisonment to the appellant instead of capital punishment, which is based on mitigating circumstances being existed by the parties as motive has been established from the statements disclosure of the appellant.
19. The learned counsel for appellant has failed to point out any illegality or irregularity
in the impugned judgment, which warrants interference by this Court, as such, the appeal being devoid of merits is dismissed.
JK/125/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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