2018 P Cr. L J 1297
[Balochistan]
Before Muhammad Ejaz Swati and Abdullah Baloch, JJ
SALAHUDDIN and another ---Appellant
Versus
The STATE---Respondent
Criminal Appeal No. 13 and Criminal Revision No. 3 of 2017, decided on 15th August, 2017.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34 ---Qatl -i-amd, common intention---Appreciation of evidence ---Delay of
more than nine hours in lodging FIR ---Effect ---Occurrence took place on 25th November,
2015 at about 4.15 p.m. and the dead body of the deceased was taken by the complainant and
eyewitnesses to the hospital, where the same was examined by the doctor at about 4.25 p.m.---Prior to lodging FIR, complainant and witnesses took the dead body to their village, which
was far away at the distance of 25 -kilometers from the place of occurrence--- After burial of
dead body, without loss of time, complainant lodged the FIR at about 1.30 a.m. (night) ---First
Information Report, in circumstances, could be termed as promptly lodged FIR ---Delay in
lodging FIR particu larly when no deliberation or consultation had taken place, was of no
consequence.
Muhammad Nadeem alias Deemi v. The State 2011 SCMR 872 rel.
(b) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34--- Qatl-i-amd, common intention---Appreciation of evidence ---Ocular
account corroborated by medical evidence---Prosecution case was that complainant party armed with firearms, made firing upon the brother of complainant, who succumbed to the injuries ---Ocular account was furnished by three witnesses including compl ainant ---Said
witnesses corroborated each other on all material points like time of occurrence, mode and manner of occurrence and injuries attributed to the deceased by the accused ---Witnesses were
cross -examined at length, however, the defence could not s hatter the veracity of their
deposition---Defence had failed to create any dent in the statements of witnesses ---
Admittedly, the occurrence had taken place at the daylight and parties were previously known to each other, therefore, question of mistaken ide ntification was not possible ---Medical
Officer, who conducted the external examination with regard to locale and seat of injuries on the person of deceased, coincided with the time of occurrence and use of firearm weapon ---
Circumstances established that me dical evidence had fully corroborated the ocular evidence.
(c) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Related
witness ---Scope ---Complainant though happened to be the real brother of the deceased, but
mere relationship of witness with the deceased could not discredit his testimony, if same was
confidence inspiring and appealing to the reasons and corroborated by independent
circumstances.
Ijaz Ahmed v. The State 2009 SCMR 99 rel.
(d) Pen al Code (XLV of 1860) ---
----Ss. 302(b) & 34--- Qatl-i-amd, common intention---Appreciation of evidence ---Ocular
account ---Scope ---Conviction on ocular testimony ---Ocular account was always deemed to
be the principal evidence and if the same was corroborat ed by medical evidence, that was
sufficient to record conviction. Amel Shireen v. The State PLD 2004 SC 271 and Anwar -ul-Haq v. The State 2004
SCMR 252 rel.
(e) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34--- Qatl-i-amd, common intention---Appreciation of evidence --- Quantum
of sentence ---Capital punishment ---Scope ---Mitigating circumstances ---Record showed that
complainant in the written complaint had mentioned that the motive behind the occurrence
was previous enmity ---Scope ---When previous enmity was admitted by the prosecution, the
same would create mitigating circumstance in the case ---In the presence of mitigating
circumstance, capital punishment could not be awarded ---Life imprisonment awarded by the
Trial Court was maintained by the High Court.
Muhammad Aslam Chishti for Appellant.
Muhammad Yahya Baloch, D.P.G. for the State.
Syed Ayaz Zahoor for the Complainant.
Date of hearing: 1st August, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This common judgment disposes of Criminal Appeal
No.13 of 2017 f iled by the appellant Salah -ud-Din son of Rozay, against the judgment dated
30th December 2016 (hereinafter referred as, "the impugned judgment") passed by learned Additional Sessions Judge Loralai (hereinafter referred as, "the trial Court"), whereby the appellant was convicted under section 302(b), P.P.C. and sentenced to suffer life imprisonment, with compensation of Rs.200,000/ - (Rupees Two Hundred Thousand) as
contemplated under section 544- A, Cr.P.C., which in case of recovery was directed to be paid
to the legal heirs of deceased Saleh Muhammad and in default thereof to further suffer six months' S.I., with the benefit of section 382- B, Cr.P.C. The Criminal Revision Petition No 03
of 2017 has been filed by the complainant/petitioner Abdul Haleem for e nhancement of the
sentence awarded to the convict/appellant.
2. Facts of the case are that on 26th November, 2014 the complainant Abdul Haleem son
of Haji Jalat Khan Dumer, lodged FIR No.18/2014 at Police Station Sinjavi under section 392, 34, P.P.C. stati ng therein that on 25th November, 2014 at about 4.15 p.m. he along with
Rozay Khan son of Akhtar Muhammad and Salah- ud -Din son of Din Muhammad were
present in front of a Medical Store in Killi Poi, having tea. In the meanwhile, accused Salah -
ud-Din son of Rozay, Fateh Muhammad, Habibullah and Syed Khan riding on two red colour
70-CC, Unique motorcycles, came over there; accused Salah -ud-Din and Habibullah were
armed with pistols, who entered into the Medical Store and fired upon complainant's brother
namel y Saleh Muhammad, whereas accused Fateh Muhammad and Syed Khan duly armed
with Kalashnikov remained outside the Medical Store and made aerial firing to disperse the people. It is further averred that on hearing the firing shots, he along with witnesses Roz ay
and Saleh -ud-Din rushed towards the Medical Store, wherefrom Habibullah and accused
Salah -ud-Din escaped and while fleeing away a pistol was dropped from the hands of
appellant Salah -ud-Din, accused persons escaped on Motorcycles and afterwards on entry in
Medical Store, they saw that his brother succumbed to the injuries, whereupon deceased was shifted to Civil Hospital, Sanjavi and later on he was shifted to his house at Killi Poi. Since Killi Poi is at the distance of 25 -Kms and due to late hours, he could not report the matter in
time.
3. Pursuant to above FIR, the investigation was entrusted to PW -8 Allah Ditta, SI/IO,
who during investigation recorded the statements of witnesses under section 161, Cr.P.C.;
took into possession the blood stained clothes of deceased; collected the blood lying on the
floor through cotton; recovered crime empties of .30 bore pistol; recovered a pistol from the
Medical Store concealed underneath the counter; prepared site plan through Patwari; took into posses sion the motorcycle used in the crime; carried out proceedings 174, Cr.P.C.;
obtained death certificate and thereafter submitted the challan in the trial Court under section 512, Cr.P.C. The appellant was arrested on 3rd November, 2015 and during investiga tion
recorded his disclosure and got recovered the pistol used in the crime. On completion of
investigation submitted the challan in the trial Court.
4. At the trial, the accused Habibullah, Syed Khan and Fateh Muhammad were declared
as proclaimed offender s by initiating proceedings under sections 87 and 88, Cr.P.C. The
prosecution produced eight witnesses, whereafter the convict/appellant was examined under section 342, Cr.P.C. The appellant did not record his statement on oath under section 340(2), Cr.P.C . However, produced a witness in his defence. On conclusion of trial and after hearing
the arguments, the trial Court convicted and sentenced the appellant as mentioned above. Whereafter the appellant filed Criminal Appeal No.13/2017, while the complainant /petitioner
filed Criminal Revision No.03 of 2017 for enhancement of sentence awarded to the appellant.
5. Learned counsel for the appellant contended that the judgment so passed by the trial
Court suffers from material illegalities and irregularities, mis reading and non- reading of
evidence; that the prosecution has failed to prove its case through confidence inspiring evidence without shadow of doubt; that the presence of the eye witnesses at the place of occurrence is highly doubtful; that the disclosure made before the police is not admissible under the Qanun- e-Shahadat Order, 1984; that no such alleged recovery of crime weapon was
effected on the pointation of the appellant; that the statements of the prosecution witnesses are contradictory to each other ; that the ocular version was not supported by the medical
evidence; that the FIR was lodged with delay of 9- 1/2 hours without any plausible
explanation, the same was a result of deliberate, consultation of the prosecution witnesses with each other just to falsely implicate the appellant in the instant case; that the conduct of
eye-witnesses are unnatural; that the eye- witnesses are interrelated with the deceased and
being interested witnesses their testimony could not be admissible; that the case of prosec ution is highly doubtful and the learned trial Court without proper appreciation of
evidence to its true perspective had taken into consideration and convicted the appellant
contrary to law, facts and golden norms of justice, as such, the judgment impugned is liable
to be set aside.
6. On the other hand, the learned Deputy Prosecutor General assisted by the learned
counsel for the complainant has strongly opposed the arguments so advanced by the learned counsel for the appellant and contended that the prose cution has proved its case against the
appellant by producing confidence inspiring evidence; that the ocular evidence is supported by the medical evidence, recovery of crime weapon and crime empties; that the presence of eye witnesses was proved and nowher e it was disputed; that the trial Court after proper
appreciation of evidence had rightly convicted the appellant, however, taken lenient view while recording sentence, wherein the appellant was convicted for life imprisonment instead of capital punishment of death. They further contended that in view of the evidence so
brought on record the appellant is liable to be convicted for capital punishment of death; that
the defence has failed to prove its version for false implication of the appellant. They praye d
for award of capital punishment to the appellant.
7. Heard the learned counsel for parties with their able assistance perused the record
minutely. The prosecution story as portrayed in written report of PW -5 Abdul Haleem
Ex.P/5 -A, wherein it was stated t hat on 25th November, 2014 at about 4.15 p.m. the
complainant along with eye -witnesses Rozay Khan, Salah -ud-Din were sitting in front of
Modern Medical Store, in which his brother deceased Saleh Muhammad was working. It is
further averred in the report tha t at the relevant time two Unique Motorcycles 70 -CC red
colors arrived at there and two persons i.e. Salah ud- Din and Fateh Muhammad were riding
on one motorcycle, while the accused Habibullah and Syed Khan were riding on the other
motorcycle. The accused Habibullah and Salah- ud-Din were armed with pistol, while Fateh
Muhammad and Syed Khan were armed with Kalashnikovs. Habibullah and Salah- ud-Din
entered in the Medical Store and started firing. During the course of firing the complainant and the eye -witnes ses Rozay Khan and Salah -ud-Din run over there. In the meanwhile, the
accused Habibullah and Salah -ud-Din came out from the Medical Store and during the course
of their running from the scene of occurrence, the pistol was dropped from accused Salah- ud-
Din, however, when they entered in the Medical Store they found his brother Saleh
Muhammad in injured condition, however, he was succumbed to the injuries at the spot, thereafter he along with eye- witnesses Rozay Khan and Salah -ud -Din has taken the dead
body of deceased to hospital of Sanjavi, where after examining the dead body by the doctor,
they have taken the same for burial to their home town i.e. Killi Poi, which is at a distance of 25-KMs from the scene of occurrence and after burial the same he came back along with the
witnesses and reported the matter with police station at about 01.30 a.m. at night on 26th November 2014. PW -6 Rozay Khan and PW -7 Salah -ud-Din are the eye- witnesses. They
have entirely corroborated the statement of PW -5 complainant on al l counts. PW -1 is
Mukhtiar Ahmed, ASI, who is the witness of disclosure memo and recovery of T.T. pistol on the pointation of appellant. PW -2 is Dr. Mohabat Khan, who on the said date at about 4.25
p.m. examined the dead body of deceased Saleh Muhammad, who was brought by Raz Gul CW-1, who is the proprietor of Medical Store. PW -2 issued the Medical Certificate, wherein
locale/seat of injuries mentioned in the MLC Ex.P/2 -A. PW -3 is Pasand Khan, who is the
witness of the Chemical Analysis Report carried out b y the FSL and crime weapon and
empties. PW -1 is Abdul Majeed, ASI, who is the witness of blood stained Kameez of the
deceased, blood stained earth taken through cotton and also witness of the recovery of three empties of .30 bore pistol and one pistol from the place of occurrence along with one
magazine and three live cartridges. He is also witness of recovery of five empties of China
weapon from the place of occurrence. He is also the witness of recovery of Unique
motorcycle 70 -CC collided, which was taken into possession by the Investigating Officer on
spy information from Harnai Road Killi Nasak. All the articles through the memos were produced before the trial Court. PW -8 Allah Ditta, is the Investigating Officer, who counted
the steps, which were taken by him during the course of investigation.
8. It is salutary principle of law that each criminal case has its own facts and
circumstances as to weighed according to its ocular events, there is no second cavil for the proposition that in the instant case, t he incident took place on 25th November, 2015 at 4.15
p.m. and the dead body of the deceased was initially taken by the complainant and eye -
witnesses to the Sanjavi Hospital, where the dead body was examined by the doctor at about. 4.25 p.m. as in the such time though the police was arrived in the hospital and found the dead
body and carried out the inquest report in the hospital well in time, however, the complainant PW-5 being brother of the deceased was unable to contact his parents and other relatives w ith
regard to the incident as their home town/village Killi Poi was far away at the distance of 25 -
KMs from the place of occurrence, besides no mobile service was available to contact the relatives, as such, prior to lodging the FIR they have taken the dea d body to their village and
after burial without loss of time, the complainant came back along with eye -witnesses to the
police station at 01.30 a.m. (night) and lodged the FIR, hence in all eventualities it can be termed as promptly FIR was lodged, wherei n the complainant named the appellant and
figured him with specific role. Hence, the mere delay so occasioned in lodging the FIR was natural, justifiably explained, thus the objection of the defence in such behalf is of no substance.
9. In order to substantiate its version, the prosecution has led evidence of ocular account
of truthful witnesses, medical evidence, recovery of crime weapon and empties coupled with positive FSL report as well as other corroborative piece of evidence.
10. As far as the ocular account in the case is concerned, that has been established
through the statements of PW -5 Abdul Haleem, complainant, PW -6 Rozay Khan and PW -7
Salah -ud-Din, while appearing in the witness box all the prosecution witnesses on material
aspect viz time of occurrence, mode and manner of occurrence and injuries ascribed to the deceased by the appellant. Nevertheless, the prosecution witnesses were subjected to lengthy cross -examination, however, the defence could not shatter the veracity of their deposition.
11. The defence has failed to create any dent in their statements, which could be gathered
that their statements were not trustworthy or did not inspire confidence. Admittedly, the occurrence has taken place at the daylight coupled with the fact that the part ies were
previously known to each other, therefore, question of mistaken identification does not arise. As far as the relationship of the PWs with the deceased as raised by the learned defence counsel is concerned though the complainant happens to be the r eal brother of the deceased,
but it has been the consistent view of the superior Courts of the country that mere relationship of a witness with the deceased could not disregard his testimony, if otherwise the same is trustworthy confidence inspiring and appealing to the reasons while corroborated by independent circumstances. Reliance in this regard is placed by the Hon'ble Supreme Court of Pakistan in the case of Ijaz Ahmed v. The State, 2009 SCMR 99, wherein it has been held as under:
"9. As regards the c ontention that both the eye -witnesses were related and thus,
interested, therefore, their testimony could not have been believed, it may be pointed
out here that mere relationship of a witness with the deceased is no ground for
discarding his evidence if he, otherwise appears to be truthful and his presence at the place of occurrence is probable. Mere relationship of a witness with any of the parties would not dub him as an interested witness because interested witness is one who has, of his own, a motive t o falsely implicate the accused, is swayed away by a cause
against the accused, is biased, partisan, or inimical towards the accused, hence any witness who has deposed against the accused on account of the occurrence, by no stretch of imagination can be re garded as an "interested witness". In the wake
therefore, it proceeds that merely because the witnesses are kith and kin, their evidence cannot be rejected, if otherwise it is trustworthy. It would also be pertinent to mention here that related witnesses s ome time, particularly in murder cases, may be
found more reliable, because they, on account of their relationship with the deceased, would not let go the real culprit or substitute an innocent person for him. This view receives support from the following reported judgments:
(i) Sheraz Tufail v. The State 2007 SCMR 518, (ii) Khair Muhammad and another v. State 2007 SCMR 158, (iii) Amal Sherin and another v. State through A.- G. N -W.F.P.
PLD 2004 SC 371, (iv) Dosa and others v. The State 2002 SCMR 1578, (v) M ulla
Riaz Ahmad v. The State 2002 SCMR 626, (vi) Feroze Khan v. The State 2002 SCMR 99, (vii) Farmanullah v. Qadeem Khan and another 2001 SCMR 1473, (viii) Muhammad Amin v. The State 2000 SCMR 1784, (ix) Saeed Akhtar and others v. The State 2006 SCMR 383, (x) Mir Hassan and others v. State and others 190 SCMR 1418, (xi) Sharafat Ali v. The State 1999 SCMR 329, (xii) Sardar Khan and others v. State 1998 SCMR 1823, (xiii) Wahid Bukhsh and others v. The State 1997 SCMR 1424, (xiv) Muhammad Arshad alias Achhi v. The State 1995 SCMR 1639, (xv) State
of Rajasthan v. Hanaman AIR 2001 SC 282 and (xvi) State of Punjab v. Wassail Singh and others AIR 1981 SC 697."
12. It is relevant to mention here that CW -1 Raz Muhammad was an independent witness
and on the applicati on of defence under section 540, Cr.P.C., the trial Court vide order dated
16th June, 2016, allowed him to be produced as Court Witness (CW). In his testimony, CW -1
Raz Muhammad deposed that on 25th November, 2016 he reached Medical Store at 4.45
p.m., whe n dead body of the deceased Saleh Muhammad son of Jalat Khan was lying in a
pool of blood. He was told by the complainant (PW -5 Abdul Haleem) and Salah -ud-Din
(PW-7) that appellant and Habibullah (absconder) respectively had committed the murder of
the dec eased. The presence of complainant and PW -7 at the time and place of occurrence has
not only further been justified by the CW -1, but direct role of causing fire arm injury and
committing murder of the deceased by the appellant had been disclosed prior to r egistration
of the FIR by the complainant.
13. In the above circumstances, in absence of any motive for false implication by the
appellant, the mere relationship or mere delay in lodging the FIR after about nine hours,
particularly when no advantage for de liberation or consultation had been taken by the
complainant or established by the defence to discard the unimpeachable evidence of truthful witnesses produced by the prosecution. Reference is to be made to the case of Muhammad Nadeem alias Deemi v. The St ate, 2011 SCMR 872. The operative portion is reproduced
herein below:
"6. So far as the FIR is concerned, it was, no doubt, delayed by 17 hours, yet seen in the light of the attending circumstances of the case, the delay stands explained. It is an
establis hed principle of law and practice that in criminal cases the delay, by itself, in
lodging the FIR is not material. Tie factors to be considered by the Courts are firstly,
that such delay stands reasonably explained and secondly, that the prosecution has not derived any undue advantage through the delay involved. The delay is explained in the FIR itself to the effect that everyone was busy at the hospital, struggling for the life of the victim. The possibility of the complainant party arranging for the eye -
witnesses is altogether ruled out because even if so, the occurrence having taken place
in the cricket ground of the city, everything could have been arranged within minutes. It is proved through the version of the eye witnesses that occurrence had taken pl ace
in the cricket ground duly supported by recovery memo (Exh. PD), indicating the recovery of blood from the spot. We believe while concurring with the two Courts that the prosecution has explained the delay in question.
7. Coming to the question of what advantage the prosecution has gained from
delaying the First Information Report, we observe that no advantage, at all, was so gained. The complainant has not involved any person by deliberations and brought about the single charge which was true and logical in every sense. The effective role is attributed to the petitioner and petitioner alone. The complainant had no enmity, whatsoever, for falsely implicating the petitioner, and thus nothing was unlawfully and maliciously gained through the delay in quest ion. The same accused was
subsequently arrested on 11- 9-2001 from the College Road."
14. The next important testimony of the prosecution case is medical evidence. In this
regard, PW -2 Dr. Riaz Ahmed Kasi had conducted the external examination with regard t o
locale and seat of injuries on the person of deceased, which also coincide at the time of occurrence, wherein it was mentioned in the MLC Ex.P/2- A that the injuries caused by fire
arm weapon, as such, medical evidence has fully corroborated the ocular ev idence and the
unnatural death of the deceased.
15. It is established principle of law that ocular account is always deemed to be the
principal evidence and of the same is corroborated by medical evidence that is sufficient to record conviction, whereas the other constituent/factors like recovery of blood stained earth, blood stained cloths, report of Chemical Examiner, report of Serologist are also deemed to be corroborative piece of evidence. Respectfully reliance in the ratio of decidendi of august Supre me Court of Pakistan in the case of Amel Shireen v. The State, PLD 2004 SC 371,
herein it was held that, "Conviction can be recorded even on the statements of the eye -
witnesses alone without there being any corroboration, provided their evidence inspires confidence." Similar view was held in the case of Anwaar -ul-Haq v. The State, 2004 SCMR
252, wherein their Lordship had held that, "It was a broad- daylight occurrence and the FIR
was recorded with promptitude. Since the parties were known to each other prior to this incident as such there was no question of mistaken identity. It is true that the ocular account has been witnessed but that fact itself would not be sufficient to discard the testimony of the P.Ws., if it otherwise inspires confidence. They are t he natural witnesses and stood test of
cross -examination. They have given plausible explanation for their presence at the spot.
Nothing has been brought on record why these witnesses would implicate the petitioner in an offence entailing capital punishment ."
16. While screening the whole prosecution case from all angles, we are of the considered
view that the prosecution has been able to advance its case, wherein mainly details have been brought forth. The defence has miserably failed to establish that the prosecution witnesses
had any ill -will or motive to falsely implicate the appellant.
17. For the foregoing reasons discussed hereinabove, the learned counsel for appellant has
failed to point out any material illegality or irregularities in the impugned ju dgment passed by
the trial Court, as such, we are of the firm view that the learned trial Court after proper
appreciation of evidence had rightly convicted the appellant for the commission of offence.
18. As far as the contention of learned counsel for the complainant with regard to lenient
view taken by the learned trial Court while recording life imprisonment to the appellant, is
concerned, it is worth to mention here that the complainant in its written complaint had
clearly mentioned that the motive behi nd the occurrence is a previous enmity, as such, when
the previous enmity is by itself admitted by the prosecution, in view of the same, it is settled
principle of law where any previous dispute exists between the parties would prima facie create mitigatin g circumstance in the case. Accordingly, in presence of mitigating
circumstance capital punishment cannot be awarded and the such view of the learned counsel
for the complainant is without substance is not tenable, as such, sentence so awarded by the
learn ed trial Court is maintained.
For the foregoing reasons, the Criminal Appeal No.13/2017 filed by the appellant and
the Criminal Revision Petition No.03/2017 filed by the complainant for enhancement of sentence of the appellant, are hereby dismissed being devoid of merits.
JK/135/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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