2019 P Cr. L J 118
[Balochistan (Sibi Bench)]
Before Nazeer Ahmed Langove and Abdullah Baloch, JJ
RIAZ AHMED and others ---Appellants
Versus
The STATE and others ---Respondents
Criminal Appeals Nos. (s) 134 of 2016, (s) 01 of 2017 and Criminal Revision Petition No.
(s) 12 of 2017, decided on 12th March, 2018.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34 ---Qatl-i-amd, common intention ---Appreciation of evidence ---
Benefit of doubt ---Prosecution case was that accused and co -accused persons entered into
the house of brother of complainant; co- accused caught hold the victim, while the accused
made firing on the victim, which hit him near his mouth and he died--- Ocular account of
the occurrence had been furnished by the sole witness, who was co mplainant and real
brother of the deceased---Complainant was cross -examined at length, but the defence
failed to de- track the witness from his line ---Defence had objected that statement of sole
eye-witness being interested one was unsafe to award convictio n to the accused ---
Statement of sole eyewitness was faultless, unimpeachable and confidence -inspiring---
Conviction could be awarded and maintained provided there were no other circumstances
which could be fatal to the prosecution case or caused a doubt in a prudent mind as to the guilt of the accused ---Mere fact that the complainant was brother of the deceased, was no
ground to hold him interested witness or to brush- aside his testimony declaring the same
untrustworthy ---Prosecution had proved its case agai nst the accused persons without any
shadow of doubts ---Appeal was dismissed accordingly.
Muhammad Ehsan v. The State 2006 SCMR 1857 and Khizar Hayat v. The State
2011 SCMR 429 rel.
(b) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34--- Qatl-i-amd, common intention ---Appreciation of evidence---FIR
was lodged promptly ---Scope ---Incident had taken place at about 8.00 a.m. and the FIR
was lodged promptly at about 10.00 a.m., while all the three accused persons were nominated in the FIR ---Prompt lodging of FIR had ruled out the concept of deliberation
or consultation.
(c) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Motive,
not proved--- Scope ---Motive was essential component of a crime--- Cases in w hich the
motive had not been established or proved or shrouded in mystery or was not alleged,
convictions could be passed and maintained.
Muhammad Latif alias Tifa v. The State 2008 SCMR 1106 and Muhammad Saeed
and 4 others v. Haq Nawaz Khurram and 3 others PLD 2008 SC 416 rel.
(d) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Non
recovery of crime weapon ---Effect ---Non -recovery of crime weapon was immaterial as
the incident had taken place on 28th November, 2015 and the accused persons, soon after
the commission of crime, absconded ---Accused was arrested on 17th January 2016,
meaning thereby that the accused had sufficient time to dispose of or eliminate the crime weapon ---Recovery of crime weapon could only be a piece of supporting evidence and
the prosecution had to prove its case independently ---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 rel.
Naveed Ahmed Qambarani and Abdul Jalil Lehri for Appellants.
Jamil Ahmed Gajani, Additional P.- G. for the State.
Nemo for the Complainant.
Date of hearing: 22nd February, 2018.
JUDGMENT
ABDULLAH BALOCH, J. ---This common judgment disposes of Criminal
Appeal No.(S)134 of 2016 filed by the appellant Riaz son of Ismail and Criminal Jail Appeal No.(S)01 of 2017 filed on behalf of appellant Mukhtiar alias Mukho son of Daim through Superintendent Central Prison Mach. against the judgment dated 29th November, 2016 (hereinafter referred as "the impugned judgment") passed by learned Additional Sessions Judge Jhal Magsi at Gandawah (hereinafter referred as, "the trial Court"), whereby the appellants were convicted under section 302( b) read with 34, P.P.C. as Tazir
for a period of twenty five (25) years' R.I. and to pay Rs.150,000/ - as compensation to the
legal heirs of deceased as envisaged under section 544 -A, Cr.P.C. and in default thereof
to further suffer six (06) months' S.I., w ith the benefit of section 382- B, Cr.P.C. The
Criminal Revision Petition No.(S)12 of 2017 has been filed by the petitioner/complainant Ahmed Ali, for enhancement of the sentences awarded to the appellants.
2. Facts of the case are that on 28th November, 20 15, the complainant Ahmed Ali
son of Abdul Raheem lodged FIR No.30/2015 at Levies Station Jhal Magsi district Jhal Magsi, under section 302, P.P.C. stating therein that he is resident of Mohallah Mirzani Jhal Magsi, whereas his real brother Muhammad Ali so n of Abdul Rahim is residing in
Soomro Mohallah Jhal Magsi. On the day of occurrence at about 08.00 p.m. he went to meet his brother Muhammad Ali at this house and they both were sitting in a room, when all of sudden the accused Riaz Akbar both sons of Ism ail and Mukhtiar alias Mukho
entered into his house, who used to come there. The accused persons made Lalkar to his
brother saying that he will not spare today and accused Riaz pointed pistol upon him
(complainant), while accused Akbar and Mukhtiar alias M anjo caught hold his brother
Muhammad Ali with hands, while his brother as trying to rescue himself and was resisting. In the meantime, the accused Riaz made firing on his brother, which hit him near his mouth and he fell down, whereafter in order to scare the complainant made an
aerial firing. At this juncture, the accused Mukhtiar took the wallet of his brother and while escaping from the place of occurrence extended threats that in case of any hue and cry, he will also be killed.
3. Pursuant to above FIR , the investigation was entrusted to PW -4 Arbab Ali Magsi,
Naib Tehsildar Thal Magsi/IO, who during investigation inspected the site, prepared site inspection memo and site map: sent the dead body to R.H.C. Jhal Magsi; took into possession two empties of p istol from the place of occurrence; recorded the statements of
witnesses under section 161, Cr.P.C.; arrested the appellant Riaz and Mukhtiar, who were
subjected to investigation. On completion of investigation, challan of the case was
submitted in the trial Court.
4. At the trial. the accused Akbar was declared as proclaimed offender by the learned
trial Court after initiating proceedings under sections 87 and 88, Cr.P.C. the prosecution
produced four witnesses, whereafter the appellants were examined unde r section 342,
Cr.P.C. The appellants neither recorded their statements on oath under section 340(2), Cr.P.C. nor produced any witness in their defence. On conclusion of trial and after hearing arguments, the trial Court convicted and sentenced the appella nts as mentioned
above. Whereafter, initially the appellants Riaz and Mukhtiar jointly sent Criminal Jail Appeal No.(S)01/2017 before this Court and in the meantime, the appellant Riaz also
filed Criminal Appeal No.134 of 2016 through his counsel, while Cr iminal Revision
Petition No.(S)12 of 2017 has been filed by the complainant for enhancement of sentences awarded to the appellants.
5. Learned counsel for appellants contended that the impugned judgment suffers
from misreading and non -reading of evidence; that only one alleged eye witness was
produced by the prosecution, his statement is not only suffering from contradictions and dishonest improvements, but also lacking independent corroboration, thus being an interested witness, his testimony is not reliab le to award conviction to the appellants; that
no recovery of crime weapon has been effected from the possession of the appellants; that the prosecution has also failed to establish the motive behind the occurrence; that the impugned judgment is perverse a nd ridiculous and based on conjectures, surmises and
improprieties, which is liable to be set aside.
6. On the other hand; the learned A.P.G. strongly opposed the arguments so
advanced by the learned counsel for the appellants and argued that the prosecuti on has
successfully established the case against the appellants by producing confidence inspiring evidence; that all the witnesses have corroborated each other on all material counts and despite lengthy cross -examination, their testimonies could not be sha ken by the defence;
that the learned trial Court after proper appreciation of evidence has rightly convicted the appellants for commission of offence through the impugned judgment, which is not open for interference by this Court.
7. Heard the learned coun sel for parties and perused the record with their valuable
assistance. In order to establish the charge, the prosecution has adduced the evidence of
four witness. PW -1 is the complainant of the case, while PW -2 is the recovery witness of
inspection memo, b lood stained earth, empties, blood stained clothes. PW -3 has examined
the deceased, while PW -4 is the I.O., who counted the steps taken by him during
investigation. Before dilating upon ocular testimony, let firstly discuss the medical
evidence. The prosec ution has produced the medical evidence through PW -3 Dr. Hari
Dass, Deputy District Health Officer, Jhal Magsi, who examined the deceased and found an entrance wound of firearm at right side of the lower jaw and a firearm wound at back of the head wound of exit. According to him when the deceased was brought before him,
he has already dead. PW -3 has opined the kind of weapon as firearm. After examination
PW-3 has issued MLC Ex.P/3- A, perusal of which confirms the unnatural death of
deceased. The defence has also not disputed the unnatural death of deceased but pleaded
false implication by the prosecution.
8. Adverting to the ocular testimony, suffice to state here that the prosecution in toto
produced only one eye -witness of the occurrence i.e. complainant/P W-1 Ahmed Ali, who
is not only the brother of deceased, but also claiming to have witnessed the crime directly, thus being sole eye -witness of the occurrence as well as the blood relation of deceased,
we have analyzed his statement on all angles with utmos t care and caution and finally
found the same reliable. According to PW -1 his real brother Muhammad Ali was residing
in Soomro Mohallah Jhal Magsi and on the said date he went to meet his deceased brother and at about 08.00 a.m. when he was sitting with hi s brother, the appellants Riaz,
Mukhtiar and Akbar entered into the house and challenged his deceased brother that today he will not go spare. Hence, the appellant Riaz pointed pistol upon him (complainant), while the appellant Mukhtiar and the absconding accused Akbar caught hold of the
deceased by hands, but the deceased was resisting and was trying to rescue him from the
clutches of the accused, due to which the appellant Riaz made firing upon his deceased brother which hit on his mouth and he fell down, while the appellant Riaz also made an
aerial firing to scare him (complainant) and further threatened that in case of making hue and cries, he will be murdered and thereafter, the accused escaped from the scene of occurrence. Thereafter, the people gather ed, hence he went to Police Station and lodged
the FIR. This witness was also cross -examined at sufficient length, but the defence has
failed to de- track this witness from his line.
9. Admittedly, the incident had taken place at about 8.00 a.m. and the FIR was
lodged promptly at about 10.00 a.m., while all the three accused persons were nominated in the FIR. The prompt lodging of FIR has ruled out the concept of deliberation or consultation.
10. So far as the contention of learned defence counsel that th e statement of this sole
eye-witness being interested is unsafe to award conviction to the appellants, suffice to
observe here that it has been remained the consistent view of the Superior Courts that in murder cases conviction can be awarded or maintained merely on the basis of statement
of sole eye -witness even though having blood relation with the deceased. The concept
behind such view is due to the fact that once blood relation has been murdered in his presence, he will never substitute the innocent per sons with the real culprits letting the
murderers without any prosecution. If the Court once has observed that the statement of sole eye- witness is faultless, unimpeachable and confidence -inspiring conviction can be
granted and maintained provided that the re are no other circumstances, which could be
fatal to the prosecution case or cause a doubt in a prudent mind as to the guilt of the appellant. The Court has further to see the credibility and the quality of a witness and the
quantity of witnesses does not matter. Mere fact that the complainant is the brother of the
deceased, is no ground to hold him interested witness or to brush- aside his testimony
declaring the same untrustworthy. Reliance in this regard is placed on the case of Muhammad Ehsan v. The St ate, 2006 SCMR 1857. The relevant portion is reproduced
herein below:
"...This Court has time and again held that even testimony of single witness if found to be reliable, confidence -inspiring and unimpeachable same would be
sufficient to base conviction. It is not necessary that in each and every case there
should be more than one witness for the purpose of basing conviction considering that fact also that is not the quantity of evidence but the quality of evidence on the basis of which conviction is to be based. Facts of the case- law cited are quite
different and distinguishable to the facts of the instant case, therefore, is inapt to facts and circumstances of instant case, hence it would not help the appellant in any case, considering also that in the i nstant case medical evidence has fully
corroborated the ocular testimony of P.W.4 whose testimony was unimpeachable and confidence -inspiring.
"...the ocular testimony of P.W.4 Mst. Khatun Bibi is unimpeachable and confidence -inspiring and her veracity could not be discredited in the lengthy cross -
examination. Mere fact that she was widow of deceased would not itself be sufficient to hold that she was interested witness considering the fact that she had no enmity with the appellant or co- accused. [BOLD ADDE D]
Similar view has been taken by the Hon'ble Supreme Court in the case of Khizar
Hayat v. The State 2011 SCMR 429. The relevant portion is reproduced herein below:
"There is no rule of law that statement of interested witness cannot be taken into consideration without corroboration and even uncorroborated version can be relied upon if supported by the surrounding circumstances. In this regard reference can be made to the cases of Khadim Hussain v. State (2010 SCMR 1090), Ashfaq Ahmed v. State (2007 SCMR 641), Shoukat Ali v. The State (PLD 2007 SC 93)
and Muhammad Mansha v. The State (2001 SCMR 199). This Court in Iqbal alias Bala v. The Slate (1994 SCMR 1) wherein it has held that merely the friendship or relationship with the deceased will not be suffici ent to discredit a witness
particularly when there is no motive to falsely involve the accused. Reference can also be made to the case of Muhammad Ehsan v. State (2006 SCMR 1857) wherein while considering the plea raised by accused that evidence of widow o f
deceased could not be relied upon because she vas interested witness being related to deceased, this Court held that mere fact that she was widow of deceased would not by itself sufficient to held that she was interested witness as she had no enmity with the accused and even if deceased had enmity with accused it would not have
any serious effect upon the credibility and reliability of the testimony of widow. Learned High Court as well as the trial Court deeply considered this aspect of the case and decli ned to accept the plea." (BOLD ADDED)
11. Adverting to the contention of defence counsel that the motive behind the
occurrence has not been established by the prosecution, it is worth mentioning that the motive is the essential component of a crime, even the cases in which the motive has not been established or proved or shrouded in mystery or was not alleged, convictions have
been passed and maintained by the apex Court. In the case of Muhammad Latif alias Tifa
v. The State 2008 SCMR 1106, it has been held that, "Be that as it may, it is settled l aw
that motive, proved or otherwise, is immaterial in presence of ocular evidence and murder
may be committed even for no motive or on a minor pretext. What to speak of proving motive, in certain cases where the motive was shrouded in mystery or was no all eged
conviction was maintained and absence of motive was not taken as a mitigating circumstance even." In this regard reference can also be made to the case of Muhammad Saeed and 4 others v. Haq Nawaz Khurram and 3 others, PLD 2008 Supreme Court 416.
12. Considering, the contention of defence counsel that since no recovery of crime
weapon has been effected from the possession of appellants, thus no case is made out against them. In this context it is necessary to mention here that the non- recovery of a
crim e weapons is immaterial in the case in hand. As the incident had taken place on 28th
November, 2015 and the appellants soon after the commission of crime were absconded, while the appellant Riaz was arrested on 17th January 2016, meaning thereby that the
appellant had sufficient time to dispose of or eliminate the crime weapon in any manner.
Besides, the recovery of crime weapon can only be a piece of supporting evidence,
whereas the prosecution has to prove its case independently, hence mere non- recovery o f
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 charge 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 that, "...the recovery of crime w eapon 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."
13. After thorough perusal of evidence, we have come to the concl usion that the
prosecution has proved its case against the appellants without any shadow of doubt. The case of prosecution is based on ocular evidence supported by medical evidence and the statements so recorded by the witnesses are in line and corroborate d each other, as such
the learned trial Court after proper appreciation of evidence had rightly convicted and sentenced the appellants in accordance with law and the impugned judgment is not open for any interference by this Court.
14. So far as the quantu m of sentences awarded to the appellants are concerned,
suffice to observe here that three accused persons have been nominated in the crime, out of whom the appellants have been awarded conviction, while one of the accused is absconding, whose plea has not yet been recorded. Thus, the trial Court has rightly
awarded 25 -years sentences to the appellants and their sentences are not required to be
enhanced under the circumstances of the case.
For the above reasons, the criminal appeals and the criminal revisi on petition are
hereby dismissed.
JK/41/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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