2019 P Cr. L J 26
[Balochistan (Turbat Bench)]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
KHAIR MUHAMMAD and another---Appellants
versus
The STATE--- Respondent
Criminal Appeals Nos. T -32 and T -34 of 2017, decided on 10th January, 2018.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34--- Qatl-i-amd, common intention---Appreciation of evidence ---Ocular
account supported by medical evidence---Accused was charged for the murder of son of
the complainant ---Record showed that Medical Officer confirmed that the deceased had
received two bullet injuries on his person ---Investigating Officer had also examined the
deceased and prepared the inquest report and confirmed bullet injuries on his person---Defence had also not disputed the unnatural dea th of deceased ---Ocular account had been
furnished by witnesses including complainant, the father of the deceased---Complainant had correctly stated the date, time and place of occurrence, the manner in which the deceased had left the house and after few m inutes of his departure, the hearing of fire
shots by the prosecution witnesses, seeing the accused persons running in the street duly armed and laying of deceased in the house of accused in pool of blood---Accused were correctly identified by the prosecut ion witnesses in the court ---Statement of other eye -
witness of the occurrence was in line with the statement of complainant and correctly narrated the whole story as narrated by the complainant and throughout his evidence, the defence had failed to give jo lt, dent or shake his testimony ---Statements of said two
witnesses had reflected that not a slightest doubt had come on record favouring the defence---Accused persons and the prosecution witnesses were residents of same vicinity as such there was no chance of mistaken identity and more particularly, the dead body of
the deceased was found in the pool of blood in the house of accused---Blood -stained earth
was collected from the said house of the accused and even empties were also recovered therefrom ---Admittedly, the crime was not witnessed directly by any of the prosecution
witnesses, however from the circumstances of the case it had been firmly proved and established initially the deceased went to the house of accused and after hearing fire shots accused were found running in armed condition in the street and dead body of the deceased was recovered from the house of accused ---After arrest, the co -accused had
confessed his guilt by recording his disclosure, followed by the recovery of crime weapon on his poin tation ---Empties recovered from the place of occurrence and the pistol
recovered on the pointation of the accused were sent to Forensic Science Laboratory for examination, which matched ---Call Detail Report of cell phone reflected that on the
relevant nigh t, telephonic contact was made in between the deceased and the accused ---
All the circumstances had interlinked one piece of evidence to another and in that manner, the chain of evidence was completed and all the pieces of circumstantial evidence had connected the accused with the commission of crime--- Son of the
complainant was murdered in a brutal manner and it was not believable that he would
substitute the real culprits with the accused ---Circumstances established that accused
were responsible for the mu rder of the deceased and the defence had failed to point out
any material illegality, irregularity or infirmity in the case of prosecution warranting
interference---Appeal was dismissed in circumstances.
Nabi Gul v. The State 2016 YLR 1013; Muhammad Lati f 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.
(b) Criminal trial---
----Witness ---Interested witness ---Evidence of interested witness ---Scope ---Mere
relationship of the witne ss inter se and with the deceased was not sufficient to term
him/her as interested witness, unless it was found that there was any previous enmity, ill -
will between the parties and the witness had a motive to falsely implicate the accused in the case.
Khizar Hayat v. The State 2011 SCMR 429 rel.
(c) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34--- Qanun- e-Shahadat (10 of 1984), Art. 40---Qatl -i-amd, common
intention--- Appreciation of evidence ---Disclosure of accused ---Effect ---Disclosure of
accused relat ing to discovery of new facts or recovery of any incriminatory evidence,
would be admissible under the provisions of Art. 40 of Qanun- e-Shahadat, 1984.
(d) Criminal trial---
----Motive ---Scope ---Motive was not a necessary component of crime ---Weakness or
absence of motive was not a factor to be essentially considered for the purpose of acquittal.
Rehmatullah Barech for Appellant.
Sudheer Ahmed Baloch, D.P.G. for the State.
Tahir Ali Baloch for the Complainant.
Date of hearing: 7th December, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal Appeals
Nos.32 and 34 of 2017 filed by the appellants (convict) Khair Muhammad son of Meer Muhammad and Zahoor Ahmed son of Ghulam Haider, respectively, against the judgment dated 25th Febr uary 2017, (hereinafter referred as, "the impugned judgment") passed by
learned Incharge Sessions Judge/Additional Sessions Judge Panjgoor (hereinafter referred as, "the trial Court"), whereby the appellants were convicted under section 302(b)/34, P.P.C. a nd sentenced to suffer imprisonment for life as Tazir with compensation of
Rs.100,000/ - each, as envisaged under section 544- A, Cr.P.C. to be paid to the legal heirs
of deceased or in default thereof to further suffer six (06) months' S.I., with the benefi t of
section 382- B, Cr.P.C.
2. Facts of the case are that on 8th December 2015, the complainant Musa Khan son
of Muhammad Umer, lodged FIR No.179 of 2015 at Police Station Panjgoor, under
section 302, 34, P.P.C., stating therein that he is resident of Moha lah Chitkan Panjgoor
and by profession he is vegetable merchant. On the day of occurrence, at about 11.55 p.m. he along with his son Abdul Hameed and Muhammad Hashim and Habib- ur-Rehman
were present in his house, while his son Abdul Hameed was talking with someone on
telephone. In the meantime, Abdul Hameed stood from the house, hence he (complainant) asked him that as to where he was going, who replied that his neighbours Zahoor Ahmed and Khair Muhammad are calling him and he was going towards them. Soon his leaving, he heard firing shot from the side of of Khair Muhammad's house, so the complainant along with Habib -ur-Rehman and Hashim came out of their house and found appellants
Zahoor Ahmed and Khair Muhammad running in the street and in the light of bul b it was
observed that the accused Zahoor Ahmed was having a pistol in his hand, while Khair Muhammad was empty handed. Hence, the complainant along with his sons went inside the house of Khair Muhammad and found his son Abdul Hameed lying in pool of blood
and had already taken his last breath.
3. In pursuance of the above FIR, the investigation of the case was entrusted to PW -7
Muhammad Ramzan, SI/IO, who during investigation visited the site and prepared site sketch; took into possession two empties and b lood stained earth; prepared inquest report
of the deceased; obtained MLC; took into possession the blood stained clothes of deceased; recorded the disclosure of the appellant Zahoor Ahmed and pursuant to which
recovered the crime weapon i.e. T.T. pistol; recorded the statements of witnesses under
section 161, Cr.P.C. On completion of investigation, submitted the challan in the trial Court.
4. At the trial, the prosecution produced seven (07) witnesses, whereafter the
convict/appellants were examined under 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 the arguments, the trial Court convicted and sentenced the appel lants as mentioned above in para -1 above, whereafter
the instant appeals have been filed.
5. Learned counsel for the appellants contended that the impugned judgment is result
of misreading, non- reading and mis -appreciation of evidence available on record; that the
prosecution case is full of discrepancies, dishonest improvements and false accusations on the basis of presumptions, which resulted into implicating the appellants in this false case, whereas the alleged murder of deceased is unseen and not witne ssed by any of the witness
directly; that only interested witnesses have been produced; that the most important witness of prosecution namely Habib- ur-Rehman has not been produced; that the alleged
recovery of T.T. pistol on the pointation of the appellant Zahoor Ahmed from the dump of
garbage and from the street after 13/14 days of the occurrence is entirely doubtful, thus no implicit reliance could be placed either on the alleged disclosure whilst recorded in police custody or on the recovery of alleged r ecovery of crime weapon recovered in a
doubtful manner; that the motive behind the occurrence has also not been alleged or established by the prosecution; that the prosecution has absolutely failed to establish the charge through solid and concrete evidence against the appellants, but the learned trial
Court has failed to appreciate the evidence in its true and real sense and arrived at a
conclusion, which is perverse and contrary to material available on record, thus prayed for acquittal.
6. Learned Deputy Prosecutor General assisted by learned counsel for complainant
while supporting the impugned judgment contended that sufficient incriminating evidence is available on record connecting the appellants with the commission of offence, who initially called th e deceased in their house and committed his murder through fire arm and
subsequently such fire arm was recovered on the pointation of the appellant Zahoor Ahmed; that the FIR was lodged promptly by nominating both the appellants and even the appellant were seen running in armed condition from the place of occurrence, thus the
trial Court after proper appreciation of evidence had rightly awarded conviction to the appellants.
7. We have heard the learned counsel for parties and perused the available record.
The unnatural death of deceased Abdul Hameed is not disputed. According to PW -6, Dr.
Abdul Samad, Medical Officer, DHQ Hospital Panjgoor, on the night of occurrence at about 02.30 a.m. the dead body of deceased was brought before him and after examination, he issued MLC Ex.P/6- A, which confirms that the deceased had received
two bullet injuries on his person. PW -6 has opined that such injuries were caused with
fire arm. The Investigating Officer had also examined the deceased and prepared the inquest report and confirmed that the deceased had received bullet injuries on his person. The blood -stained earth collected from the place of occurrence and the blood -stained shirt
of deceased were also sent to FSL for examination and after examination, the FSL report Ex.P/7- G confirms that the same were stained with Human Blood. The defence has also
not disputed the unnatural death of deceased, but pleaded their false implication by the prosecution.
8. Now adverting to the ocular evidence, suffice to observe here that t he prosecution
has produced two important witnesses i.e. the complainant Muhammad Musa, who is the father of deceased and PW -2 Muhammad Hashim. PW -1 being complainant of the case
mostly reiterated the contents of his fard -e-bayan Ex.P/1- A and stated that o n the night of
occurrence at about 11.45 p.m. he along with PW -2 Muhammad Hashim and one Habib -
ur-Rehman was present in his house, while his deceased son Abdul Hameed talking with
someone on telephone and stood from there, on query the deceased replied tha t he is
going towards their neighbours Zahoor Ahmed and Khair Muhammad and after few minutes of his departure, the witnesses heard firing shots towards the house of accused Khair Muhammad, thus immediately the complainant/PW -1, PW -2 Muhammad Hashim
and Hab ib-ur-Rehman came out of the house and saw running the accused Zahoor Ahmed
armed with T.T. pistol and Khair Muhammad in the street, hence they entered in the house of Khair Muhammad, where they found the deceased Abdul Hameed lying in pool of blood. PW -1 correctly stated the date, time and place of occurrence, the manner in
which the deceased had left his house and after few minutes of his departure, the hearing of firing shots by the PWs, seeing the appellants running in the street -in arm condition
and ly ing of deceased Abdul Hameed in the house of appellant Khair Muhammad in pool
of blood. The appellants were also correctly identified by the PWs in the Court. PW -2
being the second star witness of the occurrence recorded his statement fully in line to the statement of PW -1. He also correctly narrated the whole story as narrated by PW -1 and
throughout his examination in chief as well as during cross -examination, the defence has
failed to give jolt, dent or shaken his testimony. The perusal of statements of b oth the
witnesses would reflect that not a slightest doubt has come on record favouring the
defence. The appellants and the PWs being the residents of the same vicinity, there is no chance of mistaken identity and more particularly the dead body of the dec eased was
found in the pool of blood in the house of the appellant Khair Muhammad as well as the bloodstained earth was also collected from the said house and even the empties were also recovered from the said house owned by the appellant Khair Muhammad.
9. Another important aspect of the case is that though the witnesses are related to the
deceased, but mere relationship of the witnesses inter se and with the deceased is not sufficient to term them as interested witnesses unless it is found that there was any
previous enmity or between the parties and the witnesses had a motive to falsely implicate the appellants in a criminal case. Reliance is placed on 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 State (1994 SCMR 1) wherein it has held that merely the friendship or relationship with the deceased will not be sufficient 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 of deceased could not be relied upon because she was 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 declined to accept the plea." (BOLD ADDED)
10. As far as non -production of witness Habib- ur-Rehman is concerned, suffice to
observe that it is the duty of the prosecution to establish its case and if the prosecution was satisfied that the examination of remaining witnesses are immaterial to the case of prosecution, while already cogent and sound evidence is available on record; merely the non- production of remai ning witnesses would not affect the case of prosecution.
Furthermore, the statement of this witness was alike to the statements of PW -1 and PW -2.
Even otherwise, according to settled principles of law it is the quality and not the quantity that is required to establish a criminal charge. Thus, the objection of the defence is ruled
out.
11. The admitted feature of the case is that the crime was not witnessed directly by
any of the prosecution witnesses, however, we have minutely scrutinized the prosecution evidence with utmost care and caution and observed that the circumstances of the case
has firmly been proved and established, when initially the deceased went to the house of appellant Khair Muhammad and after hearing firing shots, the appellants were found
running in armed condition in the street and recovery of the dead body of the deceased in the house of appellant Khair Muhammad, whereas after on arrest the appellant Zahoor Ahmed confessed his guilt by recording his disclosure, followed by the recovery of crime
weapon on his pointation coupled with the fact that the empties recovered from the place
of occurrence and the pistol recovered on the pointation of the appellant were sent to FSL for examination, which were matched. Besides, the prosecution has pr oduced the Call
Detail Reports ("CDR"), perusal of which also reflect on the said night at about 11.48 p.m. telephonic contact was made in between the deceased and the accused Zahoor Ahmed. All these circumstances have interlinked the one piece of evidence to another and
in this manner the chain of evidence is complete and all the pieces of circumstantial evidence, connected accused with the commission of crime. Reliance in this regard is placed on the case of Nabi Gul v. The State, 2016 YLR 1013. Relevant portion thereof is reproduced hereunder:
"...In view of evidence of deceased being lastly in the company of appellant, corroborated by recovery of crime weapon on his pointation as well as positive FSL report of empties matching with the crime weapon supp orted by P.M. report
demonstrating charring marks on the entry wounds are sufficient pieces of circumstantial evidence forming a chain which connect the appellant with the murder of the deceased."
12. So far as, the contention of learned defence counsel that, the disclosure of the
appellant being recorded in police custody is not an admissible piece of evidence, such contention has absolutely no force at all. According to settled principles of law if the disclosure of any accused relates to discovery of new facts or the recovery of any
incriminatory evidence, such disclosure is admissible under the provisions of Article 40 of Qanun- e-Shahadat Order, 1984. Hence in our view, such objection of the defence is
without any legal substance.
13. As far as, the cont ention of the learned defence counsel that the prosecution has
failed to establish the motive behind the occurrence, suffice to observe here that even the cases in which the motive has not been established or proved or shrouded in mystery or was not alleged. Even otherwise the motive is not a necessary component of crime, the weakness or absence of motive is not a factor to be essentially considered for the purpose of acquittal, when otherwise medical, ocular and direct evidence is available on record to prove the charge against the appellant. Even otherwise, the son of the complainant was
murdered in a brutal manner and it is not believable to a prudent mind that he would substitute the real culprits with the appellant. The Hon'ble august Court in the case of Muhammad Latif alias Tifa v. The State, 2008 SCMR 1106 has held that, "Be that as it may, it is settled law 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 prete xt. What
to speak of proving motive, in certain cases where the motive was shrouded in mystery or was not alleged, 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.
14. The reappraisal of oral, circumstantial and medical evidences coupled with the
minute consideration of all the circumstances, in the light of law declared by the Hon'ble
Supreme Court as well as the recoveries articles on the pointation of the appellant and receipt of FSL report in affirmative regarding blood stained soil that had been taken into possession from the house of appellant Khair Muhammad and blood stained clothes of the
deceased, we are of the considered view that the appellants are responsible for the murder
of the deceased and has rightly been convicted by the trial Court. The counsel for
appellant has failed to point out any single cir cumstances giving dent or creating
reasonable doubt in the case of the prosecution. The defence has absolutely failed to point out any material illegality, irregularity or infirmity in the case of prosecution, warranting interference by this Court.
For the above reasons, the appeals being devoid of merits are dismissed
accordingly.
JK/24/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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