2019 P Cr. L J 832
[Balochistan]
Before Naeem Akhtar Afghan and Abdullah Baloch, JJ
TAREEN alias BADO and another ---Appellants
Versus
The STATE--- Respondent
Criminal Appeal No. 328 and Murder Reference No. 7 of 2016, decided on 11th
September, 2018.
(a) Penal Code (XLV of 1860) ---
----Ss. 302 & 324---Qatl- i-amd, attempt to commit qatl- i-amd---Appreciation of evidence -
--Medical evidence--- Scope ---Record showed that the unnatural death of deceased and
injured witness were not disputed ---Death certificat e of the deceased reflected that he had
received multiple bullet injuries on his abdomen, on right hand and on his forearm ---
Medico -legal Certificate of injured reflected that he had received firearm injury on right
side of abdomen caused with firearm ---Prosecution had succeeded through medical
evidence that deceased died due to unnatural death as well as receiving of bullet injury on his abdomen by the injured.
(b) Penal Code (XLV of 1860) ---
----Ss. 302 & 324---Qatl- i-amd, attempt to commit qatl- i-amd---Appreciation of evidence -
--Sentence, reduction in ---Prosecution case was that police party heard firing shots, while
on patrolling duty and proceeded towards the place of firing and found accused making firing shots, while one person died on the spot due t o firing and the another became
seriously injured---Accused was apprehended on the spot and a pistol was recovered from his right hand---Ocular account of the occurrence had been furnished by nine witnesses including complainant ---Complainant of the case, SHO of the concerned police station,
had mostly reiterated the contents of his fard -e-bayan ---Eye -witness of the occurrence,
member of police patrolling, had fully corroborated the statement of complainant and apprehending of the accused red- handed from th e place of occurrence along with the
crime weapon ---Said witnesses had correctly stated the date, time, the place of occurrence
and the manner in which they heard the firing shots, their arrival at the place of occurrence, apprehending the accused red hand ed and effecting the recovery of crime
weapon along with two empties from the place of occurrence--- Statements of said
witnesses cleared the acid test of lengthy cross -examination and the defence had failed to
give slightest dent or damage to their testimo ny---Said witnesses did not know the
accused previously, thus they had no ulterior motives to falsely implicate the accused in the crime---Injured witness had himself sustained bullet injury on his abdomen, thus, his presence at the place of occurrence was natural and could not be disputed in any manner --
-Statements of injured witness/brother of deceased and eye -witness/uncle of deceased
were similar with each other on all counts ---Said witnesses had correctly identified the
accused in the Trial Court and h ad correctly stated the date, time, the place of occurrence
and the manner in which the occurrence had taken place--- Defence objected that only
interested witnesses were produced and the case of prosecution lacked independent
corroboration, but injured/brother of deceased faced life- threatening attack and luckily
survived from death, while his brother was murdered in his presence ---To declare the
witness as interested witness or to believe that he might involve innocent persons leaving the real culprits was not justified in circumstances ---Nature of injuries received by injured
could not be said to be self -inflicted and even the defence had not disputed the same to be
self-inflicted or the same were old injuries, as such, legally the statement of the injured
witness could not be challenged--- Circumstances established that prosecution had
successfully proved the charge but failed to establish the motive behind the occurrence and the complainant party had tried to camouflage the actual facts from the court ---
Record showed that prior to incident some altercation had taken place in between the
parties ---Accused was in old age of 72 years thus under the peculiar circumstances of the
case, it would not be justified to award capital punishment of death to the accused ; in
such state of affairs, appeal was dismissed while upholding the conviction of accused and sentence under S. 302(b), P.P.C. was converted into imprisonment for life.
Farooq Khan v. State 2008 SCMR 917 rel.
(c) Criminal trial---
----Witness ---Police O fficial as witness ---Reliance---Scope ---Police Officials were as
good witnesses as the private witnesses ---Testimony of such witnesses could not be
discarded solely on the ground that they were Police Officials until and unless the defence succeeded in pro ving any ill -will or mala fide on their part.
(d) Criminal trial---
----Witness ---Solitary statement of injured witness ---Scope ---Solitary statement of injured
witness being confidence inspiring was sufficient to convict the culprit.
Mali v. The State 1969 SCMR 76; Muhammad Ashraf v. The State 1971 SCMR
530; Muhammad Siddique alias Ashraf alias Achhi and 3 others v. The State 1971 SCMR 659 and Muhammad Mansha v. The State 2001 SCMR 199 rel.
(e) Criminal trial---
----Witness ---Evidence of related/i nterested witness ---Scope ---Evidence of related
witness who were not found inimical and were confidence inspiring would not need any corroboration.
(f) Penal Code (XLV of 1860) ---
----Ss. 302 & 324---Qatl- i-amd, attempt to commit qatl- i-amd---Appreciation of evidence-
--Recovery of crime weapon ---Reliance--- Scope ---Admittedly, accused was caught red -
handed soon after the occurrence and the police snatched the crime weapon (pistol) from the accused ---Two empties were also recovered from the place of occurren ce---
Investigating Officer sent the recovered empties along with the recovered crime weapon to Forensic Science Laboratory for analysis ---Forensic Science Laboratory had issued its
report, which reflected that the empties recovered from the place of occurr ence were
matched with the crime weapon snatched from the accused by the police ---Recovery of
weapon of offence from the accused remained consequential, in circumstances.
Muhammad Akram Shah for Appellant (in Criminal Appeal No.328 of 2016).
Abdul Latif , Additional P.- G. for the State (in Criminal Appeal No.328 of 2016).
Sarwar Khan for the Complainant (in both Criminal Appeal and Murder
Reference).
Muhammad Ikram Shah for Respondent (in Murder Reference No.7 of 2016).
Date of hearing: 28th August, 20 18.
JUDGMENT
ABDULLAH BALOCH, J. ---This common judgment disposes of Criminal
Appeal No. 328 of 2016 and Murder Reference No. 07 of 2016.
The Criminal Appeal No. 328 has been filed by the appellant Tareen alias Bado
son of Shareen alias Dunia, against the judgment dated 15th October 2016 (hereinafter
referred as, "the impugned judgment") passed by the learned Sessions Judge Killa
Saifullah (hereinafter referred as, "the trial Court"), whereby the appellant was convicted under section 337- F(iii), P.P.C. and sentenced to suffer R.I. for two years and to pay
Daman of Rs.20,000/ -, to be paid to the victim Abdullah Khan. He was also convicted
under section 302(b), P.P.C. and sentenced to death, with the benefit of section 382- B,
Cr.P.C.
While the Murder Referen ce No.07/2016 has been made by the learned trial Court
for confirmation of death sentence awarded to the appellant or otherwise as envisaged under section 374, P.P.C.
2. Facts of the case are that on 22nd June 2015, the complainant Abdul Karim,
IP/SHO, lod ged FIR No.24 of 2015 at Police Station City Killah Saifullah, under sections
302, 324, P.P.C., stating therein that he along with other police officials were on patrolling at about 4.50 p.m. when reached near Junction Chowk, heard firing shots, thus he im mediately proceeded; towards the place of firing and found a person making firing
shots, while one person was died on the spot due to firing and the another became seriously injured. The person, who was firing shots was overpowered with the help of police personnel, whereas the deceased was identified as Fazal Khan, while the injured
was identified as Abdullah Khan. Both the injured and deceased were sent to Hospital at Killa Saifullah, while the appellant was apprehended on the spot, who was identified as Tareen alias Bado and a Megaroof pistol was recovered from his right hand. On personal search bandoleer having eleven cartridges along with extra magazine containing six live cartridges, were recovered.
3. Pursuant to above FIR, investigation was entrusted to PW -9 Muhammad Yousaf,
SI/Investigating Officer (ID), who during investigation shifted the injured and deceased to District Headquarter Hospital Killah Saifullah; prepared site sketch; recorded the statements of witnesses under section 161, Cr.P.C.: took into possession the recovered
arm and ammunition; took into possession two empties, blood stained earth and gravel
from the place of occurrence as well as the blood stained clothes of deceased and injured; carried out proceeding under section 174, Cr.P.C . and prepared inquest report of
deceased; obtained MLC of injured and death certificate of deceased; sent all the blood stained articles and the empties along with recovered pistol to FSL for analysis and received the FSL reports in affirmative; on comple tion of investigation submitted the
challan in the trial Court.
5. At the trial, the prosecution produced nine (09) witnesses, whereafter; the
appellant was examined under section 342, Cr.P.C. The appellant also recorded his statement on oath under section 340(2), Cr.P.C. and produced two witnesses in his
defence. On conclusion of trial and after hearing arguments, the trial Court besides awarding other sentences has also awarded death sentence to the appellant as mentioned above in para -1. The appellant ha s preferred the instant criminal appeal, whereas the trial
Court forwarded Murder Reference for confirmation or otherwise of the death sentence
awarded to the appellant.
6. Learned counsel for the appellant contended that the prosecution has failed to
substantiate the charge against the appellant beyond the shadow of reasonable doubt; that
the statements of interested and related witnesses as well as the statements of police officials are lacking independent corroboration, who otherwise made contradictory statements with each other; that the witnesses could not justify their presence at the site and the appellant has been dragged in this false case due to previous enmity; that the recovery of crime weapon has been foisted upon the appellant just to strengthen the case of prosecution; that the defence so taken and established has not been taken into
consideration by the learned trial Court; that the appellant is an old age person of 72 years and he cannot conceive to commit the instant heinous crime; that the case of prosecution is full of doubts. but while awarding Capital punishment of death, the trial Court has failed to extend the benefit of such doubts in favour of appellant: that the facts and circumstances would suggest that it is not a case, where o ne can be penalized for capital
punishment.
7. Learned Additional Prosecutor General assisted by learned counsel for
complainant while supporting the impugned judgment contended that the prosecution through consistent and confidence inspiring evidence has proved the charge against the appellant beyond the shadow of reasonable doubt; that the FIR has been lodged promptly, wherein the appellant was specifically nominated with the role of firing, besides he was arrested at the spot and the recovery of crime weapon was effected from his possession by the police; that the defence has failed to point out any contradiction, infirmity or dishonest improvement in the prosecution evidence; that the deceased and injured were sitting in Bazar and were busy in discussing their family affairs, while the appellant well
prepared and duly armed with pistol arrived at the site and made firing upon the victims, which fact itself is enough to prove the element of pre -mediation and mens rea of the
appellant for committing the cri me, thus rightly he was sentenced for Capital punishment
through impugned judgment, which otherwise is not open for interference by this Court.
8. Heard the learned counsel and perused the available record. Perusal of record
reveals that the unnatural deat h of deceased Fazal Khan and injuring PW -2 Abdullah
Khan are not disputed. Soon after the occurrence, the deceased and injured were shifted to District Headquarter Hospital Killah Saifullah, where PW -7 Dr. Bahawa Din, Medical
Officer examined the deceased and injured and issued MLC of injured as Ex.P/7- A and
Death Certificate of deceased Fazal Khan as Ex.P/7 -B. The Death Certificate of deceased
reflects that he had received multiple bullet injuries on his abdomen, on right hand and on
his forearm. PW -7 has opined the cause of death of deceased as intrabdominal bleeding
and the weapon used in the crime was fire arm. Besides, the MLC of injured reflects that he had received firearm injury on right side of abdomen caused with fire arm. Thereafter, the injured w as referred to Civil Hospital Quetta for further treatment, where once again
he was examined by PW -8 Dr. Noor Baloch, Police Surgeon, who confirmed the bullet
injury received by the injured. Besides, the Investigating Officer collected the blood-stained earth, blood stained gravel as well as the blood- stained clothes of injured and
deceased and sent the same to FSL for analysis. After examination the FSL issued analysis report as Ex.P/9- F and G, perusal of which establishes the fact that the same
were stain ed with human blood. Furthermore, the unnatural death of deceased has also
been established from the Inquest Report Ex.P/9- B, which confirms the bullet injuries
received by the deceased on his person.
Admittedly, the prosecution has succeeded through medi cal evidence that the
deceased Fazal Khan was died due to unnatural death as well as receiving of bullet injury
on his abdomen by the injured Abdullah Khan. The defence has also not disputed the
unnatural death and receiving of bullet injury by the injured , but plead his false
implication.
9. Adverting to ocular testimony produced by the prosecution. The prosecution in
order to substantiate the charge, has produced the evidence of nine witnesses. The complainant of the case namely Abdul Karim is serving as IP/SHO of the concerned
police station. This witness has mostly reiterated the contents of his fard- e-bayan Ex.P/l -
A. According to this witness on the day of occurrence he along with other police officials patrolling the area, when heard firing shot toward s Wasay Market, hence he reached
there, where they found a person making firing, due to which the deceased Fazal Khan succumbed to the injuries, while PW -2 Abdullah Khan was lying in serious injured
condition, hence the apprehended the appellant from the place of occurrence and from his possession the recovery of Megaroof pistol was effected. Likewise, PW -4 is also the
member of police patrolling party as well as the eye- witness of the occurrence. This
witness has fully corroborated the statement of PW -1 and apprehending of the appellant
red handedly from the place of occurrence along with the crime weapon. Both the witnesses correctly identified the appellant as the culprit, who was apprehended from the place of occurrence along with the crime weapon. Both the witnesses being police official/official correctly stated the date, time, the place of occurrence and the manner in which they heard the firing shots, their arrival at the place of occurrence, apprehending the appellant red handedly and effecting the r ecovery of crime weapon along with two
empties from the place of occurrence. Their statements cleared the acid test of lengthy cross -examination and the defence has failed to give slightest dent or damage to their
testimony. Furthermore, both the witnesses had not known the appellant previously, thus
they had no ulterior motives to falsely implicate the appellant in the crime. The learned counsel for the appellant made an unsuccessful attempt to discredit the evidence of eye -
witnesses being police officials , but legally the police officials are as good witnesses as
the private witnesses and their testimony cannot be discarded solely on the ground that they are police officials until and unless the defence succeeds in proving any ill -will or
mala fide on the part of police officials.
10. The most important and star witness of the prosecution is PW -2 Abdullah Khan
and PW -3 Abdul Rehman. PW -2 sustained bullet injury on his abdomen in the instant
occurrence, who in his examination in chief before the trial Court has narrated the story
with regard to their arrival in the accompany of his deceased brother Fazal Khan from
Killah Saifullah from Khanozai and were sitting with their uncle PW -3 Abdul Rehman
and discussing domestic matter, when all of sudden the appellant appeared at the site and started firing upon him as well as upon his brother, due to which he sustained bullet injury on his abdomen, while his brother succumbed to the injuries. PW -2 has also
confirmed the arrival of police at the relevant time and apprehending the appellant red
handed along with the crime weapon. Since, the PW -2 himself sustained bullet injury on
his abdomen, thus his presence at the place of occurrence is natural and cannot be disputed in any manner. The statement of both the PW -2 and PW -3 are similar with each
other on all counts. Both the PWs have correctly identified the appellant in the trial Court and have correctly stated the date, time, the place of occurrence and the manner in which the occurrence had taken place. Since, th e PW -2 himself was injured in the incident, thus
according to settled norms of justice, the solitary statement of injured witness being confidence inspiring is sufficient to convict the culprit.
11. So far as the objection taken by the defence that only in terested witnesses were
produced and the case of prosecution is lacking independent corroboration, suffice to observe here and already discussed above, besides the statements of PW -2 being the
brother of deceased and PW -3 being the uncle of deceased, the p rosecution has also
produced the evidence of two police -officer/official, who had directedly witnessed the
crime and caught red handed the appellant from the place of occurrence along with the crime weapon. However, in heinous crimes the evidence of relate d 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, while his brother was murdered in his pre sence, 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. The nature of injuries received by PW -2 cannot said to be self -inflicted and even the defence 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 Khan v. State 2008 SCMR 917, whe rein 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, suf fice it to 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.
Muhammad 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 Achhi and 3 others v. The
State 1971 SCMR 659 and Muhammad Mansha v. The State 2001 SCMR 199".
12. The case of prosecution has further been strengthened from the recovery of crime
weapon. Admittedly, the appellant was caught red handed soon after the occurrence and
the police snatched the crime weapon i.e. pistol from him. Besides, two empties were also
recovered from the place of occurrence. The Investigating Officer sent the recovered
empties along with the recovered crime weapon to FSL for analysi s and after analysis the
FSL has issued its report Ex.P/9- J, perusal of which reflects that the empties recovered
from the place of occurrence were matched with the crime weapon snatched from the appellant by the police.
13. Adverting to the defence plea of the appellant, suffice to observe here that the
appellant has recorded his statement on oath as well as produced two witnesses in his defence, whereby he has only taken the plea that he was arrested from nearby the Cattle Market and not from the place of occurrence as shown by the appellant, but has failed to
produce any solid or concrete evidence either establishing the mala fide intention of
official witnesses, who caught him red handed or the ulterior motives of PW -2 and PW -3
for his false implication. Admittedly, not a single evidence has been brought in such
behalf by the appellant.
14. The reappraisal of entire prosecution evidence establishes the fact that the
prosecution has succeeded in proving the charge against the appellant through direct, circumstantial and medical evidence. No major contradiction or dishonest improvement has been pointed out by the learned defence counsel in the statements of prosecution witnesses. The recovery of empties of pistol and T.T. pistol from the place of occurrence coupled with the matching of the same with each other has given sound foundations to the case of prosecution. The learned trial Court has discussed and dilated upon each and every aspect of the case and rightly convicted the appellant. The citations so ref erred by
the learned defence counsel are distinguishable in facts and circumstances of the instant case.
15. So far as the quantum of sentence i.e. Capital punishment of death is concerned,
we do not find in agreement ourselves with regard to the same. Suf fice to observe here
that the prosecution has failed to establish the motive behind the occurrence and the facts and circumstances of the case would show that though the prosecution has successfully established the charge, but the complainant party has tri ed to camouflage the actual facts
from the court. However, it has come on record that prior to incident some altercation had taken place in between the parties. Moreover, the appellant is in old age is of 72 years, thus under the peculiar circumstances of the case it would be unjustified to award capital
punishment of death to the appellant.
16. For the reasons discussed hereinabove, while upholding the conviction of convict -
appellant Tareen alias Bado son of Shareen alias Dunia under section 337 -F(iii), P. P.C.
and under section 302(b), P.P.C., his sentence under section 302(b), P.P.C. is converted
into R.I. for life. The appellant has to pay Rs.300,000/ - (Rupees three hundred thousand)
as compensation to the legal heirs of deceased as envisaged under sectio n 544- A, Cr.P.C.
and in default thereof to further suffer six (06) months' S.I., while the sentence awarded to the appellant by the trial Court under section 337- F(iii), P.P.C. shall remain intact. The
sentences awarded to the appellant under section 337(i ii), P.P.C. and 302(b), P.P.C. in
this case will run concurrently with the sentence awarded to the appellant in the connected Arms case, with benefit of section 382 -B, Cr.P.C.
With the above reduction of sentence, Criminal Appeal No.328 of 2016 is
dismiss ed and murder reference No.07 of 2017 is answered in negative.
JK/72/Bal. Sentence altered.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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