2024 P Cr. LJ 1896
[Balochistan]
Before Abdullah Baloch and Iqbal Ahmed Kasi, JJ
NAIMATULLAH and others ---Apellants
Versus
The STATE through Prosecutor General, Balochistan, Quetta and others ---
Respondents
Criminal Appeal No. 312 of 2022 and Criminal Revision Petition No. 13 of 2022, decided on
24th July, 2023.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl-i-amd---Appreciation of evidence---Delay in lodging FIR ---
Inconsequential ---Accused was charged for committing murder of the brother of the
complainant by firing--- First Information Report transpired that the same was lodged with a
delay of only two hours and fifty minutes and no explanation in that regard was present in
the FIR ---However, it was mentioned in the FIR that the injured was referred from Civil
Hospital to other hospital for further medical treatment and the deceased succumbed to his injuries on the way towards that hospital ---Furthermore, the complainant explained the
position that after referring his injured brother, he did not accompany the injured, he went
towards his house to fetch some money, while three others persons went with the injured/deceased ---Before arrival of dead body at Civil Hospital, the complainant approached
the Police Station for registration of FIR against the accused persons ---Normal human
behavior is that the family members of a victim first try to save the life of injured person, who is in critical condition, which is obviously, what happened in the present case ---Delay
occurring in the case in hand was not deliberate to achieve some other goals ---Admittedly,
the delay is material when there is a doubt regarding identifying the accused, but in the present case, the accused was nominated in the FIR promptly ---Circumstances established
that the prosecution had proved its case beyond shadow of doubt ---Appeal against conviction
was dismissed accordingly.
(b) Penal Code (XLV of 1860)---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Presence of eye- witnesses at the
time and place of occurrence proved ---Accused was charged for committing murder of the
brother of the complainant by firing---Ocular account had been furnished by two eye -
witnesses---Eye -witnesses, in the circumstances of the case in hand, could not be termed as
chance witnesses and their mere relationship with the deceased or being the members of same caste could not dent the prosecution version, as the witnesses had furnished sufficient explanation to be present at the spot at the time of commission of offence ---Admitted fact
that both the eye -witnesses had a business near the place of incident, therefore, their presence
at the spot could not be doubted--- Since, both the eye -witnesses were natural witnesses and
could not be termed as chance witnesses, therefore, their evidence would deserve full credence being genuine, particularly, when there was no material discrepancies or contradiction of potential nature in their evidence ---Even if a chance witness reasonably
explains his presence at the spot and his narration of occurrence inspired confidence, then, he is not a chance witness and his testimony can be considered along with other evidence---Statements of eye -witnesses were also corroborated by medical evidence, which further
proved their presence at the spot ---Admittedly, the occurrence took place in broad daylight
and the accused and both the eye -witnesses were well known to each other, because they
were inhabitants of the same vicinity for long time, therefore, question of misidentification could not be made out ---Circumstances established that the prosecution had proved its case
beyond shadow of doubt ---Appeal against conviction was dismissed accordingly.
Qurban Hussain v. The State 2017 SCMR 880 rel.
(c) Criminal trial ---
----Witness statements ---Contradictions or improvements ---Scope ---Minor contradictions or
improvements in the statements of witnesses are to be overlooked---Only material
contradictions are to be considered.
Ranja v. The State 2007 SCMR 455 rel.
Abdul Wali Khan Nasar for Appellant (in Criminal Appeal No. 312 of 2022).
Hazrat Khan Kakar and Muhammad Arif Bazai for the Complainant (in Criminal
Appeal No. 312 of 2022).
Abdul Karim Malghani, State Counsel (in Criminal Appeal No. 312 of 2022).
Hazrat Khan Kakar and Muhammad Arif Bazai for the Petitioner (in Criminal
Revision Petition No. 13 of 2022).
Abdul Wali Khan Nasar for Respondent No. 1 (in Criminal Revision Petition No. 13
of 2022).
Abdul Karim Malghani, State Counsel (in Criminal Revision Petition No. 13 of
2022).
Date of hearing: 25th May, 2023.
JUDGMENT
IQBAL AHMED KASI, J .---The Criminal Appeal No. 312 of 2022 and Criminal
Revision Petition No.13 of 2022, are directed against the judgment dated 31.05.2022 ("the impugned judgment") passed by the learned Sessions Judge, Killa Saifullah ('the trial Court'),
whereby, the appellant Niamatullah son of Saifullah, was convicted under Section 302(b)
P.P.C and sentenced for life imprisonment. He was also directed to pay compensation of
Rs.700,000/ - (rupees seven hundred thousand) to the legal heirs of deceased Muhammad
Nabi, as provided by Section 544- A, Cr.P.C., or in case of default to further suffer six (06)
months SI, with the benefit of Section 382- B, Cr.P.C.
2. The concise facts, arising out of the instant appeal and revision petition are that on the
complaint of Muhammad Ali son of Muhammad Saleem, FIR No.38 of 2020, dated 11.07.2020, was registered with Police Station Killa Saifullah, under Section 302 P.P.C, with the averments that on the fateful day, at about 06:15 a.m. he was present at his home in Killi Jahangeer, Saifullah, meanwhile, he received information that his younger brother Muhammad Nabi is lying in injured condition at Civil Hospital, Killa Saifullah. Upon such information he rusted to Civil Hospital, where he found his younger brother Muhammad Nabi lying in a pool of blood and on query he was informed by Baha -ud-Din and Hafta
Khan, who were present there, that accused Naimatullah son of Saifullah made indiscriminate firing upon his brother at the northern side of Gul Habibi Petrol Pump, Quetta Road, Killa Saifullah, who fell down and received serous injfures and they with the help of other people put his brother in vehicle and brought to Hospital. The duty Doctor provided first aid to his brother and referred him to Quetta, but his brother succumbed to his injuries on the way. The incident was witnessed by Baha -ud-Din and Hafta Khan. Consequently, the
FIR was lodged.
3. The accused was arrested and after usual investigation, challan of the case was
submitted before the Court and the trial was commenced.
4. On the stated allegations, on 19.10.2020, a formal charge was farmed and read over to
the accused, to which he pleaded not guilty and claimed trial.
5. In order to prove the accusation, the prosecution produced twelve witnesses i.e. PW -1
Muhammad Ali (complainant), PW -2 Hafta Khan (eye- witness), PW -3 Baha -ud-Din (eye -
witness), PW -4 Khair Muhammad, HC (witness of seizure memo. of bloodstained earth,
stones and two empties), PW -5 Israrullah, ASI (witness of disclosure, pointation memo. and
seizure memo. of pistol), PW -6 Dr. Abdul Rehman, Medical Officer, PW -7 Khudai Dad
(brought the injured to hospital in his vehicle), PW -8 Rozi Khan, Constable (witness of
seizure memo. of bloodstained clothes of deceased Muhammad Nabi), PW -9 Abdul Rasheed,
HC (witness of seizure memo. of CDR consisting upon 12 pages), PW -10 Sanaullah,
Constable (witness of seizure memo. of motorcycle), PW -11 Allah -ud-Din, SI, (the first
Investigating Officer) and PW -12 Abdul Kareem, IP/SHO (the second Investigating Officer).
6. On completion of prosecution side, the accused was examined under Section 342
Cr.P.C., wherein he denied the prosecution accusations and claimed to be innocent. He
neither recorded his statement under Section 340(2) Cr.P.C., nor produced any witness in his defence.
7. The trial Court after close of parties' evidence, vide impugned judgment, convicted
and sentenced the appellant, as mentioned herein above, hence this appeal and revision petition.
8. Meanwhile, Criminal Revision Petition No.13 of 2022, was filed by the complainant
Muhammad Ali, wherein, he prayed for enhancement of the sentence.
Since Criminal Appeal No.312 of 2022 and Criminal Revision Petition No.13 of
2022, are arising out the same judgment of the trial Court, as such, are being disposed of through this common judgment.
9. Learned counsel for the appellant contended that the trial Court has failed to
appreciate the evidence in its true perspective and passed the impugned conviction judgment, which is result of mis -reading and non- reading of evidence; that the trial Court also erred in
law while holding two contradictory views, firstly, disbelieved the recovery of alleged crime weapon and discarded its positive forensic report and secondly, unreasonably and unjustifiably believed the statements of two interested witnesses, whose statements were recorded with an unexplained delay of more than 11 hours, despite their presence at the hospital till end; that the trial Court also did not take into consideration the delay in lodgment of FIR and its registration in an unnatural manner, which is result of deliberation and consultation on the part of the complainant; that material contradictions and illegalities conversed during trial between the official witnesses on major aspects of the case detrimental to prosecution, but all such legal aspects were neither taken into consideration nor appreciated; that the impugned judgment has been passed on the basis of surmises and conjectures and while awarding conviction, the trial Court has failed to apply its mind judiciously, which otherwise is mandatory for administering criminal justice, needs interference by this Court by setting aside the impugned judgment.
10. On the other hand, learned counsel for the complainant and learned State Counsel,
vehemently opposed the contention of the learned counsel for the appellant contended that there is preponderant evidence available on record, connecting the appellant with the commission of the offence, therefore, the trial Court after proper appraisal of the evidence, rightly found the appellant guilty of the offence, which does not call for any interference by this Court. While arguing the revision petition, learned counsel for the complainant stated that a minute glance at the whole record placed before the trial Court reveals that violent death of deceased Muhammad Nabi by means of firearm injurie has not been disputed and also established through medical evidence of PW -6 Dr. Abdul Rehman and the MLC and
death certificates as Ex.P/6 -A and Ex.P/6- A-1, as such, it was incumbent upon the trial Court
to have appreciated the law and facts in true perspective awarding death sentence to the accused, but surprisingly the trial Court awarded shorter sentence to the accused extending lenient view, which has instilled a sense of injustice, warranting interference by this Court.
11. The entire evidence and impugned judgment have been perused carefully with the
eminent assessments of learned counsel appeared on behalf of the parties. After having gone through the entire evidence in depth, we are of the considered view that the prosecution has established the guilt of the appellant to the hilt. Though the complainant Muhammad Ali (PW -1) is not the eye -witness of the incident, his information regarding the occurrence is
based on hearsay evidence, but he in his fard -e-bayan (Ex.P/1- A), specifically nominated the
appellant for the murder of his brother Muhammad Nabi. According to Ex.P/1- A, he was
informed about the involvement of appellant in the incident by Afta Khan (PW -2) and Baha -
ud-Din (PW -3). Besides, above, the FIR Ex.P/11- A transpires that the same was lodged on
08:30 a.m. with a delay of only two hours and fifty minutes and no explanation in this regard
is present in the FIR, however, it is mentioned in the FIR that the injured was referred from Civil Hospital, Killa Saifullah to Quetta for further medical treatment and the deceased succumbed to his injuries in the way towards Quetta. Furthermore, when complainant (PW -
1) appeared in witness box, he explained the position that after referring his injured brother,
he did not accompany the injured, he went towards his house to fetch some money, while
Hussain, Rashid and Aamir Ali went with the injured/deceased. It is clear from record that
before arrival of dead body to Civil Hospital, the complainant approached the Police Station for registration of FIR against the accused persons. It is a normal human behavior that the family members of a victim first came in such like situation always tries to save the life of injured person, who is in critical condition; obviously, the same happened in this case. The delay occurred in the case in hand is not deliberate or to achieve some other goals. Admittedly, the delay is material when there is a doubt regarding identifying the accused, but in the present case, the accused was nominated in the FIR promptly.
12. As far as the contention of the learned counsel for the appellant that the PW -2 and
PW-3, who have been alleged to be the eye -witnesses of the case, are actually chance and
interested witnesses, is concerned, the same has no force in it. The PW -2 Afta Khan and PW -
3 Baha -ud-Din, in the circumstances of the case in hand could not be termed as chance
witnesses and their mere relationship with the deceased or being the members of same caste
could not dent the prosecution version, as the witnesses have furnished sufficient explanation
to be present at the spot at the time of commission of offence by the appellant. It is an
admitted fact that both the PWs have a business near the place of incident, therefore, their presence at the spot cannot be doubted. Since, both the eye -witnesses are natural witnesses
and cannot be termed as chance witnesses, therefore, their evidence would deserve full
credence being genuine, particularly, when there was no material discrepancies or
contradiction of potential nature in their evidence. Even if, a chance witness reasonably
explains his presence at the spot and his narration of occurrence inspires confidence, then, he is not a chance witness and his testimony can be considered along with other evidence. It is pertinent to mention here that the statements of eye -witnesses are also corroborated by
medical evidence, which further proves their presence at the spot. Admittedly, the occurrence took place in a broad daylight and the appellant and both the PWs were well known to each other, because they are inhabitants of the same vicinity for long time, therefore, question of misidentification could not be made out. Reliance in this respect is placed to the case of "Qurban Hussain v. The State", 2017 SCMR 880, wherein, the Hon'ble Supreme Court of Pakistan has held as under:
"3. The occurrence in this case had taken place in broad daylight and the appellant had been apprehended with a hatchet immediately after the occurrence inside the house of Sajjad Ahmed (PW -2) and thereafter he was produced with the weapon of
offence before the local police. The FIR had been lodged quite promptly and the appellant had been nominated therein as the sole perpetrator of the alleged murder. Sajjad Ahmed (PW- 2) was a natural witness of the occurrence being an inmate of the
house of occurrence and there was no earthly reason available on the record prompting the said eye -witness to falsely implicate the appellant in a case of this
nature. The said eye -witness had made a straightforward statement before the trial
Court which had inspired confidence not only of the trial Court, but also of the High Court. The ocular account furnished by the said eye -witness had found full support
from the medical evidence. After assessing and evaluating the evidence in some detail both the courts below had concurred in their conclusion that the prosecution had succeeded in establishing the appellant's guilt to the hilt and upon our own independent reappraisal of the evidence, we have not been able to take a view of the matter different from that concurrently taken by the courts below."
13. On the touchstone of the criterion as mentioned herein above, we thrashed out the
statements of PW -2 Afta Khan and PW -3 Baha -ud-Din and we are of the considered opinion
that reliance has rightly been placed on their statements being confidence inspiring by the trial Court. It is may not be out of place to mention here that the defence failed to point out any ill -will or mala fide on the part of the prosecution witnesses to falsely implicate the
appellant in the commission of the alleged crime.
14. To consider the argument of learned counsel for the appellant with regard to
appearance of contradictions in the testimony of the prosecution witnesses, we are of the
view that it is settled principle of law that minor contradictions or improvements in the
statements of witnesses are to be overlooked. However, only material contradictions are to be considered. The learned counsel for the appellant failed to point out any material contradiction, omission and improvement amongst the testimony of the prosecution witnesses. Reliance is made to the case titled "Ranja v. The State", 2007 SCMR 455.
Thus, in view of above, the Criminal Appeal No.312 of 2022, is hereby dismissed. As
regard the revision petition for enhancement of sentence is concerned, the evidence which has come on record, does not suggest any premeditation murder, thus, the grounds taken in the revision petition have no force, resultantly, Criminal Revision Petition No.13 of 2022, is dismissed accordingly.
JK/51/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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