2025 P Cr. L J 963
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Shaukat Ali Rakhshani, J
NAIMATULLAH and others ---Appellants
Versus
The STATE and another ---Respondents
Criminal Appeal No. 83 and Criminal Revision Petition No. 13 of 2023, decided on 30th
September, 2024.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Ocular account supported by
medical evidence---Accused was charged for committing murder of the nephew of the complainant by firing---Complainant the sole eye -witness of the occurrence was
maternal uncle of deceased, who accompanied him to the crime scene---According to complainant, accused alighted from a jeep, who was joined by his nephew, when suddenly they exchanged some hot words, whereupon the accused made firing with his pistol upon his nephew, which pierced his chest and he succumbed on the spot ---
Complainant was cross -examined at length by the defence, with regard to timing of
arrival, Iftari, blood of deceased on his hands and clothes, taking the deceased to hospital and other aspects of the matter, but the defence could not shake his testimony---Complainant remained firm and consistent to his examination- in-chief, revealing the
ocular account of the incident ---Presence of complainant was denied on the crime scene
by the defence, but it did not succeed in shaking his testimony---Deposition of complainant had been found to be natural and confidence inspiring, which went unshaken--- Complainant was related to the deceased, but mere relation did not
disqualify his testimony ---Testimony of complainant had also been confirmed by the
medical account furnished by Medical Officer, who testified that the dead body of deceased was brought by SI (police) and identified by complainant with history of firearm, whereof he issued Medico Legal Certificate---Defence had not disputed the unnatural death of the deceased ---Forensic Science Laboratory Report had further
cemented the unnatural death of the deceased by firearm, thus it could be concluded with no other view that the medical evidence confirmed the ocular account of complainant ---
Appeal against conviction was dismissed accordingly.
G.M. Niaz v. the State 2018 SCMR 506 and Naseebullah v. The State 2022 YLR 885
rel.
(b) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Motive proved---Accused was
charged for committing murder of the nephew of the complainant by firing---Money dispute was the motive of the occurrence ---In order to prove the motive, the prosecution
produced father of the deceased as a witness, who testified that before the murder of his son, accused called his son through a phone call and threatened him of dire consequences ---Said witness was cross - examined at length, but no favourable reply
could be extracted by the defence in order to exonerate the accused from the indictment -
--Prosecution also produced recovery witness of a cheque, which had been dishonored by the bank, and it was secured vide recovery memo---Said witness produced copy of cheque and dishonor slip and its original copies ---Manager of Bank testified that accused
was account holder of his bank, and a cheque was returned due to insufficient balance ---
Statements of both the said witnesses had been scanned, which rang true as both of them had no reason to falsely implicate the accused ---Motive alleged by prosecution witnesses
seemed to have been successfully proved--- Appeal against conviction was dismissed
accordingly.
Syed ayaz Zahoor for Appellant (in Criminal Appeal No. 83 of 2023).
Habibullah Khan Nasar for the Complainant (in Criminal Appeal No. 83 of 2023).
Muhammad Younas Mengal, Additional Prosecutor General ("APG") for the State (in
Criminal Appeal No. 83 of 2023).
Habibullah Khan Nasar for Petitioner (in Criminal Appeal No. 13 of 2023).
Syed Ayaz Zahoor for Respondent No. 11 (in Criminal Revision Petition No. 13 of
2023).
Muhamamd Younas Mengal , A.P.G. for the State (in Criminal Revision Petition No.
13 of 2023).
Date of hearing: 12th September, 2024.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J .--- Through this consolidated judgment, we aim
to decide the captioned Criminal Appeal and Criminal Revision Petition brought before us
pursuant to the judgment dated 21.02.2022 ("impugned judgment") penned by learned Additional Sessions Judge -I, Quetta ("Trial Court"), emanating from FIR bearing No.71 of
2014 (Ex.P/11- A) registered with Police Station Saddar, Quetta, whereby appellant has been
convicted and sentenced under section 302(b) of the Pakistan Penal Code, 1860 ("P.P.C.") to suffer R.I for life as 'Tazir' with a fine of Rs.800,000/ - (Eight hundred thousand) payable to
the legal heirs of the deceased as contemplated under section 544 -A of the Criminal
Procedure Code, 1898 ("Cr.P.C."), and in default thereof, to further undergo six (06) months S.I. with the premium of section 382- B of Cr.P.C., whereas through the Criminal Revision
Petition, petitioner Haji Muhammad Sadiq seeks enhancement of sentence awarded to respondent No.1 by the Trial Court vide judgment impugned herein from that of life imprisonment to capital punishment.
2. Concise but relevant facts essential for disposal of the case in hand are that
complainant Muhamad Sadiq (PW- 1) got lodged the FIR ibid on the basis of Fard- e-Bayan
(Ex.P/1 -A), averring therein that on 20.07.2014 at about 07:20 pm, appellant Niamatullah
called his nephew Aminullah (deceased) in order to pay him debt amount of Rs.3,000,000/ -
(three million), and when they reached at Sabzal Road near graveyard, the appellant along his two unknown accomplices already present there alighted from the vehicle, took some steps with his nephew, and after exchange of hot words, made firing upon his nephew with pistol, whereby on receipt of a bullet injury on his chest, he succumbed then and there.
After registration of the FIR ibid, Mansoor Ahmed SI Investigation Officer 1st ("IO")
(PW -11) was entrusted with the investigation, who went to the crime scene, took into
possession an empty shell of pistol and three bloodstained stones vide recovery memos (Ex.P/8 -A) and (Ex.P/8 -B) respectively and recorded statements of witnesses under section
161 of Cr.P.C. He prepared site plan (Ex.P/11- B), whereafter went to Civil Hospital and
prepared inquest report of deceased (Ex.P/11- C). He also produced incomplete challan
(Ex.P/11- F) and CDR reports as Art.P/17 to Art.P/19.
The appellant remained away till 11.02.2021. He was arrested from District Chakwal,
Punjab, where he had been booked in some other case. After completing codal formalities, he was brought to Quetta on 16.02.2021 by Muhammad Attique 2nd IO (PW -12). On
22.02.2021, appellant made disclosure (Ex.P/6- A) and on his pointation of the place of
occurrence, memo of site (Ex.P/6 -B) was prepared. On 25.02.2021, Haji Khair Muhammad
(PW -7) handed over a cheque and dishonor slip to IO (PW -12), which were taken into
possession through recovery memo (Ex.P/4- A). He also handed over a mobile phone along
with 2GB memory card, which were secured vide recovery memo (Ex.P/10- A. Muhammad
Attique 2nd IO (PW -12) produced Digital Forensic Analysis Report (Ex.P/12- B), Forensic
report of bloodstained stones (Ex.P/12- C) and challans (Ex.P/12- D) and (Ex.P/12- E)
respectively.
3. The appellant was put on trial, whereafter denial of the indictment, the prosecution in
order to drive home the charge produced seven (12) witnesses and at the end of the
prosecution side, the appellant was examined under section 342 of Cr.P.C. He neither opted to record his statement on oath nor produced any defence, henceforth on conclusion of the trial, the Trial Court vide impugned judgment convicted and sentenced the appellant in the
terms mentioned in the para supra.
4. Learned counsel for the appellant inter alia contended that the prosecution has
miserably failed to establish the indictment against the appellant. Added further that the
testimony of eye -witness (PW -1) is untrustworthy and unreliable because not only he failed
to prove his presence on the crime scene, but the story narrated by him contradicts the prosecution version, which aspect of the incident has not been appreciated by the Trial Court in its true perspective, making the impugned judgment a nullity in the eyes of law, which requires interference by this Court, thus, requested for acquittal of the appellant in consequence of acceptance of instant appeal.
Adversely, learned APG as well as learned counsel for the complainant rebutted the
assertions made by learned counsel for the appellant and maintained that the impugned judgment does not suffer from any infirmity, illegality or misreading of evidence, thus, the appeal deserves to be dismissed.
Learned counsel for the petitioner, while arguing the Criminal Revision Petition
No.13 of 2023 for enhancement of sentence of the of the accused urged that the deceased was
done to death ruthlessly, henceforth there were no mitigating circumstances for awarding
lesser punishment, thus prayed that the sentence awarded to the appellant be enhanced to that
of capital punishment.
5. Heard. Record sussed out with the able assistance of learned counsel for the
adversarial parties. The case of the prosecution hinges upon ocular account of Muhammad
Sadiq (PW -1), who is the sole eye -witness of the occurrence coupled with medical evidence,
disclosure and pointation of the occurrence and last but not the least, the circumstantial
evidence furnished by Haji Khair Muhammad (PW -7) in respect of motive.
6. Complainant Muhammad Sadiq (PW -1) is maternal uncle of deceased Aminullah,
who accompanied him to the crime scene on 20.07.2014 at Sabzal Road near graveyard, where appellant along with his two unknown accomplices was already present. According to complainant Muhammad Sadiq (PW -1), appellant alighted from a Prado Jeep bearing
Registration No. BC - 9966, who was joined by his nephew, where suddenly they had
exchange of some hot words, whereupon the appellant made firing with his pistol upon his nephew Aminullah around 7:20 pm, which pierced his chest, whereby he succumbed on the spot. He was cross -examined at length by the defence, with regard to timing of arrival,
Iftari, blood of deceased on his hands and clothes, taking the deceased to hospital and other aspects of the matter, but the defence could not shake his testimony. He remained firm and consistent to his examination -in-chief, revealing the ocular account of the unfortunate
incident. His presence was denied on the crime scene by the defence, but did not succeed to shake his testimony. The deposition of complainant Muhammad Sadiq (PW -1) has been
found to be natural and confidence inspiring, which went unshaken. We are conscious that complainant Muhammad Sadiq (PW -1) is related to the deceased, but mere relation does
not disqualify him to believe his testimony. In this regard, we would like to refer to the cases of "G.M. Niaz v. The State" (2018 SCMR 506) and "Naseebullah v. The State" (2022 YLR 885).
7. The testimony of complainant Muhammad Sadiq (PW -1) has also been confirmed by
the medical account furnished by Dr. Ali Mardan (PW -2), who testified that on 20.07.2014 at
8:40 pm, the dead body of deceased Aminullah aged 28- 30 years was brought by SI Shaukat
and identified by complainant Muhammad Sadiq (PW -1) with history of firearm, whereof he
issued Medico Legal Certificate (Ex.P/2 -A) dated 24.07.2014. He observed an entrance
wound of bullet on the front of chest, left side in the mid of clevicular line and exit wound on
right side back of his chest at scapular region, having 1x1 cm caused with firearm. The defence has not disputed the unnatural death of the deceased. The Forensic Science Laboratory, Crime Branch, Balochistan report (Ex.P/12- C) has further cemented the
unnatural death of the deceased by firearm, thus it can be concluded with no other view that
the medical evidence has confirmed the ocular account of complainant Muhammad Sadiq
(PW -1).
8. Adverting to the disclosure memo (Ex.P/6- A), and pointation of the place of
occurrence made vide memo (Ex.P/6 -B), it may be observed that the place of occurrence was
already visited and known to the police officials, more particularly to IO (PW -11), whereof
site plan (Ex.P/11 -B) was also prepared. Since in consequence of the said disclosure, no
discovery of new fact was made, thus, no reliance can be placed upon such piece of evidence.
9. In order to prove the motive, the prosecution produced Haji Khair Muhammad (PW -
7), who testified that before the murder of his son Aminullah, appellant called his son from Cell No.0301- 2395132 and threatened him of dire consequences. He was crossexamined at
length, but no favourable reply could be extracted by the defence in order to exonerate the appellant from the indictment. The prosecution also produced Assadullah Khan (PW -4), who
is recovery witness of a cheque, having been dishonored by the bank, which was secured vide recovery memo (Ex.P/4- A). He produced copy of cheque and dishonor slip as mark P/4-
A and mark P/4 -B and its original copies as (Ex.P/4- A-1) and (Ex.P/4- A-2). Muhammad
Saleem (PW- 3) being Manager of Alfalah Bank testified that appellant was account holder of
his bank, and a cheque bearing No.01- 0094033 dated 01.10.2014 was returned due to
insufficient balance. Statements of both the afore -stated witnesses have been scanned, which
rings true as both of them have no reason to falsely implicate the appellant. The motive surfaced by prosecution witnesses seems to have successfully been proved.
10. We have critically examined the impugned judgment in view of the prosecution
evidence, which has rightly been appraised by the Trial Court, warranting no interference by
us.
11. Epitome of the above discussion is that the prosecution has successfully proved the
indictment through the ocular account of complainant Muhammad Sadiq (PW -1), confirmed
by the medical evidence and motive of payment of debt.
12. As far as the Criminal Revision Petition No.13 of 2023 for enhancement of the
sentence of appellant is concerned, we have critically analyzed the evidence on record in view of the submissions made by the petitioner as all the reasons drawn by the Trial Court for awarding lesser punishment of life imprisonment, which we believe has rightly been awarded by the Trial Court, while considering the sudden exchange of hot words between the appellant and deceased, making the case of the appellant one of mitigating circumstances, thus the conviction and sentenced requires to be maintained.
13. For what has been discussed hereinabove, the appeal is dismissed; conviction and
sentence awarded by the Trial Court vide impugned judgment dated 21.02.2022 is hereby maintained.
Corollary, Criminal Revision Petition No.13 of 2023 for enhancement of the sentence
is dismissed for being devoid of merits.
JK/98/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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