2012 Y L R 832
[Balochistan]
Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ
NASRULLAH alias NASRO and another ---Appellants
Versus
THE STATE and another ---Respondents
Criminal Jail Appeal No.11 and Murder Reference No.6 of 2011, decided on 29th December,
2011.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -e-amd---Appreciation of evidence ---Interested witness ---Sentence---One of
the prosecution witnesses was paternal cousin, whereas the other one was cousin of deceased, but
only on account of relationship with the deceased, said witnesses could not be termed as interested witnesses, for the reason that they had no direct animosity with accused, who had been attributed fatal injury to the deceased ---Statements of said witnesses, were not only corroborated
by the medical evidence, but also by the recovery of pistol from the possession of accused on his disclosure and pointation from his house ---Positive report of fire arms expert further
corroborated the ocular evidence furnished by prosecution witnesses ---Report issued by the
expert was brought on record without objection and if accused was not satisfied with that he could have called the expert to stand for the test of cross -examination as envisaged under the
provi so to S.510, Cr.P.C.---When the ocular evidence was confidence- inspiring and the courts
considered the witnesses to be truthful, then mere on the ground that the medical evidence
contradicted the ocular account was not sufficient to discard the testimony of such reliable witness ---Opinion of doctor, though was not binding upon the court ipso facto but the court had
to see the opinion expressed by a doctor, if to be acceptable in the light of well -recognized
principles of medical jurisprudence ---On the basis of contradiction in the statements of the
prosecution witnesses with regard to exact location of spot, bearing no material significance,
their statements could not be discarded, particularly when their presence at the place of
occurrence had been establis hed beyond any doubt ---Accused remained fugitive from law and
was apprehended after a period of two months and accused could not offer any tenable explanation for his such absconsion which had immense corroborative value ---Accused having
taken away life of his innocent wife, no mitigating circumstance was available to award lesser
penalty ---Prosecution though had failed to establish any motive against accused to commit the
murder of the deceased, but only on that ground death sentence could not be withheld, which
otherwise was normal penalty for committing murder ---Judgment of the Trial Court which was
arrived at after correctly appreciating evidence on record, could not be interfered with, in circumstances.
Muhammad Amin v. The State 2000 SCMR 1784; Muha mmad Akhtar Ali v. The State 2000
SCMR 727; Amir Khan v. The State 2000 SCMR 1885; Sarfraz alias Sappi v. The State 2000
SCMR 1758; Saeedullah Khan v. The State 1986 SCMR 1027; Mst. Roheeda v. Khan Bahadur 1992 SCMR 1036 and Saeed Akhtar v. The State 2000 SCMR 383 rel.
(b) Criminal trial---
----Interested witness ---Statement of witness, who was natural witness, and whose presence at
the place of occurrence could not be doubted, could not be discarded merely on the ground that
he was an interested witness---Court, however, by way of abundant caution, was to look for corroboration from other ocular or circumstantial evidence.
Jamil Ahmed for Pauper Appellant.
Abdul Wali Nasar for the Complainant.
Miss Sarwat Hina, Addl: A.G. for the State.
Date of hearing: 21st December, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---Criminal Jail Appeal No.11 of 2011 has been
presented by pauper appellant Nasrullah alias Nasro through Superintendent, Central Jail, Mach,
challenging his convict ion and sentence of death under section 302(b) of the P.P.C., recorded
vide judgment dated 13th April, 2011 by the Sessions Judge, Loralai. The Sessions Judge has sent Murder Reference No.6 of 2011 for confirmation of the sentence of death or otherwise. Since common question of law and facts is involved, therefore, both the matters are being
disposed of by means of this common judgment.
2. Complainant Zahir Khan son of Tore Khan (P.W.4), in his Fard -e-Bayan Exh.P/4- A,
alleged that on 20th April, 2010, he was present in his house situated at Killi Tore Khan, Dukki
and, on receiving telephonic information regarding the murder of his sister Hameeda Bibi by her husband Nasrullah alias Nasro by means of firing, he rushed to the house of his sister Mst.
Hameed B ibi situated at Killi Arabaseen, Loralai, where he found the dead body of his sister and
he brought the same to civil hospital. On query, he came to know that accused Nasrullah alias
Nasro, Abdul Majeed sons of Sardar Khan and Sardar Khan committed the mur der of his sister
by means of firing. The motive behind the incident was disclosed matrimonial dispute. Consequently, case vide Crime No. 49 of 2010, under section 302 read with section 34 of the P.P.C., was registered at Police Station Sadar Loralai.
3. After registration of F.I.R. Exh.P/6- A, initially the investigation of the case was carried
out by P.W.6 Kazim Ali, IP, who went to Civil Hospital and took into possession the blood-
stained clothes of the deceased vide memo Exh.P/3- A. He prepared inquest report Exh.P/6- B of
the deceased and released the dead body to her heirs vide receipt Exh.P/6- C. Thereafter, he
visited and inspected the place of occurrence, prepared site inspection plan Exh.P/6- D, also
prepared hand made site plan Exh.P/3- E through Patwari, secured blood -stained earth and
collected two crime empties vide memos, prepared site inspection memo, recorded the statements of P.Ws., obtained death certificate of the deceased, sent blood- stained earth and
clothes of the deceased to FSL for a nalysis and after completion of the investigation, placed the
papers before IP/S.H.O., who prepared incomplete challan Exh.P/6- F.
4. On arrest of the appellant, further investigation was conducted by P.W.7 Khalil Ahmed,
S.-I., who on the disclosure and pointation of the appellant, recovered crime weapon i.e. pistol
from his house, which was taken into possession vide recovery memo and a separate case under
the Arms Ordinance was registered against him. He sent the crime weapon to FSL for examination and, accordingly, obtained Ballistic Expert's report Exh.P/7- D. He also obtained
report of FSL Exh.P/7- A regarding blood- stained articles and produced incomplete challans
Exh.P/7- B and Ex.P/7- C in the Court.
5. On the stated allegation, a formal charge was fr amed and read over to the appellant, to
which he did not plead guilty and claimed trial. To prove the accusation, the prosecution
produced seven witnesses. P.W.1 Taveez Khan is eye -witness of the occurrence and informed
the complainant about the incident t hrough telephone. P.W.2 Dr. Amjad Parvez, Senior Medical
Officer, DHQ Hospital, Loralai, examined the dead body of the deceased and issued death certificate Exh.P/2 -A. P.W.3 Amanullah, constable, is witness to the recovery memos. Exh.P/3-
A and Exh.P/3- B regarding blood- stained clothes and earth of the deceased, site inspection
memo. Exh.P/3- C, disclosure memo Exh.P/3- D of the accused, recovery memo. Exh.P/3- E of
crime weapon. P.W.4 Zahir Khan is complainant of the case, who placed on record his Fard -e-
Bayan Exh.P/1- A. P.W.5 Raza Khan is another eye -witness of the occurrence. He is also witness
to the collection of two crime empties from the place of occurrence vide memo. Exh.P/5 -A.
P.W.6 Kazim Ali, IP, and P.W.7 Khalil Ahmed, S.I., are the Investigating Off icers of the case.
Then the prosecution closed its side.
6. In his examination under section 342 of the Cr.P.C, the appellant denied the
prosecution accusation and claimed to be innocent. He, however, did not opt to record his
statement on oath a s envisaged under section 340(2) of the Cr.P.C, nor produced any witness in
his defence. The trial Court, after close of parties evidence, found the case of prosecution to have been proved against the appellant and, thus, he was convicted and sentenced as mentioned and
detailed above.
7. It has been argued by learned counsel for the appellant that the prosecution had failed to
prove its case against the appellant beyond reasonable doubt and, thus this appeal warrants
acceptance, with a resultant acquittal of the appellant. On the contrary, the learned counsel for the State, duly assisted by learned counsel for the complainant, has maintained that prosecution had succeeded in proving the guilt of the appellant to the hilt and, therefore, the instant appeal
deserves dismissal.
8. We have carefully considered the respective contentions putforth by the parties learned
counsel in the light of evidence available on record and also gone through the impugned
judgment. So far as homicidal death of deceased Mst. H ameeda is concerned, the same has not
been categorically denied by the defence, which is, otherwise, proved by the statement of P.W.2
Dr. Amjad Pervaiz, Senior Medical Officer, DHQ Hospital, Loralai, who had confirmed that the injury sustained by the decea sed was result of firearm bullet and the cause of death was internal
bleeding and damage of vital organs.
9. However, the question arises as to who caused this injury and was responsible for the
homicidal death of the deceased. In this regard, the prose cution has relied upon the statement of
P.W.1 Taveez Khan and P.W.5 Raza Khan, who claimed to have seen the occurrence. In their
depositions before the trial Court, they had stated that on the fateful day, they went to Killi Arbaseen to meet Mst. Hameeda, who happened to be their cousin. The accused/appellant Nasrullah was demanding money from his wife Mst. Hameeda Bibi, who refused to make payment, whereupon the appellant took out a pistol and Hameeda Bibi started running towards drawing room. They further deposed that they tried to save her, but appellant Nasrullah made
two fires on Hameeda Bibi, who sustained a bullet injury on her chest and died on the spot. They informed the brother of the deceased, viz, Zahir Khan regarding the occurrence on telephone and took the dead body to Civil Hospital, Loralai. Despite lengthy cross -examination, the defence
failed to create any dent in their veracity, except a few discrepancies, which are immaterial and not fatal to their evidence.
10. It may be noticed that P.W.1 Taveez Khan is paternal cousin, whereas P.W.5 Raza Khan
is the cousin of deceased Mst. Hameeda, but only on account of relationship with the deceased,
they cannot be termed as interested witnesses for the reasons that they had no direct animosit y
with appellant Nasrullah, who have been attributed fatal injury to the deceased. By holding this view, we are fortified from a case of "Muhammad Amin v. The State", 2000 SCMR 1784, wherein it has been held by Hon'ble Supreme Court of Pakistan as under: --
"An interested witness is one who has a motive for falsely implicating an accused, is a partisan and is involved in the matter against the accused. 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."
Likewise, the Hon'ble -Supreme Court in a case of "Muhammad Akhtar Ali v. The State", 2000
SCMR 727, held as under: --
"Moreover, we find that none of the two eye -witnesses could be termed as inter ested witnesses
because none had any previous ill -will or grudge against the petitioner. Merely, because P.W.4
is father of the deceased and P.W.5 belongs to the "Baradari" of the deceased, would not make
them interested as they had no reasons to substitute the petitioner for the real killer."
11. Even otherwise, the statement of a witness, who is a natural witness and whose presence
at the place of occurrence could not be doubted, cannot be discarded merely on the ground that
he is an interested witness , though the Courts, by way of abundant caution, look for
corroboration from other ocular circumstantial evidence. In the instant case, as already observed, the statements of these witnesses are not only corroborated by the medical evidence, but also by the recovery of pistol from the possession of appellant Nasrullah on his disclosure and pointation
from his house. P.W.3 Amanullah in his Court -statement deposed that on 1st June, 2010, the
appellant, during course of interrogation, made disclosure before S.- I. Khalil Ahmed and in
consequence of such disclosure, he was taken to his house situated at Killi Arbaseen in an official vehicle, wherefrom he took out a TT Pistol No.2499 from a dry water -tank and handed
over the same to Khalil Ahmed, S.- I., who took i nto possession the same through recovery
memo. Exh.P/3- E and prepared its sealed parcel No.4. The positive report of Firearms Expert
further corroborates the ocular evidence, furnished by P.W.1 and P.W.5. Learned counsel for the appellant objected on the a dmissibility of said report, on the ground that it was without
reasoning. It is suffice to observe that at the time of tendering report in evidence; firstly, no objection was taken regarding its admissibility; secondly, under section 510 of the Cr.P.C. any
report of Firearms Expert, appointed by the government, is admissible in evidence without examining him. The perusal of report Exh.P/7- D shows that the same was issued by Firearms
Examination Unit, office of the Assistant: Inspector -General of Police, For ensic Division, Sindh,
Karachi, established by the Government of Sindh, as such, it could not be said that the said report was issued by an Expert, not appointed by the Government. Similarly, it may be seen that the report was brought on record without obj ection and if the appellant was not satisfied, he could
have called the Expert to stand for the test of cross -examination, as envisaged under the proviso
to section 510 of the Cr.P.C.
12. The contention of learned counsel for the appellant that there is a conflict in the medical
and ocular evidence, as such, the medical evidence has to be preferred over ocular account. We
may observe that each case has to be decided in the light of its peculiar facts and circumstances. When the ocular evidence is confiden ce-inspiring and the Courts consider the witness to be
truthful, then merely on the ground that the medical evidence contradicts the ocular account is not sufficient to discard the testimony of such reliable witness. In case of "Amir Khan v. The State", 2 000 SCMR 1885, the Hon'ble Apex Court observed as under: --
"It has time and again been held by the superior Court that if a bald statement of a Medical Expert is opposed to the proved and admitted confidence inspiring and reliable account of the eye-witnesses or other material and trustworthy evidence on record, then the latter are to he
preferred against the former. "
Similarly, we are also fortified by the judgment in case of "Sarfraz alias Sappi v. The State",
2000 SCMR 1758, wherein the Hon'ble Apex Court observed as under: --
"Appraisal of evidence ---Ocular and medical evidence-- Conflict between ---Where there is any
variation between ocular and medical evidence, the later does not overweigh the former type of evidence if otherwise the ocular eviden ce is coherent and trustworthy."
13. Furthermore, opinion of a doctor is not binding upon the Courts ipso facto, but Court has
to see the opinion expressed by a doctor if to be acceptable in the light of well -recognized
principles of medical jurisprudenc e. In the instant case, though the doctor has described the
injury on the backside as "entrance wound" and that on the chest as "exit wound", but careful
perusal of the medical certificate and statement of the doctor shows that he failed to give any reason ing for reaching to this conclusion. Moreover, in the medical certificate, size
(measurement) of these wounds have not been given and it lacks necessary particulars as regards the entrance and exit of the bullet are concerned i.e. whether the edges of the injuries were inverted or everted in shape, so as to furnish basis with regard to the location of the seat of entrance and exit wounds, in absence whereof implicit reliance on the point cannot be placed on
the testimony of the doctor. As noted above, due t o deficient descriptions of the wounds given by
P.W.2, it cannot be said with certainty that the opinion of the doctor was correct in the light of well-known principles of medical jurisprudence. The deceased suffered fatal shot in presence of
her cousins, who, obviously, were looking at the awful scene with great amount of tension about fate of the victim, as such, it could not be expected from P.Ws. to have given the exact location of the shot i.e. entrance and exit of the wounds, therefore on the basis of such contradiction,
bearing no material significance in the circumstances of the case, their statements could not be discarded, particularly when their presence at the place of occurrence has been established beyond any doubt. The Hon'ble Supreme Court o f Pakistan in a case of "Saeedullah Khan v. The
State", 1986 SCMR 1027, in similar circumstances, observed as under: --
"Medical evidence indicating that shot hit deceased on back and had come out from front, whereas ocular testimony described shot to have been received by deceased from front of chest -
Eye-witnesses categorically stating in cross -examination that deceased was hit from front and
bullet passed through her body emerged from her back---Trial Court adverted to such inconsistency but gave no importance to contradiction and this aspect was not highlighted or pressed before High Court ---Occurrence was result of confusion and excitement generated by
dramatic circumstances in which offence was committed --No doubt existing about presence of
eye-witness es and their testimony fully implicating accused ---Conviction and sentence
maintained."
14. Another important circumstance, which has immense corroborative value, is the absconsion
of appellant Nasrullah. It is in evidence that he remained fugitive from law and was apprehended after a period of two months. Regarding this piece of evidence, he could not offer any tenable explanation. In this regard, we are fortified by a case of "Mst. Roheeda v. Khan Bahadur", 1992 SCMR 1036, wherein the Hon'ble Supreme Court observed as under: --
"No doubt, abscondence by itself is not sufficient to convict an accused person but is a strong piece of corroborative evidence of the other direct and circumstantial evidence in the case. In the instant case, the accused /respondent No.1, Jahanzeb accused (since murdered) and their
brother Aurangzeb remained fugitive from justice for a very long time without any plausible and reasonable explanation. Their conduct after the occurrence was indicative of their guilt when considered in conjunction with the ocular and circumstantial evidence in the case."
15. Coming to the question of confirmation of death sentence awarded to appellant Nasrullah
by the trial Court, it may be noticed that he had taken away the life of an innocent person, who
happens to be his legally wedded wife and there are no mitigating circumstances to award lesser penalty. Although prosecution failed to establish any motive against him to commit the murder
of the deceased, but only on this ground dea th sentence cannot be withheld, which is, otherwise,
normal penalty for committing murder. The Hon'ble Supreme Court in a case of "Saeed Akhtar v. The State", 2000 SCMR 383, maintained the death sentence despite insufficiency of motive and relationship of the witness with the deceased. It would be advantageous to reproduce the relevant observations: --
"Sufficiency or otherwise of the motive is not a sine qua non for the commission of the offence. It has been noticed that some desperate, reckless and ruffi an type of people commit murder or
other offences just at their whims while on the other hand people who have been properly nourished, educated and disciplined, do not lose their temper in most challenging situation, but rather act with patience and sobrie ty. Therefore, in a case where murder is proved, insufficiency
of motive would not be a bar for imposition of normal penalty of death. It is not a case where motive can be said to be shrouded in mystery but even if for arguments' sake it had been so even then awarding of lesser penalty would not have been justified in absence of proving any
mitigating circumstance."
Having given our anxious thought to the arguments of learned counsel for the parties, we feel
that the preponderance of evidence on record, a s rightly appreciated by the trial Court, is
sufficient for holding the appellant guilty of the charge. There is hardly any substantive ground
for lawfully challenging the impugned judgment, thus, Criminal Appeal No.11 of 2011 is dismissed and the Murder R eference No.06 of 2011 is answered in affirmative.
H.B.T./12/Q 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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