2013 P Cr. L J 692
[Balochistan]
Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ
SALEH MUHAMMAD alias HASHIM MARRI ---Appellant
Versus
The STATE ---Respo ndent
Criminal Appeal No.18 and Murder Reference No.4 of 2011, decided on 24th October, 2012.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl-e-amd---Appreciation of evidence ---Promptly lodged F.I.R. ---Recovery
of crime weapon ---Ocular account c orroborated by medical evidence and motive ---Accused
and co -accused persons allegedly fired at the complainant party, which resulted in death of
complainant's brother and cousin ---Motive for the occurrence was exchange of harsh words
between the parties pr ior to the incident ---Occurrence took place at 8 -45 p.m. and F.I.R.
was lodged at about 9 -30 p.m. ---Distance of police station from place of occurrence was
approximately 2.5 kilometers, thus it could be said that F.I.R. was lodged with reasonable
promptitude, which excluded possibility of deliberation and consultation ---Presence of
complainant at the shop of his deceased brother and cousin at the time of occurrence was
quite natural ---Evidence of complainant could not be shattered during cross -examination,
therefore, his testimony could not be rejected merely on the ground of his relationship with
the deceased persons ---Ocular account was fully corroborated by medical evidence insofar as
the time, locale and dimension of the injuries received by de ceased persons ---Crime weapon
was recovered from possession of accused immediately after the occurrence ---Forensic
examination of weapon recovered from accused revealed that same was in working order and
fires had been made through it ---Statement of compla inant was also corroborated by the
alleged motive behind the occurrence, which was exchange of harsh words between one of
the deceased and accused prior to the incident ---Complainant deposed same motive during
trial in his deposition ---Non-securing of empt ies by the investigating officer could not destroy
the case of the prosecution as per site plan, the occurrence had taken place on a highly busy
road and possibility could not be ruled out that empties were displaced by fast moving
vehicles ---Prosecution h ad established case against accused beyond any shadow of doubt ---
Appeal was dismissed and death sentence awarded to accused was confirmed in
circumstances.
Gulli v. The State 1999 PCr.LJ 1179 rel.
(b) Criminal trial ---
----Solitary witness, stateme nt of ---Reliance ---Scope ---Evidence of sole witness could be
safely relied upon for conviction if it was confidence -inspiring and trustworthy.
Riaz Hussain v. The State 2001 SCMR 177 rel.
(c) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl-e-amd---Related witness, evidence of ---Reliance ---Scope ---Mere
relationship of witness with deceased persons was not sufficient to discard his evidence
outrightly ---When presence of related witness at the time of occurrence was natural and his
evidence was straig ht-forward and confidence -inspiring, then same could be safely relied
upon to award capital punishment.
(d) Criminal trial ---
----Motive ---Failure to prove ---Effect ---Lack of motive or its weakness was never fatal for
the prosecution if the case other wise stood proved through direct evidence with regard to the
occurrence.
Imtiaz Ahmed v. The State 2001 SCMR 1334 rel.
(e) Criminal trial ---
----Weapon of offence or empties, recovery of ---Nature ---Recovery of weapon of offence or
empties was not t he mandatory requirement of law, but it was a circumstantial piece of
evidence, which tended to corroborate other pieces of evidence i.e. ocular account, motive,
medical evidence and any other circumstance, which might be deemed to be relevant.
(f) Crim inal trial ---
----Site plan, reliance on ---Scope ---Site plan by itself was not a substantive piece of
evidence, nor could it take away the probative force of reliable eye -witness, whose
statement appeared to be truthful.
Ali Sher v. The Sta te PLD 1980 SC 317 rel.
Muhammad Qahir Shah for Appellant.
Abdul Ghani Mashwani for the Complainant.
Abdul Sattar Durrani, Additional P. -G. for the State.
Date of hearing: 17th October, 2012.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---This judgment will dispose of
Criminal Appeal No.18 of 2011 and Murder Reference No.4 of 2011, both arising out of
judgment dated 27th January, 2011, passed by the Additional Sessions Judge, Lasbella at Hub
(the "trial Court"), whereby appellant Saleh Muhammad alias Hashim Marri son of Shah
Murad was convicted and sentenced under section 302(b) of the Pakistan Penal Code, 1860
(P.P.C.) to suffer death, subject to confirmation of this Court.
2. Complainant Qaim Khan son of Jam Khan (P.W.1), in his Fard -e-Bayan (Exh.P/1 -A),
addressed to Station House Officer (SHO), Police Station, Hub, alleged that on 14th April,
2010, he, along with Wazir Khan, Pir Bakhsh, Nazar Hussain and Mir Muhammad, was
present in the fruit shop/handcart of his cousin Ahmed Khan son of Dad Muhammad, when at
about 8 -45 p.m., Saleh Muhammad alias Hashim Marri (the appellant) came there on a
motorcycle, purchased one dozen bananas, gave Rs.50 to his cousin Ahmed Khan and an
amount of Rs.20 was returned to him. After a short while, the appellan t again demanded for
return of Rs.20, at which Ahmed Khan told him that he had already returned the said amount.
On that, harsh words were exchanged between them, at which Ahmed Khan once again paid
him Rs.20. The appellant, while leaving the place, advanc ed threats of dire consequences and
told that he will teach him the lesson. The complainant further alleged that after about 20 to
25 minutes, appellant Saleh Muhammad, along with his companions Baloch Khan and Ali
Nawaz, came there on motorcycles. Appella nt Saleh Muhammad took out a pistol, whereas
his companions were also armed with pistols and they started firing, due to which Ahmed
Khan, Wazir Ali, Pir Bakhsh, Nazeer and Mir Muhammad sustained bullet injuries, out of
whom Ahmed Khan and Wazir Ali, who h appened to be the cousin and brother of the
complainant respectively, succumbed to the injuries on the spot, whereas Pir Bakhsh, Nazeer
and Mir Muhammad sustained injuries. Consequently, a case vide F.I.R. No.69 of 2010,
under sections 302, 324 read with s ection 34 of the P.P.C. was registered at Hub City Police
Station District Lasbella.
3. The investigation of the case was carried out by P.W.7 Talib Hussain, IP, who, after
registration of F.I.R. (Exh.P/7 -A), went to Civil Hospital, Hub, where he found t he dead
bodies of Wazir Ali and Ahmed as well as injured Pir Bakhsh and Nazeer Hussain in
emergency ward. He took into possession the dead bodies of the deceased through recovery
memo, examined it and prepared memos (Exh.P/7 -B and C). He also prepared inqu est reports
(Exh.P/7 -D & E) of the deceased, handed over it to doctor concerned for postmortem
examination, however, on the written application of the complainant party, it were released to
its heirs without conducting postmortem examination vide receipts (Exh.P/7 -F and G). He
recorded the statements of prosecution witnesses and, thereafter, he went to the place of
occurrence, where, on the pointation of the complainant, he inspected the site and
prepared site sketch (Exh.P/7 -H). On the spot, ASI A ttaullah handed over him a TT pistol,
along with a magazine and three live cartridges, and told that the same were recovered from
the possession of appellant Saleh Muhammad, which were taken into possession and sealed
into a parcel. Since appellant Saleh M uhammad was also injured, therefore, he was shifted to
Civil Hospital, Hub, wherefrom he was shifted to Karachi for further treatment and after
arrival from Karachi, further investigation was carried out against him. He registered a case
under the Arms Ord inance against appellant Saleh Muhammad; took into possession blood -
stained clothes of the deceased and injured, which were produced by their relatives and
sealed into parcels. He obtained death certificates as well as Medico Legal Certificates of the
deceased and injured persons. During course of the investigation, accused Saleh Muhammad
made disclosure about commission of the offence and also nominated his accomplices, at
which a disclosure memo was prepared. After completion of the investigation, the ap pellant
was remanded to judicial custody, whereas the blood -stained articles were sent to Forensic
Science Laboratory (FSL), Karachi for analysis and incomplete challan (Exh.P/7 -I) was
prepared. On receiving report of Chemical Examiner (Exh.P/7 -J), supplementary
challan (Exh.P/7 -K) was prepared.
4. On the stated allegations, a formal charge was framed and read over to the appellant,
to which he did not plead guilty and claimed trial. The prosecution, in order to substantiate
the accusation, produced seven (7) witnesses. P.W.1 Qaim Khan is complainant of the case,
who placed on record his Fard -e-Bayan (Exh.P/1 -A). P.W.2 Muhammad Naeem, HC, is
witness to the recovery memos (Exhs.P/2 -A, B, C and D) in respect of blood -stained cloth es
of the deceased and injured persons. P.W.3 Attaullah, ASI, and P.W.4 Ali Akbar, SI, are
witnesses to the recovery memo (Exh.P/3 -A) regarding TT pistol, a magazine and three live
cartridges. P.W.5 Sikandar Ali, SI, is witness to the disclosure memo (Exh. P/5-A) of the
accused. P.W.6 Dr. Zulfiqar Ali Sajjid, Medical Officer, Civil Hospital, Hub, examined
the dead bodies of the deceased as well injured persons and issued death certificates
(Exhs.P/6 -A and B) and Medico Legal Certificates (Exhs.P/6 -C and D). P.W.7 Talib Hussain,
IP, is the Investigating Officer of the case. Then the prosecution closed its side.
5. In his examination under section 342 of the Cr.P.C., the appellant denied and
controverted each and every allegation of fact levelled aga inst him by the prosecution and
professed his innocence. He also recorded his statement on oath under section 340(2) of the
Cr.P.C. and produced D.W.1 Muhammad Bakhsh in his defence. The trial Court, after
hearing the learned counsel for the parties, convi cted and sentenced the appellant, as
mentioned hereinbefore, hence this appeal and murder reference.
6. Mr. Muhammad Qahir Shah, learned counsel for the appellant vehemently argued that
the conviction of the appellant is based upon the solitary statement of complainant Qaim
Khan (P.W.1), who is an interested and related witness and no other ocular account was
furnished by the prosecution to support the solitary statement of P.W.1. He further contended
that the injured witnesses, namely, Pir Bakhsh, Nazeer and Mir Muhammad did not appear to
support the prosecution's case. He also submitted that neither any empty was secured from
the crime scene, nor any independent witness of the recovery of weapon of offence from
possession of the appellant has been produc ed. While concluding his arguments, learned
counsel stated that the motive behind the incident was stated to be money dispute, but no
detail of such dispute has been provided before the trial Court to establish the same.
7. As against that, Mr. Abdul Gha ni Mashwani, learned counsel for the complainant, has
strongly opposed this appeal and has contended that it is a case of brutal murder and the
appellant is named in the promptly lodged F.I.R. with a specific role of causing firearm
injuries to deceased pe rsons Ahmed Khan and Wazir Ali as well as injured persons Pir
Bakhsh, Nazeer and Mir Muhammad. He further stated that the appellant was arrested at the
spot and the crime weapon was also recovered from his possession and he is responsible
for the death of two innocent persons and causing firearm injuries to three persons on a petty
matter.
8. We have carefully examined the above -mentioned contentions in the light of relevant
provisions of law and record of the case. After having gone through enti re record, we are of
the considered view that the prosecution has established the guilt of the appellant to the hilt
by producing cogent and concrete evidence. In the instant case, the occurrence took place at
about 8 -45 p.m. and F.I.R. (Exh.P/7 -A) was lod ged by complainant Qaim Khan (P.W.1) at
about 9 -30 p.m. The distance of Hub Police Station from the place of occurrence is
approximately 2 -1/2 kilometers. Thus, it can be said that it was lodged with reasonable
promptitude, which excludes the possibility o f deliberation and consultation.
9. The complainant has given a detailed account of events leading to the murder of
deceased Ahmed Khan and Wazir Ali as well as fire -arm injuries to Nazeer, Pir Bakhsh and
Mir Muhammad. According to the complainant, on 14 th April, 2010, he, along with Wazir
Ali, Pir Bakhsh, Nazeer Hussain and Mir Muhammad, was present in the fruit shop/handcart
of his cousin Ahmed Khan, when appellant Saleh Muhammad came there and, after
purchasing one dozen bananas and exchange of harsh w ords, he left the place and advanced
threats of dire consequences. As per the complainant, after 20 to 25 minutes, appellant Saleh
Muhammad, along with his companions; viz, Baloch Khan and Ali Nawaz, came there on
motorcycles and started firing, due to whi ch Ahmed Khan, Wazir Ali, Pir Bakhsh, Nazeer
and Mir Muhammad sustained firearm injuries, out of whom Ahmed Khan and Wazir Ali
succumbed to the injuries on the spot. We are not persuaded to agree with the prime
contention of Mr. Muhammad Qahir Shah, that o n the basis of solitary evidence of related
witness, no conviction could have been awarded in the absence of any corroboratory material.
By now it is a settled proposition of law that in criminal cases, it is the quality and not
quantity of evidence, which is to be considered, while deciding a case and if the evidence of a
sole witness is confidence -inspiring and trustworthy, then the same can safely be relied upon
for conviction. The credence of statement of solitary witness has already been examined by
the Hon'ble apex Court in number of cases. In this context, reference can be made to a case of
Riaz Hussain v. the State, 2001 SCMR 177, wherein it has been held as under: --
"There is no force in the contention that conviction could not be awarded on the basis
of solitary statement of Mst. Manzooran as it is quality of evidence and not quantity which is
to be considered. The conviction can be based on the evidence of a solitary witness. In this
regard we are fortified by the dictum laid down in PLD 1980 SC 225; 1971 SCMR 659; 1969
SCMR 76; 1971 SCMR 273 and 1995 SCMR 1979. As mentioned hereinabove the statement
of Mst. Manzooran finds corroboration from medical evidence, motive surrounding
circumstances and absconsion irrespective of her inter se relationsh ip with deceased."
10. We are conscious of the fact that complainant Qaim Khan is real brother of deceased
Wazir Ali and first cousin of deceased Ahmed Khan, however, mere relationship of witness
with deceased persons is not sufficient to discard his evi dence outrightly. If the presence of a
related witness at the time of occurrence is natural and his evidence is straightforward and
confidence -inspiring then the same can be safely relied upon to award capital punishment. In
the instant case, the presence of the complainant at the shop of his brother and cousin at the
time of occurrence was quite natural. He stood the test of cross -examination, but his evidence
could not be shattered, therefore, his testimony cannot be rejected, merely on the ground of
his relationship with the deceased persons. The complainant, as stated above, is the real
brother of deceased Wazi Ali and cousin of deceased Ahmed Khan, thus, it is not possible
that he will falsely implicate the appellant and would let off the real culprits.
11. The ocular account, furnished by P.W.1, is fully corroborated by the medical evidence
insofar as the time, locale and dimension of the injuries received by deceased Ahmed Khan
and Wazir Ali. The nature of injuries received by deceased persons square ly reflects that
these were the injuries, which could have been caused by a pistol shots. The ocular account
also stands corroborated by the recovery of crime weapon i.e. pistol from possession of
the appellant immediately after the occurrence, w hich was sent to the Examiners of the
Fire-arms Section Forensic Division Sindh, Karachi and the report (Exh.P/7 -J) revealed that
the same was in working order and fires had been made through it.
12. In the instant case, as already observed, the statement of complainant Qaim Ali is not
only corroborated by the medical evidence, but also by the alleged motive. The motive
behind the occurrence is mentioned in F.I.R. (Exh.P/7 -A), which is an exchange of harsh
words between the appellant and deceased Ahmed Khan prior to the incident. The same
motive has -been deposed by the complainant during trial in his deposition before the Court
recorded on 17th October, 2010, which prompted the appellant to commit the murder of
deceased Ahmed Khan and Wazir Ali. In this context, reference can be given to a case of
Gulli v. The State, 1999 PCr.LJ 1179 Karachi, the relevant portion is as under: --
"Where motive was specifically pleaded in the F.I.R. and was deposed at trial by the
complainant against an accused person and corroborated by another prosecution witness, the
same was proved against the accused person."
Even otherwise, the contention of learned counsel for the appellant that since the motive has
not been proved or the same is weak and, th erefore, the benefit of this infirmity should be
given to the appellant is also without any substance. The lack of motive or its weakness is
never fatal for the prosecution if the case otherwise stands proved through direct evidence
with regard to the occu rrence. In this regard, reference can be made to a case of Imtiaz
Ahmed v. The State, 2001 SCMR 1334, wherein the Hon'ble Supreme Court has held as
under: --
"It may also be observed that allegations and proof of motive are not legal
requirements for awa rding maximum penalty of death in murder case when the prosecution
has proved the guilt of the appellant accused beyond reasonable doubt as in the instant case
considering also the fact that in the dispensation of criminal justice, decision of the case mus t
not be taken in relation to accused's case "but must rest on the examination of entire
evidence" in view of principles in Woolmingtin's case 1935 AC 462. Reference may be made
to Talib Hussain v. State (1995 SCMR 1776), so also even in case of weak motiv e when there
has been otherwise strong and reliable evidence, motive would not come in the way of the
case of prosecution. Reference may be made to State v. Sobharo 1993 SCMR 585."
13. The attempt made by the defence counsel to show that no empties were secured from
the place of alleged occurrence, which adversely affects the prosecution's case, seems to be
futile for the reasons that the non -securing of empties by the Investigating Officer cannot
destroy the case of the prosecution, as per site plan (Exh .P/7-H), the occurrence has taken
place on a highly busy road i.e. Saakran road and the possibility cannot be ruled out that the
empties were displaced by the fast moving vehicles. Even otherwise, the recovery of weapon
of offence or empties by itself wou ld not be fatal for the prosecution in the facts and
circumstances of the present case. It is a settled principle of law that the recovery of weapon
of offence or empties is not the mandatory requirement of law, but it is a circumstantial piece
of evidence , which tends to corroborate the other pieces of evidence i.e. ocular account,
motive, medical evidence and any other circumstance. which may deem relevant.
14. Our attention was also drawn to the site plan (Exh.P/7 -H) prepared by Investigating
Officer, wherein the location or position of P.W.1 Qaim Khan (complainant) was not shown.
It is not denied that the site plans are prepared only to explain or to appreciate the ocular
evidence on record in the case. Site plan by itself is not a substantive piece of evidence, nor
can it take away the probative force of reliable eye -witness, whose statement appears to be
truthful. Even otherwise, the Investigating Officer in his statement recorded before the trial
Court has categorically stated that the site plan (Exh .P/7-H) was prepared on the pointation of
the complainant (P.W.1). By holding this view, we are fortified from a case of Ali Sher v.
The State, PLD 1980 Supreme Court 317, wherein it was held as under: --
"The mere omission of the position of the prosecu tion witnesses in the site plan
cannot per se lead to an irresistible inference that the witnesses were not present,
when it is found that the presence of the witnesses at the time of the incident and at the place
indicated would be natur al in the circumstances. In the present case, the occurrence had taken
place in the lane in front of the house of Nawab, the presence of relations of the deceased was
only natural, and even if the Investigation Officer has omitted to indicate their positio n in the
site plan, it cannot lead to an inference that they were not present."
15. So far as the request of learned counsel for the appellant for drawing an adverse
presumption against the prosecution under section 129(g) of the Qanun -e-Shahadat Order,
1984 is concerned, the same is untenable for the simple reason that the order sheets
dated 17th June, 2010, 26th June, 2010 and 8th July, 2010 reflect that the said
witnesses appeared before the trial Court, bu t could not be examined for one or the
other reasons. It has come on the record that the complainant belongs to a poor and
labourer class and is resident of Sindh Province. In our society, it is very difficult for
such poor pe ople to combat with the local influential persons, but, nevertheless, the credit
goes to complainant Qaim Khan, who stuck to his guns and fully implicated the
appellant in his statement and did not succumb to any pressure. Even otherwise, the me re
fact that nobody from the locality had come forward to depose against the appellant would
not be material, keeping in view the social condition prevalent in our society, where strangers
avoid to poke their nose in the bloody affairs of other people due to subsequent
consequences.
16. After deep reappraisal of evidence, we are convinced that the prosecution has
established its case against appellant Saleh Muhammad alias Hashim Marri beyond any
shadow of doubt and find no reason whatsoever to interfere in the conclusions arrived at by
the trial Court in conviction recorded against him or the sentence awarded. Thus, the death
sentence of appellant Saleh Muhammad is hereby confirmed.
Resultantly, Criminal Appeal No.18 of 2011 fil ed by the appellant is dismissed having
no force and Murder Reference No.4 of 2011 is answered in affirmative.
MWA/105/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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