2012 Y L R 416 [Balochistan]
Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ
GHULAB KHAN and others ---Appellants
Versus
THE STATE and others ---Respondents
Criminal Appeals Nos. (S)10, (S)11 and (S)19 of 2009, and Murder Reference No.(S)2 of 2009, decided on 28th July, 2011. (a) Penal Code (XLV of 1860) ---
----Ss. 302(b), 315 & 316---Qatl -e-amd---Appreciation of evidence ---Sentence, reduction in---
Prosecution witnesses who claimed to have seen the occurrence, ha d given details of the
incident ---Despite lengthy cross -examination the defence had failed to create any dent in the
veracity of witnesses except a few discrepancies which were immaterial and not fatal to the evidence ---Witnesses were residents of the adjacent village and their presence at the place of
occurrence could not be doubted being natural witnesses ---Occurrence having taken place in
broad- daylight, no possibility of mistaken identity was present ---Evidence of witnesses was not
suffering from any ma terial contradiction, discrepancy or inherent infirmity---Said witnesses
were closely related to deceased, but only on account of relationship with the deceased, they could not be termed as interested witnesses for the reason that they had no direct animos ity with
accused ---Statement of a material witness, who was truthful and whose presence at the place of
occurrence could not be doubted, could not be discarded merely on the ground that he was related and interested witness ---Statements of said witnesses were not only corroborated by the
medical evidence, but also by the recovery of kalashnikov from possession of accused on his pointation from his house --Positive report of Firearm Expert, had further corroborated the ocular
evidence furnished by said two w itnesses ---Prosecution had succeeded to prove its case against
accused, in circumstances ---Offence committed by accused, fell within the purview of S.315,
P.P.C. punishable under S.316, P.P.C., which entailed punishment with imprisonment of either descript ion for a term extending to 25 years as Ta'zir ---Deceased had sustained only one injury
on anterior aspect of upper thigh, which in the ordinary course of nature was not likely to cause death ---Death sentence awarded to accused under S.302(b) , P.P.C., was set aside and he
was convicted and sentenced under S.316, P.P.C. to suffer life imprisonment ---Murder Reference
was answered in negative.
Muhammad Amin v. The State 2000 SCMR 1784 and Muhammad Akhtar Ali v. The State 2000 SCMR 727 rel
(b) Penal Code (XLV of 1860) ---
----Ss. 300, 302, 315 & 316---"Qatl- e-amd" and "qatl -e-shibh- e-amd" ---Distinction ---Main
distinguishing factor between provisions of S.300, P.P.C. (qatl -e-amd) and S.315, P.P.C. (qatl -e-
shibh- e-amd), was that in case of qatl -e-amd intention of the assailant must be to cause death or
such bodily injury, which, in the ordinary course of nature was likely to cause death; whereas in
the case of qatl -e-shibh- e-amd, the intention should be to cause such harm to the body or mind of
the person, which, in the ordinary course of nature was not likely to cause death.
(c) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -e-amd---Appreciation of evidence ---No overt act had been attributed to co-
accused, despite being armed with kalashnikov and shot gun---Accused persons had not caused any injury to the deceased or helped main accused in any way for committing the murder of deceased ---No weapons of offence were recovered from their possession to corroborate the
ocular account ---If the killing was not in prosecution of the common object of the unlawful
assembly and the author of the fatal injury, which resulted in the death of the victim was known, only that member of the unlawful assembly who wielded the fatal injury, would be individually liable for the murder; and the act of his causing the fatal injury to the victim, would be taken as his isolated act, under such circumstances ---Participation of co -accused in the crime was
doubtful ---Co -accused were acquitted of the charge and were set at liberty, in circumstances.
Qutab -ud-Din v. The State PLD 2001 SC 101 rel.
Ahsan Rafiq Rana for Appellants.
Anwar -ul-Haq Chaudhry f or the Complainant.
Kamal Khan Kakar for P.G. for the State.
Date of hearing: 23rd June, 2011. JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---The Sessions Judge, Dera Allah Yar vide
judgment dated 31st January, 2009 has convicted and sentenced appellant Ali Bakhsh under
section 302(b), P.P.C. to death with direction to pay compensation of Rs.100,000 to the heirs of deceased Ahmed alias Pehar Din as provided under section 544- A, Cr.P.C., in default thereof to
further undergo S.I. for six (06) months, wher eas the appellants, Sabir and Gulab Khan, were
also convicted and sentenced under section 302(b), P.P.C. to suffer life imprisonment and to pay compensation of Rs.100,000 each, in default thereof to further undergo S.I. for six (06) months. The appellants, Ali Bakhsh and Sabir, both sons of Elahi Bakhsh (Juma Khan), preferred
Criminal Appeal No.(S)11 of 2009 for their acquittal, while the Sessions Judge has sent Murder Reference No.(S)02 of 2009 for confirmation of the sentence of death or otherwise. The appellant, Gulab Khan; preferred Criminal Appeal No.(S)10 of 2009, whereas the
complainant/petitioner Malu son of Yar Khan filed Criminal Revision No.(S)19 of 2009 for enhancement of the sentence from life imprisonment to death. Since common question of law
and facts is involved, therefore, all the matters are being disposed of by means of this common
judgment. 2. Briefly stated the facts of the case are that on 7th April, 2008 at about 12- 45 p.m., a case
vide Crime No.03 of 2008, under section 324 read wi th sections 147, 148 and 149 the P.P.C. was
registered by the police officials of Malgazar Police, Station, District Jaffarabad on the report of
complainant Malu son of Yar Khan (P.W.1). It was alleged by the complainant that on above
date, he, along with his brother Ahmed alias Pehar Din, Bakhsh Ali and Hassu, after meeting their sister in the house of his uncle Khawand Bakhsh, was coming back towards their house. At about 12- 30 p.m., when they reached near their house, Ali Bakhsh, Siddique, Sabir, Gulab a nd
Muhkam -ud-Din, duly armed with Kalashinkovs and shotguns, made firing upon them, due to
which, his brother Ahmad alias Pehar Din sustained bullet injuries, however, they remained safe while taking shelter behind the sand dunes. Upon intervening of womenfolk by holding Holy Qur'an, the above named accused persons, while making fires, went to their houses. The motive behind the incident was disclosed matrimonial dispute. The injured Ahmed Khan alias Pehar Din was taken to police station for lodging of the F.I.R. Subsequently, he succumbed to the injuries and section 302, P.P.C. was inserted in the F.I.R.
3. After registration of the F.I.R. Exh.P/1- A, investigation of the case was entrusted to
P.W.5 Bashir Ahmed, SI, who referred the injured Ahmed alias Pe har to BHU Sanhri. He, along
with S. -I./S.H.O. Abdul Ghani, complainant Malu and other police officials, visited the place of
occurrence and prepared site inspection memo. Exh.P/5- A, recorded the statements of P.Ws.,
secured blood- stained earth and 16 empt ies through separate memos. Since the injured
succumbed to the injuries, therefore, after conducting postmortem examination of the dead body of deceased, he prepared inquest report Exh.P/5 -B, took into possession blood- stained clothes
and on 8- 4-2008, he arrested the accused persons, sent the blood- stained clothes and earth to FSL
for analysis. On 8- 4-2008, on the basis of disclosure of accused Ali Bakhsh, crime weapon i.e.
Kalashnikov was recovered from his house on his pointation and murasila was sent fo r
registration of separate F.I.R. under the Arms Ordinance. He received FSL reports Exh.P/5- C
and Exh.P/5- D and placed the papers before S.I. Abdul Ghani, who prepared incomplete challans
Exh.P/5- E and Exh.P/5- F.
4. On the stated allegation, charge was f ramed and read over to the appellants on 17th May,
2008, to which they pleaded not guilty and claimed trial. The prosecution, in order to substantiate the accusation, produced five witnesses. P.W.1 Malu is complainant of the case and produced F.I.R. Exh.P/ 1-A. P.W.2 Bakhsh Ali is stated to have witnessed the occurrence and also
produced site inspection memo Exh.P/2- A, recovery memos of blood- stained earth Exh.P/2- B
and 16 empties Exh.P/2- C. P.W.3 Ahmed Yar HC, is witness to the recovery memo of blood-
staine d clothes of deceased Exh.P/3- A, disclosure memo of accused Ali Bakhsh Exh.P/3- B and
recovery memo of Kalashinkov along with Magazine and 10 live cartridges Exh.P/3- C. P.W.4
Dr. Rafique Ahmed, Medical Officer, has examined the dead body of deceased and iss ued death
certificate Exh.P/4 -A and P.W.5 Bashir Ahmed, S.I., is the Investigating Officer of the case and
then the prosecution side was closed.
5. Thereafter, the appellants were examined under section 342 Cr.P.C., wherein they denied
the prosecution ac cusation and claimed to be innocent, however, they did not opt to record their
statements on oath as envisaged under section 340(2), Cr.P.C., nor produced any witness in their
defence. The learned trial Court, after close of parties' evidence, vide impugned judgment, convicted and sentenced the appellants, as mentioned hereinabove, hence these appeals, revision petition and murder reference.
6. Mr. Ahsan Rafiq Rana, learned counsel for the appellants, contended that the prosecution
has failed to establis h the charge against the appellants. He further contended that P.Ws. 1 and 2,
though, according to the prosecution case, were present at the spot and it was also alleged that all
the accused persons were armed with Kalashnikovs and shotguns, but, surprisingly, none has sustained injury, whereas the deceased only had a single injury. He also contended that the prosecution has failed to produce any independent witness, whereas both the witnesses i.e. P.Ws. 1 and 2 being close related to deceased are interes ted witnesses. He next argued that the oral
testimony required corroboration in material particulars, which is lacking in the present case. The oral account furnished by the prosecution is in conflict with the medical evidence as well, thus, the appellants deserve acquittal.
7. On the other hand, Messrs Kamal Khan Kakar, Advocate, representing the State and Mr.
Anwar -ul-Haq Chaudhry, learned counsel for the complainant urged that there are eye -witnesses
of the occurrence, who have implicated the appellant s in the commission of the offence. They
further contended that the ocular account is also corroborated by the other evidence and the trial court has rightly convicted the appellants. Learned counsel for the complainant further submitted that once the tria l court had come to the conclusion that the offence was committed by the
appellants, then it was obligatory upon it to have awarded the death penalty to the appellants Sabir and Gulab Khan as well, thus, he requested for enhancement of their sentence.
8. We have carefully considered the respective contentions put forth by the parties counsel
in the light of evidence available on record and also gone through the impugned judgment. So far as homicidal death of deceased, Ahmed Khan alias Pehar Din, i s concerned, same has not
been denied by the defence, which is, otherwise, proved by the statement of P.W.4 Dr. Rafiq Ahmed, Medical Officer, who had confirmed that the injury, sustained by the deceased, was result of firearm bullet and the cause of death was excessive bleeding and damage of large
vessel.
9. The question arises as to who had caused that injury and who was responsible for the
death of deceased Ahmed Khan? In this regard, the prosecution has mainly relied upon the statements of P.W.1 Mahoo and P.W.2 Bakhsh Ali, who claimed to have seen the occurrence.
P.Ws. 1 and 2, in their court -statements, stated that on 7 -4-2008 at about 12- 30 p.m., they,
along with Hasoo and Pehar Din, were coming back towards their house from the house of Haji Khawand Bakhsh. In the meanwhile, accused persons Ali Bakhsh, Gulab, Sabir, Siddique and
Muhkam -ud-Din stopped their way. Accused persons were armed with Kalashnikovs and
shotguns. P.W.2 further stated that accused Ali Bakhsh, who was armed with Kalashnikov, made firing upon deceased Pehar Din, due to which he sustained a firearm injury on his leg and fell down. 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. They are resident of the adjacent village and their presence at the place of occurrence could not be doubted being natural witnesses. The occurrence had also taken place in broad -daylight and under such
circumstances, no question of mistaken identity arises at all. Their evidence is not suffering from
any material contradiction, discrepancy or inherent infirmity and consistent with probabilities, materially fitting in with other evidence, more particularly medical evidence and support ed by
the recovery of Kalashnikov from the possession of appellant Ali Bakhsh and positive report of Firearm Expert. No doubt, P.W.1 Mahoo is real brother of deceased, whereas P.W.2 Bakhsh Ali
is the maternal uncle of deceased, but only on account of relat ionship with the deceased, they
cannot be termed as interested witnesses for the reasons that they had no direct animosity with
the appellant Ali Bakhsh and have attributed fatal injury to the deceased by the hands of appellant Ali Bakhsh. The Hon'ble Supreme Court in a case of Muhammad Amin v. the State reported in 2000 SCMR 1784 has held 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, in case of Muhammad Akhtar Ali v. the State -reported in 2000 SCMR 727, t he
Hon'ble Supreme Court, while dealing with the proposition of interested witness, has observed as under: --
"Moreover, we find that none of the two eye -witnesses could be termed as interested witness
because none had any previous ill -will or grudge agai nst 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."
Even otherwise, the statement of a witness, who is a natural, truthful and whose presence at the
place of occurrence could not be doubted, cannot be discarded merely on the ground that he is a related and interested witness, though the courts by way of abundant caution look for corrob oration from other ocular or circumstantial evidence. In the instant case, as already
observed, the statement of these witnesses are not only corroborated by the medical evidence but also by the recovery of Kalashnikov from the possession of appellant Ali Bakhsh on his
pointation from his house situated at Goth Hazar Khan.
10. The positive report of Firearm Expert further corroborates the ocular evidence furnished
by P.Ws. 1 and 2. The learned counsel objected on the admissibility of the said report, on the ground that was without any reasoning. It may be seen that report was brought on record without objection and if the appellants were not satisfied, they could have called the expert to stand test of cross -examination as envisaged under the proviso to s ection 510, Cr.P.C, thus, we are of
considered view that the prosecution has succeeded to prove its case against appellant Ali Bakhsh. 11. As far as the contention of learned counsel for appellant regarding section 315, P.P.C. is
concerned, we are in agr eement with the learned counsel that the offence committed by the
appellant Ali Bakhsh falls within the purview of section 315, P.P.C., which speaks as under: --
"315. Qatl shibh- i-amd. Whoever, with intent to cause harm to the body or mind of any person
causes the death of that or of any other person by means of a weapon or an act which in the
ordinary course of nature is not likely to cause death is said to commit qatl shibh- i-amd".
Whereas qatl -e-amd has been defined under section 300, P.P.C., which r eads as under: --
"300. Qatl -e-amd. Whoever, with the intention of causing death or with the intention of causing
bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with the knowledge that his ac t is so imminently dangerous that it must in all
probability cause death, causes the death of such person, is said to commit qatl -e-amd".
12. A careful and minute perusal of both these provisions would show that main
distinguishing factor between the tw o is that in case of qatl -e-amd, intention of the assailant must
be to cause death or such bodily injury, which, in the ordinary course of nature, is likely to cause death, whereas in the case of qatl shibh -e-amd, the intention should be to cause such harm to the
body or mind of the person, which, in the ordinary course of nature, is not likely to cause death.
13. On the touchstone of above criteria, we may observe that the offence of appellant Ali
Bakhsh squarely falls within the purview of section 315 of the P.P.C., punishable under section 316 of the P.P.C., which entails punishment with imprisonment of either description for a term extending to 25 years as Ta'zir.
14. Admittedly, the deceased, Ahmed Khan alias Pehar Din, had sustained only one injury on
anterior aspect of upper thigh, which, in the ordinary course of nature, is "not likely to cause death". Had the appellant intention to cause qatl -e-amd of the deceased , he could have fired more
shots on the deceased, who was lying injured in helpless condition, but he did not do so. The
Medico Legal Certificate (Exh.P/4 -A) is also indicative of the fact that the death of the deceased
was caused due to excessive bleeding . P.Ws. had stated that initially injured Ahmed Khan was
taken to police station and thereafter was shifted to hospital. According to the opinion of P.W.4, Dr. Rafiq Ahmed, the gap between injury and death was 2/3 hours, meaning thereby that the life of Ahmed Khan could have been saved, if immediate treatment/ first aid were provided
to him.
15. Resultantly, the death sentence awarded to the appellant Ali Bakhsh under section 302(b),
P.P.C. is set aside and he is convicted and sentenced under section 316 of the P.P.C. to suffer life imprisonment. The appeal filed by accused Ali Bakhsh, with the above modification, being meritless, is dismissed and the murder reference is answered in negative.
16. So far as case of the appellants Gulab Khan and Sabi r is concerned, it may be noted that
no overt act has been attributed to them. Despite armed with Kalashinkov and shotgun, as alleged by the prosecution, they had not caused any injury to the deceased or helped the appellant Ali Bakhsh in any way for commi tting the murder of deceased Ahmed Khan alias
Pehar Din. No weapons of offence were recovered from their possession to corroborate the ocular account. Admittedly, if the killing was not in prosecution of the common object of the unlawful assembly and the a uthor of the fatal injury, which resulted in, the death of the victim is
known, only that member of the unlawful assembly who wielded the fatal injury will be individually liable for the murder and the act of his causing the fatal injury to the victim will be
taken as his isolated act, under such circumstances, their participation in the crime is doubtful.
17. We are conscious of the fact that we have not believed the statements of the eye-
witnesses to the extent of appellants Sabir and Gulab Khan, but i t does not affect their
testimonies so far the appellant Ali Bakhsh is concerned. While keeping in view the principle of
shifting grain from the chuff, the Hon'ble apex Court in case of Qutab- ud-din v. The State
reported in PLD 2001 Supreme Court 101 has observed as under: --
"---Ss.302(b)/34---Appreciation of evidence ---Maxim: "Falsus in uno falsus in omnibus" ---
Applicability ---Rule of "falsus in uno falsus in omnibus" has got no application to administration
of criminal justice prevailing in the c ountry courts ---Courts, however, are empowered to scan the
evidence to reach a conclusion as to whether the evidence furnished by a witness can be believed
simultaneously against one set of accused and can be discarded against the other set of accused , subject to independent corroboration on a particular point qua the accused against
whom such evidence is to be believed".
Upshot of the above discussion is that the appeals filed by the appellants Sabir and Gulab Khan are accepted and they a re acquitted of the charge. They be set at liberty forthwith, if
not required in any other case. Resultantly, the criminal revision petition filed by the petitioner/complainant for enhancement of the sentence, being meritless, is dismissed .
H.B.T./63/Q Bail granted.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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