2012 Y L R 168
[Balochistan]
Before Muhammad Noor Mesk anzai and Naeem Akhtar Afghan, JJ
NOORULLAH ---Appellant
versus
THE STATE ---Respondent
Criminal Appeal No.402 of 2009, decided on 29th September, 2011.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl-e-amd---Appreciation of evidence ---Statement m ade by complainant, had
been corroborated by prosecution witness, who was also present at the time of incident at the
venue ---Medical evidence also supported prosecution version ---Defence conducted a lengthy
cross -examination, but no improvement and contra diction was noticed in the statement of
prosecution witness ---No reasons existed, in circumstances, to disbelieve the ocular account
furnished by the complainant and prosecution witness, corroborated by medical evidence and
the recoveries ---Recovery memo p ertaining to blood -stained cotton and the positive report of
Forensic Science Laboratory had fully corroborated the statement of the complainant ---No
delay in lodging of the F.I.R. ---Vehicle in question having not been identified by the
witnesses, recovery of said vehicle was immaterial and would neither help the prosecution
nor the defence ---Prosecution evidence having remained firm, consistent and corroborative to
each other on all the material points i.e. timing, manner of commission of offence,
identif ication of accused being armed with specific weapons, the Trial Court, in
circumstances, had rightly rendered the findings, which were not open to any exception ---
Mere non -recovery of crime weapon, could not be treated a circumstance to vitiate the
prosecu tion case ---One of the witnesses, who could not be traced, was dropped ---Prosecution
produced two eye -witnesses and remained satisfied with the number of witnesses ---
Prosecution had the prerogative to produce whatever number of witnesses which it felt were
necessary to prove the case ---Testimony of two prosecution witnesses were treated as
sufficient by the prosecution and the Trial Court having rightly believed the witnesses, non -
production of said witness was not fatal ---Trial Court having rightly rendere d findings,
appeal against judgment of the Trial Court was dismissed.
1985 SCMR 181; 2003 SCMR 477 and 1993 PCr.LJ 1231 distinguished.
(b) Criminal trial ---
----Witness ---Subsequent hostility of witness ---Hostility of a witness, would not affect the
veracity of said witness recorded earlier, provided same was corroborated by other material
available on record.
Muhammad Aamir Rana for Appellant
Miss Sarwat Hina, Add: P.G. for the State.
Date of hearing: 6th September, 2011.
JUDGMENT
MUHA MMAD NOOR MESKANZAI, J. ---The appellant has called in question the
legality and propriety of judgment dated 25th November, 2009 passed by Sessions Judge,
Loralai, whereby the appellant was found guilty and sentenced as under: -
Under section 302(b), P.P.C . to suffer imprisonment for life as Ta'zir with fine of Rs.50,000
to be paid to the legal heirs of deceased. In default of payment of fine, the appellant was
directed to further suffer six months' S.I. Benefit of section 382 -B, Cr.P.C. was also extended
in favour of appellant.
2. Briefly stated, the facts of the instant appeal are that the complainant Niaz
Muhammad on 8th June, 2009 lodged F.I.R. bearing No.19 of 2009 with Police Station,
Sanjavi District Ziarat under sections 302, 147, 148 and 149, P.P. C. It was alleged in the
F.I.R. that the complainant runs a hotel at Sanjavi Bazar. On 8th June, 2009 at 9 -50 p.m., he
along with Muhammad Amin and Shah Muhammad were sitting in Post Office with
Postmaster. At about 9 -50 p.m. (night) the persons namely Muh ammad Hassan, Abdul
Rahim, Abdul Hameed, Mehmood Shah sons of Mullah Muhammad Karim and Noorullah
(appellant) made firing upon the brother of complainant namely Shah Muhammad, due to
which brother of complainant died. The complainant alleged that accused M uhammad Hassan
was having a pistol in his hand, whereas the remaining four accused were armed with
Kalashnikov. After the commission of offence, the accused persons, in a 2 -D Corolla red in
colour left the incident. The motive behind the incident was state d to be the previous enmity.
3. After registration of F.I.R., investigation commenced and appellant Noorullah was
arrested, whereas the remaining accused persons were declared absconders, as such challan to
the extent of appellant was submitted before th e trial Court.
4. The learned trial Court framed charge and read over the same to appellant, to which
he pleaded not guilty and claimed justice through trial. Whereafter the prosecution, in order
to substantiate the accusation produced following six P.Ws :-
P.W.1 Niaz Muhammad (complainant) who produced F.I.R. as Exh.P/1 -A.
P.W.2 Dr. Saifullah, who examined the dead body of deceased Shah Muhammad and
produced death certificate Exh.P/2 -A.
P.W.3 Muhammad Ayaz, Constable who produced recovery memo Ex h.P/3 -A, Parcel
Art.P/1, waistcoat Art.P/2 and cap Art.P/3.
P.W.4 Shah Muhammad, who produced empty cartridges Exh.P/4 -A, blood -stained cotton
Exh.P/4 -B and produced the same before the Court as Art.P/1 and Art.P/2. He produced 21
empty cartridges of Kal ashnikov Art.P/3 to Art.P/23, two empty cartridges of pistol Art.P/24
and Art.P/25. He also produced three led of bullets Art.P/26 to Art.P/28 and blood -stained
cotton Art.P/29.
P.W.5 Muhammad Abbas Constable
P.W.6 Ghulam Shabbir, SIP/ Investigating Of ficer, who identified his signature over F.I.R.
Ex.P/6 -A, site inspection sketch Exh.P/6 -B, prepared inquest report Exh.P/6 -C, incomplete
Challan Exh.P/6 -D, FSL report Exh.P/6 -E and supplementary Challan Exh.P/6 -F.
5. At the end of prosecution evidence, the appellant was examined under section 342,
Cr.P.C, wherein he denied the incriminating pieces of evidence produced against him. The
appellant also got recorded his statement on oath as envisaged under section 340(2), Cr.P.C.
and produced one DW nam ely Sardar.
6. On conclusion of trial, the learned trial Court found the appellant guilty and sentenced
him as mentioned hereinabove, hence this appeal.
7. The learned counsel for the appellant contended that the impugned judgment is based
on misreading and mis -appreciation of evidence. It was contended that there are material
contradictions and dishonest improvements in prosecution evidence, on the basis whereof the
learned trial Court recorded illegal conviction, which requires interference by this Cou rt. The
learned counsel vehemently contended that the F.I.R. has been lodged with an inordinate and
unexplained delay, which shows false implication of appellant in the commission of offence.
The learned counsel emphasized that the complainant in the F.I.R . admits previous enmity
with appellant, as such in the garb of said enmity, the appellant was implicated in the
commission of offence. That fact can be proved through F.I.R. which was lodged after 14
hours, which shows that an afterthought and concocted story has been fabricated against
appellant. The learned counsel vehemently urged that an alleged eye -witness namely
Muhammad Amin, who was present at the spot when alleged incident took place, was not
produced. Whereas P.W. Shah Muhammad, who is admittedl y a relative of complainant, was
examined, but his statement is neither believable nor trustworthy being a relative The learned
counsel contended with great vehemence that the record is silent with regard to the recovery
of crime weapon i.e. pistol from th e possession of appellant. There are material contradictions
in the statements of prosecution but were over -looked by the learned trial Court. The learned
counsel lastly contended with great vehemence that the evidence of DW produced by
appellant i.e. Sard ar in his defence, was illegally discarded by the learned trial Court.
According to the appellant, he along with appellant and one Rasheed were present in Duki on
the night of incident and departed for Loralai next morning at 8 -00 a.m. in a Pickup, where
the appellant Noorullah was arrested. The learned counsel for the appellant stated that
subsequent to the trial of appellant, one of the absconders was arrested. During the course of
subsequent trial Muhammad Amin appeared and disowned the story, whereas Shah
Muhammad also appeared and disowned his earlier statement. Though both the witnesses
were declared hostile but the accused was acquitted of the charge. The subsequent judgment
has been produced and placed on record, appellant claimed to be entitled fo r the benefit of
doubt on that score too. The learned counsel invited our attention to a subsequent judgment
delivered by learned Sessions Judge, Loralai and submitted that the co -accused have been
acquitted of the charge on same set of evidence. The learn ed counsel referred to and relied
upon the judgments reported in 1985 SCMR 181, 2003 SCMR 477 and 1993 PCr.LJ 1231.
On the other hand, the learned Additional Prosecutor -General opposed the appeal and
contended that the appellant along with absconding ac cused were specifically nominated in
the F.I.R. She contended that the evidence produced by the prosecution are confidence -
inspiring. P.Ws. stuck to their gun and their evidence has rightly been appreciated by the trial
Court. She contended with great vehe mence that the recovery of empties prove the fact that
the deceased was murdered, besides the forensic report confirms the bloodstain on the clothes
and cotton.
8. We have considered the contentions put forth by the parties' learned counsel and have
gone through the record minutely. Before dilating upon respective contentions of learned
counsel for the parties, we deem it just and proper to reproduce the gist of evidence produced
by prosecution.
P.W.1 Niaz Muhammad comp -lainant deposed that on 8th Jun e, 2009 at about 9 -50 p.m., he
along with Muhammad Amin and Shah Muhammad were going towards Sanjavi Post Office,
where they sat with the brother of complainant namely Shah Muhammad. In the meanwhile
Noorullah, Abdul Rahim, Hassan Khan, Mehmood Shah and Ab dul Hamid reached there in a
2-D Car and knocked at the door of post office. Shah Muhammad brother of complainant
when opened the door, Muhammad Hassan having pistol and remaining accused persons
having Kalashni -kov made firing upon him, due to which Shah Muhammad died. The
accused persons after commission of offence made their escape good. This P.W. admits the
incident to be the result of an old enmity.
P.W.2 Dr. Saifullah, Medical Officer RHC, Sanjavi, who examined the deceased and found
following injur ies on his person: -
(i) A burnt wound with the loss of skin, muscles and bones of anterior 2/3rd of right
lower leg measuring 10" in length
(ii) One entrance wound of bullet on the left infra scapular region and exit on the right
stenal region at the l evel of 5th intercostals space.
(iii) One entrance wound of bullet on the lower back and exit over the left infra scapular
region.
(iv) One entrance wound over the lateral aspect of right thigh and exit on the medial
aspect of right thigh.
(v) One en trance wound of bullet over the right flank and no exit scene.
P.W.3 Muhammad Ayaz, Constable deposed that on 9th June, 2009, he along with
Muhammad Abbas constable were present it in Police Station, Sanjavi. The complainant
procured a cap, blood -staine d waistcoat carrying three marks of bullet to S.I. Shabbir, which
were taken into possession through recovery memo and in their presence parcel was prepared.
He identified his signature over recovery memo Exh.P/3 -A and parcel Art.P/1. He produced
waistcoat Art.P/2 and cap Art.P/3. On the same day Shabbir S. -I. took into possession a red
colour 2 -D Car through recovery memo upon which the witness identified his signature upon
recovery of Car Exh.P/2 -B.
P.W.4 Shah Muhammad eye -witness deposed that on 8th Ju ne, 2009 at about 9 -50 p.m., he
along with Niaz Muhammad and Muhammad Amin were sitting in Sanjavi Post Office. The
door was knocked. Hassan was having a pistol while remaining accused persons were armed
with Kalashnikov. They made firing upon Shah Muhamma d, who died on the spot. Thereafter
the accused persons escaped in a red colour 2 -D car. S.H.O. along with other police
officials reached the spot and took into possession 21 empty cartridges of Kalashnikov, 2
empty cartridges of pistol, 3 led of bul lets through recovery memo and also took into
possession blood of deceased through cotton and prepared parcels. The witness identified his
signature over the recovery memo of empty cartridges Exh.P/4 -A and recovery memo of
blood -stained cotton Exh.P/4 -B be fore the Court as Art.P/1 and blood -stained cotton Art.P/2.
The witness also identified 21 empty cartridges of Kalashnikov as Art.P/3 to P/23, two empty
cartridges of pistol Art.P/24 and P/25, three led of bullets Art.P/26 to P/28 and blood -stained
cotton Art.P/29.
P.W.6 Muhammad Abbas, Constable deposed that on 9th June, 2009 at about 2 -00 a.m.,
night, he along with Ayaz Constable, S. -I./S.H.O. Shabbir Ahmed and other police officials
went to Saleem Nasar Bagh, where S. -I./S.H.O. Shabbir Ahmed took into possession a 2 -D
Car through recovery memo prepared in his presence and in presence of Ayaz Constable. He
identified his signature over recovery memo of 2 -D Car Exh.P/3 -B. He also identified 2 -D
Car Art.P/30.
The perusal of above reproduced evidence sho ws that the incident took place and Shah
Muhammad was murdered. The case of prosecution hinges upon direct ocular, medical and
circumstantial evidence. Whatever statement made by P.W.1/complainant that has been
corroborated by P.W. Shah Muhammad, who was a lso present at the time of incident at the
venue. The time of occurrence, kind of weapon, place of occurrence, mode of making firing,
identification of the accused persons at the time of incident, particularly mode of entry of
accused person into the post office and their escape in a 2 -D Car. The statement of P.W.1 is
corroborated by statement of P.W. Shah Muhammad in its all material particulars. The
medical evidence also supports the prosecution version, because according to P.W.1 and
P.W.4, the moment, d oor was opened by the victim, he was fired upon, hence the fire seems
to have been made from a very short distance. The injury No.1 corroborates the statements of
P.W.1 and P.W.4. Though the defence conducted a lengthy cross -examination, but there is no
improvement and contradiction in the statement of P.W.1. P.W.1 has admitted in his
statement that Fard -e-Bayan was reduced into writing by a petition writer. In reply to a
question P.W.1 stated that he has lodged the report at 12.05 day time. Since from 12 O 'clock
a.m. starts perhaps on that analogy the witness might have stated so. Even otherwise, the
F.I.R. is clear that it was got lodged at 12 -05 a.m. night and the police report confirms the
same. Moverover, P.W.6 Ghulam Shabbir I.O. in cross -examination h as stated that according
to his investigation, the incident took place at 9 -50 p.m. night. It was further stated by I.O.
that he came to know about the incident instantaneously, as he heard firing and reached at the
venue at 10 -00 p.m. night. I.O. further stated that when he reached the site, Niaz Muhammad,
Muhammad Amin and Shah Muhammad were present. I.O. further stated that report was
submitted to him on 9th June, 2009 at 12 -05 a.m. night. The I.O. denied that the F.I.R. has
been lodged on 9th June, 2009 at 12 -05 noon after the lapse of 14 hours. While conducting
cross upon I.O., defence has never disputed the presence of the P.Ws. at the site when the
incident took place. Under such circumstances, we do not see any reasons to disbelieve the
ocular accoun t furnished by P.W.1 and P.W.4 corroborated by medical evidence and the
recoveries. Further P.W.4 has produced the recovery memo pertaining to blood -stained cotton
and the positive report of FSL, which fully corroborates the statement of P.W.4. Since
different type of weapons were used by the accused persons and the recovery of shells from
the venue further supports the prosecution version.
No doubt the Fard -e-Bayan was reduced into writing by the petition writer. The defence
throughout has taken plea th at the F.I.R. has been lodged after the delay of 14 hours but failed
to establish the fact, hence there is no delay in the lodging of the F.I.R. As far as the recovery
of vehicle is concerned, since the vehicle in question was not identified by the witness es,
hence the recovery of vehicle is immaterial; neither it helps the prosecution nor the defence.
Since the prosecution evidence remained firm, consistent and corroborative to each other on
all the material points i.e. the timing, manner of commission of offence, identification of the
accused being armed with specific weapons. Under such circumstances, the trial Court has
rightly rendered the findings, which are not open to any exception. As far as the non -recovery
of crime weapon from the possession of th e appellant is concerned, we have taken into
consideration this aspect of the matter. The appellant was not arrested from the venue, who
successfully made his escape good. Therefore, mere non -recovery of crime weapon, cannot
be treated a circumstance to vi tiate the prosecution case. As far as non -production of P.W.
Muhammad Amin is concerned, during the course of trial, non -bailable warrants were
issued; however, the said witness could not be traced therefore dropped. The prosecution
produced two eye -witne sses and remained satisfied with the number of witnesses. Even
otherwise it is the prerogative of the prosecution to produce whatever number of witnesses,
which it feels necessary to prove the case. The testimony of P.W.1 and P.W.4 were treated
sufficient by the prosecution and the trial Court rightly believed the said two witnesses,
therefore; in our opinion, the non -production of Muhammad Amin is not fatal. As far as the
contention regarding subsequent development i.e. the acquittal of co -accused on same set of
evidence is concerned, we have not been able to persuade ourselves to subscribe view point
of the learned counsel for appellant for certain reasons. Firstly the prosecution successfully
got recorded the statement of two eye -witnesses and the prosecu tion succeeded to prove the
guilt to the hilt. Secondly, though the witnesses were declared hostile in subsequent trial of
another accused, but in our considered opinion, the subsequent hostility does not prejudice
the earlier statement recorded by the wit ness. Furthermore, we have noted it painfully that
P.W. Shah Muhammad while appearing at the trial for the second time made a contrary
statement to his earlier statement. The trial Court was bound to have initiated proceedings
against the said witnesses as contemplated by section 192, P.P.C. We have given our anxious
thought to the proposition involved in the matter as to whether the subsequent hostility can
nullify the statement made by an accused in a case where the proceedings have attained
finality, in our considered opinion the subsequent hostility will not affect the veracity of the
witnesses recorded earlier provided the same is corroborated by other material available on
record. As regards the citations referred to and relied upon by the learned cou nsel for the
appellant, the same are distinguishable and do not help the appellant. Under such
circumstances, we are satisfied with the findings rendered by the trial Court and thus finding
no force in the appeal, the same is dismissed. Before parting with the judgment, we feel it
inevitable to direct the trial Court to initiate proceedings against Shah Muhammad, as he,
prima facie appears to have committed an offence within the meaning of section 192,
P.P.C. while recording his statement in the subse quent trial. Office to send the copy of this
judgment to the trial Court for initiating appropriate proceedings against Shah Muhammad
son of Pir Muhammad as contemplated by law.
H.B.T./126/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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