2017 Y L R 428
[Balochistan]
Before Jamal Khan Mandokhail and Zaheer -ud-Din Kakar, JJ
SHAH WALI ---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.322 and Murder Reference No.21 of 2015, decided on 28th September,
2016.
(a) Penal Code (XLV of 1860) ---
----S. 302---Qatl -i-amd---Appreciation of evidence ---Ocular evidence---Two eye -witnesses had
furnished a forthright and confidence inspiring eye -account duly supported by medical evidence,
recovery of three empties from the place of incident, blood stained earth and blood stained
clothes of the deceased as well as pointation of the accused ---Witnesses remained firm to the test
of cross -examination ---Said witnesses were subjected to lengthy cross -examination, but nothing
advantageous could be extrac ted rendering any assistance to the case of accused, who was fully
implicated by them---No serious enmity was alleged against the said eye -witnesses ---Accused
came prepared, armed with deadly weapon ---Appeal against conviction was dismissed.
(b) Penal Cod e (XLV of 1860) ---
----S. 302--- Qatl-i-amd---Abscondance of accused ---Effect ---Corroborative evidence ---Accused
remained absconder for about seven months ---Such a long unexplained abscondance of the
accused was a corroboratory factor, which could not be ig nored as the same had indicated the
guilt of accused ---Appeal against the conviction was dismissed.
Inayat Ali v. The State PLD 2002 SC 77 rel.
(c) Penal Code (XLV of 1860) ---
----S. 302---Qatl -i-amd---Chance witness ---Testimony of chance witness ---Relia nce---Scope ---
Defence had objected that eye -witnesses were chance witnesses, thus their statements were not
reliable ---Eye -witnesses had explained the occurrence reasonably, as such, they were
trustworthy ---If the chance witness reasonably explained his pr esence at the spot, he could not be
said to be a chance witness ---Appeal against conviction was dismissed.
Anwar Shamim v. The State 2010 SCMR 1791 rel.
(d) Penal Code (XLV of 1860) ---
----S. 302---Qatl -i-amd---Related witness ---Testimony of closely related witness ---Reliance---
Scope ---Defence had objected that prosecution eye -witnesses being nephews of the deceased,
were interested witnesses, thus their statements were not reliable ---Relationship of witnesses
inter se or with the deceased, alone, could not be made basis to disqualify them from being
truthful witnesses ---Mere relationship of witness with the deceased did not make him/her
interested, because an interested witness was the person who had motive to falsely implicate the
accused ---Appeal agains t the conviction was dismissed.
Iqbal v. The State 1994 SCMR 1 rel.
(e) Criminal trial ---
----Minor contradictions or improvements in the statement of prosecution witnesses ---Effect ---
Minor contradictions or improvements in the statements of witnesses we re to be overlooked and
only material contradictions were to be considered.
Ranjha v. The State 2007 SCMR 455 rel.
(f) Penal Code (XLV of 1860) ---
----S. 302---Qatl -i-amd---Appreciation of evidence ---Case of two versions ---Defence had alleged
that murder of the deceased was committed by some unknown persons as there was enmity
between father of the deceased and other persons ---Where the case was that of two versions, one
version was to be believed in toto and not in piecemeal ---Court was duty bound to review the
entire evidence that had been produced by the prosecution and the defence ---In the present case,
versions of both the parties were considered and the version put forth by the prosecution seemed
to be trustworthy, based on unimpeachable and tangible evidence--- FIR had been promptly
lodged and accused was nominated in the FIR with specific role; prosecution eye -witnesses had
implicated the accused in the commission of offence; incident was of daylight and the defence
had failed to establish false implication or substitution; oral and medical evidence were in line
and accused remained absconder for seven months ---Appeal against conviction was dismissed.
Safdar Ali v. Crown PLD 1953 FC 93 rel.
(g) Penal Code (XLV of 1860) ---
----S. 302---Qatl -i-amd---Appreciation of evidence ---Motive, not proved ---Effect ---Failure to
prove motive was not fatal to the prosecution---Appeal against conviction was dismissed.
Syed Hamid Mukhtar Shah v. Muhammad Azam 2005 SCMR 427 rel.
Muhammad Aslam Chishti for Appellant (in Criminal Appeal No.322 of 2015).
Ameer Hamza Mengal, Deputy P.G. for the State (in Criminal Appeal No.322 of 2015).
Ameer Hamza Mengal, Deputy P.G. for the State (in Murder Reference No.21 of 2015).
Muhamad Aslam Chishti for Respondent (in Murder Refe rence No.21 of 2015).
Date of hearing: 8th September, 2016.
JUDGMENT
ZAHEER -UD-DIN KAKAR, J. ---This appeal is directed against the judgment dated
20th October, 2015 ("the impugned judgment"), passed by the learned Additional Sessions
Judge; Loralai (the trial court") in Murder Case No.05 of 2014, whereby the appellant has been
convicted under Section 302(b), P.P.C. and sentenced to death. The appellant filed the instant
appeal challenging his conviction and sentence while the trial court has sent Murder R eference
No.21 of 2015 for confirmation of death sentence of the appellant or otherwise. Since both the
matters arising out of the same judgment, therefore, the same are being disposed of by means of
this common judgment.
2. The prosecution story briefly s tated is that on 30th July 2013 the complainant was present
in his house, at about 5:00 p.m. On hearing fire shots, he came out of the house, in the
meanwhile, Murad Khan son of Sharab informed him via cell phone that his uncle Abdul Khaliq
has been murder ed by Shah Wali son of Haji Bakhtiar by firing. On this information, the
complainant reached on motorcycle at Killi Dargai situated at D.C, Khan Road, where he saw
that his uncle was murdered by Shah Waif. Murad Khan son of Sharab Khan, Muhammad Zafar
son of Muhammad Saleem and Shah Faisal son of Rahim Khan have witnessed the incident.
3. After registration of the FIR Ex -P/8-A, the investigation of the case was entrusted to PW -
8, IP Rafiq Ahmed. The I.O. went to the hospital, prepared the inquest report Ex -P/8-B, handed
over the dead body of the deceased to the legal heirs and thereafter, on the pointation of the
complainant went to the place of occurrence, prepared the site map Ex -P/8-H, secured three
crime empties and blood -stained earth, recorded statemen ts of the Prosecution Witnesses (PWs),
sent the blood- stained earth and shirt to the FSL for analysis. He prepared supplementary challan
Ex-P/8-G, on 27th February 2014, he arrested the accused. On the pointation of accused, he
prepared pointation and disc losure memo Ex -P/8-H. Thereafter, he prepared supplementary
challan Ex -P/8-I. On 28th August 2014, he obtained FSL report Ex -P/8-J and handed over the
case file to Kazim Ali SHO, who prepared challan Ex -P/8-K.
4. On the stated allegations, charge was framed and read over to the appellant, to which he
pleaded not guilty and claimed the trial. During the trial, the prosecution examined eight
witnesses. PW -1 Abdul Raziq is complainant of the case, who reiterated the contents of
application Ex -P/1-A. PW -2 Muham mad Zafar and PW3 Murad Khan are the eye -witnesses.
PW-4 Zia -ul-Haq is mushir of the recovery memo of three crime empties of 32 bore Ex -P/4-B.
PW-5 Muhammad Anwar ASI is mushir of the recovery memos of blood- stained shirt, earth Ex -
P/5-C and Ex -P/5-D, he i dentified his signature over disclosure/pointation memo fix -P/5-E. PW -
6 Dr. Abdul Salam, Medical Officer examined the dead body of the deceased and found the
following injuries:--
i. Wound (small circular) of entrance on forehead.
ii. Other wound of entran ce on medial side of knee joint of left leg.
iii. Bleeding from nose.
Object used: Fiream
Duration: fresh
Cause of death injury to vital organs and internal bleeding.
He produced MLC as Ex -P/6-A. PW -7 Muhammad Zahir is brother of the deceased, stated that
on 30th July 2013 in the month of Ramadan he was present in his house, at that time his brother
Abdul Khaliq was sleeping under a tree, in the meantime he heard voice of motorcycle, came out
from the house and saw that the appellant and his brother were scuffling with each other and
thereafter, Muhammad Sadiq along with people of the area separated them and on inquiry his
brother told him that he restrained the appellant from plying the motorcycle in the street due to
which he become angry. It is further stated that at noon Abdul Khaliq was grazing his cow in his
field and at about 5:00 p.m. he received information that the appellant committed murder of
Abdul Khaliq and on the way to hospital he died. The statement of PW -7, to the extent of scuffle
between the appellant and deceased is not reliable because to corroborate his statement the
prosecution has failed to produce Muhammad Sadiq and other people of the area, who allegedly
separated the appellant and deceased. PW -8 Rafiq Ahmed IP was Investigating O fficer of the
case.
5. After completion of the prosecution side, the accused was examined under sections 342
and 340(2), Cr.P.C. wherein he denied the prosecution case and stated that he is owner of a
marble factory and on 30th July 2013, he was present in his marble factory, situated in Killi
Dargai from morning till evening and some unknown persons committed murder of the deceased
Abdul Khaliq. In support of his plea, he produced his brother Haji Rehmatullah DW -1.
6. Learned counsel for the appellant subm itted that the prosecution has miserably failed to
establish the guilt by producing cogent and concrete evidence, which resulted in serious
miscarriage of justice. In order to substantiate the said version, it is contended that the eye -
witnesses, i.e. PW -2 and PW -3 were related to the deceased and besides that they were the
chance witnesses and the incident was never witnessed by them. It is next contended that certain
serious contradictions which were brought to the notice of the trial court have been igno red
without any rhyme or reason, on the basis whereof benefit of doubt could have been given to the
appellant. It is further contended that there was no motive and the evidence of the eye -witnesses
were not only contradictory, but they had made improvement s. Lastly, he contended that the
prosecution has failed to prove the guilt against the appellant beyond shadow of doubt; therefore,
the appellant is entitled for acquittal.
7. On the other hand, the learned DPG on behalf of the State has vehemently controverted
the view point as canvassed at bar by the learned counsel for the appellant and supported the
judgment impugned for the reason enumerated therein with further submission that the
prosecution has established the guilt to the hilt by producing forthrig ht and confidence inspiring
evidence. In this regard, he has referred the statements of PW -2 and 3, who were nephews of the
deceased whose statements have rightly been appreciated in accordance with the settled norms of
justice and no interference is called for. The learned DPG has also pointed out that the ocular
version has been supported by the medical evidence.
8. We have carefully examined the respective contentions as agitated on behalf of the
appellant and for the State in the light of relevant provi sions of law and record of the case. The
question arises as to who has caused injuries mentioned in MLC Ex -P/6-A and was responsible
for the homicidal death of the deceased Abdul Khaliq. In this regard, the case of the prosecution
rests upon the ocular acc ount, furnished by PW -2 Muhammad Zafar and PW -3, Murad Khan,
who stated that on 30th July 2013 they along with Shah Faisal were sitting in the poultry farm of
Zahir Lala, while Abdul Khaliq deceased was grazing his cow. In the meanwhile, Shah Wali
(appellant) came there on motorcycle and made firing upon Abdul Khaliq, due to which he
sustained injuries and died at the spot. They brought the dead body of the deceased to hospital in
a pick -up. In the hospital, PW -6 conducted examination of the dead body and f ound gunshot
injuries on the person of deceased Abdul Khaliq and issued certificate Ex -P/6-A.
9. Admittedly, PWs -2 and 3 are nephews of the deceased and they have highlighted the
details of tragic incident and stood firm to the test of cross -examination. They were subjected to
lengthy cross -examination, but nothing advantageous could be extracted rendering any assistance
to the case of appellant, who was fully implicated by them. No serious enmity whatsoever was
alleged against the PWs -2 and 3, besides the fact the eye -witnesses are nephews of the appellant
as well, therefore, no question of substitution of the real culprit with that of Shah Wali
(appellant) arise, which otherwise is a rare phenomenon. The forthright and confidence -inspiring
eye account fur nished by Muhammad Zafar (PW -2) and Murad Khan (PW -3) duly supported by
the medical evidence, recovery of three empties from the place of the incident, blood- stained
earth and blood- stained clothes of the deceased as well as disclosure/pointation memo of t he
appellant Ex -P/5-A. Admittedly, the occurrence took place on 30th July 2013 at about 5:00 p.m.
and the appellant remained, absconder for about seven months and he was arrested by the police
on 27th February 2014. The seven months unexplained abscondance of the appellant was also a
corroboratory factor which cannot be ignored. In this regard we may place reliance on a case of
Inayat Ali v. The State (PLD 2002 SC 77), wherein it was observed that: --
"After having an in depth scrutiny and evaluation of the evidence we are of the view that
abscondance of the petitioner can be considered a corroborative factor which cannot be
kept out of consideration."
10. Reverting to the contention of the learned counsel for the appellant that the PWs -2 and 3
are chance wit nesses and being nephews of the deceased, are interested witnesses, therefore,
their statements are not reliable. We do not agree with the contention of the learned counsel for
the appellant that the PWs -2 and 3 are chance witnesses and their statements ar e not reliable. It
has been held by the Hon'ble apex court time and again that even if a chance witness reasonably
explains his presence at the spot, he cannot be said to be a chance witness. In this regard, we are
fortified by the dictum as laid down by t he Hon'ble apex court in the case of Anwar Shamim v.
The State (2010 SCMR 1791), wherein it has been held that: --
"PW -1 Muhammad Ilyas and PW -2 Liaquat Ali in the circumstances of the case in hand
could not be termed as chance witnesses in view of relationship between the deceased
and the witnesses as they have furnished sufficient explanation to be present at the spot at
the time of commission of offence by the appellant......Both the eye -witnesses would be
natural witnesses and cannot be termed as chance witnesses, therefore, their evidence
would deserve full credence being genuine and legitimate particularly when there was no
material discrepancy or contradiction of a potential nature in their evidence. Even a
chance witness reasonably explains his presence at the spot and his narration of
occurrence inspires confidence then he is not a chance witness and his testimo ny can be
considered along with other evidence."
11. So far as the relation of PWs -2 and 3 with the deceased is concerned, this is also no
ground to discard the witnesses merely on account of their friendship or relationship with the
deceased, particularly when there is no motive to falsely involve the accused in the offence. It is
a settled principle of law that mere relationship between the witnesses and deceased is not
enough to discard their evidence. In this regard, we are fortified from the dictum lai d down in the
case of Iqbal v. The State (1994 SCMR 1), wherein it has been held that: --
"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 relat ionship with
the deceased will not be sufficient to discredit a witness particularly when there is no
motive to falsely involve the accused. The principles for accepting the testimony of even
an interested witness are set out in Nazir v. State PLD 1962 SC 269. In the present case
P.W. 10 is not an interested witness as nothing has been brought on record to show that
he had motive for falsely implicating the appellants or was personally involved in any act
of enmity between the parties. In Khalil Ahmed v. St ate (1976 SCMR 161) the testimony
of deceased's son aged 15 years was accepted as he was not personally involved in any
act of enmity and his statement was consistent, corroborated by the presence of injuries
on his person, human blood- stained articles recovered from the accused and supported by
two other witnesses. In Allah Ditta and others v. State (1970 SCMR 734) the testimony
of four P.Ws. out of which two had sustained injuries was accepted although they were
related to the deceased because they were n atural witnesses, injuries sustained by two
P.Ws. proved their presence and involvement in the occurrence and there was motive on
the part of the accused to attack the deceased. Further their evidence found support from
the medical evidence. Reference can also be made to Muhammad Akber v. Muhammad
Khan and others (PLD 1988 SC 274) and Sherhruddin v. Allah Rakhia (1989 SCMR
1461 at 1465) where testimony of injured witness was accepted. In assessing the value of
evidence of eye -witnesses it is necessary to ex amine whether in the facts and
circumstances of the case their presence at the scene of occurrence in such a situation as
would make it possible for them to witnesses it should be believed and further that
whether there is anything inherently improbable or unreliable in their evidence. In Din
Muhammad v. Crown (1969 SCMR 777) it was observed that "to test the testimony of a
witness Court should not only consider whether there is consistency in the narrative, but
should also consider whether the version is probable or not."
12. On the touchstone of the criterion as mentioned hereinabove, the statements of
Muhammad Zafar (PW -2) and Murad Khan (PW -3) have been thrashed out and we are of the
considered opinion that reliance has rightly been placed on their state ments being confidence
inspiring by the learned trial court. It is worth mentioning that the learned counsel for the
appellant emphasizes on the serious contradictions which, according to him, escaped the notice
of the trial court but failed to point out a ny of them. Even otherwise, it is a settled principle of
law that minor contradictions of improvements in the statements of witnesses are to be
overlooked and only material contradictions are to be considered. In this regard, we may place
reliance on a cas e of Ranjha v. The State (2007 SCMR 455), wherein it has been held that: --
"The ocular testimony of quite independent witnesses duly supported by the medical
evidence, the recovery of empties from the spot, the post -mortem report of the two
deceased and pr ompt lodging of FIR without any deliberation and exaggeration as well as
the attending circumstances was found truthful and confidence -inspiring therefore the
minor discrepancy and contradiction pointed out in the statement of witnesses being
immaterial wo uld be of no significance."
13. As far as the defence plea of the appellant is concerned, in his statement under Section
340(2), Cr.P.C. the appellant stated that he is owner of a marble factory and he supervises the
labour and work. The deceased is his ne ar relative and some unknown persons committed his
murder because there was enmity between the father of the deceased and other persons. On 30th
July 2013, from morning till evening, he along with labour Khudai Nazar, his brother and
nephews were present i n the factory and in the evening he came to know that somebody
committed murder of deceased Abdul Khaliq. Thereafter, he attended the funeral ceremony of
the deceased and on the next day, the complainant party involved him falsely in the instant case.
DW-1 Rehmatullah is the real brother of the appellant, stated that on the day of the incident he
along with Shah Wali (appellant) was present in the factory since morning till 7:00 p.m. where
they received information about the murder of Abdul Khaliq and there after, he attended the
funeral ceremony of the deceased. On the next day he came to know that the appellant was
nominated in the instant case.
14. It is cardinal principle of law that in such like cases of two versions, one is to be believed
in toto and not in piecemeal. This proposition of law is settled by now as reflected in the case of
Safdar Ali v. Crown (PLD 1953 FC 93) wherein it has been held that in a criminal case it is duty
of the court to review the entire evidence that has been produced by the prosecution and the
defence. While following this principle of law, we have examined the versions of both the
parties. The version put forth by the prosecution seems to be trustworthy, based on
unimpeachable and tangible evidence, on the following points: --
a. The FIR has promptly been lodged. The only delay is of 45 minutes while the
distance from the place of occurrence and the police station is about eight kilometers.
b. The appellant was nominated in the FIR with specific role and PW -2 and PW -3
are eye -witnesses of the incident also implicated him with commission of the offence.
c. The incident is of daylight and the defence, after a lengthy cross -examination of
eye-witnesses, has failed to establish false implication or substitution.
d. The oral and med ical evidence are in line.
e. The appellant remained absconder for seven months.
15. As far the question of absence of motive is concerned, in case of murder, failure to prove
motive is not fatal to the prosecution. In this regard, we may place reliance on the case of Syed
Hamid Mukhtar Shah v. Muhammad Azam (2005 SCMR 427), wherein it was observed that: --
"It was through a judgment delivered in the case of Saeed Akhtar and others v. The State
reported as 2000 SCMR 383 that this court had declared that insufficiency of motive or
motive being shrouded in mystery could not be considered as circumstances justifying
non-awarding of the normal penalty of death to a murderer or to reduce the sentence of
death to a lesser punishment. This view has been consistently followed by this Court ever
since."
16. The trial Court has convicted the appellant under Section 302(b), P.P.C. and has awarded
death sentence to him, consequently, the above Murder Reference has been sent. We have
already discussed in detail above that the prosecution has succeeded in proving the fact that the
appellant has committed the murder. Though, the prosecution has not been able to prove the
motive of the appellant for the commission of the murder, but the facts of the case are that the
appellant came prepared, armed with deadly weapon. There was no mitigating circumstance
compelling the appellant to commit murder. His intention was evident from his conduct. He did
not justify the firing upon the deceased nor explains his long absconsion of seven months. Facts
and circumstances of the case do not allow the trial Court to award lesser punishment to the
appellant. The findings of the trial Court arc based on proper appreciation of the evidence,
therefore, the impugned judgment does not warrant interf erence.
In the light of what has been discussed above, the Criminal Appeal No.322 of 2015 filed
by the appellant is dismissed, resultantly, the Murder Reference No. 21 of 2015 is answered in
affirmative.
JK/70/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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