2020 Y L R 1311
[Balochistan]
Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ
ABDUL NAFEY---Appellant
Versus
The STATE--- Respondent
Criminal Jail Appeal No.19 of 2019, decided on 11th December, 2019.
(a) Penal Code (XLV of 1860) ---
----S. 302---Qatl -i-amd---Appreciation of evidence ---Prompt FIR ---Solitary witness --Scope ---
Prosecution case was that the accused was standing in front of the house of deceased and
upon being excoriated he fired upon the deceased---Accused was appositely nominated in the promptly lodged FIR ---Solitary eye -witness had adhered to the prosecution version word by
word and had fully supported the case by giving all necessary details ---Testimony of solitary
eye-witness itself was not a demerit or disqualificatio n as could call for its repudiation, when
otherwise it rang true and inspired confidence ---Quality and not the quantity of the evidence
had to be seen--- Medical evidence was in complete harmony with the ocular testimony ---
Complainant and eye -witness had no enmity, whatsoever, to falsely depose against the
accused ---Prosecution had succeeded in proving the charge ---Appeal was dismissed.
(b) Penal Code (XLV of 1860)---
----S. 302--- Qatl-i-amd--- Interested witness --- Corroboration ---Scope ---Court, in a case
involving capital punishment, will not base conviction solely on the testimony of an interested witness unless his testimony finds corroboration by some other independent and unimpeachable piece of evidence or circumstances of the case.
(c) Penal Code (X LV of 1860) ---
----S.302---Qatl -i-amd---Related witness ---Scope ---Where the testimony of a relative is
corroborated through circumstantial evidence or other pieces of evidence, then his
relationship or friendship with the deceased will not suffice to discr edit him particularly
when there is no motive to falsely involve the accused.
(d) Penal Code (XLV of 1860)---
----S.302---Qatl -i-amd---Related witness ---Scope ---Fact that a witness is relative of the
deceased is not per se enough to discredit the witness unless it is established that the witness
is inimical towards the accused and if it is found that his presence on the place of occurrence
cannot be denied then his evidence cannot be rejected outrightly, merely because such
witness belongs to one party or the other involved in a factional dispute, if otherwise such a witness has established his veracity.
(e) Penal Code (XLV of 1860)---
----S.302---Qatl -i-amd---Motive ---Scope ---Motive is not a necessary component of crime, the
weakness or absence of motive is not a factor to be essentially considered for the purpose of acquittal, when otherwise medical, ocular and direct evidence is available on record to prove the charge.
Muhammad Saeed and 4 others v. Haq Nawaz Khurram and 3 others PLD 2008 SC
416 ref.
Muhammad Latif alias Tifa v. The State 2008 SCMR 1106 rel.
(f) Criminal trial ---
----Witness ---Eye-witness ---Scope ---Court has to satisfy itself whether the testimony of an
eye-witness is natural, his presence on the spot can reasonably be believed, whethe r his
testimony is free from any kind of intrinsic improbabilities and in case of an interested witness whether any corroboration is available.
Asmatullah Mandokhail for Appellant.
Abdul Mateen, Deputy Prosecutor General ("DPG) along with Wajahat Khan
Ghaznavi, State Counsel for P.G. for the State.
Date of hearing: 13th November, 2019.
JUDGMENT
ROZI KHAN BARRECH, J .---Through this Criminal Jail Appeal No.19 of 2019
Abdul Nafay son of Ehsanullah (appellant) assailed the judgment dated 18.02.2019 (hereinafter "the impugned Judgment") passed by learned Sessions Judge, Pishin,
(hereinafter "the trial Court") whereby the appellant has been convicted and sentenced in the following manner: -
"The accused Abdul Nafay son of Ehsanullah Fazal is sentenced t o suffer
Imprisonment of Life as Tazeer and he is also required to make payment of compensation amounting to Rs.5,00,000/ - (Rupees Five Lacs Only) to the legal heirs
of deceased as per provisions contained under section 544 -A, Cr.P.C., or in default to
suffer RI for six (06) months. Benefit of section 382- B, Cr.P.C, is extended in favour
of accused".
2. It would be appropriate to mention that Criminal Jail Appeal No.19 of 2019 filed by
the appellant Abdul Nafay was hopelessly time barred, the trial Court ha s passed the
impugned judgment on 18.02.2019, whereas the appellant has filed the above Criminal Jail
Appeal through Superintendent Central Prison, Mach, on 16.07.2019 with delay of five months.
3. Brief facts as unfolded by PW- 4 Syed Wali son of Shah Wali /complainant in his
complaint (Ex.P/4- A) are that on 19.01.2018 he was present at his home, when at about 3:00
p.m., his two brothers namely Jelani (deceased) and Parvez (PW -5) went out to the house,
after few minutes he heard fire shots, as such, he came out to the house and saw that at Maidani situated in front of his house, his brother Jelani was lying on the ground, while other brother Pervez was standing near him. His brother Pervez told him that accused Abdul Nafey son of Ehsanullah was standing in fr ont of their house and on restraining by Jelani, accused
provoked, took out pistol and made fire upon Jelani (deceased), due to which who sustained bullet injury and fell on the ground. The accused Abdul Nafey escaped from the scene of occurrence.
3(sic). On the written report of complainant vide FIR No.05 of 2018 for an offence under
section 302, P.P.C. was registered with Police Station, Pishin, on 19.01.2018 at 3:30 p.m.
4. SI, Syed lmtiaz Ahmed (PW -6) after recording the report (Ex.P/6 -A), prepared
inquest report of the deceased Jelani (Ex.P/6- B). He also prepared Murasila (Ex.P/6 -C) for
conducting postmortem of the deceased and handed over to the duty doctors. He then proceeded to the spot and prepared site plan (Ex.P/6- D). During the spot inspection, he took
two bullet empties into possession and sealed the same into a parcel. He taken blood- stained
clothes of the deceased into possession through recovery memo and sealed the same into a parcel. He recorded statement under section 161, Cr.P.C., of the wi tnesses. He arrested the
accused and submitted incomplete challan against the accused before the trial Court.
5. Medical evidence was furnished by Dr. Noor Baloch (PW -1), who on 19.01.2018 at
6:45 p.m., examined the dead body of the deceased Jelani son of Shah Wali and found
following injuries: -
"Injuries:-
1. Entrance wound on the left nipple of chest anteriorly 1 x 1 cm.
2. Exit wound on the right lateral chest mid axillary line rower margin 2 cm fresh with bleeding.
3. Having mustache with bare shaved, eyes closed, mouth closed, wearing Kameez and shalwar black in color and also wearing white Banian wet with blood.
Probable cause of death: -
Is injury to the vital organs of thoracic cavity i.e. Hurt and right lung, excessive internal and external bleeding shock (death caused by firearm Homocidal in nature".
6. Before the trial Court, prosecution produced six (06) witnesses to prove the charge
against the accused. After the close of the prosecution evidence, statement of accused was recorded under section 342, Cr.P.C., in which he denied the allegations levelled against him
and claimed to have been falsely charged. He did not want to examine himself under section
340(2), Cr.P.C., and he did not offer any evidence in defence.
7. The trial Court belie ved the prosecution evidence on the basis of ocular account
which was supported by medical evidence, and other circumstantial evidence, and the accused was convicted and sentenced as mentioned in the opening paragraph of this judgment.
8. While challenging the validity of the impugned judgment, Mr. Asmatullah
Mandokhail, Advocate, learned counsel for the appellant submitted that there is no reliable evidence on record to connect the accused/appellant with commission of offence; that the prosecution evidence has come through interested, partisan and related witness which is not
corroborated by either medical evidence or circumstantial evidence; that the presence of PW-5 at the time of occurrence highly doubtful as he could not plausibly account for his presence at the relevant time; that the motive attributed to the accused has not been satisfactorily proved.
9. On the other hand, Mr. Abdul Mateen, learned DPG argued that although the learned
trial Judge has properly appreciated the prosecution evidence by mak ing full discussion on
the case; that eye- witnesses have no previous enmity with the accused and the statements of
the said witnesses corroborated with the medical evidence.
10. We have heard the learned counsel for the parties and gone through the available
record with their able assistance. Perusal of record reveals that unnatural death of deceased Jelani is not disputed. Soon after the occurrence, the deceased was shifted to Civil Hospital,
Quetta, where PW -1 Dr. Noor Baloch, Police Surgeon, Civil Sandem an Provincial Hospital,
Quetta, examined the dead body of the deceased and he issued medical certificate (Ex.P/1-A). The PW -1 Dr. Noor Baloch, was opined the cause of death of deceased as injuries to the
organ of thoracic cavity i.e. Hurt and right lung, e xcessive internal and external bleeding
shock (death caused by firearm Homocidal in nature.
11. Besides, the Investigation Officer has collected the bloodstained clothes of the
deceased, prepared inquest report (Ex.P/6- E) which confirms the bullet injurie s received by
deceased on his person.
12. For the purpose of safe administration of justice, it is essentially required of the court
to satisfy itself whether the eye -witnesses are natural and their presence on the spot could
reasonably be believed and tha t whether the testimony is free from any kind of intrinsic
improbabilities and in the case of an interested witness whether any corroboration is forthcoming.
13. The Court in a case involving capital punishment will not base conviction of an
accused solely on the testimony of an interested witness unless such evidence finds
corroboration by some other independent and unimpeachable piece of evidence or circumstances in the case. On a capital charge when the accused is tried, there has to be evidence of unimpeachable character which must lead to the only inference that the accused
is found guilty beyond reasonable doubt.
14. Adverting to the ocular testimony produced by the prosecution, the prosecution in
order to substantiate the charge, has produced six (06) witnesses in all, but complainant of
the case namely Syed Wali who is not eye -witness of the occurrence. However, when he
heard fire shots and he came out to the house and saw that at Maidani situated in front of his
house, his brother Jelani was lying on the ground was received injuries. He lodged FIR
promptly without any delay and the accused is nominated in the FIR. This witness has mostly reiterated the contents of his Fard- e-Bayan (Ex.P/4 -A).
15. The most important and star witness of the prosecution is, PW -5 Parvez who is the
only eye -witness of the occurrence. Allegedly on 19.01.2018 he and his brother Jelani went
out from his house, and was standing in front of their house, meanwhile, accused was standing in front of their house and on restraining by Jelani, accused provoked, took out pistol and made fire upon Jelani (deceased), due to which who sustained bullet injury and fell on the ground and later on succumbed to the injuries. The PW -5 Pervez has consistently
adhered to the prosecution version word by word and fully supported the prosecution case giving all necessary details. He has faithfully deposed what was witnessed by him. His version could not be impeached or shattered despite lengthy cross -examination. He
describing the role played by the a ccused in the commission of the offence lends full strength
to the prosecution story.
17. No doubt it is a case of solitary witness but the testimony of a solitary witness itself is
not a demerit or disqualification as can call for its repudiation, when ot herwise it rings true
and inspires confidence. The argument that the eye -witness being the brother of the deceased
is highly interested, cannot be relied upon, is not tenable both legally and logically in the absence of any defect in its intrinsic and probative worth and in the absence of any motive on his part to falsely implicate the accused. It is now well entrenched principle of law that conviction can be based on the statement of solitary eye -witness provided the same is
confidence inspiring and the intrinsic worth of the same rings true and satisfies the conscience of the Court. It has been consistently held by the superior Courts that it is the quality of the evidence which is to be seen and not the quantity, and, further conviction can be based on the testimony of solitary eye -witness if it is confidence inspiring and rings true.
18. It is now a settled rule of law that if the testimony of relative is corroborated through
circumstantial evidence or other pieces of evidence, then their relationship, fr iendship or
relation with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused. The mere fact that a witness is relative of the deceased is not per se enough to discredit the witness unless it is established that the witness
was inimical towards the accused and if it is found, that in the circumstances of the case, the presence of such a witness cannot be denied, then his evidence could not be discredited. Similarly, the evidence of a ny eye -witness cannot be rejected out rightly, merely because
such witness belongs to one party or the other involved in a factional dispute, if otherwise such a witness has established his veracity.
19. It may be observed that the medical evidence is in complete harmony with the ocular
testimony of the complainant and no conflict could be pointed out to create dent in the
prosecution case. It is the prosecution version that the appellant fired at the deceased with pistol who received injuries and later on succumbed to the injuries. Two bullet empties were
also taken by the I0 through recovery memo (Ex.P/3- A) from the place of occurrence which
was produced by PW -3 Abdul Kabir, constable.
20. The motive alleged by the prosecution against the accused/appellant is that on the day
of occurrence the accused was standing in front of house of the deceased, when the deceased asked about the reason that why he is standing in front of his house upon which the accused put out a pistol and made a firing upon the deceased. Even otherwise the motive is not a necessary component of crime, the weakness or absence of motive is not a factor to be essentially considered for the purpose of acquittal, when otherwise medical, ocular and direct evidence is available on record to pro ve the charge against the appellant. The brother of the
complainant was murdered and it is not believable to a prudent mind that he would substitute the real culprits with the appellant. The Hon'ble august Court in the case of Muhammad Latif alias Tifa v. The State 2008 SCMR 1106 has held that, "Be that as it may, it is settled law that motive, provided or otherwise, is immaterial in presence of ocular evidence and murder may be committed even for no motive or on a minor pretext. What to speak of proving
motive, in certain cases where the motive was shrouded in mystery or was not alleged,
conviction was maintained and absence of motive was not taken, as a mitigating
circumstance even". In this regard reference can also be made to the case of Muhammad Saeed and 4 others v. Haq Nawaz Khurram and 3 others PLD 2008 Supreme Court 416.
21. The occurrence in the case had taken place at 3:10 p.m., on 19.01.2018. The matter
was reported to the police within twenty minutes of the occurrence. The appellant is the only
accused in the case. He fired a shot on the person of the deceased which hit the vital part of
his body and the same proved fatal. The ocular account furnished by PW -5 Pervez is fully
corroborated by medical evidence. It was broad day occurrence. The compla inant and PW -5
Pervez had no enmity whatsoever, to depose falsely against the appellant.
22. The reappraisal of entire prosecution evidence establishes the fact that the prosecution
has succeeded in proving the charge against the appellant through direct, circumstantial and medical evidence. No major contradiction or dishonest improvement has been pointed out by the learned defence counsel in the statements of prosecution witnesses. The learned trial Court has discussed and dilated upon each and every aspec t of the case and rightly convicted
the appellant.
In view of the above, the appeal filed by the appellant is dismissed.
SA/7/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,
let us know.