2020 Y L R 1423
[Balochistan]
Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ
MUHAMMAD YOUSAF ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 27 of 2019, decided on 11th December, 2019.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b), 324 & 337- F(v)---Qatl -i-amd, attempt to commit qatl -i-amd, ghayr -jaifah,
hashimah ---Appreciation of evidence ---Solitary witness ---Injured witness ---Scope ---Accused
was alleged to have attempted at the life of complainant and murdered anothe r---FIR though
was lodged with a delay of one day but it appeared that the police had received information
on the day of the occurrence and the police officials had referred the injured to hospital, therefore, delay in lodging FIR was the fault of SHO (Sta tion House Officer of Police
Station) ---Complainant had no enmity with the accused to involve him falsely by taking
advantage of delay---Sole injured eye -witness had adhered to the prosecution version word
by word and had fully supported the prosecution ca se by giving all necessary details ---
Medical evidence had corroborated the statement of complainant ---Presence of complainant
on the spot was also established on the basis of injuries received by him ---Prosecution had
successfully established the charge ag ainst the accused ---Appeal was dismissed.
Nasir Iqbal alias Nasra and another v. The State 2016 SCMR 2152 rel.
(b) Penal Code (XLV of 1860)---
----S.302---Qatl -i-amd---Related witness ---Scope ---Where the testimony of a relative witness
is corroborated through circumstantial evidence or other pieces of evidence then his relationship or friendship with the deceased will not suffice to discredit him particularly when there is no motive to falsely involve the accused.
(c) 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.
(d) Penal Code (X LV 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 so me other independent and
unimpeachable piece of evidence or circumstances of the case.
(e) Criminal Procedure Code (V of 1898) ---
----S. 154 ---Information in cognizable cases ---Delay in lodging FIR ---Effect ---Scope ---Delay
in lodging FIR is never sufficie nt to believe or disbelieve the contents of the FIR ---Question
of guilt or innocence is to be determined through required standard of evidence ---Promptness
or delay has its relevance as a circumstance, which does not prejudice the liabilities of either
side---Court has to examine such aspect by holding the scale of justice tight.
Muhammad Zubair v. State 2007 SCMR 437 and Mushtaq Hussain and another v.
State 2011 SCMR 45 rel.
(f) Criminal trial ---
----Witness ---Eye-witness ---Scope ---Court has to satisfy i tself whether the testimony of an
eye-witness is natural, his presence on the spot can reasonably be believed, whether his
testimony is free from any kind of intrinsic improbabilities and in case of an interested
witness whether any corroboration is availa ble.
(g) Criminal trial ---
----Witness --- Solitary eye -witness ---Scope ---Testimony of solitary eye -witness itself is not a
demerit or disqualification as can call for its repudiation, when otherwise it rings true and inspires confidence ---Quality and not the quantity of evidence has to be seen.
(h) Criminal trial ---
----Witness ---Injured witness ---Interested witness --- Scope ---Mere interest of a injured
witness is no ground to reject his evidence when his presence during the occurrence cannot be doubted---Injured witness would be the last person to leave out the real culprits and
implicate others falsely.
Nisar Ahmed Alizai and Ali Ahmed Lehri for Appellant.
Muhammad Ali Rakhshani for the Complainant.
Abdul Mateen, Deputy Prosecutor General ("D.P.G.") and Wajahat Khan Ghaznavi,
State Counsel for P.G.
Date of heari ng: 5th November, 2019.
JUDGMENT
ROZI KHAN BARRECH, J .---Through this instant Criminal Appeal, the appellant
has challenged the judgment dated 08.02.2019 (hereinafter "the impugned Judgment") passed
by learned Sessions Judge, Mastung, (hereinafter "the tr ial Court") in Murder Case No.08 of
2018 vide FIR No.21 of 2018 dated 14.05.2018 registered with Police Station City Mastung, whereby the appellant was convicted under section 302(b), P.P.C. and sentenced to suffer imprisonment for life as Tazir and also to pay compensation amount of Rs.2,00,000/ -
(Rupees Two Lacs Only) to the legal heirs of deceased Muhammad Ibrahim under section 544- A Cr.P.C., and in default thereof to further suffer SI for six (06) months. The accused
was further convicted under section 324, P.P.C. and is sentenced to suffer RI for five years and fine of Rs.20,000/ - (Rupees Twenty Thousand Only) and in default thereof to further
suffer SI for two (02) months. The accused was further convicted under section 337- F(v),
P.P.C. and sentenced t o suffer two (02) years RI as Tazir and to pay Daman of Rs.50,000/ -
(Rupees Fifty Thousand Only) to injured Nazar Muhammad. Benefit of section 382- B,
Cr.P.C., was also extended in favour of the accused/appellant.
2. Facts of the case are that on 14.05.2018, FIR No.21 of 2018 was registered against the
accused/appellant on the report of complainant Nazar Muhammad son of Azad Khan with Police Station City Mastung, with the allegation that on 13.05.2018 at about 10:30 a.m., he
and his nephew Takri Muhammad Ibr ahim (deceased) were coming from his house towards
Mastung bazaar on his personal motorcycle, when they reached at link road bye -pass, a
motorcycle boarded with three persons came near them and stopped them. Muhammad
Yousuf and Ali Ahmed started firing upo n them and caused them serious injuries. His
nephew Takri Muhammad Ibrahim succumbed to his injuries on the spot. Hence crime report.
3. After completion of investigation, the challan was submitted before the learned trial
Court. After framing the charge, to which the accused/appellant did not plead guilty and
claimed trial, the prosecution led its evidence.
4. On completion of prosecution evidence, the trial Court recorded the statement of the
accused/appellant under Section 342, Cr.P.C., wherein t he accused/appellant once again
professed innocence. However, the accused/ appellant recorded his statement on oath as envisaged under Section 340(2), Cr.P.C., and also produced one witness in his defence.
5. On conclusion, the trial Court vide judgment im pugned dated 08.02.2019 convicted
the accused/ appellant as mentioned herein above. Hence this appeal.
6. We have heard the learned counsel for the parties and gone through the available
record with their able assistance. The learned counsel for the appell ant at the very outset,
attacked the FIR while saying that same was lodged with inordinate delay. It is an admitted fact that the alleged occurrence took place on 13.05.2018 at about 10:30 a.m., a day and the FIR was lodged on 14.05.2018 at about 3:45 p.m., with delay of one day. It has also come on record that on the day of occurrence the complainant Nazar Muhammad along with deceased were going on motorcycle, on the way the accused made a firing upon them, he and deceased received firearm injuries and deceased succumbed to the injuries on the spot. According to medical certificate (Ex.P/6 -A) of PW -1/complainant Nazar Muhammad, received two
injuries. According to PW -6 Dr. Ali Mardan Mengal, on 13.05.2018 the injured was brought
to Sandeman Provincial Hospit al, Quetta at 12:45 p.m. The complainant appeared before the
Court as PW -1. He stated in his statement that he was referred to Civil Hospital, Quetta, for
treatment and on the next day he came at Mastung and lodged FIR. During cross -
examination he stated t hat after first aid at Mastung he was shifted to Quetta. PW -7
Rehmatullah, SI/Investigating Officer, who conducted investigation of the case stated during
cross -examination that on 13.05.2018 he given injuries' report of Nazar Muhammad and
shifted the inju red to Quetta for treatment. PW- 6 Dr. Ali Mardan Mengal stated during cross -
examination that the injured was referred by District Headquarter Hospital, Mastung. The
delay in lodging of the FIR has been explained by circumstances of the case one person had lost his life and other was injured, therefore, the preference was to get treatment of PW- 1. It
is also admitted fact that on the day of occurrence the police received information about the occurrence and the police official also referred the injured to Ci vil Hospital, Quetta, but it
was also duty of the SHO to lodge FIR and he did not do so and it was a fault of police official. The PW -1/complainant was admitted in Civil Hospital, Quetta, and he was himself
received injuries. In the peculiar facts and circumstances of the case are self explanatory, with regard to delay in lodging of FIR and defence could not succeed to prove any consultation, deliberation or premeditation on the part of the complainant to falsely charged the appellant in the case. It is not possible in ordinary course or even not appealable to the
prudent mind that the actual and real culprit is let of and instead an innocent person is charged. As regard the plea of delay in lodging of FIR, we would say that it is by now a settled principle of law that mere delay in lodgment of the FIR shall never be sufficient to believe or disbelieve the contents of the FIR but question of guilt or innocence shall always need required standard of evidence. The promptness or delay will however have their relevance as a circumstance which otherwise would not prejudice the liabilities of either
sides and that of Court to examine this aspect by holding the scale of justice tight. Reference
may be made to the case of Muhammad Zubair v. State 2007 SCMR 437 wherein it is held as
under: -
"4 …..Generally delay in lodging FIR cannot in all cases lead to the inference that the case set up in the FIR is necessarily true or false, however, it is relevant circumstance to be considered. First Information Report or reject t he matter, reported therein".
7. It is stated earlier that delay in recording the FIR may be for reason of deliberation so
as to contrive anything to his advantage then the accused has to show or at least plead that the delay in reporting the matter had be en to his disadvantage because spontaneous
information shall also not debar the accused from attacking the contents thereof. Reference may be made to the case of Mushtaq Hussain and another v. State 2011 SCMR 45 wherein it is held as under: -
"...The purpo se of the FIR is to set the criminal law in motion and to obtain the first
hand, spontaneous information of occurrence in order to exclude the possibility of fabrication of story or consultation or deliberation or the complaint has had time to devise or contrive anything to his advantage and the disadvantage of others and to safeguard the accused of such like happenings/occurrence in the FIR, as the spontaneity is the guarantee of truth to a greater extent".
8. Admittedly, there is delay of about one (01) day in reporting the matter and the
complainant filed an application on next day of the occurrence i.e. 14.05.2018 and the police
also handed over the dead body to the legal heirs of the deceased and also given injuries'
report to the injured on the day of occurrence but it is matter of record that such delay has not been advantagous to the complainant, the complainant party who had no enmity with the appellant to involve him falsely by taking advantage of delay. On the other hand, the conduct
and attitude on the part of complainant appears to be quite natural as the complainant
detailed every thing in straight forward manner while recording the FIR which prima facie
attaches the truthfulness to such narration par ticularly where no benefit/advantage appears to
have been obtained so as to settle any personal score etc. Reference may be made to the case of Nasir Iqbal alias Nasra and another v. The State 2016 SCMR 2152 wherein it is held as under: --
"7 …….The scruti ny of their evidence does not suggest any exaggeration rather not
assigning any specific role to the accused persons reflects the truthfulness of their testimony when in hustle and bustle of the occurrence which has been committed within a few seconds or m inutes it is humanly impossible to assign specific role and
giving detailed description of the same would rather infer or input to have been made out to falsely rope the accused persons, as such lodging of the FIR in straightforward manner in the fact and circumstances of the cases rules out any possibility of falsely
roping the accused persons rather the lodging of the FIR in a straightforward manner shows that it carries the lodging of the FIR in a straight forward manner shows that it carries the true version".
9. For the purpose of safe administration of justice, it is essentially required of the Court
to satisfy itself whether the eye -witness is natural and his presence on the spot could
reasonably be believed and that whether the testimony is free from any kind of intrinsic
improbabilities and in the case of an interested witness whether any corroboration is forthcoming.
10. The Court in a case involving capital punishment will not base conviction of an
accused solely on the testimony of an interested w itness 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 t o the only inference that the accused
is found guilty beyond reasonable doubt.
The prosecution case primarily rests on ocular testimony of complainant/ PW -1 Nazar
Muhammad, medical evidence and other circumstantial evidence.
11. The complainant/PW- 1 Nazar Muhammad the sole injured eye -witness in this case,
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 accused in the commission of the offence lend full strength to the prosecution story.
12. 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 otherwise it rings true
and inspires confidence. The argument that the eye- witness being the uncle of the deceased is
highly interested, cannot be relie d 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.
13. Mere interestedness is not a ground to reject the evidence of the eye -witnesses
particularly that who was injured. Firstly his presence during the occurrence cannot be doubted. Secondly the injured witness would be the last person to leave out thee real culprits and implicate other falsely. However, it becomes n ecessary to scrutinize his evidence with
great care and caution. Normally in a case of this nature the evidence of such witness is scrutinized in the light of the medical evidence. PW- 6 Dr. Ali Mardan Mengal who examined
the complainant/injured Nazar Muhammad on 13.05.2018 at Sandeman Provincial Hospital, Quetta, he issued the medical certificate (Ex.P/6 -A). According to medical certificate the
complainant received two injuries by means of firearms. The medical certificate produced by PW-6 is corroborated w ith the statement of PW -1/complainant who also stated in his
statement that the accused made firing upon him and deceased and both of them were received injuries. The presence of PW- 1 is also established at the spot of occurrence on the
basis of injuries r eceived by him.
14. 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 th e 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 r ings true.
15. 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 his relationship, friendship or relation with the deceased will not be sufficient to discredi t 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 accus ed 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 any eye -witness cannot be rejected out rightly, merely because
such witnes s belongs to one party or the other involved in a factional dispute, if otherwise
such a witness has established his veracity.
16. It may be observed that the medical evidence is in complete harmony with the ocular
testimony of the complainant and no confl ict could be pointed out to create dent in the
prosecution case. It is the prosecution version that the appellant and the absconding accused made a firing at the deceased and injured PW -1/complainant with firearm and both of them
were received injuries. Th e medical certificate of the deceased Takri Muhammad Ibrahim
was also produced by PW -4 Dr. Noor Ahmed, Medical Officer District Headquarter Hospital,
Mastung, on 13.05.2018 at 10:35 a.m. He examined the injured and issued a medical certificate (Ex.P/4 -A), according to which the deceased received two injuries by means of
firearms.
20(sic). The appellant accused made a firing on the persons of deceased and PW -
1/complainant Nazar Muhammad which hit vital part of body of the deceased and the same
proved fatal a nd PW -1/complainant also received injuries by means of firearm. The ocular
account furnished by PW -1/complainant Nazar Muhammad is fully corroborated by medical
evidence. It was broad day occurrence. The PW -1/complainant had no enmity whatsoever, to
depose falsely against the appellant.
Pursuant to the above, we find that the prosecution has successfully established
murder charge against the appellant who rightly stood convicted and sentenced by the trial Court. There is hardly any substantial ground for l awfully challenging the impugned
judgment. The appeal fails which is hereby dismissed.
SA/8/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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