2020 Y L R 942
[Balochistan (Sibi Bench)]
Before Muhammad Hashim Khan Kakar and Abdul Hameed Baloch, JJ
MOR KHAN and another ---Appellants
Versus
The STATE--- Respondent
Criminal Appeal No. (s) 75 of 2019, decided on 11th October, 2019.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence---Accused were charged for
committing murder of uncle of the complainant ---Motive for the occurrence was old enmity--
-Complainant while appearing before the Trial Court deposed the same facts as narrated in
the FIR ---Eye -witness corroborated the complainant and deposed the same facts ---Said
witnesses stated that they were accompanying the deceased when the accused made firing---
Testimonies of both the ocular witnesses remained firm on ea ch material point and their
statement corroborated each other ---Defence did not deny the presence of the witnesses at
the place of occurrence--- Parties knew each others, therefore there was no probability of the
mistake identification of the culprits ---Presence of the ocular witnesses at the scene of crime
was natural, which had further been corroborated by the site plan--- Circumstances
established that the prosecution had successfully proved its case against the accused persons through promptly lodged FIR, confidence inspiring ocular testimony, recovery of crime
empties from the spot, supportive medical evidence, arrest of the accused within a short span, recovery of crime pistol followed by positive report of the firearms expert against the accused ---Appea l was dismissed accordingly.
Muhammad Akram v. State 2019 SCMR 610 and Ijaz Ahmed v. State 2009 SCMR 99
rel.
(b) Penal Code (XLV of 1860)---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---First Information Report was lodged
promptly---Effect ---Accused were charged for committing murder of uncle of the
complainant ---Record showed that FIR was lodged promptly after one hour of the occurrence
without any delay---Deliberation and consultation on the part of the complainant could not be considered, i n circumstances ---Appeal was dismissed accordingly.
(c) Criminal trial ---
----Witness ---Interested witness ---Statement of interested witness ---Reliance---Scope ---Mere
relationship of a witness with the deceased was no ground for discarding his evidence if he
otherwise appeared to be truthful and his presence at the place of occurrence was probable---
Mere relationship of a witness with any of the parties would not make him as an interested witness ---Interested witness was one who had, of his own, a motive t o falsely implicate the
accused; was swayed away by a cause against the accused and was biased, partisan, or
inimical towards the accused ---Any witness who had deposed against the accused on account
of the occurrence by no stretch of imagination could be r egarded as an interested witness ---
Merely because the witnesses were kith and kin, their evidence could not be rejected, if
otherwise same was trustworthy.
(d) Penal Code (XLV of 1860)---
----S. 302(b) ---Qatl-i-amd---Appreciation of evidence ---Recovery of weapon of offence and
crime empties ---Reliance ---Scope ---Accused were charged for committing murder of uncle
of the complainant ---Record showed that seven empties were recovered from the place of
occurrence---Two TT pistols were recovered from the possess ion of the accused persons ---
Said TT pistols and empties were dispatched to the Firearms Expert ---Report of Forensic
Science Laboratory showed that the empties collected from the place of occurrence were fired from the TT pistols recovered from the possess ion of accused persons ---Prosecution
had successfully proved the recovery of weapon of offence ---Appeal was dismissed
accordingly.
Kamran Murtaza and Abdul Razaq Shar for Appellants.
Ahsan Rafiq Rana for the Complainant.
Akhtar Gajjani, Additional Pros ecutor General for the State.
Date of hearing: 26th September, 2019.
JUDGMENT
ABDUL HAMEED BALOCH, J. --- This Criminal Appeal has been filed by the
appellants against the judgment dated 07.05.2019 ("the impugned judgment") passed by the learned Additional Sessions Judge Nasir Abad at Dera Murad Jamali ("the trial court"), whereby the appellants were convicte d and sentenced under section 302(b) of the Pakistan
Penal Code, 1860 ("P.P.C.") to suffer life imprisonment as Tazeer and to pay compensation amounting to Rs.2,00,000/ - (two lac) each to the legal heirs of deceased as per provisions
contained under section 544- A, Cr.P.C, or in default whereof to further undergo S.I. for six
(06) months. The benefit of Section 382- B of the Criminal Procedure Code, 1898 ("Cr.P.C.")
was also extended in their favour.
2. Brief facts of the prosecution case are that on 19.12.2017, at about 11:00 a.m. the
complainant Nasir Ahmed lodged an FIR No.43 of 2017 at Police Station Manjhoo Shori, alleging therein that on the stated date he along with his uncle Imam Din and cousin Sadiq Ali left their village for Bari Shakh for irrigation their land and when at about 10:00 am they
reached Goth Wahid Baksh Gola, meanwhile accused persons Mor Khan, Sooba Khan and
Noor Muhammad armed with TT pistols came in front of them and told them today they will not spare them alive and made indiscrimina te firing upon them, resultantly Imam Din died at
the spot. The motive behind the occurrence was old enmity.
3. After completion of investigation, challan was submitted before the trial Court.
Thereafter, on 21.01.2018, charge was framed and read over to t he appellants, to which they
did not plead guilty and claimed trial. During the trial, the prosecution produced following six witnesses: -
I) PW-1, Naseer Ahmed (complainant), who produced written report Ex.P/1- A.
II) PW-2, Sadiq Ali, eye -witness of the occ urrence.
III) PW-3, Javed Ahmed Constable, (Recovery witness) who produced Blood Stained
Qameez as Ex -P/3-A, parcel No.5 as Article P/1, sample of sealed parcel as Article
P/2 and Qameez as Article P/3.
IV) PW-4 Abdul Rahim Constable, who produced site inspection memo. as Ex -P/4-A,
blood- stained made of deceased Ex -P/4-B, parcel No. as Article P/4, sealed sample
Article P/5, blood stained mud as Article P/6, recovery memo of seven live cartridges of TT pistol as Ex -P/4-C, parcel No.2 as Article P/7, sealed sample as Article P/8, 07
empties as Article P/9, recovery memo of Pistol recovered from accused Mor Khan as Ex-P/4-D, parcel No.3 as Article P/10, sample of seal as Article P/11, 03 live rounds
as Article P/12 and Pistol as Article P/13, recovery memo of Pistol recovered from
accused Sooba Khan as Ex- P/4-E, parcel No.4 as Article P/14, sample of seal as
Article P/15, pistol as Article P/16 and 02 live rounds as Article P/17.
V) PW-5, Dr. Nasrullah (Medical Officer) DHQ Hospital Dera Murad Jamali, who
produced MLC No.1538 of deceased Imam Din as Ex- P/5-A.
VI) PW-6, Elahi Bakhsh SI (Investigation Officer). Who produced the FIR Ex.P/6 -A, site
map as Ex -P/6-B, recovery memo of weapon as Ex -P/6-C, inquest report of deceased
as Ex -P/6-D, challan No.3/18 as Ex -P/6-E, FSL report as Ex -P/6-F and Ex.P/6- G,
challan No.3- A/18 as Ex.P/6- H.
4. On conclusion of prosecution evidence, the appellants' statement under section 342 of
the Cr.P.C. was recorded, in which he once again professed his innocence, while he did not opt to record his statement on oath as envisaged under Section 340(2) of the Cr.P.C. and also did not produce any defence witness in his favour. The learned trial court, on conclusion of the trial, convicted and sentenced the appellants as mentioned hereinabove, hence this appeal.
5. Learned counsel for the appellants contended that the appellants are innocent and
have falsely been implicated by the complainant due to previous enmity; that the statements of the prosecution witnesses are contradictory with each other; that the impugned judgment
suffers from misreading and non -reading of evidence; that the eye- witness are inter se related
and interested witnesses; that the plea of previous enmity is lacking independent corroboration; that on the basis of mala fide intention the complainant nominated the
appellants for commission of offence; that there is contradiction amongst the statements of
the prosecution witnesses; that nothing has been recovered from the appellants nor there is any incriminating evidence available against the appellants to connect him with the commission of the offence; that there are material irregularities and illegalities in the impugned judgment, which is liable to be set -aside. He lastly urged for acquittal of the
appellants.
6. Conversely, learned counsel for the complainant and learned DPG strongly opposed
the contention of learned counsel for the appellants and contended that the prosecution has successfully proved its case against the appellants through confidence inspiring evidence; that despite lengthy cross -examination, the defence failed to shake the statements of the
witnesses; that all the witnesses have recorded their statements in line with each other; that the learned trial court has rightly convicted the appellants for commission of offence. He lastly urged for dismissal of the appeal.
7. We have heard the learned counsel for the parties and have perused the record with
their able assistance. The case of prosecution rests upon testimonies of two ocular witnesses, recovery of crime weapons, recovery of empties, positive FSL reports and medical evidence.
As per death certificate Ex -P5-A, issued by PW -5 the deceased died due to firearm injuries.
The defence did not dispute the unnatural death of the deceased.
8. PW-1 (eye -witness) while appearing before the trial court deposed the same fact as
narrated in the report Ex -P/1-A. PW -2 while corroborating the PW -1 deposed in the same
manner. According to PW -1 and PW -2 they were accompanying the deceased when the
appellants and absconding accused made firing. The testimonies of both the ocular witnesses
remained firm on each material point and their statements are corroborating each other. The defence did not deny the presence of the ocular witnesses at the place of the occurrence. Since the occurrence took place at broad day and the parties knew each others, therefore there is no probability of the mistaken identification of the culprits. It cannot be accepted by the prudent mind that the relatives let the real culprit and implicate the innocent persons. Even othe rwise the FIR was lodged promptly after one hours of the occurrence without any
delay, therefore the deliberation and consultation on the part of the complainant cannot be considered. Since the occurrence was stated to have taken place in a broad daylight and the appellants and absconding accused have specifically been nominated by PW- 1 and PW -2
(eye- witnesses) with role of firing upon the deceased. Both the eye -witnesses remained firm
on all the material aspect of the case by furnishing confidence inspiring evidence, as such cannot be discarded. In this reliance is placed on the case of Muhammad Akram v. State (2019 SCMR 610), whereby the Hon'ble Supreme Court of Pakistan observed as under:
"The complainant Fiaz Ali (PW1) and Muhammad Shafique (PW2) while appearing
before. the trial court remained consistent on all the material aspects of the case. They in a straightforward manner held the appellant responsible for the murder of Muhammad Riaz . The main argument of learned counsel for the appellant is that it
was a night time occurrence and no source of light has been mentioned by the complainant in the FIR. It has been observed by us that in the site plan which was
prepared on the instructions and pointation of the witnesses, the availability of 1000
watt rod and 200 watt bulb at points E and F respectively has been shown to be lit.
Even otherwise, the parties are closely related to each other and identification of a
close relative even in low light is not a big deal. Dr. Muhammad Aslam Awan (PW7)
medically examined Muhammad Riaz in injured condition, whereas Dr. Muhammad
Nazir (PW- 11) conducted post -mortem examina -tion on the dead body of Muhammad
Riaz and observed five entry wounds on the pers on of deceased. According to doctor
(PW11), injuries Nos. 1, 3, 4, 5 and 6 were caused by firearm weapon. The probable time between death and postmortem as noted by doctor coincides with the ocular account. It has been observed by us that the learned appel late court has excluded
recovery of revolver from the appellant and positive report of FSL from consideration due to the reason that the empties and the revolver were sent to the office of FSL on the same day after the arrest of appellant. Even if the reco very is excluded from
consideration being legally inconsequential, it has been observed by us that the direct evidence in the form of ocular account furnished by complainant Fiaz Ali (PW 1 ) and Muhammad Shafique (PW2) is confidence inspiring which has the support of medical
evidence. In these circumstances, we have no hesitation to hold that the prosecution has been successful in proving its case against the appellant beyond reasonable doubt."
9. Learned defence counsel raised serious objection that both t he eye -witnesses are inter
se related and interested witnesses. It may be pointed out here that mere relationship of a
witness with the deceased is no ground for discarding his evidence if he, otherwise appears to be truthful and his presence at the place of occurrence is probable. Mere relationship of a
witness with any of the parties would not dub him as an interested witness because interested witness is one who has, of his own, a motive to falsely implicate the accused, is swayed away by a cause against the accused, is biased, partisan, or inimical towards the accused, hence
any witness who has deposed against the accused on account of the occurrence, by no stretch of imagination can be regarded as an "interested witness". In the wake therefore, it proceeds that merely because the witnesses are kith and kin, their evidence cannot be rejected, if
otherwise it is trustworthy. It would also be pertinent to mention here that related witnesses
some time, particularly in murder cases, may be found more reliable , because they, on
account of their relationship with the deceased, would not let go the real culprit or substitute an innocent person for him. Even otherwise the occurrence was stated to have taken place in agricultural field and the defense has failed to point out that the place of occurrence was
thickly populated area. The presence of the ocular witnesses at the scene of crime is natural which has further been corroborated by the site plan Ex- P/6-B. The objection so raised by the
defence is not supportiv e.
For rendering this view, we are fortified from the dictum laid down by the Hon' able
Supreme Court of Pakistan on the case of Ijaz Ahmed v. State 2009 SCMR 99, whereby it
has been held as under:
"9. As regards the contention that both the eye -witnesse s were related and thus,
interested, therefore, their testimony could not have been believed, it may be pointed out here that mere relationship of a witness with the deceased is no ground for discarding his evidence if he, otherwise appears to be truthful and his presence at the
place of occurrence is probable. Mere relationship of a witness with any of the parties would not dub him as an interested witness because interested witness is one who has, of his own, a motive to falsely implicate the accused, is swayed away by a cause against the accused, is biased, partisan, or inimical towards the accused, hence any witness who has deposed against the accused on account of the occurrence, by no stretch of imagination can be regarded as an "interested witness". I n the wake
therefore, it proceeds that merely because the witnesses are kith and kin, their
evidence cannot be rejected, if otherwise it is trustworthy. It would also be pertinent
to mention here that related witnesses some time, particularly in murder cas es, may be
found more reliable, because they, on account of their relationship with the deceased, would not let go the real culprit or substitute an innocent person for him."
10. As far as the recovery of crime weapons and empties are concerned. As per PW- 4 on
the fateful day they under the supervision of PW -6 visited the site and collected seven
empties, secured blood stained earth and prepared site plan and thereafter proceeded in search of nominated accused and at about 1:05 a.m. the appellants were arre sted and two TT
pistols were recovered from their possession, thereafter the TT pistols and empties were
dispatched to the Firearms Expert on 26.12.2017. The FSL report Ex- P/6-F shows that the
empties collected from the place of occurrence were fired from the TT pistols recovered from
the possession of the appellants.
In view of the above discussion, we are of the considered opinion that the prosecution
has successfully proved the instant case against the appellants through promptly lodged FIR,
confidence inspiring ocular testimony, recovery of crime empties from the spot supportive
medical evidence, arrest of the accused -appellants within a short span, the recovery of crime
pistol followed by positive report of the firearms expert against the appellants. T he learned
trial court has rightly convicted and sentenced the appellants, as such the conviction and sentence awarded by the trial court vide impugned judgment is hereby maintained. The appeal is dismissed.
JK/134/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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