2020 Y L R 985
[Balochistan
]
Before Rozi Khan Barrech, J
GHULAM NABI ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 47 of 2018, decided on 15th November, 2019.
(a) Penal Code (XLV of 1860) ---
----Ss. 300, 315 & 302(c) ---Qatl -i-amd and qatl -shibh- i-amd---Appreciation of evidence ---
Delay in lodging of FIR ---Interested witnesses ---Substitution, principle of ---Complainant
lodged FIR against her husband and brother -in-law for committing qatl -i-amd o f their
daughter ---Defense could not succeed to prove any consultation, deliberation or
premeditation on part of complainant to falsely charge accused in the case---Not possible in
ordinary course or even not appealable to prudent mind that actual and real culprit was let off
and instead an innocent person was charged--- Accused, complainant and deceased were
residing in the same house and complainant was a Purdah observing lady, therefore, she had
not lodged report promptly--- Mere delay in lodging of FIR wa s never sufficient to believe or
disbelieve contents of FIR ---Question of guilt or innocence was always required standard of
evidence--- Promptness or delay had their relevance as a circumstance which otherwise would
not have prejudiced liabilities of eithe r sides and that of court to examine such aspect by
holding scale of justice tight ---Weapon used for commission of offence had to be considered
for purpose of an act with intention to cause harm to the body---Intention was primary consideration showing aim and objective of offender ---Parties, in the present case, were
closely related to each other and no evidence showing serious dispute or enmity was brought on record--- No premeditation or anything to show that accused had intention to commit
offense of qat l-i-amd---Case of accused person did not fall under S. 302(c), P.P.C. however
same was covered under S. 315, P.P.C.--- High Court modified judgment passed by the Trial
Court and convicted accused under S.316, P.P.C.---Appeal was dismissed accordingly.
Muhammad Zubair v. State 2007 SCMR 437; Mushtaq Hussain and another v. State
2011 SCMR 45 and Nasir Iqbal alias Nasra and another v. The State 2016 SCMR 2152 ref.
(b) Criminal trial ---
----Witness ---Testimony of ---Duty of court --- Preconditions --- Court was e ssentially required
to satisfy itself whether eye -witnesses are natural and their presence on spot could reasonably
be believed---Whether testimony is free from any kind of intrinsic improbabilities and in
case of an interested witness, whether any corroboration is forthcoming---Court in a case
involving capital punishment should not base conviction of an accused solely on testimony of an interested witness unless such evidence finds corroboration by some other independent and unimpeachable piece of evidenc e or circumstances of case ---When accused is tried on a
capital charge, there has to be evidence of unimpeachable character which must lead to only
inference that accused is found guilty beyond reasonable doubt.
(c) Penal Code (XLV of 1860)---
----Ss. 302 & 315 ---Qatl shibh -i-amd---Precondition --- Qatl-shibh -i-amd takes place when
victim dies with an instrument which is neither a weapon nor can be used as weapon---
Nature of instrument used in occurrence is also an important factor to determine intention of
accused.
Syed Ayaz Zahoor and Mrs. Robina Shaheen for Appellant.
Wajahat Khan Ghaznavi, State Counsel for P.G.
Date of hearing: 13th September, 2019.
ORDER
ROZI KHAN BARRECH, J. ---Through this instant Criminal Appeal, the appellant
has challenged the judgment dated 15.08.2018 (hereinafter "the impugned Judgment") passed
by learned Additional Sessions Judge -VI, Quetta, (hereinafter "the trial Court") in Sessions
Case No.67 of 2015 vide FIR No.122 of 2015 dated 16.07.2015 registered with P olice
Station Sariab, Quetta, whereby the appellant was convicted under section 302(c), P.P.C. and
sentenced to suffer imprisonment for ten (10) years and also to pay compensation amount of Rs.1,00,000/ - (Rupees One Lac Only) to mother of the deceased Sehr ish and in default
thereof to further suffer SI for six (06) months. 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 14.07.2015, FIR No.122 of 2015 was registered against
the accused/appellant on the report of complainant Zarina daughter of Niaz Muhammad with Police Station Sariab, Quetta, with the allegation that on 14.07.2015 at about 7:00 p.m., her husband Ghulam Nabi (appellant) and her brother -in-law Ghulam Hussain came home and
saw a mobile charger in the room due to which they became annoyed and started beating her daughter Sehrish (deceased) on the head with shoes due to which she became unconscious for some time and after coming in her senses she remained mum, that on the next day i.e. 15.07.2015 after Iftari her condition started to deteriorate she was taken to Bolan Medical Complex Hospital (BMC) where duty doctor told that she has died. Hence crime report.
3. After completion of the 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
accus ed/appellant under s ection 342, Cr.P.C. wherein the accused/ appellant once again
professed innocence. However, the accused/appellant neither recorded his statement on oath
as envisaged under section 340(2), Cr.P.C. nor produced any defense witness.
5. On conclusion, the trial Court vide judgment impugned dated 15.08.2015 convicted
the accused/appellant as mentioned herein above. Hence this appeal.
6. I have heard the learned counsel for the parties and gone through the available record
with their able assi stance. The learned counsel for the appellant at the very outset, attacked
the FIR while saying that same was lodged with inordinate delay and after inquiry hence same is of no legal value and substance. It is an admitted fact of the case that the complain ant namely Zarina is wife of accused/appellant Ghulam Nabi and deceased (Sehrish)
was their daughter. The alleged occurrence took place in the house of accused/appellant and complainant. On 16.07.2015 the complainant approached the police with her applicat ion. At
that time since dead body was already buried therefore she approached the learned Sessions Judge, Quetta, for exhumation of the grave of deceased (Sehrish) and after completion of procedural formalities post mortem of dead body of deceased (Sehrish) was conducted by PW-4 police surgeon in presence of police and Judicial Magistrate- III, Quetta, and thereafter
proper FIR was lodged. The above documents are sufficient to justify and explain the delay caused in registration of FIR. Even otherwise, the peculiar facts and circumstances of the case are self explanatory, with regard to delay in lodging the FIR and the defence could not succeed to prove any consultation, deliberation or premeditation on the part of the complainant to falsely charge the appell ant in the case. It is not possible in ordinary course or
even not appealable to the prudent mind that actual and real culprit is let of and instead an innocent person is charged. The appellant, complainant and deceased were residing in the
same house. Mor eover, the complainant was a Pardah observing lady, therefore, she did not
lodge report promptly. As regard the plea of delay in lodging of FIR, I 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 c annot 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 the 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 been to his disadvantage because spontaneous information shall a lso 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 purpose of the FIR is to set the criminal law in motion and to obt ain 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 othe rs 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) month in reporting the matter and the
complainant filed an application on next day of the occurrence i.e. 16.07.2015 and the police after formalities of the case lodged report after one month of the occurrence, but it is matter of record that such delay has not been advantagous to the complainant party, the complaina nt
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 party 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 particularly 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 Iq bal alias Nasra and another v. The State
2016 SCMR 2152 wherein it is held as under: -
"7…… The scrutiny 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 minutes 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 f alsely 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 -witnesses are natu ral and their 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 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.
The prosecution case primarily rests on ocular testimony of complainant/ PW -1
Zarina Bibi. PW -3 Rabia Bibi, medical evidence and other circumstantial evidence.
11. The complainant/PW -1 Zarina Bibi has consistently adhered to the prosecution
version word by word and fully supported the prosecution case giving all necessary details.
She has faithfully deposed what was witnessed by her and she stated that on 14.07.2015 at
about 7:00 p.m., when accused/appellant along with his brother came at home they saw a mobile charger and they became furious and start ed beating her daughter Sehrish (deceased)
aged about 14 years with fists, kicks and shoes. She and other children tried to rescue her but
both were mostly hitting Sehrish on the head with shoes due to which Sehrish (deceased)
became unconscious, however, after sometime she became conscious, but she remained
mum. She further stated in her statement that her husband and her brother -in-law did not
allow her to take Sehrish (deceased) to hospital. On the next day i.e. 15.07.2015 after Iftari
the condition of S ehrish (deceased) turned critical and they took her to BMC hospital Quetta
where duty doctor told that she has died, thereafter, her husband and brother -in-law with the
help of neighbour buried her on the same night at 4:00 a.m., at Essa Nagri graveyard. H er
version could not be impeached or shattered by the defense despite lengthy cross -
examination. She supported the contents of the FIR and also describing the role played by the accused/appellant in the commission of offence. PW -3 Rabia Bibi who is daughte r of the
accused/appellant corroborated the version of PW -1 in her statement and categorically
deposed that on 14.07.2015 her father had beaten Sehrish with his shoes on her head, that the accused/appellant and her uncle both caught hold of Sehrish with ha ir and started beating
with Almerah, where Sehrish remained lying all night. On next day in the evening at 5:00 p.m., her condition became critical and then her father and mother took her to hospital, where after a short, while her dead body was brought in ambulance.
12. A careful analysis of above deposition of PW -1 and PW -3 reveals that they had given
a detailed account of the incident by attributing the entire responsibility to the appellant in respect of giving fists and kicks injuries resulting in unna tural death of Sehrish on the day of
occurrence. They remained consistent and firm regarding their stance qua the role of the accused/appellant in perpetrating the alleged offence. During cross -examination, both the
above witnesses remained stuck to their stance and despite the lengthy cross -examination,
defence could not shake their confidence and nothing beneficial to the accused/ appellant could surface. In my considered opinion, they are independent, natural and trustworthy witnesses and there is no law ful justifiable cause to discard their statements. Further, I have
observed with concern that though PW -1 is wife of the accused/appellant and mother of the
deceased Sehrish and PW- 3 is daughter of the accused/appellant and sister of the deceased
Sehrish a nd they were having no motive to falsely implicate the accused/ appellant. Their
presence is established at the place of occurrence because the above PWs, accused and deceased were residing in the same house. In the circumstances of this case, they are mor e
important and reliable witnesses than any other could be.
13. It is further matter of record that medical evidence furnished by PW- 4 Dr. Ayesha
Faiz fully supports the ocular account with regard to death of the deceased as a result of blunt weapons injur ies and since the allegation against the accused/appellant is also that of
causing blunt weapon injuries to the deceased, therefore, it is quite safe to say that ocular account was fully supported by medical evidence. Further the cross -examination of the
Medical Officer by the defence counsel also could not create any doubt, which could have
favoured the accused or at least could have led to an inference that the medical evidence is not corroborating the ocular account, so furnished by the PW -1 and PW -3.
14. The reappraisal of entire prosecution evidence establishes the fact that the prosecution
has succeeded in proving the charge against the accused/ appellant through direct,
circumstantial and medical evidence. No major contradiction or dishonest improveme nt has
been pointed out by the learned defence counsel in the statement of prosecution witnesses. The learned trial Court has discussed and dilated upon each and every aspect of the case and
rightly sentenced the accused/ appellant.
The record reveals that the accused/appellant was not armed with any lethal weapon
at the time of occurrence. Had the accused had the intention to kill the deceased (Sehrish) his
real daughter he could have used some other blunt or sharp edged weapon to execute such intention. The deceased (Sehrish) was daughter of accused/ appellant and according to the prosecution witnesses the accused/appellant and absconding accused (brother of the accused/appellant) hit the deceased with fists and kicks.
15. At this juncture, it may be useful to reproduce the definition of Qatl -i-amd as
envisaged in section 300, P.P.C. and Qatl -i-Shibh -i-amd as contemplated by section 315,
P.P.C.: --
"Qatl -i-amd. Whoever, with the intention of causing death or with the intention of
causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit Qatl -i-amd.
Qatl-Shibh -i-amd. Whoever, with intent to cause harm to the body or mind of any
person causes the death of that or of any other person by means of a weapon or an act
which in the ordinary course of nature is not likely to cause death is sai d to commit
Qatl-Shibh -i-amd.
Illustration. A in order to cause hurt strikes Z with a stick or stone which in the ordinary course of nature is not likely to cause death. Z dies as a result of such hurt. A shall be guilty of Qatl Shibh- i-amd".
16. Bare reading of afore -quoted definition of Qatl -i-Shibh -i-Amd transpires that it takes
place when victim died with an instrument which is neither a weapon nor can be used as weapon. Therefore, the nature of instrument used in the occurrence is also an important factor to determine the intention of the accused.
17. It may be stated here that if an offender with the intention of causing death, or with
intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to c ause death, or with the knowledge that the act is so imminently
dangerous that it must in all probability cause death, causes death of such person is said to commit Qatl- i-amd. It may also be added here that where a person by doing anything which
he intend s or knows to be likely to cause death, causes death of any person whose death he
neither intends nor knows himself to be likely to cause, such an act committed by the offender shall be liable for Qatl -i-amd. The weapon used for commission of an offence ha s to
be considered for the purpose as an act with intention to cause harm to the body or mind of
any person resulting into his death by means of a weapon or the act which in the ordinary
course is not likely to cause death, does not constitute offence puni shable under section 302,
P.P.C., thus, it follows that intention is the primary consideration showing aim and objective of an offender.
18. In the present case the parties were closely related to each other. No evidence
showing serious dispute or enmity w as brought on record. There was no premeditation or
anything to show that the convict appellant was intended to committ the offence of Qatl -i-
amd, therefore, I am of the view that the case of the convict appellant does not fall under section 302(c), P.P.C., however, the same was covered by section 315, P.P.C. and punishment provided for the offence under section 316, P.P.C.
19. As said earlier that convict/ appellant was not liable for committing the offence of
Qatl-i-amd and conviction under section 302, P .P.C. was not warranted in the circumstances.
The case of the accused/appellant was covered by section 315, P.P.C. and punishment provided for the offence under section 316, P.P.C. is as under: -
"Punishment for Qatl Shibh -i-amd; whoever commits Qatl Shibh- i-amd shall liable to
diyat and may also be punished with imprisonment of either description for a term which may extend to fourteen years as Ta'zir".
In the light of the facts listed above by modifying the impugned judgment, the
accused/appellant Ghulam Nabi is convicted under section 316, P.P.C. The sentence of
appellant recorded by the learned trial Court i.e. ten (10) RI years and to pay compensation of Rs.1,00,000/ - (Rupees One Lac Only) to the mother of deceased (Sehrish) and in default
of payment t hereof to further undergo S.I. for six (06) months shall remain intact with benefit
of section 382- B, Cr.P.C.
The appeal is otherwise dismissed with the above modification in the impugned
judgment.
M.H./169/Bal. Order accordingly.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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