2021 Y L R 2041
[Balochistan]
Before Muhammad Kamran Khan Mulakhail, J
GUL MIR ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 198 and Murder Reference No. 6 of 2014, decided on 24th July, 2017*.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Sentence, reduction in ---Accused
was charged for committing murder of cousin of the complainant by shotgun fire ---Ocular
account of the incident had been furnished by five witnesses ---Occurrence, in t he present
case was reported by the complainant, who did not mention the motive of occurrence, it was
quite natural because complainant was not resident of vicinity and was on visit to the father of the accused ---Record showed that an altercation between children of both sides gave rise
to the altercation between their elders ---Said recent event might not be in the knowledge of
the complainant, on the other hand, two witnesses/brothers of the deceased were also living in the same boundary- wall and were part y to the altercation between the two families; thus,
said brothers of deceased being natural witnesses stated a true account and deposed in respect of very reason behind the murder of their brother ---Statements of witnesses recorded under
S.161, Cr.P.C. and their court statements clearly mentioned the motive behind the occurrence---Motive emerged through testimonies of independent witness could not be
termed as dishonest and improved version of the prosecution's case, but in fact brought a clearer picture b efore the court ---Crime weapon (shotgun) and an empty casing of a bullet
fired from said shotgun were not recovered ---Brother of deceased provided the names of
witnesses, who were gathered on the spot after the occurrence and their testimonies being indepe ndently corroborated by the other eye -witnesses of the occurrence were not only
reliable but being confidence inspiring were sufficient to record conviction against the accused ---Ocular account of the witnesses was corroborating each other on material poin ts
and the defence had failed to shatter their credence through any independent adverse evidence, being contrary to the case as set out by the prosecution--- Circumstances
established that the prosecution had successfully proved the charge of murder of the deceased against the accused beyond the shadow of any reasonable doubt; however, it could not be gathered from record that murder of the deceased was premeditated or was based on some previous motive between the parties ---Awarding death sentence to the accused would
be against the dictates of justice---Possibility of sudden provocation developed at the spur of the moment could not be ruled out ---Possibility could not be ruled out that due to altercation
between the parties, the deceased would have entered i nto the havaili of accused, and the
accused under the fear of injury or due to sudden provocation fired upon him ---Considering
said aspects of the matter as mitigating circumstances, capital punishment could not be
awarded to accused, therefore, sentence o f death awarded to accused was altered to that of
imprisonment for life ---Appeal was dismissed with said modification.
(b) Criminal trial ---
----Motive ---Scope ---Absence of motive was not always termed as fatal to the prosecution.
(c) Criminal trial ---
----Investigation---Duty of Investigating Officer --- Scope --- Any leverage or concession
extended to the accused, being lapses on the part of the investigating agency, would not be termed fatal to prosecution case---If said lapses were not materially affectin g the veracity and
credence of ocular account, they would be considered as immaterial.
(d) Criminal trial ---
----Recovery of weapon and crime empties ---Scope ---Recovery of crime weapon and empties
was not a mandatory requirement of law ---Same being circums tantial and/or corroboratory
piece of evidence only tends corroboration to the other pieces of evidence ---In absence of
corroborative evidence, particularly, in respect of incriminating articles, which are related to ancillary proceedings of the investigat ion, will have no direct impact upon the ocular
account, therefore, they will not be fatal to a credible direct evidence.
Imran Ashraf and 9 others v. The State 2001 SCMR 424 and Assadullah v.
Muhammad Ali and 5 others PLD 1971 SC 541 rel.
(e) Criminal tr ial---
----Site plan ---Scope ---Site plan was not a substantive part of evidence, but being a
corroboratory piece of evidence, was confirmatory in nature for lending support to an ocular account of the occurrence---Mere omission to mention the position of e ye-witness in a site -
plan was not fatal to the prosecution case.
Ali Sher v. The State PLD 1980 SC 317; Mehr Ali v. The State 1968 SCMR 161;
Sardar Khan v. The State 1998 SCMR 1823; Abdul Rauf v. The State 2003 SCMR 522 and Saleh Muhammad alias Hashim Mar ri v. The State 2013 PCr.LJ 692 rel.
(f) Criminal trial ---
----Evidence ---Ocular account and medical evidence---Conflict ---Effect ---In case of conflict
between the ocular account and medical evidence, the ocular account would prevail over the medical evid ence and same being confirmatory in nature would not affect the ocular account.
Iqbal alias Bhala v. The State 1994 SCMR 1 rel.
Manzoor Ahmed Rehmani and Rizwan Ali Soomro for Appellant (in Criminal Appeal
No. 198 of 2014).
Manzoor Ahmed Rehmani and Rizwan Ali Soomro for Respondent (in Murder
Reference No. 6 of 2014).
Yahya Khan, D.P.G. for the State.
Date of hearing: 17th July, 2017.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---I have gone through the
judgment authored by my learned brother Hon'ble Mr. Justice Naeem Akhtar Afghan. I, with
utmost respect for my brother and his view do not tend to agree therewith in view of well
settled principles of law as laid down by the Hon'ble Supreme Court and since they have a binding effect, the refore, any departure therefrom is not permissible. My reasons in this
behalf are as under:
The appellant has called in question the legality and validity of the judgment dated
16.07.2014 ("impugned judgment") passed by the learned Additional Sessions Judge, Kalat ("trial court") whereby he was convicted under section 302(b), P.P.C. and sentenced to death.
2. The prosecution case as gleaned from the report dated 15.01.2014 (Ex.P/1- A)
submitted by PW -1 Jan Muhammad is that he is resident of Killi Mehranzai and on fateful
day he came to Killi Shahnawaz and saw the appellant namely Gul Mir brawling with his
cousin Muhammad Azam, while the other people were trying to intervene between them the appellant was having a shotgun in his hand and Muhammad Azam was emp ty handed.
Meanwhile at about 2:50 pm the appellant murdered Muhammad Azam by means of shotgun fire, where after, the respective parties indulged into scuffle, in which Muhammad Ayub and Muhammad Gul both sons of Taj Muhammad were also injured. The appella nt after
committing the offence made his escape good. On the aforesaid report the FIR No. 01 of 2014 (Ex.P/7- A) was lodged with Levies Tehsildar, Mangochar under section 302, P.P.C.
3. After registration of the FIR, Munir Ahmed Mughal (PW -7). Tehsildar Man gochar,
proceeded to the place of occurrence and prepared the visual site plan of the crime scene, secured blood stained earth, compiled inquest report and dispatched the dead body to the Civil Hospital, Kalat. He recorded the statements of witnesses and o n 16.01.2014, arrested
the appellant. After completion of investigation, he submitted challan before the trial court against the appellant. The appellant denied the charge framed and read over to him by the trial court, where -after the prosecution produced the following witnesses to substantiate the
charge.
i) PW-1, Jan Muhammad/ comp- lainant appeared and iterated the contents of his
statement as already narrated in his report Ex.P/1 -A. In his cross -examination, he
deposed that the appellant was known to hi m prior to the occurrence; the deceased
was his paternal nephew; that he was sitting with the father of the appellant and after
having tea when he came out and was heading towards his house, meanwhile the
appellant and the deceased started brawling with ea ch other, on which he turned back
and saw the appellant, having a shot -gun, fired upon deceased Muhammad Azam,
who died on the spot; that people of the vicinity were gathered on the spot, when he proceeded to nearby levies station for reporting the occurre nce; that after reporting
the occurrence he went to his house. He deposed that Muhammad Ayub was also
injured. He identified the appellant before the court.
ii) PW-2, Abdul Qudoos appeared and deposed that at 2:50 p.m. the appellant murdered
the deceased M uhammad Azam by means of shotgun fire; that thereafter Tehsildar
came to the place of occurrence and secured blood stained earth and clothes of the
deceased. He was cited as witness to the recovery memo (Ex.P/2 -A) of the dead body,
recovery memo of blood s tained earth (Ex.P/2 -B), recovery memo of blood stained
clothes (Ex.P/2- C) and the entrustment receipt of the dead body (Ex.P/2- D). In his
cross -examination he further elaborated the details of the occurrence and denied the
suggestions put by the defense t hat he was not present on the spot nor he witnessed
the occurrence, however he voluntarily stated that his statement is based on his eye -
witness account.
iii) PW-3, Muhammad Ayub (brother of the deceased and paternal cousin of the
appellant) deposed that on the fateful day at about 2:15 pm he was at his home, that a day prior to the occurrence an altercation took place between the children. The next day again an altercation occurred between them when people were trying to intervene for patch up between the parties, meanwhile the appellant fired with shotgun upon Muhammad Azam on which he died on the spot; that he himself sustained minor injuries, and there -after the Tehsildar came and arrested the appellant. In his cross -
examination he deposed that he was al so injured and due to murder of his brother was
grief stricken, therefore did not remember the time of arrival of the Tehsildar; that at the time of arrival of Tehsildar. Abdul Qudoos, Noor Muhammad and other people were also present.
iv) PW-4, Muhammad G ul is also brother of the deceased Muhammad Azam. He deposed
that he was present on the spot when his brother Muhammad Azam came out and from the other side the appellant came and made fire with shotgun upon the deceased and murdered him due to altercation among the children. In his cross -examination
certain queries were posed to him to which he replied satisfactorily, however he could not tell the exact time of arrival of Tehsildar and denied the suggestion of the defense that the appellant did not make an y firing.
v) PW-5, Dr. Abdullah Jan appeared as medical witness and produced death certificate
Ex.P/5- A. He iterated the injuries noted by him at the time of examination of dead
body, which are as follows:
"1. Wound of Entrance: Three (03) wounds of entra nce in number on neck 1 cm.
These wounds are two to three cm each apart. These are oval in shape.
2. Wound of Exit: Three wounds in number and fracture mandibular bone and bullet crosses. The bone on both sides which also causes bleeding from ear and dama ge
brain and vital center brain..
Cause of Death
Damage vital organ brain.
Nature of injuries.
Grievous.
Type of arm used
Firearm."
He denied the suggestions of the defense with regard to nature of injuries. He denied
the suggestion that the injuries on the person of the deceased were caused by using cudgel (s).
vi) PW-6, Abdul Kabir also appeared as eye -witness and deposed that on the fateful day
on hearing noises he came out of his house and saw the appellant and the deceased scuffling, meanwhile the appellant made shotgun fire upon the deceased Muhammad Azam and murdered him. In his cross -examination he denied any relationship with
either of the parties. He also mentioned the presence of other witnesses on the spot. He denied the suggestion that he was not an eye -witness of the occurrence. He also
denied that he deposed against the appellant on the instance of PW -3, Muhammad
Ayub. He voluntarily stated that he deposed as an eye -witness of the occurrence.
vii) Finally, the statement of PW -7, M unir Ahmed Tehsildar/ Investigation Officer was
recorded. He produced the FIR Ex.P/7- A, site plan Ex.P/7 -B, application for handing
over the dead body of the deceased Ex.P/7- C, inquest report of the deceased compiled
under section 174, Cr.P.C. as Ex.P/7 -D, incomplete challan Ex.P/7 -E, FSL report
Ex.P/7- F and supplementary challan Ex.P/7- G. In cross -examination, he stated that
the place of occurrence was pointed out by the complainant; that he himself prepared the site plan; he denied the suggestion that the complainant was not accompanying
him. He admitted that according to the site plan fire was made by the appellant from the room. He confirmed the presence of complainant and other witnesses on the spot. He also denied the suggestion that the deceased was d one to death due to children's
altercation between his own relatives. He voluntarily stated that the deceased was murdered by the appellant by means of shotgun fire after altercation between them. He denied the suggestion that at the time of occurrence the appellant was not present
on the spot.
On completion of prosecution evidence the appellant was examined under section
342, Cr.P.C. in which he denied the allegation of committing murder of the deceased Muhammad Azam, however he neither entered into his defense nor produced any defense witness. On conclusion of trial the trial court convicted and sentenced the appellant in the above terms.
4. After hearing arguments of the parties and having gone through the record of the case,
the following discrepancies have been noted in the prosecution's case.
a) The motive part of the occurrence was not mentioned in the FIR, which was subsequently emerged on record through testimonies of PW -3 (Muhammad Ayub)
and PW -5 (Muhammad Gul) both brothers of the deceased. Thus, shall be termed as a
dishonest improved version of the prosecution case.
b) The crime weapon (shot -gun) and an empty casing of bullet fired, were not recovered.
c) The site plan was not drawn on pointation of the complainant.
d) The place, of securing bloo d stained earth was not mentioned in the site plan.
e) Site plan Ex.P/7 -B was silent about presence of the witnesses on the spot.
f) Injuries noted by the medical witness (PW -5) were not specifically narrated by the
prosecution witnesses.
g) The witnesses did not disclose that the murder took place inside the Hawaili.
h) Contrary to the site plan none of the prosecution witnesses deposed that the appellant
made fire from inside the room of his Hawaili and certain other contradictions with regard to time of arrival of Tehsildar and on spot ancillary proceedings conducted by him were also noted.
Keeping in view the afore noted discrepancies the point for determination in the instant case would be:
"whether on account of afore referred discrepancies in the prosecution case, the ocular account of the occurrence shall also be shattered or not?"
5. Before attending the aforesaid controversy, it is worthwhile to observe here that the
question of prime importance in the instant case would be that whether in absence of empty
shell of the shotgun and other flaws noted in the other corroboratory pieces of evidence, the
ocular account of the occurrence shall also lose its sanctity. The deceased was done to death in broad day light and despite depo sition of PW -3 and PW -4, the occurrence was also
witnessed by three other independent witnesses i.e. PW- 1 Jan Muhammad, PW -2 Abdul
Qudoos and PW -6 Abdul Kabir, while the appellant in his defense except simple denial did
not introduce any plausible specific plea. However, it was suggested by the defense to PW -1
and PW -2, that the deceased died due to scuffle between his own relatives. On the other hand
it was suggested to PW -6, Abdul Kabir and PW -7 Munir Ahmed, Tehsildar as well as to PW -
2, Muhammad Ayub tha t the appellant was not present on the spot at the time of occurrence.
The record shows that both the afore referred pleas were subsequently abandoned by the
defense, when the appellant neither entered into his defense by recording his statement on
oath as envisaged under section 340(2), Cr.P.C. nor produced any evidence in support of his
plea.
The testimonies of the witnesses show that the complainant was having tea with the
father of the appellant, when an altercation between the deceased and the appellant started.
PW-1/complainant was about to leave for his house when due to said altercation he returned
back. The people of the neighboring vicinity were also gathered on the spot, who were trying to intervene between the parties, meanwhile the appellant ma de fire with shotgun on the neck
of the deceased, which resulted into his death. The record shows that the deceased and the appellant were paternal cousins and were living within the common boundary wall in their respective Hawailis, when on account of alt ercation between the children prior to the
occurrence, the parties from both sides indulged into scuffle. Site plan Ex.P/7- B shows that
the deceased was standing in the courtyard on the appellant's side, when fire was made upon
him by the appellant from inside the room. PW -3 Muhammad Ayub and PW -4 Muhammad
Gul were real brothers of the deceased Muhammad Azam, while besides PW- 1, Jan
Muhammad, PW -2, Abdul Qudoos is also an eye -witness, who also stood witness to the
recovery memo of blood stained earth and bl ood stained clothes of the deceased coupled with
handing over of the dead body to his brother Muhammad Siddiq. PW -2 Abdul Qudoos was
not relative of the parties and being resident of the vicinity he stood witness to the occurrence and to the aforesaid incr iminating articles. While PW -6 Abdul Kabir was also not
relative of the parties and he too being resident of the vicinity stood as eye -witness of the
occurrence.
6. In order to resolve the controversy mentioned herein above, it is required to discuss
and a ttend the discrepancies noted here in above. It is evident from the record that the motive
part of the occurrence was not mentioned in the FIR, however it emerged subsequently on record through the testimonies of PW -2 (Muhammad Ayub) and PW -4 (Muhammad Gul )
both brothers of the deceased. Thus, whether the same can be termed as dishonest improved version of the prosecution case or otherwise, needs to be dilated upon.
The occurrence in the instant case was reported by the complainant (PW -1), who did
not ment ion the motive of occurrence, it was quite natural because PW- 1 was not resident of
vicinity and was on visit to the father of the appellant. He also stated that the deceased was his maternal nephew, the appellant and deceased were living in two separate h ouses within
one boundary- wall. An altercation between children of both sides gave rise to the altercation
between their respective elders. Thus, this very recent event might not be in the knowledge
of the complainant who admittedly was not resident of the locality. On the other hand, PW -3
and PW -4, in spite of being brothers of the deceased were also living in the same boundary-
wall and were a party to the altercation between the two families. Therefore, they being natural witnesses stated a true account a nd deposed in respect of very reason behind the
sorrowful murder of their brother. The defense side at one occasion, opted an option and suggested to the prosecution witness that the deceased was died due to scuffle between his (the deceased's) own relativ es, but by admitting that a scuffle took place due to the
altercation between the children, in fact, the defense admitted the motive part, because at later stage, this defense was not attended or reiterated nor the unnatural death of the deceased followed by altercation with the appellant was denied, which was adequately witnessed by
the independent witnesses.
Needless to observe that absence of motive is not always termed as fatal to the
prosecution. However, in the instant case the statement of witnesses recorded under section
161, Cr.P.C. and their court statements, clearly mention the motive behind the occurrence. Thus, for these added reasons motive emerged through testimonies of independent witness cannot be termed as dishonest and improved version of the prosecution's case, but in fact
brought a clearer picture before the court.
7. The crime weapon (shotgun) and an empty casing of a bullet fired from said shotgun
were not recovered. Though it was an imminent duty of the investigation officer to give
necessary details about afore- referred recovery (ies), but his conduct was well evident, when
he being totally oblivious about the pre -requisites of preliminaries of investigation,
intentionally or with obliviousness, left numerous lacunas in his case, whic h appears that he
in sheer violation of law, conducted the investigation in very lethargic and abysmal manner
and therefore, left no stone unturned to destroy his own case. But despite his highly
deprecated attitude, it is by now well settled that intentio nally or otherwise, any leverage or
concession extended to the accused, being lapses on the part of investigating agency shall not
be termed fatal to its own case, and if they were not materially affecting the veracity and credence of ocular account, they will be considered as immaterial. The rule of prudence depicts that recovery of crime -weapon and empties is not a mandatory requirement of law,
same being circumstantial and/or corroboratory piece of evidence, only tends corroboration to the other pieces of evidence, it accumulates that absence of such corroborative evidence, particularly, in respect of those incriminating articles, which are related to ancillary proceedings of the investigation, would have no direct impact upon the ocular account, therefor e, they would not be fatal to a credible direct evidence.
8. The Hon'ble Apex court while dealing with an identical proposition in "Imran Ashraf
and 9 others v. The State" (2001 SCMR 424) adopted a similar line as laid down in the case of "Assadullah v. Muhammad Ali and 5 others" (PLD 1971 SC 541) and held as under:
"47. It is to be noted that as far as the recovery of incriminating articles are concerned they are used for the purpose of providing corroboration to the ocular testimony and to reach at a just conclusion, therefore, both the Ocular evidence and recoveries are to be considered simultaneously as it has been held by this Court in the case of Asadullah v. Muhammad Ali and 5 others (PLD 1971 SC 541). Relevant para is reproduced her einbelow:
"The learned Judges further fell in error in isolating the ocular evidence furnished by Mst. Rajan and Mst. Munawar Bibi from the corroborative evidence comprising of the incriminating recoveries to which reference has been made earlier. The learned Judges in the first instance rejected the evidence of Mst. Rajan and Mst. Munawar and then proceeded to rule out the corroborative evidence on the ground that it did not connect the accused persons with the crime 'more particularly as the entire ocular evidence had been disbelieved'. The object of corroborative evidence is to test the veracity of the ocular evidence. Both have, therefore, to be read together and not in isolation as the learned Judges did in the instant case. Indeed it would be anomalou s
to hold that the ocular evidence should be appraised on its own merits without reference to the corroborative evidence. What would then be the use of corroborative evidence which cannot by itself be basis of conviction. The view formed by the learned Jud ges that the evidence of recoveries did not connect the accused persons
with the crime was, therefore, plainly fallacious."
It is also a known principle of criminal administration of justice that if the ocular testimony suffers from material discrepancies and for the, reasons more than one it
has lost its intrinsic value then the corroborative evidence namely recovery of crime weapons, medical evidence etc. cannot be used to corroborate the ocular testimony as held in the case of Dhunda v. The Crown (ILR 1 6 Lahore 995)"
The record depicts that in his report (Ex.P/1- A) the comp -lainant mentioned that:
PW-3 Muhammad Ayub in his examination- in-chief deposed that:
PW-4 Muhammad Gul was silent about the arrest of the appellant and stated that:
PW-7 Muneer Ahmed, Tehsildar/ Investigating Officer in his statement on oath stated
that:
It is worthwhile to mention here that keeping in view today's scientific age the science
of rifle/shotgun has become a parlance of everyday science. A .12 bore double barrel or
single barrel shotgun is ordinarily used by the hunters for hunting purposes with different
configurations of pallets filled in its cartridge/bullet. The science of hunting provides the usage of different cartridges/bullets having different sizes of pellets filled therein, which are advised to be used according to nature of the prey. The shotgun does not eject the empty casing without bolting it for reloading or without opening its barrel after firing a shot. In the instant case in view of testimonies of the witnesses that Tehsildar/Investigating officer reached the spot within an hour but had failed to recover the crime weapon (shotgun), therefore, recovery of empty casing was absolutely impossible because in any case whether single or double barrel shotgun, the empty casing would not have ejected unless bolted for
reloading. Irrespective of this aspect of the case in view of dictum laid down by the Hon'ble Apex Court in Imran Ashraf's case supra recovery of incriminating articles is used for purpose of providing corroboration to the ocular testimony, therefore the ocular evidence and recovery of incriminating articles are to be considered simultaneously in order to reach the just conclusion.
Needless to mention here that an uncorroborated ocular account if no t supported by
independent evidence shall in no case be relied upon on basis of recovery of incriminating
articles. Thus, the effect of absence of incriminating article can also be treated vice- versa
and, in any case, if the same was not recovered or secur ed due to lapses on the part of the
investigating agency, same shall not overweigh the ocular account.
9. It is another admitted feature of the case in hand that the site plan was not drawn on
pointation of the complainant. It is by now well settled in vie w of dictum laid down by the
Hon'ble Apex Court that site plane is not a substantive part of evidence, but being corroboratory piece of evidence, is confirmatory in nature for lending support to an ocular account of the occurrence, therefore mere omission to mention the position of eye -witness in
a site -plan is not fatal to the prosecution case. The Hon'ble Supreme Court while rendering a
view in "Ali Sher v. The State" (PLD 1980 SC 317) relied upon a law laid down by the Hon'ble Court in "Mehr Ali v. The S tate" (1968 SCMR 161) and held as under:
".... The mere omission of the position of the prosecution witnesses in the site plan cannot per se lead to an irresistible inference that the witnesses were not present, when it is found that the presence of the w itnesses at the time of the incident and at
the place indicated would be natural in the circumstances."
The Hon'ble Supreme Court in the case of "Sardar Khan v. The State" (1998 SCMR
1823) after discussing and referring various precedents in respect of si te plan held that.
"20. The learned counsel next contended that in the site plan prepared in the case at
the instance of police only presence of 4 accused who took part in the firing was mentioned while in the evidence belbre the Court the eye - witnesses implicated 6
accused. Therefore, the eye- witnesses were contradicted by the site plan, Exh. P.A. It
is true that in the site plan the draftsman had shown presence of only 4 accused at point No.4 from where the accused fired at the deceased. The site plans are, however, prepared only to explain or to appreciate the evidence on record in the case. Site Plan by itself is not a substantive piece of evidence so that it could contradict the ocular account in the case (See Taj Muhammad v. Muhammad Yusuf PLD 1976 S C 234 and
Mst. Shamim Akhtar v. Faiz Akhtar PLD 1992 SC 211). We are, therefore, of the view that omission to mention in the site plan, Exh. PA, the names of all the accused, could not take away the probative force of the ocular testimony in the case.
The Hon'ble Supreme Court of Pakistan in another judgment rendered in the case of
"Abdul Rauf v. The State" (2003 SCMR 522) laid down the law for appreciation of evidence whereby it was held that site plan is not a substantive document to be used to contradic t the
ocular account and cannot be given preference over the direct evidence of the eye -witness.
The testimony of witnesses reveal that they were not fully aware about the consequence of
omissions and of their failure to give complete detail of the occurre nce. It is by now well
settled that eye -witnesses are not supposed to give photo picture of each detail of the
occurrence in such a manner where there statement will also corroborate with other
corroboratory pieces of evidence, and therefore the site plan is not a substantive document to be overweighed to defeat the ocular account.
A Division Bench of this court in a reported judgment passed in "Saleh
Muhammad alias Hashim Marri v. The State" (2013 PCr.LJ 692) followed a similar line as
laid down in A li Sher's case (PLD 1980 SC 317) supra.
10. It is observed that the place of securing blood -stained earth is not mentioned in the
site plan (Ex.P/7 -B) and it was silent about presence of witnesses on the spot. The answer to
these discrepancies have already been discussed herein above. However, at the cost of
repetition it is worthwhile to add here that though the place of securing the blood stained earth was not mentioned in the site plan Ex.P/7 -B, but the said piece of evidence being
corroboratory in natur e, if not properly explained, will not affect the ocular account. Initially
for being corroboratory in nature and secondly for the reason that the defense has neither disputed the unnatural death of the deceased nor disputed the place of occurrence. This f act
was brought on record through testimonies of the witnesses that the appellant and the deceased were living within the common boundary wall in their separate houses, therefore, for this added reason by not mentioning the place of securing the blood stai ned earth, it was
not fatal to the prosecution case. Reference in this behalf is placed on Imran Ashraf's case supra.
The question with regard to silence of the witnesses about presence of each other at
the time of occurrence cannot be termed that either the witnesses were not present on the spot or any one of them was planted subsequently being interested and inimical to the appellant. In my considered view, the afore referred analogy will not import the correct law: In the
peculiar circumstances of the i nstant case PW- 3 and PW -4, out of five eye -witnesses
produced by the prosecution were brothers of the deceased. PW -3 and PW -4 were residing
with the deceased in a jointly owned house within the common boundary wall with the
appellant, therefore, their pres ence on the spot was quite natural and their testimony cannot
be discarded by declaring them interested witnesses. PW- 3 and PW -4, also received minor
injuries in the scuffle, which took place after the sad demise of their brother Muhammad
Azam. But in repl y to a question put by the defense with regard to the time of arrival of
Tehsildar and on spot ancillary proceedings conducted by him, they stated that on account of
death of their brother they were grief -stricken. Thus, it is entirely possible that due to minor
nature of injuries they did not feel it necessary to go to the doctor and to get themselves examined for strengthening their brother's murder case. As it has also been discussed herein above that witnesses are not supposed to give a photo picture of the occurrence, while in
view of prevailing ratio of illiteracy, one of the witnesses (PW -1/complainant) even stated
that "he was unable to read the time". therefore, they cannot be expected to elaborate the minute details of the occurrence and the procee dings taken place there -after. However, in
cross -examination PW -3 provided the names of witnesses, who were gathered on the spot
after the occurrence and their testimonies being independently corroborated by the other eye -
witnesses of the occurrence i.e. ( PW1, PW -2 and PW -5) were not only reliable but being
confidence inspiring were sufficient to record conviction against the appellant.
11. The injuries noted by the medical witness PW- 5, were though not specifically
narrated by the prosecution witnesses but it was fully corroborated by the medical witness
(PW -5) who clearly provided the details of nature of injuries. The witness deposed that the
deceased Muhammad Azam received a gun shot on frontal area of his neck and died on the spot. The medical witness according to his clinical observation noted three wounds of
entrance with exit from back side of the neck, which resulted into fracture of mandibular bone and "bullet crossed the bone of both sides which also causes bleeding from the ear and damage [sic]brain and vital center brain".
In view of testimonies of ocular witnesses a shotgun was used during the commission
of crime, therefore if the bullet of high caliber having pellets of bigger density was used from a close range, then the said pellets would cau se a gutter wound inverted from outside to
inside, which will ultimately cause the fracture of bones. Thus, it can be held with clarity that the ocular account was fully corroborated by the medical evidence. However, it may not be out of place to observe here that in case of conflict between the ocular account and medical evidence, the ocular account shall prevail over the medical evidence, and same being confirmatory in nature shall not affect the ocular account. The ocular account of the witnesses having blood relation with the deceased shall not be doubted in respect of its credible nature. The Hon'ble Supreme Court in a judgment rendered in the case of "Iqbal alias Bhala v. The State" (1994 SCMR 1) held that "the interested witness is one who has a motiv e for falsely implicating the accused, is a partisan and is involved in the matter against
the accused. Friendship, or relationship with the deceased will not be sufficient to discredit the witness particularly when there is no motive to falsely involve th e accused".
12. The principle for accepting the testimony of even an interested witness are set out in
"Nazeer v. The State" (PLD 1962 SC 269). It may also be kept in mind that the deceased and
appellant were paternal cousins and residents of two adjacent houses within the common
boundary wall. It is not acceptable to the prudent mind that PW -3 and PW -4, whose
testimonies were fully corroborated by the independent eye -witnesses of the occurrence,
were lying and had substituted the original perpetrators of t he crime by falsely dragging and
attributing the role of murder to the appellant, who was also their paternal cousin.
Moreover, it cannot be resolved in affirmative that the false implication of the
appellant was supported by PW -1, PW -2 and PW -3 for no va lid reasons and without
establishing their interestedness and malice followed by any animus on their part against the appellant. Thus, it can safely be concluded that the ocular account of the witnesses was corroborating each other on material points and t he defense has failed to shatter their
credence through any independent adverse evidence, being contrary to the case as set out by the prosecution.
13. The discrepancies with regard to failure of the witnesses to disclose that the murder
took place inside the Hawaili and certain other contradictions with regard to time of arrival
of Tehsildar and on spot ancillary proceedings conducted by him. It is to be noted here that PW-3 and PW -4, in their statements recorded under section 161, Cr.P.C. clearly s tated that
the murder of their brother took place inside the Hawaili, therefore, it cannot be held that same was not disclosed by the prosecution witnesses, and therefore, their testimonies are liable to be brushed aside on account of intentionally suppres sing the material facts.
The principle of suppressing of material fact and its cumulative effect was also
discussed by the Hon'ble Supreme Court in the case of "Muhammad Ali v Muhammad Yaqoob and 3 others" (1998 SCMR 1814) and it is instructive to reproduce the relevant
passage there- from, which states:
"where there is an obligation to speak the failure to speak will constitute, suppression of fact; but, where there is no obligation to speak, silence cannot be termed as 'suppression', thus for the reason that there are material suppression of the stated facts could not possibly he made a basis for rejecting the prosecution case. "
In the instant case no such suppression of material fact was brought on record as the
witnesses in their statements recorded under Section 161 Cr.P.C. as well as in their statement recorded on oath before the court deposed that the "deceased came out from his Hawaili and was standing in the courtyard of the appellant's portion, the appellant made fire upon him". By not mentioning the fact with regard to making fire from inside the room by the appellant
also did not materially affect the ocular account.
14. This notion would not be appropriate for placing reliance to discuss the eye -witness
account in view of dictum laid down by the Hon'ble Supreme Court of Pakistan in judgment supra (Muhammad Ali's case). The presumption that the prosecution witnesses by not disclosing the exact place of firing had in fact suppressed the material facts, which being dishonest omission caused a prejudice to the appellant, therefore, said discrepancy would discredit the whole prosecution's case. The question of suppressing material facts will not arise with regard to exact place of firing in view of admitted altercation between the children followed by another altercation between respective elders, resulted into unnatural death of
the deceased by means of shotgun fire, confirmed by medical witness, corroborated by
incriminating articles, supported by site plan, inquest report coupled with recovery memos of
blood- stained earth and blood- stained clothes of the deceased and witnessed by the
independent eye -witnesses altogether lead to infer that neither any material facts were
suppressed nor any omission was made to cause any prejudice to the appellant. Nee dless to
mention here that defense had not disputed any of the afore referred aspects of the case, nor
for that matter or to disprove the same, introduced any plausible defense nor suggested any
ill-will, malice and interestedness to the witnesses for his false implication. Thus, it
concludes that by not disclosing the exact place of firing the prosecution witnesses did not suppress any material facts, therefore caused no prejudice to the appellant.
15. Last but not the least, the minor discrepancies in the testimonies of the prosecution
witnesses in respect of exact timing of post murder ancillary proceedings and omission or improvements (if any) cannot be termed as dishonest without establishing interestedness or malice of the witnesses against the a ppellant. It is by now well settled that only those
contradictions will be considered as fatal to the prosecution case, which materially affect the ocular account and the said contradictions if reconciled bring an entirely different picture inverse to the ocular account, then the same can be considered as damaging to the
prosecution case or as the case may be in respect of dishonest improvement (s) or mission (s). This court wile adopting the similar line in a reported judgment in the case of "Manzoor Hussa in alias Mama v. The State" (2014 PCr.LJ 744) followed the dictum laid down by the
Hon'ble Supreme Court in the case of "Sarfaraz alias Sappi v. The State" (2000 SCMR 1758) and held as under:
9. The learned counsel for the appellant has also contended tha t the contradictions in
the testimonies of prosecution witnesses shall necessarily be resolved in favour of the
defence. I am in agreement with the learned counsel for the appellant/ convict to the extent of the proposition that contradic -tions in the statements of prosecution
witnesses are always fatal to the prosecution case. But irrespective of veracity of the defence version, a distinction is always to be made between minor inconsistencies or variance in the testimony of witness from the contradiction i n the evidence. Only such
statement shall be termed as contradictory, which are either destructive of each other or they are totally different to the extent that two versions cannot be reconciled. Such contradiction shall always lead to the benefit of defe nce, however, the variance of
testimony of witnesses or inconsistencies on the point shall not lead to such conclusion, which are not material in nature and do not introduce or suggest a totally different version to the prosecution case. The minor discrepancies in the instant case are not of such nature which could bring the case within the exception supra. In rendering this view I am supported by the reported judgment of Hon'ble apex Court Sarfaraz alias Sappi v. The Stale 2000 SCMR 1758. Relevant passage whereof is reproduced hereunder: --
"In the cross -examination of both the P. Ws. i.e. Ahmed Khan and Sakhawat Hussain
their above version was not shaken at all inasmuch as concerning the incriminating portion of their testimonies there was no sufficient im peachment. Resul -tantly, we
have to form a positive opinion that incriminating portion of the evidence is consistent, coherent, trust worthy as well as natural i.e. free from any exaggeration.
However, we may mention here that if in cross -examination intri nsic value of
incriminating evidence of a witness has not been shaken his statement cannot be
discarded for minor contradictions reference may he made to the case of Mushtaq alias Shaman v. The State PLD 1995 SC 46".
Since no such material contradic -tions , omission or dishonest improve -ments has been
observed, therefore, minor discrepancies or contradictions do not affect the merits of the case being not worthy of any prime importance.
16. The cumulative effect of the above discussion and in the light of precedents laid down
by the Hon'ble Supreme Court, it can safely be concluded that "on account of the referred to discrepancies in the prosecution case, the ocular account of the occurrence shall not be shattered" and it brings me to irresistible conclusion that the prosecution has successfully
proved the charge of murder of the deceased Muhammad Azam against the appellant beyond the shadow of any reasonable doubt.
17. After concluding the guilt of the appellant in affirmative, the next question for the
court would be the quantum of sentence awarded to the appellant. Though the prosecution
case was initially silent about the motive behind the occurrence but the testimonies of the prosecution witnesses transpire that the parties being paternal cousins were at loggerhead due to altercation between the children. It was also come on record that during the altercation the neighboring inhabitants of the vicinity also intervened for amicable settlement between the parties. It cannot be gathered from the record that m urder of the deceases was premeditated
or was based on some previous motive between the parties, therefore awarding death sentence to the appellant would be against the dictates of justice when the possibility of sudden provocation developed at the spur of the moment cannot be ruled out. It is entirely
possible that due to altercation between the parties, the deceased entered into his cousin's Hawaili, and the appellant under the fear of injury or due to sudden provocation fired upon him, therefore while de ciding the quantum of sentence benefit of doubt can safely be
extended in favour of the appellant, considering these aspects of the matter as mitigating circumstances on basis whereof capital punishment could not be awarded to him. Under such circumstances while upholding the conviction recorded against the appellant under section
302(b), P.P.C. his sentence of death is altered to that of imprisonment for life with fine of Rs. 200,000/ - (rupees two hundred thousand) to be paid as compensation to the legal heirs of the
deceased Muhammad Azam as envisaged under section 544 -A, Cr.P.C. or in case of default
shall further suffer simple imprisonment for one year. While the benefit under section 382- B,
Cr.P.C. is also extended in favour of the appellant.
With the above modification in the quantum of sentence of the appellant this appeal is
otherwise dismissed on merits. While, the Murder Reference No.6 of 2014 forwarded by the trial Court is answered in negative.
JK/151/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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