2023 Y L R 1988
[Balochistan]
Before Muhammad Ejaz Swati and Sardar Ahmed Haleemi, JJ
WAQAS MASIH alias SANWAL ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 246 of 2022, decided on 2nd November, 2022.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 336- B---Qatl -i-amd, hurt caused by corrosive substance ---Appreciation of
evidence--- Medical evidence corroborating prosecution case ---Accused was charged for
committing murder of the son of complainant by sprinkling acid on him, which resulted into
burning of his face, chest and legs and later on he succumbed to his injuries ---Medical
evidence so produced by the prosecution established the unnatural death of deceased, who
was injured due to sprinkling of acid and he remained under treatment at Burn Ward of
hospital and succumbed to the injuries after five months and 21- days ---Medical evidence
also confirmed the receipt of acid burn injuries by the mother of the accused---Defence did
not dispute the unnatural death of the deceased, but pleaded his false implication---Besides,
the report of Forensic Science Agency also confirmed the identity of acid in the recovered bottle and on the clothes of the deceased ---Appeal against conviction was dismissed
accordingly.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b) & 336- B---Qatl -i-amd, hurt caused by corrosive substance ---Appreciation of
evidence--- Accused was charged for committing murder of the son of complainant by
sprinkling acid on him, which resulted into burning of his face, chest and legs and later on he
succumbed to his injuries ---Criminal law was brought into motion by the father of the
deceased, who fully corroborated his earlier statement as contained in his fard- e-bayan--- Said
witness in his Court statement narrated the whole story with re gard to the receipt of acid burn
injuries disclosing the facts involved behind the incident by his deceased son, who was
injured at the relevant time ---Though complainant was not an eye -witness of the incident, but
he narrated that story, which was deposed to him by the then injured son, which was further
corroborated by the statements of eye -witness and Medical Officer, which fact had further
been strengthened by the statement of the real mother of accused, who in her statement under S. 161, Cr.P.C., depos ed that on the fateful day, she was taking rest in the lower floor, and on
hearing hue and cry on the roof, she went there and saw that her son/accused and deceased were quarreling with each other and some acid also got sprinkled on her ---Bottle of the acid
was in the hand of accused and due to sprinkling of acid accused and deceased became injured---Accused stopped after seeing his mother, but deceased and his companion/eye -
witness escaped ---Mother of accused had shown her ignorance about the incident with
respect to the reason due to which they were quarreling---However, mother of accused was
dropped and was not produced as a witness ---Thus, a question arose in a prudent mind that
since the said witness was the real mother of the accused and due to love and affection, she might have refused to give a statement against her real son ---Thus, non -production of such
witness in the Court would not affect the case of the prosecution ---Appeal against conviction
was dismissed accordingly.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b) & 336- B---Qaun -e-Shahadat (10 of 1984), Art. 46---Qatl -i-amd, hurt caused by
corrosive sub- stance--- Appreciation of evidence ---Dying declaration ---Scope ---Accused was
charged for committing murder of the son of complainant by sprinkling acid on him, which resulted into burning of his face, chest and legs and later on he succumbed to his injuries ---
Deceased succumbed to the injuries prior to recording his statement before the Trial Court, however, the fact remained that the statement recorded by the deceased fully supported the prosecution version and named the accused as the real culprit, who threw acid upon his person--- Medical evidence and the other facts and circumstances of the case would suggest
that the deceased was severely injured, but he was in his senses to record such a statement before the Investigating Officer ---Thus, under the settled norms of justice, the statement of
the deceased was rightly declared as a dying declaration ---Even otherwise, the most
important evidence on such behalf was the medical evidence recorded by Medical Officer, who brought nothing on record that the deceased during his surviving period was not in his senses or he could not have recorded his statement before the police ---Dying declaration
recorded by the deceased was in simple words, wherein the deceased implicated the accused with specific role which had been proved by the prosecution through direct, ocular and
medical evidence---Thus, no lawful justification was found whatsoever to disbelieve dying declaration of deceased ---Appeal against conviction was dismissed accordingly.
Zafar Iqbal alias Shahid v. The State PLD 2004 SC 367 and Muhammad Ahsan alias
Aksan v. The State PLD 2006 SC 163 rel.
(d) Qanun -e-Shahadat (10 of 1984) ---
----Art. 46---Dying declaration--- Scope ---Dying person would never make an attempt to
conceal the truth or make an attempt to save those, who had brought him to bed of death---Sacredness and purity are always attached to a dying declaration because it is supposed that when a dying person was face to face with death, he would like to make peace with Al -
Mighty Allah and it is not expected that he tells lies ---Dying declaration is always treated as
very strong piece of evidence; such type of evidence needs no further corroboration by any other evidence ---Thus, without looking for any independent witness, the sole statement of the
deceased being his dying declaration is enough to establish the guilt of the accused.
Naimat Ali v. The State 1981 SCMR 61 and Farmullah v. Qadeem Khan 2001 SCMR
1474 rel.
(e) Penal Code (XLV of 1860)---
----Ss. 302(b) & 336- B---Qaun -e-Shahadat (10 of 1984), Art. 46---Qatl -i-amd, hurt caused by
corrosive substance ---Appreciation of evidence ---Defence plea--- Scope ---Accused was
charged for committing murder of the son of complainant by sprinkling acid on him, which
resulted into burning of his face, chest and legs and later on he succumbed to his injuries ---In
the present case, one person appeared as defence witness and while deposing diverted the
angle of the prosecution story, which was narrated by the accused in his statement under S.
340(2), Cr.P.C.---According to the statements of accused and defence witness the acid was
sprinkled on deceased and he was seriously injured and defence witness took them to hospital and while leaving them on the main gate, he went from there ---Keeping their
statements in juxtaposition with the medical evidence and the statement of mother of accused, recorded under S.161, Cr.P.C, which did not corroborate their version, as such, their statements could not be believed ---Nothing on record was available to show any previous
enmity between the accused and complainant except the allegation that the then injured used to talk to his sister -in-law on mobile, which allegation was refuted by the then injured and
despite that, the accused threw acid on the deceased ---Appeal against conviction was
dismissed accordingly.
Abdul Wahid v. The State 2003 SCMR 668 and Noor Khan v. The State 1996 PCr.LJ
790 rel.
Abdul Sattar Kakar and Faiz Ahmed for Appellant.
Ms. Noor Jahan Kahoor, Additional P.G. for the State.
Sohail Ahmed Rajput for the Complainant.
Date of hearing: 18th October, 2022.
JUDGMENT
SARDAR AHMAD HALEEMI, J. ---This appeal is directed against the judgment
dated 11th May 2022 ("the impugned judgment") passed by learned Special Judge, Anti -
Terrorism Court -I, Quetta ("the trial Court"), whereby the appellant was convicted under
section 336- B read with Sections 300 and 302 (b) P.P.C. and sentenced to suffer
imprisonment for life as Tazir.
2. Facts of the case are that on 17th May 2021, the complainant Jameel Bashir, lodged
an FIR No. 107 of 2021, at Police Station, Brewery, Quetta, under Section 336 -B, P.P.C.
with the allegations that on the day of occurrence, he was present in his house, when at about 05.00 p.m. on knocking at the door, he came out and found his son Harrison in injured condition boarded in a Rickshaw, who was an electrician by profession, besides he also found present his neighbor Shah Mir. On query, his son disclosed that today appellant Waqas alias Sanwal approached him for some electrician work at his house, thus he along with Shah Mir accompanied Waqas to his house, whereafter completion of necessary work, at about 4:30 p.m. Waqas took them to the top floor and no sooner they reached the roof, Waqas locked the door of boundary wall and enquired that as to why he called his sister -in-law, who
is in Punjab, to which he refused, but he slapped him and took a bottle of acid with a warning
to utter truly otherwise he would sprinkle acid on him, hence he again refuted, due to which the appellant became annoyed and he threw acid on him, which resulted into burning of his face, chest, and legs. At this juncture, Harrison Masih pushed off Waqas and tried to flee, but the appellant sprinkled the remaining acid behind him. Thereafter, the complainant took his
son to Bolan Medical Complex (BMC), Quetta.
3. The appellant was arrested and after the usual investigation challan was submitted
before the trial Court whereafter five months of the incident, the injured could not recover
and died, as such Section 302, P.P.C. was also inserted and subsequently, challan was submitted before the trial Court and the charge against the appellant was framed, to which he pleaded not guilty and claimed trial.
4. The prosecution examined as many as six (06) witnesses; after completion of
prosecution evidence, the statement of the appellant was recorded under section 342, Cr.P.C., wherein he denied the allegations. He also recorded his statement on oath as envisaged under Section 340(2), Cr.P.C., and produced one Mubeen Bugti as a witness in his defence. On conclusion of the trial and after hearing arguments, the appellant was convicted and sentenced as mentioned above in para No. 1. Whereafter, instant appeal has been filed.
5. Learned counsel for the appellant contended that the impugned judgment passed by
the trial Court is based upon mis -reading, mis -appreciation and non- appreciation of evidence;
that the trial Court has failed to take into consideration the material contradictions, additions, and omission in the statements of prosecution witnesses and benefit whereof favoured the appellant, which has not been extended to him, thus the impugned judgment is liable to be set
aside; that there is no eye -witness of the incident to connect the appellant in the alleged
commission of offence, as such conviction of the appellant is only based on presumptions, which under the law is unwarranted; that rather Harrison Masih came at the house of the appellant and sprinkled acid on the appellant and in such scenarios injured his mother and daughter; that the defence so taken and established by the appellant was not considered by the learned trial Court, which resulted into miscarriage of justice.
6. On the other hand, the learned Additional Prosecution General assisted by the learned
counsel for the complainant opposed the contention of the learned counsel for the appellant and supported the impugned judgment and contended that the appellant has rightly been convicted and sentenced by the trial Court, as he has sprinkled acid on the victim, due to which, his face, chest and legs burnt; that the trial Court after attending all the material available on record has passed a well -reasoned judgment, which is not open to any exception,
thus same is liable to be sustained.
7. Heard the learned counsel for the parties and perused the record with their able
assistance. Perusal of record reveals that the prosecution in order to establish the charge has produced the evidence of six witnesses. Minute scrutiny whereof would justify the impugned judgment of conviction passed by the learned trial Court. Before dilating upon the ocular and circumstantial evidence, it would be more advantageous to first discuss the medical evidence. It has been observed that on 17th May 2021 an untoward i ncident was taken place, which
was witnessed by PW -3 Shah Mir, who narrated the same story as stated by the complainant
PW- 1 Jameel Bashir (the father of the then injured) Harrison Masih, who as per record, was
told by the then injured while taking him to the hospital. Their statements were further
corroborated by PW -4 Dr. Ali Mardan Mengal, who examined the injured and found the
following injuries on his person followed by initial MLC:
History of Acid Burn Vitrolage
1. Brought in serious condition with 70% body burnt due to acid including his face,
neck, chest, arms and abdomen.
2. Emergency treatment was given and referred to Burn ICU from where, he was shifted to Karachi Burn Center, Center, Civil Hospital, Karachi (discharged on 08- 06-
2021, at 03:30 p.m).
3. Reports: complete damage of right ear (external ear) and right eye completely damaged (helper eye hospital report)
4. Injuries are fresh in nature caused by acid and grievous in nature.
PW-4 also examined Waqas Alam and Musarat w/o Sanwar on the same date, who
also received injuries in the incident due to acid, which are as under:
Injuries of Waqas Alam
1. Well oriented with time and space and person,
2. Mentally and physically healthy,
3. Superficial acid burn marks were seen on his right side cheek, forehead, nose, chin, eyelid, neck, and ear.
Referred to bur ICU for treatment.
Duration
Fresh
Caused by acid
Nature
Grievous
Injuries of Musarat w/o Sanawar:
1. Well oriented with time and space and person,
2. Mentally and physically healthy,
3. Superficial acid burn marks on her right forehead, chin, face, and neck.
Treatment was given and discharged.
Duration
Fresh
Caused by acid.
8. Apart from the above, the case of prosecution has further been corroborated by the
report of Punjab Forensic Science Agency Ex.P/6- F, perusal whereof shows that the said
bottle containing acid along with burnt clothes of the deceased were sent to PFSA for
analysis, which was examined and it was confirmed that acid (Sulfuric Acid) was identified in items 1 and item 2.
9. The medical evidence so produced by the prosecution establishes the unnatural death
of deceased Harrison, who was injured due to sprinkling of acid and the appellant remained under treatment at Burn Ward of BMC and succumbed to the injuries after five months and 21-days. The medical evidence also confirms the receipt of acid burn injuries by the mother
of the appellant namely Musarat. The defence also not disputed the unnatural death of the deceased, but pleaded his false implication. Besides, the report of PFSA also confirms the identity of acid in the recovered bottle and on the clothes of the deceased.
10. Now adverting to the ocular evidence, suffice to observe here that the criminal law
was brought into motion by the father of the deceased Jameel Bashir, who fully corroborated his earlier statement as contained in his fard -e-bayan -Ex.P/1 -A. This witness in his Court
statement narrated the whole story with regard to the receipt of acid burn injuries by his deceased son, disclosing the facts involved behind the incident by his deceased son, who was injured at the relevant time. Though PW -1 is not an eye -witness of the incident, but he
narrated that story, which was deposed to him by the then injured son, which was further corroborated by the statements of PW -3 and PW -4, which fact has further been strengthened
by the statement of Musarat, the real mother of appellant, who in her statement under section 161, Cr.P.C. deposed that on the fateful day, she was taking rest in the lower floor, on
hearing hue and cry on the roof, she went there and saw that her son Waqas and Harrison were quarreling with each other and some acid sprinkled on her; the acid bottle was in the hand of Waqas and due to sprinkling of acid Waqas and Harrison became injured; Waqas stopped when saw Musarat, but Harrison and his companion Shah Mir escaped; she had shown her ignorance about the incident that on what reason they were quarreling. However, Musarat was dropped and was not produced. Thus, a question arises in a prudent mind since the said Musarat was the real mother of the appellant and due to love and affection, she might have refused to give a statement against her real son. Thus, non- production of this
witness in the Court would not affect the case of the prosecution.
11. The case of prosecution has also been strengthened from the statement produced as
(Ex.P/6 -C) of the then deceased Harrison by PW- 6, which contained the same story as
narrated by PW- 3. The statement dying declaration of deceased Harrison is admisslbe under
Article 46 (1) of Qanun -e-Shahadat Order, 1984. Reliance in this regard is placed in the case
of Zafar Iqbal alias Shahid v. The State PLD 2004 SC 367, wherein it was held as under:
"To substantiate the admissibility of statement of the complainant as dying declaration, it would be relevant to refer Article 46 of Qanun -e-Shahadat, 1984,
whereby statement, written or verbal of relevant facts made by a person who is dead, is admissible in evidence. The said dying declaration has been fully corroborated by the eye- witness account furnished by P.W. namely; Allah Dad and Wali Dad at trial.
The ocular account was enough by itself to hold that petitioner responsible for murder
of deceased, yet the medical evidence further corroborated the testimony of the eye -
witnesses. There was no enmity between the parties, which excludes all possibilities of false implication or substitution. It was a pre -planned and brutal murder. The
judgment of trial Court upheld by the High Court is strictly in accordance with the
principles laid down by this Court relating to dispensation of criminal justice. Thus no
interference is warranted."
12. Since, the deceased succumbed to the injuries prior to recording his statement before
the trial Court, however, the fact remains that the statement recorded by the deceased fully
supported by the prosecution version and named the appellant as the real culprit, who threw
acid upon his person. The medical evidence and the other facts and circumstances of the case
would suggest that the deceased was severely injured, but he was in his senses to record such a statement before the Investigating Officer. Thus, under the settled norms of justice, the statement of the deceased (Ex.P/6 -C) was rightly declared as a dying declaration. Even
otherwise, the most important evidence on such behalf is the medical evidence recorded by PW-4 Dr. Ali Mardan, who brought nothing on record that the deceased during his surviving
period was not in his senses or he could not have recorded his statement before the police. It
has remained the consistent view of the superior Courts that the dying person will never
make an attempt to conceal the truth or he will make an attempt to save those, who have brought him to bed of death. Sacredness and purity are always attached to a dying declaration because it is supposed that when a dying person is a face to face with death, he would like to make peace with Al -Mighty Allah and it is not expected that he tells lie. The dying
declaration is always treated very strong piece of evidence, such type of evidence needs no further corroboration by any other evidence, thus without looking for any independent witness, the sole statement of the deceased (Ex.P/6 -C) being his dying declaration is enough
to establish the guilt of the appellant. The Hon'ble Supreme Court in the case of Naimat Ali v. The State (1981 SCMR 61) has held as under:
"There is nothing to suggest that Din Muhammad deceased himself would have substituted an innocent man for the culprit. His statement in the form of the FIR has rightly been treated as a dying declaration. This by itself is a very strong piece of evidence against the appellant. No further corroboration through any so- called
independent source was necessary."
Similar view has been taken by the Hon'ble Supreme Court in the case of Farmullah
v. Qadeem Khan (2001 SCMR 1474) and has been held as under:
"7. A bare perusal of the said Article would indicate that there is no ambiguity in it and it is a combination of the following ingredients and the language as employed does not permit to add, delete or insert anything new: --
(a) It relates to the cause of death.
(b) It includes the circumstances which resulted into death.
(c) It is relevant when the cause of declarant's death comes into question whatever may be the nature of proceedings irrespective of the fact whether such statement was made under the expectation of death or otherwise?
The abovementioned ingredients were discussed by various higher Courts in different
cases which resulted into formulation of acknowledged and time tested principles which are mentioned herein below: -
(i) There is no specified forum before whom such a declaration is required to be made.
(ii) There is no bar that it cannot be made before a private person.
(iii) There is no legal requirement that the declaration must be read over or it must be signed by its maker.
(iv) It should be influenced free.
(v) In order to prove such declaration the person by whom it was recorded should be
examined.
(vi) Such declaration becomes substantive evidence when it is proved that it was
made by the deceased.
(vii) Corroboration of a dying declaration is not a rule of law, but requirement of
prudence.
(viii) Such declaration when proved by cogent evidence can be made a base for conviction.
13. The dying declaration recorded by the deceased is in simple words, wherein the
deceased implicated the appellant with specific role which has been proved by the prosecution through direct, ocular and medical evidence, thus, we have not found any lawful justification whatsoever to disbelieve dying declaration of deceased. Reliance is placed to the
case of Muhammad Ahsan alias Aksan v. The State PLD 2006 SC 163, wherein it has been held as under:
"We also did not see any reason to disbelieve the statement of deceased, which has rightly been treated as dying declaration. The statement of the deceased is a strong piece of evidence and can be relied upon. There was no reasons for the deceased to have substituted the petitioner for someone else and had allowed the real culprit to make good escape. Ocular testimony has been fully corroborated by the medical evidence furnished by Dr. Muhammad Zafar, M.O. (P.W.4) and it was extensively proved that the deceased was murdered by Churri blow caused by the petitioner
14. Now adverting to defence plea, suffice to observe here that though one Mubeen Bugti
appeared as DW- 1 to be a marginal witness while deposing diverted the angle of the
prosecution story, which was narrated by the appellant in his statement under section 340(2),
Cr.P.C. as according to their statements that the acid was sprinkled on Waqas and he was
seriously injured and DW Mubeen took them to BMC and while leaving them on the main gate, he went from there. If it is presumed that due to the sprinkling of acid, the condition of
Waqas was very bad and when we keep their statements in juxtaposition with the medical evidence and the statement of Musarat, the real mother of Waqas recorded under section 161, Cr.P.C, which do not corroborate their version, as such, their statements cannot be believed.
Our this view finds support from a case reported as Abdul Wahid v. The State 2003 SCMR
668, wherein it was held that "the initial burden to prove the guilt against the accused lies
upon the prosecution, but when a specific plea has been raised by the accused in defense then
both are to be considered in juxtaposition and the one which is nearer to the truth is to be given weight". It was further held in the case of Noor Khan v. The State 1996 PCr.LJ 790, wherein it was held as under: -
"It is by now well established that in an incident like the one in hand, both the
versions have to be kept in juxtaposition and the one favourable to the defense is to be preferred to, if it gets some support from the admitted facts and circumstances of the case and appeals to common sense. The incident took place at the door of house of appellant and his father, therefore, the version that it was the complainant party which had aggressed and attacked the appellant and his father by coming to their house and appellant had simply retaliated in the exercise of the right of private defense as he was under the state of panic having received serious injuries on the vital part, seems to be somewhat correct."
15. There is nothing on record to show any previous enmity between the accused and
complainant except the allegation that the then injured used to talk to his sister -in-law on
mobile, who was in Punjab, which allegation was refuted by the then injured and despite that, the accused threw acid on his person, as a result whereof, after examining him by PW -4, he
was referred to Karachi vide Ex.P/4 -A and remained under treatment at I.C.U Burn Center,
Civil Hospital, Karachi, however, due to extremely hot weather, Harrison Masih was brought back to Quetta and re- admitted in BMC, Quetta, who remained under treatment for five
months and on 8th November 2021, he succumbed to his injuries. He issued death certificate as Ex.P/4 -B.
16. On reappraisal of the evidence available on record it is concluded that the prosecution
has successfully proved the charge against the appellant beyond any shadow of reasonable doubt; that all the witnesses remained firm in their deposition; that they fully supported the prosecution version and the defence has failed to cause any dent in the same; that the trial Court after proper appraisal of evidence available on record has rightly awarded conviction and sentence to the appellant; that the appellant has failed to point out any mala fide on the part of the complainant party for his false implication; that the appellant has failed to point out any material contradiction and discrepancy which could benefit the defence version; that there is no error of law, misreading or non- reading of evidence in the judgment passed by the
trial Court calling for interference by this Court.
For the above reasons, the appeal being devoid of merits is hereby dismissed.
JK/199/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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