2024 Y L R 1317
[Balochistan (Turbat Bench)]
Before Muhammad Ejaz Swati and Rozi Khan Barrech, JJ
MUHAMMAD ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 41 of 2023, decided on 14th March, 2024.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl-i-amd---Appreciation of evidence ---Ocular account of the occurrence
proved---Accused was charged for committing murder of the deceased by way of firing---
Prosecution's case primarily rested on the ocular testimonies of three witnesses who were eye-witnesses of the occurrence---Two witnesses stated in their statement that they had seen
the accused armed with a pistol near the place of occurrence--- Complainant was informed by
the eye- witnesses of the occurrence and he lodged the FIR ---Accused was nominated in the
FIR lodged by the complainant promptly--- Accused had also been attributed the role of
affective firing upon the deceased ---All the witnesses had given detailed accounts of the
incident ---Said witnesses were natural witnesses of the occurrence--- One of the witnesses
was an inmate of the house, whereas the other witnesses being neighbors of complainant, were supposed to be present there ---Presence of the said witnesses in the house in the given
circumstances could not be doubted--- Defense, despite lengthy cross -examination, could not
shatter their trustworthy evidence ---Not a single suggestion had been made to the said
witnesses about letting off the real culprit and substituting him with the accused---No previous enmity was found or ill will was attributed to the said witnesses ---Defense had not
challenged the time, the venue, and the manner of occurrence nor alleged any motive to rope in the accused in a case of capital punishment ---Appeal against conviction was dismissed
accordingly.
(b) Penal Code (XLV of 1860)---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Related witnesses, evidence of ---
Reliance---Accused was charged for committing murder of the deceased by way of firing ---
Although the witnesses were near relatives of the deceased, but mere relationship of the witnesses with the victim would not discard his/her evidence if it was otherwise confidence -
inspiring and trustworthy---Related witness could not be termed as an interested witness under all circumstances ---Related witness could also be a natural witness ---If an offence was
committed within the presence of family members, then they assumed the position of natural witnesses---In the case in hand, the evidence of the witnesses was reliable, cogent, and clear; and the prosecution case could not be doubted ---Defence could not point out any plausible
reason as to why the said witnesses would falsely involve the accused in the present case and let off the real culprit, who had committed the murder of their near relative ---Substitution in
such like cases was a rare phenomenon ---Even otherwise, the witnesses were relatives of the
accused; and how could it be possible that they falsely involved the accused in the present case and let off the real culprit ---Appeal against conviction was dismissed accordingly.
(c) Penal Code (XLV of 1860)---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Medical evidence in unison with
ocular account ---Accused was charged for committing murder of the deceased by way of
firing ---Record showed that the medical evidence was in complete harmony with the ocular
testimony of all the witnesses and no conflict could be pointed out to create a dent in the prosecution case ---Medical Officer produced the medical certificate of the deceased,
according to which the deceased received injuries by means of firearms ---Medical evidence
supported the prosecution version---Appeal against conviction was dismissed accordingly.
(d) Penal Code (XLV of 1860)---
----S. 302(b) ---Qatl-i-amd---Appreciation of evidence ---Recovery of weapon of offence and
crime empties ---Reliance ---Accused was charged for committing murder of the deceased by
way of firing ---Record showed that the crime empties were taken into possession from the
place of occurrence, and the weapon of offence, i.e., a 9mm pistol, was also recovered on
disclosure and pointation of the accused--- Both the crime empties and crime weapon, i.e., a
9mm pistol, were sent to the Firearms Expert--- Investigating Officer obtained the positive
reports, according to which the crime empties had been fired from a 9mm bore pistol ---
Blood- stained earth and blood- stained clothes of the deceased were also sent to the Forensic
Science Laboratory, and in that regard, the report was positive ---Recovery witnesses had also
been subjected to cross -examination by the defense, but nothing favorable to the accused or
adverse to the prosecution could be brought on record--- Appeal against conviction was
dismissed accordingly.
Abdul Wahid for Appellant.
Sudheer Ahmed, A.P.G. for the State.
Date of hearing: 7th March, 2024.
JUDGMENT
ROZI KHAN BARRECH, J. ---The appellant, namely Muhammad, son of Sakhidad,
allegedly murdered Muhammad Ayaz at the house of Rehmatullah, situated at Bonstan,
District Panjgur, by way of firing upon him within the precincts of Police Station City
Panjgur at about 3:30 am on 23.09.2022. For the commission of the said offence, the
appellant was booked in FIR No. 147/ 2022 and registered at the said Police Station on
23.09.2022 at 3:50 pm. After a regular trial, the appellant was convicted under section 302(b), P.P.C. as Ta'zir vide judgment dated 20.06.2023 ('the impugned judgment') passed by learned Sessions Judge Panjgur ('the trial court') in Murder Case No. 18 of 2022 and sentenced to suffer R.I. for life and to pay compensation of Rs.100,000/ - to the legal heirs of
the deceased Muhammad Ayaz, as provided under section 544 -A, Cr.P.C in default of
payment, the appellant was further directed to suffer S.I for three months with the benefit of section 382- B, Cr.P.C.
2. Aggrieved from the impugned judgment, the appellant has assailed his conviction and
sentence through Criminal Appeal No. (T) 41 of 2023.
3. We have heard the learned counsel for the parties and gone through the available
records with their valuable assistance
4. For the purpose of safe administration of justice, it is essentially required of the Court
to satisfy itself whether the eye -witness is natural and his presence on the spot could
reasonably be believed, and that whether the testimony is free from any kind of intrinsic improbabilities and in the case of an interested witness whether any corroboration is forthcoming.
5. The prosecution's case primarily rests on the ocular testimonies of Rahim Jan (PW -2),
Rasool Jan (PW- 7), and Rehmatullah (PW -8), who are the eye -witness of the occurrence.
Abu Bakar (PW -3) and Mst. Parveen (PW- 5) stated in their statement that they saw the
appellant armed with a pistol near the place of occurrence. The complainant/ PW- 1 who was
informed by the eye -witnesses of the occurrence and he lodged the FIR.
6. All the above eye -witnesses stated in their statement that on 23.09.2022 at about 3:30
pm, they, along with the appellant were present in the house of Rehmatullah (PW -8). At that
time, the appellant told the deceased, Muhammad Ayaz, to enter the password/code of his mobile phone, upon which the deceased entered the password of his mobile phone and handed over the same to the appellant. After checking the mobile phone, the appellant returned it to the deceased and went to the toilet. After two minutes, he came back having a pistol in his hand, and he fired upon the deceased Muhammad Ayaz, who received injuries and later on succumbed to injuries.
7. The complainant/PW- 1 stated in his statement that on 23.09.2022 at 3:30 pm, he was
present in his house when he heard the noise of firing and ran toward the house of
Rehmatullah where his nephews, Rahim Jan and Abu Bakar (the eye -witnesses) were
carrying the deceased Muhammad Ayaz's body drenched in blood in a vehicle. The eye -
witnesses told him that the appellant had made firing upon the deceased, and he received
injuries. The complainant also reached the hospital, and there, on his written report, the FIR
No. 147/2022 was registered on the same date at 3:50 p.m. at P.S. City Panjgur. The other
witnesses, i.e., Abu Bakar (PW -3), and Mst. Parveen (PW -5) stated in their statement that
they are neighbors of Rehmatullah (PW -8). They heard a firing noise, and at that time, they
saw the accused, who was armed with a pistol, in the house of PW -8. They further stated that
they saw the deceased, Muhammad Ayaz, who received firearm injuries.
8. The FIR was lodged on the written report of the complainant/PW -1 Muhammad
Tahir. The appellant is nominated in the FIR as an accused lodged by the complainant promptly. He has also been attributed the role of affective firing upon the deceased.
9. We have observed that all the above witnesses have given detailed accounts of the
incident. They were natural witnesses of the occurrence. PW -8 being an inmate of the house,
whereas the above named witnesses being neighbors of PW -8, were supposed to be present
there. Their presence in the house in the given circumstances cannot be doubted. The defense, despite lengthy cross -examination, could not shatter their trustworthy evidence. Not
a single suggestion has been made to the said PWs about sparing the real culprit and substituting him with the appellant. We scanned the evidence of the above witnesses but have not been able to find any previous enmity, or ill will attributed to the said witnesses. The defense has not challenged the time, the venue, and the manner of occurrence nor alleged any motive to rope in the appellant/accused in the case of capital punishment. Although the
above PWs are near relatives of the deceased, but it has been settled by the superior courts that the mere relation -ship of the witnesses with the victim would not discard his/her
evidence if it is otherwise confidence -inspiring and trustworthy.
10. It is stated earlier that a related witness cannot be termed as an interested witness
under all circumstances. A related witness can also be a natural witness. If an offence is committed within the presence of family members, then they assume the position of natural witnesses. In the case in hand, the evidence of the above PWs is reliable, cogent, and clear; the prosecution case cannot be doubted. Learned counsel for the appellant could not point out any plausible reason as to why the above PWs have falsely involved the appellant in the present case and let of the real culprit, who has committed the murder of their near relative. Substitution in such like cases is a rare phenomenon. Even otherwise, the above PWs are also relatives of the appellant; how can it be possible that they falsely involved the appellant in the present case and let of the real culprit?
11. It may be observed that the medical evidence is in complete harmony with the ocular
testimony of PW -1. PW -2, PW -3, PW -5, PW -7, and PW -8, and no conflict could be pointed
out to create a dent in the prosecution case. Dr. Anwar Aziz, Medical Officer DHQ Hospital Panjgur (PW -4) produced the medical certificate of the deceased Muhammad Ayaz (Ex.P/4 -
A), according to which the deceased received injuries by means of firearms. Besides, the medical evidence also supported the prosecution version.
12. We have observed that besides the crime empties, which were taken into possession
from the place of occurrence, the weapon of offence, i.e., a 9mm pistol, was also recovered on disclosure and pointation of the appellant. Both the crime empties and crime weapon, i.e., a 9mm pistol, were sent to the firearms expert. The Investigation Officer obtained a positive reports (Ex. P/11- G and Ex.P/11- H), according to which the crime empties in Parcel No.2
have been fired from a 9mm bore pistol present in Parcel No. 1. Blood- stained earth, blood-
stained clothes of the deceased were also sent to the Forensic Science Laboratory (FSL), and in this regard, the report is positive, which is available on record as Ex.P/11- J. The recovery
witnesses have also been subjected to cross -examination by the defense, but nothing
favorable to the appellant or adverse to the prosecution could be brought on record.
13. Pursuant to the above, we have come to the conclusion that the prosecution has
established its case beyond the shadow of a doubt, and the conviction and sentence recorded by the trial court is based on correct appreciation of evidence, which does not call for
interference; therefore, the judgment of conviction and sentence is maintained, in result
whereof Criminal Appeal No.(T) 41 of 2023 is dismissed accordingly.
JK/26/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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