2024 Y L R 2554
[Balochistan (Sibi Bench)]
Before Zaheer- ud-Din Kakar and Shaukat Ali Rakhshani , JJ
AKHTAR ALI and others ---Appellants
Versus
The STATE and others ---Respondents
Criminal Appeal No. (s)116 of 2022 and Criminal Revision Petition No. (s)04 of 2023,
decided on 25th September, 2023.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Improvements made by witnesses ---
Scope ---Accused persons were charged that they made firing upon the complainant party, due to
which nephew of the complainant was hit and died whereas another person sustained firearm
injuries ---Motive was stated to be a prior exchange of harsh words between complainant and his
nephew with the accused persons ---Witnesses had affirmed and corroborated the same story as
narrated by complainant and injured witness ---Both of them stated that on 26.03.2021 after
hearing fire shots, when they reached the crime scene, they had seenthree accused persons armed with Kalashnikov, 223 rifle and TT pistol respectively, who made firing upon deceased, due to
which he received firearm injuries and that the complainant tried to apprehend them, but on account of firing of unknown culprit other accused sustained firearm injuries and fell down on the ground---Testimony of said two witnesses demonstrated that though they arrived at the crime scene, but it could not be believed that they had seen the accused making fireshots because in view of the statements of complainant and injured a lot had happened before their arrival, thus their depositions seemed a bit exaggerated, whereupon explicit reliance would not be safe ---
However, thetestimony of said witnesses regarding remaining facts was relevant and confidence inspiring, particularly, regarding apprehension of accused, who was found injured and their attempt to chase and apprehend the other culprits ---Appeal to the extent of accused persons "MA
and AA" was dismissed and the conviction and sentence awarded to them was maintained, whereas the appeal to the extent of accused "GY" was allowed and he was acquitted of the charge, in circumstances.
(b) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Medical evidence supported ocular
account ---Accused persons were charged that they made firing upon the complainant
party, due to which nephew of the complainant was hit and died whereas another person
sustained firearm injuries ---Medico -Legal Certificate of deceased confirmed the ocular
account that deceased received firearm wound, which culminated into his death ---
Similarly Medico -Legal Certificate of injured witness also coincided and affirmed the
lacerated wound on his skull ---Defence neither disputed the unnatural death of the
deceased with firearm nor the injuries to the accused ---Injuries sustained by one of the
accused persons had also been confirmed by Medico- Legal Certificate---Appeal to the
extent of accused persons "MA and AA" was dismissed and the conviction and sentence awarded to them was maintained, whereas the appeal to the extent of accused "GY" was allowed and he was acquitted of the charge, in circumstances.
(c) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence---Recovery of weapon of offence and
crime empties ---Whether corroborative piece of evidence---Accused persons were charged
that they made firing upon the complainant party, due to which nephew of the complainant
was hit and died whereas another person sustained firearm injuries ---Prosecution had been
successful to prove the recovery of Kalashnikov made from accused "MA", TT pistol from accused "GY" and rifle 223 from accused "AA", whereof separate FIRs h ad been lodged
for violating S.13(e) of the Arms Ordinance, 1965---Question remained as to whether the
recovered crime weapons could be considered as a corroborative piece of evidence in the
present case or otherwise---Prosecution though had procured a positive Forensic Science Laboratory Reports, pertaining to the recovered firearms and empties secured from crime scene vide recovery memo, but the same could not be relied upon because the prosecution had sent the said crime weapons recovered from them with empties together, which had
diminished its evidentiary value ---Rifle 223 recovered from accused "AA" had also
matched with the empties as per Forensic Science Laboratory Reports, which though were
sent together but both were secured on the day of occurrence, thus, the trial Court had rightly appreciated the same to be the crime weapon, having worth of reliance as an incriminating piece of evidence---Appeal to the extent of accused persons "MA and AA" was dismissed and the conviction and sentence awarded to them was maintained, whereas the appeal to the extent of accused "GY" was allowed and he was acquitted of the charge, in circumstances.
Mushtaq v. The State PLD 2008 SC 1 and Ali Sher v. The State 2008 SCMR 707 rel.
(d) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Ocular account proved ---Accused
persons were charged that they made firing upon the complainant party, due to which nephew of the complainant was hit and died whereas another person sustained firearm injuries ---Critical analysis of the ocular account furnished by complainant, injured and two
other witnesses appeared to be trustworthy and confidence inspiring, which had been
confirmed by the medical evidence and recovery of rifle 223 of accused "AA", leading to
believe that the prosecution had irresistibly proved the indictment against the accused
persons "MA and AA", having been appreciated well by the trial Court except relying upon
the recovery of crime weapon recovered from accused "MA and GY" and Forensic Science Laboratory Reports thereof and holding guilty accused "GY" on the basis of supplementary
statement ---Prosecution had fallen short in proving the indictment of murder of deceased
against accused "GY" for manifold reasons ---Undeniably, at the time of lodging FIR and
recording statements on the fateful day neither the complainant nor any other witness
nominated accused "GY" or gave any description in order to subsequently identify him in a formal test of identification parade ---Prosecution also did not carry identification parade of
accused "GY", thus identification in the Court would not be safe to rely upon and hold him guilty of the charge as the prosecution witnesses had ample opportunity to see him in Court premises during trial ---Accused "GY" was nominated for the first time on 31.03.2021
through an affidavit, referring to a delegation accompanied by him for reconciliation, which was nothing but a supplementary statement ---Such supplementary statement has always
been deprecated by the Supreme Court, considering the same to be afterthought, carrying no evidentiary worth of appreciation---Appeal to the extent of accused persons "MA and AA" was dismissed and the conviction and sentence awarded to them was maintained, whereas the appeal to the extent of accused "GY" was allowed and he was acquitted of the charge, in circumstances.
Akhtar Ali v. The State 2008 SCMR 6; Kashif Ali v. The Judge, Anti -Terrorism
Court, Lahore PLD 2016 SC 951; Haider Ali v. State 2021 SCMR 629 and Rafaqat Ali v. State 2022 SCMR 1107 rel.
Mehmood Sadiq Khokhar for Appellant (in Criminal Appeal No. (s)116 of 2022).
Ahsan Rafiq Rana for the Complainant (in Criminal Appeal No. (s)116 of 2022).
Jamil Akhtar Gajani, Addl. PG. for the State (in Criminal Appeal No. (s)116 of 2022).
Ahsan Rafiq Rana for the Petitioner (in Criminal Revision No. (s)04 of 2023).
Mehmood Sadiq Khokhar for Respondents Nos. 1 to 3 (in Criminal Revision No.
(s)04 of 2023).
Jamil Akhtar Gajanji, Addl. PG for the State (in Criminal Revision No. (s)04 of
2023).
Date of hearing: 25th August, 2023.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J .---The captioned criminal appeal and criminal
revision petition emanate from the judgment dated 20.11.2022 penned by learned Sessions
Judge, Naseerabad at Dera Murad Jamali ("trial court") in a case vide FIR No.20/2021 registered with Police Station Saddar Dera Murad Jamali, whereby the appellants were convicted and sentenced under section 302(b) of the Pakistan Penal Code, 1860 ("Penal Code") for life imprisonment with the direction to pay Rs.300,000/ - each to the legal heirs of
deceased Jaggan Khan as compensation under section 544- A of the Criminal Procedure
Code, 1898 ("Cr.P.C") and in default thereof to further suffer six months SI each as well as convicted and sentenced under section 324 of the Penal Code for causing firearm injuries to accused Akhtar Ali to suffer five years RI with a fine of Rs.20,000/ - and in default to further
suffer SI for two months each and under section 337- A(i) of the Penal Code for causing
injuries to victim Safar Ali (PW -2) to suffer one year RI each with payment of Daman of
Rs.5,000/ - payable to injured Safar Ali and in default of fine to be dealt with section 337- Y
of Penal Code with the premium of section 382 -B of the Code.
As the captioned criminal appeal and criminal revision petition stem from a common
judgment, therefore, same are being parted with through this consolidated judgment.
2. Condensed but relevant facts of the instant case are that on 26.03.2021 at night
complainant Mohkamuddin (PW -1) along with his nephew namely Jaggan Khan went to the
house of his buzgar Safar Ali (PW -2), situated at Bedar Beroon, where whilst they were
discussing about their crops of chana; in the meanwhile, at about 8.30 pm accused persons
Muhammad Ashraf, Akhtar Ali and unknown accused armed with kalashnikove, 223 rifle and pistol respectively came and made firing upon his nephew Jaggan Khan, due to which he
received firearm injuries, however, the complainant tried to apprehend the accused persons,
but on account of firing of unknown assailant Akhtar Ali sustained firearm injuries and fell
down on the ground. It is further averred that Safar Ali (PW -2) also received injuries on his
head, while on hearing the fire shots his relatives Taj Muhammad and Mohabbat Ali reached there and the accused persons made their escape good while riding on motorcycle. The motive was stated to be exchange of harsh words between the complainant and his nephew with the accused persons a time back.
3. After registration of the case, investigation was entrusted to SI Arbab Ali Lashari, the
first Investigating Officer (I.O) (PW -9), who went to the crime scene, prepared site sketch
(Ex.P/9 -B), inquest report of the deceased Jagan Khan (Ex.P/9- C), secured bloodstained soil
of deceased Jagan Khan, three bullet empties of rifle 223, four bullet empties of 7.52 and two empties of TT pistol from the spot through recovery memos. and prepared its seal parcels. Thereafter, he reached Civil Hospital Dera Murad Jamali, where he recorded the statement of injured Safar Ali (PW- 2) whereas Jagan Khan was referred to Larkana for further treatment,
but he could not survive. On 27.03.2021 complainant produced bloodstained clothes of deceased Jagan Khan, which were taken into possession through recovery memo, whereof he prepared sealed parcel No.6. On 28.03.2021 accused Akthar Ali was arrested. On 31.03.2021 he went to Karachi in order to arrest the other felons involved in some other case, thus investigation of the instant case was entrusted to second IO SI -SHO Ali Sher Qalandarani.
On 03.04.2021, after coming back from Karachi, the investigation was again handed over back to him; meanwhile appellants Muhammad Ashraf and Ghulam Yasin were arrested.
On conclusion of the investigation, the accused persons were sent up to face the deeds
of their culpability before the trial court. On the stated allegations, a formal charge was read over to the appellants, to which they did not plead guilty and claimed trial. Thereafter, in order to drive home the indictment, the prosecution produced as many as ten witnesses in the instant case. On close of the prosecution side, the appellants were examined under section 342 of Cr.P.C, whereafter the appellants neither stepped into the witness box to depose on
oath nor produced any evidence in his defence; hence at the end of the trial, the appellants
were convicted and sentenced in the terms mentioned in the para supra.
4. Learned counsel for the appellants inter alia contended that there are material
contradictions in the statements of prosecution witnesses, making the instant case highly
doubtful. He maintained that learned trial judge has misread the evidence and has recorded
the conviction and sentence contrary to the evidence available on record. He urged that the recovery of crime weapons allegedly made from the appellants have been foisted to strengthen the case, which is unjustifiable, which has made the impugned judgment illegal, therefore, requested for acquittal of the appellants.
Conversely, learned counsel for the complainant and learned APG strenuously
opposed the instant criminal appeal filed by the appellants against their conviction and sentence and contended that the impugned judgment is based upon proper appraisal of the evidence, which need not be overturned, therefore, sought dismissal of the appeal.
5. Heard. Record sussed out with the able assistance of learned counsel for the
adversarial parties. The entire edifice of the prosecution's case rests upon the ocular account of complainant Mohkamuddin (PW -1), eye -witnesses Safar Ali (PW- 2), Mohabbat Ali (PW -
3) and Taj Muhammad (PW -4), medico legal evidence furnished by Dr. Hamal Khan (PW -5),
recovery of kalashnikov made from appellant Muhammad Ashraf, TT pistol from appellant Ghulam Yasin and rifle 223 from appellant Akhtar Ali, bloodstained clothes of deceased Jaggan Khan and other articles coupled with empties recovered from the crime scene and positive FSL report thereof. The first and foremost evidence furnished by the prosecution is the ocular account of Mohkamuddin (PW -1), eye -witness Safar Ali (PW- 2), Mohabbat Ali
(PW -3) and Taj Muhammad (PW -4). Complainant Mohkamuddin (PW -1) reiterated what he
had stated in his report (Ex.P/1- A). He also tendered his affidavit (Ex.P/1- B), whereby he
had nominated appellant Ghulam Yasin to be the said unknown culprit. Mohkamuddin (PW -
1) testified that on 26.03.2021, he along with his nephew deceased Jaggan Khan came to the house of their buzgar Safar Ali (PW -2), where they were chatting on the chana crops and at
8.30 pm, appellants Akhtar Ali, having rifle 223, Muhammad Ashraf with kalashnikov and one unknown person armed with TT pistol came there; amongst them appellant Akhtar Ali hit Safar Ali (PW -2) with the handle of kalashnikov, whereby he sustained injury, whereafter
all of them made firing upon them, due to which Jaggan Khan received firearm wounds and appellant Akhtar Ali also received fire shot mistakenly made by his unknown companion.
Subsequently, without providing description of the said unknown culprit in his report
(Ex.P/1 -A), the complainant (PW- 1) tendered an affidavit dated 02.04.2021 (Ex.P/1- B),
whereby he nominated appellant Ghulam Yasin to be the said unknown culprit. Safar Ali (PW -2) furnished the similar ocular account, however, added that on 31.03.2021 appellant
Ghulam Yasin brought a delegation headed by Daro Marri and Muhammad Nawaz Khosa admitting involvement in the crime. He also furnished an affidavit, whereby he also nominated appellant Ghulam Yasin. Mohabbat Ali (PW -3) and Taj Muhammad (PW -4) have
affirmed and corroborated the same story as narrated by complainant Mohkamuddin (PW -1)
and Safar Ali (PW- 2). Both of them stated that on 26.03.2021 after hearing fire shots, when
they reached the crime scene, they saw Muhammad Ashraf, Akhtar Ali and unknown accused armed with kalashnikove, 223 rifle and TT pistol respectively, who made firing upon Jaggan Khan, due to which he received firearm injuries and that the complainant tried to apprehend them, but on account of firing of unknown culprit (Ghulam Yasin) Akhtar Ali sustained firearm injuries and fell down on the ground.
Reappraisal of the testimony of PW -3 and PW -4 demonstrates that albeit they arrived
at the crime scene, but it cannot be believed that they had seen appellant Akhtar Ali making fire because in view of the statements of PW -1 and PW -2 a lot had happened before their
arrival, thus their depositions seem a bit exaggerated, whereupon explicit reliance would not be safe. However, their testimony regarding remaining facts is relevant and confidence inspiring, particularly, regarding apprehension of appellant Akhtar Ali, who was found injured and their attempt to chase and apprehend the other culprits.
6. The Medico Legal Certificate ("MLC") (Ex.P/5 -B) of deceased confirms the ocular
account that deceased Jaggan Khan received firearm wound, which culminated into his death. The MLC (Ex.P/5 -B) of deceased Jaggan Khan shows that he received the following firearm
injuries;
1. Left wrist, wrist joint, crushed anteriorly bones, vessels, muscles exposed, fractured ulna, fresh, mauively bleeding.
2. Left buttock 0.5cm size, inverted margin of bullet fresh bleeding, entrance of
bullet.
No exit seen.
Anteriorly of chest lacerated wound.
Similarly MLC (Ex.P/5 -C) of Safar Ali (PW -2) also coincide and affirms the
lacerated wound on his skull. The defence neither disputes the unnatural death of the
deceased with firearm nor the injuries to appellant Akhtar Ali.
The injuries sustained by appellant Akhtar Ali has also been confirmed by MLC
(Ex.P/5 -A), revealing following firearm bullet wounds;
1. Entrance of bullet left anterior aspect of ankle joint inverted, bleeding 0.5cm size.
2. Exit: 1cm in size, everted margins, fresh bleeding, fractured, melleus bone left anteriorly aspect of clavicle lacerated wound.
7. In the instant case, the prosecution has although been successful to prove the recovery
of kalashnikov made from appellant Muhammad Ashraf, TT pistol from appellant Ghulam Yasin and rifle 223 from appellant Akhtar Ali, whereof separate FIRs bearing Nos.21, 27 and 28 of 2021 have been lodged for violating section 13(e) of the Arms Ordinance, 1965, but the
fact remains as to whether the recovered crime weapons can be considered as a corroborative
piece of evidence in the instant case or otherwise. The prosecution albeit has procured a
positive FSL reports (Ex.P/10- C and Ex.P/10- D), pertaining to the recovered firearms and
empties secured from crime scene vide recovery memo. (Ex.P/6 -A), but the same cannot be
relied upon because the prosecution had sent the said crime weapons recovered from them
with empties together, which has diminished its evidentiary value as held by the apex Court
in the case of "Mushtaq v. The State" (PLD 2008 SC 1) and "Ali Sher v. The State" (2008
SCMR 707).
It is worthwhile to note that the rifle 223 recovered from Akhtar Ali has also matched
with the empties as per FSL reports (Ex.P/10- C and Ex.P/10- D), which were though sent
together but both were secured on the day of occurrence, thus, the trial court has rightly appreciated the same to be the crime weapon, having worth of reliance as an incriminating piece of evidence.
8. Critical analysis of the ocular account furnished by PW -1 to PW -4 appears to be
trustworthy and confidence inspiring, which has been confirmed by the medical evidence and recovery of rifle 223 of appellant Akhtar Ali, leading us to believe that the prosecution has irresistibly proved the indictment against the appellants Muhammad Ashraf and Akhtar Ali, having been appreciated well by the trial court except relying upon the recovery of crime weapon recovered from appellant Muhammad Ashraf and Ghulam Yasin and FSL reports thereof and holding guilty the appellant Ghulam Yasin on the basis of supplementary statement. The prosecution has fallen short in proving the indictment of murder of Jaggan Khan against appellant Ghulam Yasin for manifold reasons. Undeniably, at the time of lodging FIR and recording statements on the fateful day neither the complainant nor any other witness nominated appellant Ghulam Yasin or gave any description in order to subsequently identify him in a formal test of identification parade. It is also worthy to make note of the fact that the prosecution also did not carry identification parade of appellant Ghulam Yasin, thus identification in the court would not be safe to rely upon and hold him guilty of the charge as the prosecution witnesses had ample opportunity to see him in court premises during trial.
Appellant Ghulam Yasin was nominated for the first time on 31.03.2021 through an
affidavit, reffering to a delegation accompanied by him for reconciliation, which is nothing but a supplementary statement. Such supplementary statement has always been deprecated by the apex Court as well as by this Court, considering the same to be afterthought, carrying no evidentiary worth of appreciation. In this regard, we are fortified to follow the dictum expounded in the cases of "Akhtar Ali v. The State" (2008 SCMR 6), "Kashif Ali v. The Judge, Anti -Terrorism Court, Lahore" (PLD 2016 SC 951), "Haider Ali v. State" (2021
SCMR 629) and "Rafaqat Ali v. State" (2022 SCMR 1107).
9. For what has been discussed hereinabove, the appeal to the extent of appellants
Muhammad Ashraf and Akhtar Ali is dismissed and the conviction and sentence awarded to
them is maintained, whereas the appeal to the extent of Ghulam Yasin is allowed and he is
acquitted of the charge.
10. As far as the Criminal Revision Petition bearing No.04/2023, pertaining to
enhancement of sentence of appellants is concerned, we believe that in the instant case the prosecution has failed to establish the seat of injuries, culminating into culpable homicide of deceased Jaggan Khan, making the case one of mitigating circumstances, therefore, the sentence awarded by the trial court seems justified to the extent of appellants Muhammad Ashraf and Akhtar Ali, which need not to be enhanced.
In view of the above, as a natural outcome the criminal revision petition is dismissed.
JK/50/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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