2025 P Cr. L J 1246
[Balochistan]
Before Muhammad Ejaz Swati and Rozi Khan Barrech, JJ
PERVAIZ ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. (T)26, Criminal Revision Petition No. (T)08 and Criminal Acquittal
Appeal No. (T)25 of 2021, decided on 15th November, 2023.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b), 324, 147, 148 & 149 ---Qatl -i-amd, attempt to commit qatl -i-amd, rioting,
rioting armed with deadly weapons, unlawful assembly ---Appreciation of evidence ---
Ocular account supported by medical evidence ---Accused was charged for making firing
upon the brother of complainant and his friend, due to which brother of complainant died---Complainant was not an eye -witness of the occurrence ---However, complainant lodged the
FIR promptly without any delay---Appellant was nominated in the FIR with a specific role that he allegedly fired upon the deceased and injured his friend---Complainant was informed by his brother, who appeared before the Court as eye -witness and deposed in his
statement that on 04.10.2019 at 7:00 pm, he, along with his brother/deceased, injured and another person were present at hillside; that in the meantime, appellant and one acquitted accused riding on a motorcycle, and other acquitted accused persons were in a car came to the spot; that appellant pulled out a pistol and fired upon his brother and his friend, who received injuries; that appellant also made firing upon him, but he remained unhurt on the spot and did not receive any injury--- Statement of said witness further corroborated with
the statement of injured, in all particulars ---Said witnesses attributed the role of firing to
the appellant upon the deceased and injured--- Said witnesses gave consistent,
straightforward ocular accounts of the occurrence--- Presence of the said witnesses on the
spot was also proved--- On the same date, the Investigation Officer also recorded their
statements under S.161, Cr.P.C.--- Presence of injured witnesswas also established on the
spot of occurrence on the basis of injuries received by him, which was confirmed by Medical Officer, who produced a medical certificate of the injured, according to which the injured received injuries by means of a firearm ---Injured witness was neither related to the
deceased nor inimical toward the appellant ---Said prosecution witnesses were subjected to
lengthy cross -examination by the defense but nothing favorable to the appellant or adverse
to the prosecution could be brought on record--- Said witnesses had given all necessary
details qua the date, time, place, name of the accused, the manner of the occurrence, the kind of weapon used in the occurrence, and the locale of injuries ---Said witnesses remained
consistent on each and every material point in as much as they made deposition according to the circumstances that surfaced in the case, therefore, it could safely be concluded that their testimonies were reliable, straightforward and confidence -inspiring ---Circumstances
established that the prosecution had been successful in proving its case against the appellant beyond a reasonable doubt ---Appeal against conviction was dismissed
accordingly.
(b) Criminal trial ---
----Related and interested witnesses, evidence of ---Reliance--- Related witness could not
be termed as an interested witness under all circumstances ---Related witness could also
be a natural witness ---In case evidence of related witnesses was reliable, cogent, and
clear, the prosecution case could not be doubted--- However, a related witness would
become an interested witness when his evidence was tainted with malice, and it showed that he was desirous of implicating the accused by fabricating and concocting evidence.
(c) Penal Code (XLV of 1860) ---
----Ss. 302(b), 324, 147, 148 & 149--- Qatl-i-amd, attempt to commit qatl -i-amd, rioting,
rioting armed with deadly weapons, unlawful assembly ---Appreciation of evidence ---
Recovery of weapon of offence and crime empties ---Reliance---Accused was charged for
making firing upon the brother of complainant and his friend, due to which brother of
complainant died---Besides the crime empties, the weapon of the offence i.e. pistol, was
also recovered from the possession of the appellant ---Crime empties and the pistol were
sent to a Firearms Expert who examined the same and according to the report of Firearm
Expert, the nine crime empties of 9mm pistol had been fired from the 9mm pistol present in the parcel ---Investigation Officer also took the blood- stained earth, blood -stained
clothes of the deceased and injured into possession through recovery memo. in the presence of witnesses and parcels of the same were sent to Forensic Science Laboratory and the report in that behalf was positive ---Said recoveries had been duly proved through
the recovery witnesses and nothing adverse could be achieved despite lengthy cross -
examination ---Circumstances established that the prosecution had been successful to
prove its case against the appellant beyond a reasonable doubt ---Appeal against
conviction was dismissed accordingly.
Khalil Ahmed Lehri for Appellant (in Criminal Appeal No. (T)26 of 2021).
Jadain Dashti for Petitioner/Appellant (in Criminal Revision Petition No. (T)08 and
Criminal Acquittal Appeal No. (T)25 of 2021).
Sudheer Ahmed, APG for the State (in Criminal Revision Petition No. (T)08 and
Criminal Acquittal Appeal No. (T)25 of 2021).
Date of hearing: 3rd November, 2023.
JUDGMENT
ROZI KHAN BARRECH, J .---The appellant, namely Pervaiz, son of Sahib Dad in
Criminal Appeal No. (T) 26 of 2021, having been involved in FIR No. 78/2019 registered under sections 302, 324, 147, 148, and 149 P.P.C at PS Pasni District Gwadar was tried by learned Sessions Judge Gwadar ("trial court") and on completion thereof, by means of the judgment dated 08.02.2021 passed in Murder Case No.10/2019 the appellant was convicted and sentenced in the following terms:
"24……..Therefore, he is convicted under section 302(b) P.P.C and sentence to suffer imprisonment for life and to pay fine of Rs.100,000/ - (one hundred thousand rupees)
or to undergo R.I for six (6) months. The amount of fine, if recovered, shall be paid as compensation under Section 544- A Cr.P.C to be paid to the legal heirs of the
deceased. He is further convicted under Section 337- F(iii) P.P.C and sentence to pay
daman of Rs.40,000/ - (forty thousand rupees) to injured Hammal and to suffer R.I for
one (1) year. Both substantive punishments shall run concurrently. Benefit of Section 382- B Cr.P.C is also extended in his favour…"
2. Aggrieved from the impugned judgment, the appellant has assailed his conviction and
sentence through Criminal Appeal No.(T) 26 of 2021, while the widow of the deceased Khalid, namely Shahnaz, filed Criminal Revision Petition No. (T) 08 of 2021 for enhancement of conviction awarded to the appellant by the trial court, whereas the Criminal Acquittal Appeal No. (T) 25 of 2021 has been filed by Mst. Shahnaz, widow of the deceased Khalid, against the acquittal of co- accused Shah Noor and Sanaullah passed by the trial
court.
Since all the cases are arising out of one and the same judgment of the trial court,
therefore, the same are being disposed of through this single judgment.
3. The prosecution story as disclosed in the complaint(Ex.P/1- A) recorded on the
statement of PW -1 Javed, son of Muhammad Umar (complainant) is that on 04.10.2019
while, he was present in the house, his brother Asif (PW -3) informed him on a telephone that
their brother Khalid and his friend Hammal have been injured in a firing incident and were taken to the Rural Health Center (RHC) Hospital Pasni. He immediately reached the hospital, where he came to know that his brother Khalid had already succumbed to the injuries. Asif
told him that he was present with Khalid and two other companions, Hammal and Dilshad, at
Juddi Hillside. At about 7:00 pm a motorcycle and Premio car came there. The appellant, Pervaiz and Shah Noor, were riding a motorcycle while Sanaullah alias Sani, Jamil, Hameed and Majid were present in the car. Pervaiz started firing with a firearm on his brother Khalid. His companions also made firing. Due to their firing, his brother Khalid got severely injured.
He luckily remained unhurt. The assailants ran away on their motorcycle and in their car
from the scene. Hence, the crime report.
After completion of the usual investigation, the challan was submitted before the trial
court wherein the appellant and acquitted accused were formally charge -sheeted to which
they did not plead guilty and put themselves at the option to face trial. The prosecution in
order to prove its case against the appellant and acquitted accused, produced seven witnesses in all. When examined under section 342, Cr.P.C, the appellant and acquitted accused negated the allegation levelled by the prosecution. They opted not to record their statements on oath as envisaged under section 340 (2) Cr.P.C, however, the appellant produced a copy of FIR No. 56/2019 of PS Pasni as Ex.D/1- and Fard -e-Bayan Ex.D/2.
After hearing the arguments advanced by learned counsel for both the parties, the trial
court, while evaluating the evidence available on record, found the version of the prosecution proved beyond the shadow of reasonable doubt. Resultantly, the trial court recorded a conviction against the appellant Pervaiz, whereas the co- accused Shah Noor, Sanaullah,
Hameed, Jameel, and Majid were acquitted from the charge by the trial court.
4. Arguments advanced from both sides have been heard. We have also minutely gone
through the record available on file with the able assistance of learned counsel for the parties.
5. We have observed that the prosecution has led evidence in the shape of ocular
account, medical evidence, as well as investigation besides other attending circumstances.
Javed, son of Muhammad Umar (PW -1) is the complainant of the case, but he is not an eye -
witness of the occurrence. However, he lodged the FIR promptly without any delay. The
appellant, Pervaiz is nominated in the FIR with a specific role that he allegedly fired upon the deceased Khalid and injured Hammal. He was informed by his brother Asif, who appeared before the court as PW- 3 and deposed in his statement, that on 04.10.2019 at 7:00
pm, he, along with his brother Khalid (deceased), injured Hammal, and Dilshad, were present at Juddi Hillside. In the meantime, appellant Pervaiz and acquitted accused Shah Noor riding on a motorcycle, while the acquitted accused Jameel, Hameed, Sanaullah and Majid were in a Premio car came to the spot. The appellant Pervaiz pulled out a pistol and fired upon his brother Khalid and Hammal, who received injuries. The appellant also made firing upon him, but he remained unhurt on the spot and did not receive any injury. The statement of PW -3
further corroborated with the statement of PW -4 Hammal, son of Haji Murad Bakhsh, in all
particulars, and he deposed in a categoric manner that on 04.10.2019 at 7:00 pm the appellant Pervaiz made firing upon the deceased Khalid and him and they both received injuries and later on Khalid, succumbed to injuries.
6. The above witnesses attributed the role of firing to the appellant upon the deceased
Khalid and injured Hammal. They gave consistent, straightforward ocular accounts of the occurrence. The presence of the said witnesses on the spot was also proved. On the same date, the investigation officer also recorded their statements under section 161, Cr.P.C. The presence of PW- 4 Hammal is also established on the spot of occurrence on the basis of
injuries received by him, which was confirmed by Dr. Azizullah (PW -2), who produced a
medical certificate of the injured Hammal as Ex.P/2 -B according to which the injured
Hammal received injuries by means of a firearm. Hammal (PW- 4) is neither related to the
deceased nor inimical toward the appellant. The above prosecution witnesses were subjected to lengthy cross -examination by the defense but nothing favorable to the appellant or adverse
to the prosecution could be brought on record. These witnesses have given all necessary details qua, the date, time, place, name of the accused, the manner of the occurrence, the kind
of weapon used in the occurrence, and the locale of injuries. The above PWs remained consistent on each and every material point in as much as they made deposition according to the circumstances surfaced in this case, therefore, it can safely be concluded that their testimonies are reliable, straightforward, and confidence -inspiring. There is no denial to the
fact that PW -1/complainant and PW- 3 Asif are brothers of the deceased, but the law in this
regard is w ell settled. A related witness cannot be termed as an interested witness under all
circumstances. A related witness can also be a natural witness. In case their evidence is
reliable, cogent, and clear, the prosecution case cannot be doubted. However, a related witness would become an interested witness when his evidence is tainted with malice, and it shows that he is desirous of implicating the accused by fabricating and concocting evidence, but the learned counsel for the petitioner could not show us anything in this regard. The
Court is required that the evidence of an eye -witness who is a near relative of the victim
should be closely scrutinized. Learned counsel for the appellant could not point out any
plausible reason as to why the complainant and PW -3 have falsely involved the appellant in
the present case and let off the real culprit, who has committed the murder of their brother. Substitution in such like cases is a rare phenomenon.
7. Besides the medical evidence is also supporting the prosecution version. We have
observed that besides the crime empties, the weapon of the offence i.e. pistol, was also recovered from the possession of the appellant Pervaiz. The crime empties and the pistol were sent to a firearms expert who examined the same, and according to the report of firearm expert Ex.P/7- F, the nine crime empties of 9mm pistol i.e., C -1 to C -9 have been fired from
the 9mm pistol present in Parcel No. 5. The investigation officer also took the blood- stained
earth, blood- stained clothes of the deceased and injured into possession through recovery
memo. in the presence of witnesses, and parcels of the same were sent to Forensic Science Laboratory and the report in this behalf is positive, which is available on the file as Ex.P/7- E.
The said recoveries have been duly proved through the recovery witnesses, and nothing
adverse could be achieved despite lengthy cross -examination.
8. We have no hesitation to hold that the prosecution has been successful to prove its
case against the appellant, Pervaiz, beyond a reasonable doubt, and the conviction recorded
against the appellant is based on correct appreciation of evidence, which does not call for any
interference. Therefore, the impugned judgment passed by the trial court is thus maintained, in result whereof the Criminal Appeal No. (T) 26 of 2021 is dismissed accordingly.
9. As far as Criminal Acquittal Appeal No. (T) 25 of 2021, filed by the widow of the
deceased Khalid, namely Shahnaz, against the acquittal of co- accused Shah Noor and
Sanaullah is concerned, the most important injured witness, namely Hammal (PW -4), did not
attribute any role to the acquitted accused. He attributed a specific role to the appellant Pervaiz, who allegedly fired upon the deceased Khalid and him, and both of them received injuries. Even otherwise, PW -3 Asif also attributed a role of firing to the appellant Pervaiz.
Nine crime empties were recovered from the place of occurrence, and the same were taken into possession through a recovery memo. by the investigation officer in the presence of witnesses who prepared parcel No. 2. On the next date, the 9mm pistol was recovered from physical possession of the appellant Pervaiz. According to the Firearms expert report Ex.P/7-F, the nine empty shells of a 9mm pistol were fired from the said pistol, meaning thereby that the firing was made at the place of occurrence with one pistol, which was recovered from the appellant. The trial court, after giving sufficient reasons, acquitted the co- accused Shah Noor
and Sanaullah. It is worthwhile to mention here that the trial court has also acquitted the co-accused Jameel, Hameed, and Majid, but the complainant did not assail their acquittal, and their acquittal attained finality; as such, the Criminal Acquittal Appeal No. (T) 25 of 2021 is hereby dismissed.
10. Adverting to Criminal Revision Petition No. (T) 08 of 2021, filed by the widow of
deceased Khalid, namely Shahnaz, there is no doubt that when an offence is proved, it has to be met with the maximum sentence therefore, however, there is no yardstick to restrict or curb the discretion of the trial court while passing the sentence. It is the circumstances of each case which justify the severity or leniency in passing the legal sentence. We have also noticed a lack of motive in the case in hand and what happened prior to the scene of occurrence that prompted the appellant to take away the life of deceased Khalid are circumstances which have rightly been considered by the trial court as mitigating circumstances, and thus the appellant has rightly been dealt with by the trial court. We in view of the circumstances of the case, also feel inclined to hold the same view and endorse the reasons given by the trial court for not awarding the sentence of death. Resultantly, the Criminal Revision Petition No. (T) 08 of 2021 is also dismissed.
JK/15/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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