Full Judgment Text & Judicial Ruling

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 the 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 party 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 before 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 independently 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 points 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 into 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 of 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 affecting 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 circumstantial 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 investigation, 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 trial--- ----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 eye-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 Marri 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 evidence 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, therefore, 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 empty 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 appellant 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 Mangochar, 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 on 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 him 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 each 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 occurrence; 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 Muhammad 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 stained 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 that 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 also 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 Gul 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 any 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 entrance 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 damage 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, Munir 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 done 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 blood 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 deposition 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 that 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 made 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 altercation 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 blood 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 incriminating 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 attend 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 mention 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 houses 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 and 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 relatives, 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, which 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 intentionally 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, therefore, 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 hereinbelow: "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 anomalous 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 Judges 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 16 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…

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