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Petitioner: Hassan Khan VS Respondent: State Honorable Justice Rozi Khan Barrech Sarwar Khan Mandokhail
CITATION: 2026 YLR 1764 CASE: 2026Q4011 TITLE: Hassan Khan VS State Honorable Justice Rozi Khan Barrech Sarwar Khan Mandokhail COURT: QUETTA-HIGH-COURT-BALOCHISTAN YEAR: 2026 JOURNAL: YLR ============================================================
2026 Y L R July 2026 Y L R 1764 [Balochsitan] Before Rozi Khan Barrech and Shuakat Ali Rakhshani, JJ Hassan Khan ---Appellant Versus The State ---Respondent Criminal Appeal No. 90 of 2023, decided on 30th April, 2025. (a) Criminal trial--- ----Related and interested witnesses--- Evidence of related witnesses---Scope--- Evidence of a related witness could not be discarded merely on the ground of his relationship with the victim, however, where such testimony was not corroborated by the attending circumstances or where the conduct of such witness at the time of occurrence or immediately thereafter was not such as could be expected from a prudent person, such evidence could safely be discarded. (b) 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---Presence of eye-witnesses at the time and place of occurrence not established---First Information Report lodged against unknown accused and subsequent nomination after delay---Effect---Accused were charged with committing murder of the deceased by firing---Ocular account of the occurrence was furnished by three eye-witnesses---First Information Report was lodged against unknown persons and neither the appellant nor the co-accused were nominated therein---If the eye-witnesses were present at the place of occurrence as well as at the hospital, it was not explained why they did not lodge the FIR or disclose the names of the accused persons to the complainant---Had the eye-witnesses been present at the time of the alleged occurrence, they would have lodged the FIR and nominated the accused persons---According to the eye-witnesses, the Investigating Officer went to the place of occurrence after registration of the FIR and also to the Civil Hospital, whereas the Investigating Officer stated that he recorded the statements of the eye-witnesses under S.161, Cr.P.C. at the house of the deceased at 2:00 p.m.---Such circumstance suggested that the eye-witnesses were not present at the place of occurrence---Non-nomination of the appellant in the FIR and his subsequent nomination by the eye-witnesses after three hours of the occurrence could not be brushed aside, as it assumed great significance and could be attributed to consultation, instructions and calculated preparation of the report by leaving the field open for involving such persons whom the prosecution might ultimately wish to nominate---Said aspect rendered the prosecution case extremely doubtful---Presence of the eye-witnesses at the spot was unnatural because, had they been present there, they would have received some injuries from the shots fired by the appellant, acquitted accused and absconding accused---Eye-witnesses had tried to suppress their interestedness---All the three eye-witnesses failed to justify their presence at the time and place of occurrence---Moreover, it did not appeal to logic that a person whose near relative had been murdered would neither offer any resistance nor raise any hue and cry for help, despite the fact that the alleged occurrence had taken place in an open place near the houses---Eye-witnesses alleged that nine persons were firing from two hideouts and houses of the accused persons, all of whom were armed with Kalashnikovs---Eye-witnesses stated that the distance between them and the deceased was 9/10 steps, and the accused persons were firing from a distance of 30/35 yards with automatic weapons---In such circumstances, the question arose as to why and how the appellant and co-accused spared them and did not try to kill them when they could have easily done so, they being empty-handed and at their mercy, coupled with the fact that such eye-witnesses, being relatives of the deceased, could depose against them---Mode and manner of the occurrence advanced by the prosecution witnesses did not appeal to a prudent mind---Further, it was claimed by the eye-witnesses that as many as nine accused persons made firing with Kalashnikovs at the time and place of occurrence, yet amidst such indiscriminate firing the eye-witnesses did not receive even a single injury or scratch on their persons, except one person who was not produced before the trial Court as a witness---Had the eye-witnesses been present at the spot, they would not have been spared, particularly when they also had enmity with the accused party---Appeal against conviction was allowed, in circumstances. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 147, 148 & 149---Criminal Procedure Code (V of 1898), S. 161---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Inordinate delay in recording statements of witnesses---Accused were charged with committing murder of the deceased by firing---Record showed that the eye-witnesses remained silent and recorded their statements under S.161, Cr.P.C. with considerable delay---Delay of even one or two days in recording statements of witnesses, if not explained, had been found fatal to the prosecution case and rendered such statements unworthy of reliance---Appeal against conviction was allowed, in circumstances. (d) 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---Chance witnesses---Justification for presence at the time and place of occurrence not established---Accused were charged with committing murder of the deceased by firing---Record showed that two eye-witnesses resided at a distance of one hour's drive from the place of occurrence, which was confirmed by another eye-witness who stated during cross-examination that it took one hour to reach the place of occurrence on a motorcycle---One of the eye-witnesses further stated during cross-examination that his house was at a distance of three kilometres from the place of occurrence and that the link road was patchy and broken---Said eye-witnesses had not given any plausible explanation for their presence at the place and time of occurrence---They had no place of business near the place of occurrence; therefore, all of them were chance witnesses---Testimony of a chance witness was ordinarily not accepted unless justifiable reasons were shown to establish his presence at the crime scene at the relevant time---Appeal against conviction was allowed, in circumstances. Mst. Shazia Parveen v. The State 2014 SCMR 1197 and Muhammad Rafique v. The State 2014 SCMR 1698 rel. (e) 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---Related and inimical witnesses---Interestedness and enmity suppressing confidence in ocular account---Accused were charged with committing murder of the deceased by firing---Eye-witnesses were interested and inimical witnesses--- One eye-witness stated during cross-examination that he and the father of the deceased were cousins---Said witness also stated that the father of the deceased had lodged an FIR against relatives of the accused persons for an offence under S.302, P.P.C.---Said witness further stated that after the occurrence, the accused persons were shifted from their houses; however, while denying the defence suggestion that they had set the house of the accused person on fire, he confirmed during cross-examination that an FIR regarding the said occurrence of setting the house on fire was lodged, in which he was nominated as an accused---Another eye-witness stated during cross-examination that, after the occurrence, an FIR was lodged regarding setting the house of the accused on fire, though he termed it a false case---Said witness further stated during cross-examination that he and the father of the deceased were cousins---Another eye-witness stated during cross-examination that the father of the deceased had lodged an FIR regarding the murder of his brother against the relatives of the accused persons---Said witness further stated that the absconding accused was pursuing the said case in Court---Said witnesses had a strong motive against the accused party and had deposed inimically against the appellant---Appeal against conviction was allowed, in circumstances. (f) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 147, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Withholding injured eye-witness---Adverse presumption---Effect---Accused were charged with committing murder of the deceased by firing---In the instant case, the injured eye-witness was not produced before the Court---All witnesses stated that at the time of occurrence, due to the alleged firing of the accused persons, "KD" received firearm injuries, and the name of "KD" also appeared in the FIR and in the report of the complainant as the person who had received injuries---Perusal of the order sheet of the trial Court transpired that the complainant party filed an application to drop "KD" as a witness--- Said "KD" was not produced before the trial Court---Testimony of said witness was crucial in the instant case, he being an injured witness whose evidence could have further strengthened the prosecution version---Non-production of such important witness attracted Article 129(g) of the Qanun-e-Shahadat, 1984 and gave rise to an adverse inference that, had said witness been produced before the Court, he would not have supported the prosecution version---Appeal against conviction was allowed, in circumstances. Lal Khan v. The State 2004 SCMR 1847 rel. (g) Criminal trial--- ----Conviction---Benefit of doubt---Principle---Conviction must be founded on unimpeachable evidence---Any doubt arising in the prosecution case must be resolved in favour of the accused. (h) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 147, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---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--- Delayed recovery and delayed dispatch to Firearm Expert---Effect---Accused were charged with committing murder of the deceased by firing---As per record, a Kalashnikov was recovered at the instance of the appellant and a positive Firearm Expert report was available on the record---Prosecution produced a Levies Sepoy, according to whom on 26.02.2022 the appellant, in his presence, made a disclosure about the occurrence and, on his pointing out, a Kalashnikov was recovered from a room in the house of the appellant---Alleged occurrence took place on 12.02.2022---Appellant was arrested on 14.02.2022, whereas the alleged recovery was effected on 26.02.2022 after twelve days of his arrest---As per record, after the occurrence the accused persons shifted from their house to an unknown place and, allegedly, the house was set on fire, regarding which the accused party had lodged a report against the complainant party---In such circumstances, it was not confidence-inspiring that the Kalashnikov was recovered on the pointing out of the appellant---Even otherwise, no document or private witness was produced by the prosecution to establish that the house belonged exclusively to the appellant or that he remained in exclusive possession thereof---Said aspect also created reasonable doubt in the prosecution case---Alleged occurrence took place on 12.02.2022 and, according to the recovery witness, the Investigating Officer took into possession twenty-one empties of Kalashnikov from the place of occurrence in his presence---Allegedly, the recovery of the Kalashnikov was effected on the pointing out of the appellant on 26.02.2022 after fourteen days---As per record, the recovered Kalashnikov and empties were sent together to the Firearm Expert on 07.03.2022, after twenty-five days of recovery of the empties and twelve days after recovery of the alleged Kalashnikov---Sending the crime weapon and bullet empties together to the Firearm Expert after such delay created doubt in the prosecution case; therefore, the Firearm Expert report was inconsequential to the prosecution case---Appeal against conviction was allowed, in circumstances. Nazir Ahmed v. The State 2016 SCMR 1628 and Muhammad Ashraf v. The State 2019 SCMR 652 rel. Sarwar Khan Mandokhail for Appellant. Faizullah Kakar for the Complainant. Miss Noor Jahan Kahoor, APG for the State. Date of hearing: 10th April, 2025. Judgment Rozi Khan Barrech, J .--- The appellant Hassan Khan, son of Lal Jan allegedly murdered Faridullah, son of Muhammad Shafiq by means of firing with Kalashnikov at the area of Baratkhail Kili Gadvi near Link Road Killa Saifullah within the precincts of Levies Thana Killa Saifullah on 12.02.2022. For the commission of the said offence, the appellant was booked in case FIR No. 03/2022 registered under sections 302, 324, 147, 148 and 149 P.P.C with the said Levies Thana on 12.02.2022 at 12:30 pm. After a regular trial, the appellant was convicted under section 302(b) P.P.C vide judgment dated 21.02.2023 ('the impugned judgment' ) passed by learned Sessions Judge Killa Saifullah ( `trial Court' ) in Session Case No. 06 of 2022 and sentenced to suffer R.I for life and to pay Rs.500,000/- to the legal heirs of the deceased Faridullah in default whereof he was directed further undergo six months S.I. with the benefit of Section 382-B Cr.P.C. Aggrieved, from the impugned judgment, the appellant has assailed his conviction and sentence through the instant appeal. 3. Learned counsel for the appellant submitted that the impugned judgment is based on conjectures and surmises as the same is based on mis-reading and non-reading of evidence available on record; that there are two versions of the prosecution case, one recorded by the complainant and the other produced by the eye-witnesses, which create reasonable doubt in the prosecution case; that the appellant is not nominated in the FIR and subsequently, after three hours of the occurrence the eye-witnesses nominated the appellant in the instant case in their statements recorded under section 161 Cr.P.C; that the so-called eye-witnesses produced by the prosecution are interested and inimical against the appellant and also chance witnesses; that the recovery of crime weapon allegedly affected on pointation of the appellant is doubtful; that the co-accused has been acquitted from the charge by the trial court on the same set of evidence and no appeal was filed by the complainant and the judgment of the trial court to the extent of the acquitted co-accused attained finality, benefit whereof should be given to the appellant; that the alleged empties were recovered from the place of occurrence and after fourteen days of the occurrence the alleged crime weapon was recovered from the appellant and both the empties and crime weapon were sent together to the firearm expert and lastly prayed that since the prosecution has failed to establish its case beyond any reasonable doubt, therefore, by accepting the appeal, the appellant may be acquitted from the charge. 4. Conversely, the learned state counsel and counsel for the complainant vigorously controverted the arguments advanced by the learned counsel for the appellant and submitted that the prosecution had successfully proved its case against the appellant up to the hilt by producing reliable and trustworthy evidence; that evidence of the prosecution is based on ocular, medical evidence and recovery of crime weapon on pointation of the appellant, which sufficiently connect the appellant with the commission of the alleged crime and lastly prayed that in the presence of sufficient evidence on record, appeal filed by the appellant is liable to be dismissed. 5. We have heard the arguments of learned counsel for the parties and have gone through the record minutely. 6. We have observed that the prosecution has produced evidence in the shape of ocular evidence, medical evidence and crime weapon recovered on the pointation of the appellant as well as investigation besides other attending circumstances. As far as the merits of the case are concerned, we have observed that the prosecution produced Shah Wali (PW-2), Abdul Latif (PW-3), and Ameenullah (PW-5), who are eye-witnesses of the occurrence. All the above witnesses are closely related to the deceased Faridullah, therefore, for the safe dispensation of justice, their evidence will have to be appreciated with care and caution. No doubt the evidence of the related witnesses cannot be discarded on the grounds of its being related to the victim, but if it is found that the testimony of the related witness has no corroboration from attending circumstances of the case or the conduct shown by them at the time of occurrence or just thereafter as such, which cannot be expected from a prudent person, then under such circumstances the evidence furnished by related witnesses can be easily discarded. At the touchstone of the above we now take into-consideration the testimonies furnished by the above witnesses in the case. 7. PW-2 namely, Shah Wali, stated in his statement that on 12.02.2022 at 10:00 pm, he, along with Faridullah, left their Kili Wand for the purpose of labour for Ghuai, on a motorcycle, and when they reached Baratkhail, they saw Mulla Shan Muhammad alias Shano who was also riding a motorcycle and when they were crossing Mulla Shan Muhammad alias Shano both motorcycles collided, whereafter altercation took place between them. Meanwhile, the people from the village intervened, whereafter Mulla Shan Muhammad left for home, and the people told us if we wanted to go home, we would have to travel from a different route lest further damage could be avoided. They then left for home Killi Gadvi, and when they reached near Sharaf Khan s house at about 11:00 am, firing was made upon them from Ghundi, and he (PW-2) stopped the motorcycle and plunged into a trench to save himself from firing, whereas his companion Faridullah in order to save himself fled towards the hills and lied down in the Ghundi. He saw that there was a hideout on the hill wherein Ahad, Sherak, Hassan Khan, Mulla Zarif and Huda Khan were present, having Kalashnikovs and rifles who were firing and from Sharaf Khan s houses they were also being fired upon. Meanwhile, Aminullah and Khyal Din also came. From the eastern side, Hassan Khan fired upon the deceased Faridullah, due to which Faridullah got injured. Meanwhile, Khyal ud Din also came when the accused persons stopped firing. When Khyal ud Din went to bring down Faridullah, the accused persons started firing again, which resulted in causing injuries to Khyal ud Din, who sustained a injury on his leg, when the people from the surrounding came and brought Faridullah down and sent him for treatment, then, he saw Sharaf Khan, Ahwal Khan, Saleem Khan and Mullah Shano coming down from a tower at Sharaf ud Din house having Kalashnikovs and rifles. Abdul Latif appeared before the court as PW-3 and stated that he was present in his house at Killi Gadvi when he heard firing and reached the place of occurrence and saw the accused persons firing upon the deceased Faridullah and Khyal Din, who were both injured and later on Faridullah succumbed to the injuries. Aminullah appeared before the court as PW-5 and stated in his statement that on the day of the occurrence, he was going to Toda Safarzai on a motorcycle. When he was going back to his house at Bararkhail main road, he heard a firing, and the accused persons fired upon the deceased Faridullah and Khyal Din. Both of them received injuries, and later on, Faridullah succumbed to the injuries. 8. The record reflects that the occurrence took place at 11:00 am, allegedly in the presence of the above three witnesses, but the report was lodged at 12:30 pm by Abdul Wasay Dafedar Levies/Incharge Levies Thana Baratkhail (PW-1), who is not an eye-witness of the alleged occurrence. According to the statement of complainant/PW-1 on 12.02.2022 at 11:00 am two parties fired on each other in the area of Baratkhail Killi Gadvi near the link road with Kalashnikovs due to which Faridullah and Khyal Din received injuries, who were shifted to Killa Saifullah hospital. It has also come on record that the complainant Abdul Wasay Dafedar Levies Thana, after hearing the firing reached the place of occurrence and stated during cross-examination that he remained present for fifteen minutes at the place of occurrence, while in his report and during cross-examination he stated that he went to the hospital and thereafter went to Levies Thana and lodged the report, meaning thereby that before the lodgment of the FIR, he was present at the place of occurrence as well as a hospital while the injured was being brought to the hospital. It is worthwhile to mention here that the FIR was lodged against unknown persons and the appellant and co-accused are not nominated in it. For the sake of arguments, even if it is presumed for a moment that they (PW-2, PW-3 and PW-5) were present at the place of occurrence as well as at the hospital, then the question arises that why they did not lodge the FIR or named the accused persons to the complainant Abdul Wasay Levies Incharge of Levies Thana Killa Saifullah. Had they been present at the time of the alleged occurrence, they must have lodged the FIR and nominated the accused persons. On the other hand, according to the above PWs and investigation officer, namely Muhammad Essa Naib Risaldar Levies (PW-12), he went to the place of occurrence after registration of the FIR as well as civil hospital Killa Saifullah, but he also stated that he recorded the statement of PW-2, PW-3 and PW-5 under section 161 Cr.P.C at the house of the deceased Faridullah at 2:00 pm. It seems that they (PW-2, PW-3 and PW-5) were not present at the place of occurrence. Needless to say that, not nominating the appellant in the FIR rather he was subsequently nominated by the above PWs after three hours of the occurrence, cannot be simply brushed aside, and it assumed great significance and can be attributed to consultation, taking instructions and calculated preparing the report keeping in view the name of the assailants opened for involving such persons who ultimately the prosecution may wish to nominate. This aspect of the case renders the case of the prosecution extremely doubtful. 9. The above witnesses remained mum and recorded their statements under section 161 Cr.P.C with considerable delay. The delay of even one or two days without explanation in recording the statements of witnesses has been found fatal for the prosecution and not worthy of reliance by the august Supreme Court in the case of Muhammad Asif v. The State
reported as 2017 SCMR 486 , Haroon alias Harooni v. The State and another (1995 SCMR 1627)
and Muhammad Khan v. Maula Bakhshah (1998 SCMR 570). 10. Apart from the above, PW-2, PW-3 and PW-5 were highly interested and inimically deposed against the appellant. The first reason for disbelieving them is that their presence at the spot was unnatural because had they been present at the spot, they would have received some injuries from the shots fired by the appellant, acquitted accused and absconding accused. It appears that they have tried to suppress their interestedness. All the three witnesses did not justify their presence at the time and place of occurrence. It does not appeal to the logic that the person whose near relative has been murdered neither made any resistance nor raised any hue and cry for help despite the fact that the alleged occurrence took place in an open place near the houses. It is alleged by the above witnesses that nine persons were firing from two hideouts and houses of the accused persons. All of whom were allegedly armed with Klashnikovs. It has also come from the mouth of the above three witnesses that the distance between them and the deceased was 9/10 steps, and the accused persons were firing from a distance of 30/35 yards with automatic weapons. 11. Suppose the statements of the above witnesses are believed to be true; in that case, the question arises that why and how the appellant and co-accused spared them and did not try to kill them when they could have easily killed them because they were empty handed and at their mercy, coupled with the fact that they could depose against them as eye-witnesses being relatives of the…
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