2026 P Cr. L J 335

 2026 P Cr. L J 335

[Sindh]

Before Omar Sial, J

TAJ MUHAMMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 105 of 2012, decided on 26th October, 2022.

(a) Criminal trial---

----Site plan---Scope---Site plan in any case is not a substantive piece

of evidence so as to contradict ocular account.

Shamim Akhtar v. Faiz Akhtar PLD 1992 SC 211; Muhammad Iqbal v.

Muhammad Akram 1996 SCMR 908 and Taj Mohammad v. Muhammad

Yousuf PLD 1976 SC 234 rel.

(b) Penal Code (XLV of 1860)---

----Ss. 302(b) 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd,

common intention---Appreciation of evidence---Delay of 15 hours in

lodging the FIR plausibly explained---Accused-appellant was charged

that he along with his co-accused committed murder of the nephew

of complainant by firing and caused firearm injuries to

complainant---Incident occurred on 09.05.2008 at 7:45 a.m. whereas

the FIR was registered the same day but at 11:15 p.m.---Delay which

took place was explained by complainant---Complainant recorded

that about 30 minutes after the incident the police, which had been

informed by the complainant party, had reached the spot---Deceased

was taken to the local hospital whereas the complainant was taken

to the Civil Hospital in the nearby city---Complainant was discharged

from the hospital at 9:00p.m. after which he went to the police

station and lodged the FIR---Perfectly reasonable, logical and

plausible reason was given for the nearly 15 hour delay---There was

no room for the facts of the incident to be manipulated by the

injured complainant due to the delay---Circumstances established

that the prosecution had proved its case against the accused-

appellant, however, due to some extenuating circumstances, life

imprisonment was reduced to imprisonment for ten years---With

said reduction in sentence, the appeal was dismissed.

(c) Penal Code (XLV of 1860)---

----Ss. 302(b) 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd,

common intention---Appreciation of evidence---Withholding material

witness from giving evidence---Inconsequential---Accused-appellant was charged that he along with his co-accused committed murder of

the nephew of complainant by firing and caused firearm injuries to

complainant---It was alleged by defence that son of complainant was

present at the spot but was not produced by the prosecution---It was

not the quantity of the evidence but the quality which was important---

How old was son of complainant been even if present, was not

revealed at trial---Family might not have wanted said witness to be

exposed to the rigors of investigation and trial---Moreover, it was up to

the prosecution to decide who it would examine at trial---In view of

the three eye-witnesses being very clear in their testimony, the

absence of said son of complainant at trial, in the circumstances of the

present case would not have an adverse impact on the prosecution

case---Had son of complainant been included as a witness and then

declined to come to record his testimony would have attracted Art.129

of the Qanun-e-Shahadat, 1984, but admittedly that was not what

happened in the present case---Circumstances established that the

prosecution had proved its case against the accused-appellant,

however, due to some extenuating circumstances, life imprisonment

was reduced to imprisonment for ten years---With said reduction in

sentence, the appeal was dismissed.

(d) Penal Code (XLV of 1860)---

----Ss. 302(b) 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd,

common intention---Appreciation of evidence--- Sequence of events--

-Scope---Accused-appellant was charged that he along with his co-

accused committed murder of the nephew of complainant by firing

and caused firearm injuries to complainant---Incident occurred on

09.05.2008 at 7:45 a.m.---Police was informed immediately and

arrived by 8:30 a.m. on the scene---Blood stained earth and 02

empties were recovered at 8:30a.m.---Medical Officer began medical

examination of complainant at 9:15 a.m. and the post mortem of the

deceased at 9:45 a.m. and he opined that the duration between death

and post mortem was about 02 hours---First Information Report was

lodged at 11:15 p.m.---Eye-witness statements were recorded the

very next day i.e., 10.05.2008---All steps were taken with reasonable

promptitude leaving little room for manipulation---Circumstances

established that the prosecution had proved its case against the

accused-appellant, however, due to some extenuating

circumstances, life imprisonment was reduced to imprisonment for

ten years---With said reduction in sentence, the appeal was

dismissed.

(e) Penal Code (XLV of 1860)---

----Ss. 302(b) 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd,

common intention---Appreciation of evidence--- Recovery of crime empties and weapon of offence---Reliance---Accused-appellant was

charged that he along with his co-accused committed murder of the

nephew of complainant by firing and caused firearm injuries to

complainant---Record showed that 02 empties and blood stained

earth was recovered from the place of incident---Subsequently, on

17.05.2008, appellant took the police to his house from where the

double barrel gun he used was recovered---Gun together with the

empties were sent to the Forensic Science Laboratory, which opined

that the empties were of cartridges fired from the recovered gun---

Circumstances established that the prosecution had proved its case

against the accused-appellant, however, due to some extenuating

circumstances, life imprisonment was reduced to imprisonment for

ten years---With said reduction in sentence, the appeal was

dismissed.

(f ) Penal Code (XLV of 1860)---

----Ss. 302(b), 302(c), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-

amd, common intention---Appreciation of evidence---Sentence,

reduction in---Incident taking place without any pre-meditation and

at the spur of the moment---Old age of accused---Accused-appellant

was charged that he along with his co-accused committed murder of

the nephew of complainant by firing and caused firearm injuries to

complainant---In this case, trial judge in the sentencing portion of

the judgment had concluded that the incident took place without

any pre-meditation and at the spur of the moment---High Court

agreed with the trial judge that evidence led at trial was not of a

nature which could conclusively prove pre-meditation---In such a

situation, it would be appropriate if the conviction given to the

appellant was converted from that under S.302(b), P.P.C. to 302(c),

P.P.C.---Keeping in view the fact that the appellant was 76 years old,

potentially suffering from prostate cancer and was arrested on

10.05.2008 and since that date had been suffering the agony of these

proceedings for 15 years, it might be appropriate to reduce his

sentence to 10 years---Jail roll showed that the appellant had served

10 years and 01 month in prison till today---Life imprisonment was

reduced to imprisonment for ten years---With said reduction in

sentence, appeal was dismissed.

Muhammad Bilal Rashid for Appellant.

Talib Ali Memon, APG for the State.

Date of hearing: 26th October, 2022.

JUDGMENT

OMAR SIAL, J.---Muhammad Yameen along with his uncle

Muhammad Ayoub were cutting trees at 7:45 a.m. on 09.05.2008 when

3 men identified as Taj Mohammad (the appellant) armed with a gun, Abdul Latif armed with a pistol and Muhammad Ali holding an iron

bar came to them and objected to the tree cutting. An altercation

between the 2 parties occurred during which Taj Mohammad fired

from his weapon on Muhammad Yameen, which shot hit him on his

head and killed him. Abdul Latif fired and hit Muhammad Ayoub on

his leg whereas Muhammad Ali also beat Ayoub with the iron bar.

The commotion attracted 2 other persons nearby who were Mir

Muhammad and Abdul Ghani. Both these men tried to intervene and

pacify the attackers however the damage was done. The 3 attackers

then left the scene. First Information Report No. 23 of 2008 was

registered under sections 302 and 34 P.P.C. at the Darro police station

at 11:15 p.m. the same day.

2. The accused pleaded not guilty and claimed trial. After a full dress

trial, the leaned Sessions Judge, Thatta, on 21-2-2012 found Taj

Mohammad guilty for the murder of Yameen. He was convicted under

section 302(b) P.P.C and sentenced to a life in prison. He was also

directed to pay a Rs. 300,000 compensation to the legal heirs of the

deceased, and if he failed to do so he would have to spend another

year in prison.

3. The counsels have informed me that Muhammad Ali and Abdul

Latif have already been released after completing their sentences and

that both these gentlemen did not file appeals against their conviction

and sentence. It is therefore only Taj Muhammad who filed this

appeal. I have therefore not taken into consideration the evidence

recorded against the former 2 accused.

4. I have heard the learned counsel for Taj Muhammad as well as

the learned APG. The complainant did not engage a counsel. His

brother was however present in person as the complainant according

to the counsel had died. The brother too, declined to engage a counsel

had put his faith in the learned APG. The arguments of the counsel are

not being reproduced for the sake of brevity but are reflected in my

observations and findings below.

Eye-witnesses

5. Apart from the injured complainant Ayoub, there were 2 other

eye-witnesses; Mir Muhammad and Abdul Ghani. Learned counsel has

argued extensively that both these gentlemen were not really present

and had been created as eye-witnesses to strengthen the prosecution

case. In order to support his submission he first argued that both the

eye-witnesses were related to Ayoub and thus were interested

witnesses. Learned counsel was also of the view that all 3 eye-

witnesses have given different accounts of where they were placed

when the incident occurred and what role did they play. According to

Ayoub the 2 eye-witnesses had arrived immediately after the incident and that they had also pleaded with the attackers not to hurt Ayoub

and Yameen; PW-2 Mir Mohammad said that when the 2 eye-witnesses

came to the scene the attackers along with the weapons left the scene.

He did not say that there was an exchange of dialogues between the 2

witnesses and the attackers; PW-3 Abdul Ghani said that he and Mir

Mohammad came to the scene after hearing the commotion and saw

the incident take place. Learned counsel has relied on the foregoing to

show that the eye-witnesses were not present on the spot.

6. With much respect I am not convinced with the argument given

by the learned counsel. He is correct to the extent that there is a

contradiction between the versions given by the 3 witnesses, however,

the contradiction is of such a trivial nature that it can hardly be said to

have an iota of an adverse impact on the prosecution case. The eye-

witnesses have all corroborated and supported each other on all

material points of the incident. Their relationship with the

complainant, without any reason being attributed, cannot be the basis

of discarding their entire testimony. I find all 3 eye-witnesses to be

truthful and their testimonies confidence inspiring and trustworthy.

Nothing said by any other witness or they themselves was of such a

nature that would impact negatively their credibility.

Medical Evidence

7. Learned counsel first submitted that Dr. Rafique Ahmed Soomro,

who had conducted the post mortem could not be believed as he was

an interested witness being on dining terms with Ayoub. He was also

of the view that blackening was found on the entry wound of the

deceased. This, according to him, would suggest that the fire was made

at a very short range but that Ayoub in his evidence had said that Taj

Mohammad was at a distance of 5 or 6 feet from Yameen when he had

fired at him. Further, counsel was of the view that the medical opinion

does not reconcile with the ocular version. Why he argued this was

because Ayoub, at trial, said that the pellets hit Yameen on his head

although in the FIR he had recorded that the fire hit Yameen on his

forehead. PW-2 Mir Mohammad said at trial that the fire hit Yameen

on his forehead whereas PW-4 Dr. Rafiq Soomro said that the injury

was on the right eye and ear region.

8. I am not entirely convinced with the argument of the learned

counsel that the medical evidence does not reconcile with the ocular

version. Simply because the doctor had dining terms with Ayoub

would not ipso facto mean that he would draw up a wrong report. It

would be the likely behavior of a person who had been exposed to

such a trauma as Ayoub had, to seek solace from professionals known

to him. There was nothing which came in evidence that would even

remotely indicate that the report given by Dr. Soomro was incorrect. There is nothing in the report to be incorrect about. Yameen was shot

in the head and that is what the doctor reported. All witnesses testified

the same thing. Learned counsel s argument that the seat of injury,

according to the witnesses, ranged from the forehead to the top of the

head to the right of the forehead carries no weight. Witnesses, exposed

to such trauma, cannot be expected to give a precise spot where the

bullet hit a deceased. The seats of injuries given by the witnesses and

the doctor, at best, are at a deviation of a couple of inches, however all

testified that he was hit on the top of his head. As regards the

blackening, once again, how close or far the shooter was, cannot be

measured precisely and is an approximate indication of the distance.

Usually a shot made from a distance of 2 to 3 feet is said to cause

blackening at the point of entry, however, the approximate distance

given by Ayoub i.e. 5 to 6 feet would be very close to 2 to 3 feet if one

kept into mind the length of a double barrel shot gun as well as the

extension of the shooters arm. It is also pertinent to mention that the

blackening was also found on the injury sustained by Ayoub, which

reconciles perfectly with the eye-witnesses statement that Ayoub has

been shot at a very close range. Contrary, to the learned counsel s

argument, I am of the view that the medical evidence reconciled

perfectly with the ocular version given by the eye-witnesses.

The sketch of the place of incident made by PW-7 Tariq Hussain

Magsi

9. In addition to what is stated in the preceding paragraph, learned

counsel has passionately argued that the sketch of the place of incident

does not reconcile with the medical report (as far as blackening is

concerned) because the players are positioned very far away from

each other in the map. Learned counsel submitted that the place of

incident was pointed out to the revenue officer (tapedar) by the

complainant himself and thus this fact alone is sufficient to discredit

the entire eye-witnesses testimony. Learned counsel is correct, and the

learned APG also admits that he is correct, that the sketch made by the

tapedar to the extent of the positions of the characters does not

reconcile with the prosecution case.

10. The incident occurred on 09.05.2008. The sketch was made

nearly 3 years later on 15.04.2011. There is no requirement in the Code

that a sketch of the place of incident must mandatorily be made during

investigation. Rule 25.13 of Chapter XXV of Volume III of the Police

Rules, 1934 however provides that in all important cases 2 plans of the

scene of the offence be prepared by a qualified police officer or some

other suitable agency. 1 copy of the map is to be submitted along with

the final report (the challan). What exactly is an important case is not

explained in the Rules and it seems that the same is left to the discretion of the police officer. It is however clarified in this Rule that

in cases of, inter alia, murder, the police officer, if he considers that an

accurate map is required, summon to the scene of the crime the

patwari of the circle in which the murder occurred and cause him to

prepare 2 maps. 1 for the production in court and the other for the

purposes of the investigation. In the former references relating to the

facts observed by the police officer are to be entered. The Rule further

provides that patwaris will not in any case be required by a police

officer to make a map of an inhabited enclosure or of land inside a

town or village.

11. It is clear from the above mentioned Rule that it is the

investigating officer himself who has to determine whether a map is

required in a case and if it is, it is he who has to supervise the

proceedings for its preparation. He can himself make it or in cases of

heinous offences and murder require a patwari/tapedar to do it. 2 sets

of the map have to be made and the requisite comments made by the

police officer on what he observed are to be put on the copy of the

map put in court.

12. In the present case, it is clear that the investigating officer may

not have been aware of his responsibilities pursuant to the Police

Rules. A map of the crime scene prepared after 3 years of the incident,

may not have been accurate due to the possible change in the

geography of the scene. It is also debatable whether a map was even

required as the land where the incident occurred was inside a village.

The investigating officer very conveniently remained absent

throughout the process of the making of the sketch. Memories fade

and after 3 years the complainant himself have erred in pointing out

the exact places where the attackers, the deceased and witnesses were.

It is also pertinent to note that the complainant in his testimony did

not even mention that he had accompanied the tapedar for the

purpose of making the map. No questions were asked of the witnesses

to explain the contradiction in their estimate of the distances and the

ones stated on the map. A site plan in any case is not a substantive

piece of evidence so as to contradict ocular evidence. Reference in this

regard may be made to Shamim Akhtar v. Faiz Akhtar (PLD 1992 SC

211), Muhammad Iqbal v. Muhammad Akram (1996 SCMR 908) and Taj

Mohammad v. Muhammad Yousuf (PLD 1976 SC 234).

13. I am not satisfied that the contradiction which the site plan

created with witness testimony was of such a nature which would

upset his conviction.

Delay in lodging the FIR 14. The incident occurred on 09.05.2008 at 7:45 a.m. whereas the FIR

was registered the same day but at 11:15 p.m. The delay which took

place was explained by PW-1 Mohammad Ayoub. Ayoub recorded that

about 30 minutes after the incident the police, which had been

informed by the complainant party, had reached the spot. The

deceased Yameen was taken to the local hospital in Darro whereas the

complainant was taken to the Civil Hospital in the nearby city of

Hyderabad. Ayoub was discharged from the hospital at 9:00 p.m. after

which he had gone to the police station in Darro and lodged the FIR. A

perfectly reasonable, logical and plausible reason was given for the

nearly 15 hour delay. There was no room for the facts of the incident

to be manipulated by the injured complainant Ayoub due to the delay.

Presence of Noor Mohammad

15. Learned counsel was of the view that as PW-2 Mir Mohammad

said at trial that Ayoub s son Noor Mohammad was present with him

while Abdul Ghani said that he was not, and because Noor Mohammad

was not examined at trial, would necessarily mean that the

prosecution case was false. He argued that if the son of the

complainant was present it was strange that he did not play any role in

the entire incident and its aftermath.

16. As strange as Noor Mohammad s absence might be, I am not

convinced with the argument of the learned counsel. It is not the

quantity of the evidence but the quality which is important. How old

was Noor Mohammad, even if present, was not revealed at trial. The

family may not have wanted him to be exposed to the rigors of

investigation and trial. It was up to the prosecution to decide who it

would examine at trial. In view of the 3 eye-witnesses being very clear

in their testimony, the absence of Noor Mohammad at trial, in the

circumstances of the present case would not have an adverse impact

on the prosecution case. Had Noor Mohammad been included as a

witness and then declined to come to record his testimony have

attracted Article 129 of the Qanun-e-Shahadat Order, 1984, but

admittedly this is not what happened in the present case.

Sequence of events

17. Incident occurred on 09.05.2008 at 7:45 a.m. The police was

informed immediately and arrived by 8:30 a.m. on the scene. Blood

stained earth and 2 empties were recovered at 8:30 a.m. PW-4 Dr.

Rafiq Ahmed Soomro began medical examination of Ayoub at 9:15 a.m.

and the post mortem of the deceased at 9:45 a.m. he opined that the

duration between death and post mortem was about 2 hours. FIR was

lodged at 11:15 p.m. Eye-witness statements were recorded the very

next day i.e. 10.05.2008. All steps were taken with reasonable promptitude leaving little room for manipulation. The delay in the

recording of the FIR has been addressed above.

Other witnesses

18. Apart from the witnesses mentioned above, the following

witnesses were also examined at trial. PW-5 Manzoor Ahmed Soomro

had reached the place of incident after the incident and witnessed the

preparation of the Inquest Report. PW-6 Muhammad Qasim also

reached after the incident and witnessed the inspection of the dead

body. He also served as a witness to the recovery of the crime weapon

at Taj Mohammad s pointation. PW-8 S.I. Hamir Khan was the

investigating officer of the case. PW-9 Inspector Agha Salahuddin was

the police officer who first responded to the information of the

murder and arrested the accused. PW-10 H.C. Ghulam Ali handed over

the body of the deceased to his relatives after the post mortem. PW-11

P.C. Sultan Ahmed witnessed the arrest.

Recovery

19. 2 empties and blood stained earth was recovered from the place

of incident. Subsequently, on 17.05.2008, Taj Mohammad took the

police to his house from where the double barrel gun he used was

recovered. The gun together with the empties were sent to the

Forensic Science Laboratory, which opined that the empties were of

cartridges fired from the recovered gun. A perusal of the section 342

Cr.P.C. statement however shows that the report of the Forensic

Division was not put to the accused. In such circumstances the

contents of the report cannot be used as evidence against the accused.

Sentence

20. Although not argued by either counsel, the sentence passed by

the learned trial court, is an area that I have looked at closely. The

learned trial judge in the sentencing portion of the judgment has

concluded that the incident took place without any pre-meditation and

at the spur of the moment. I tend to agree with the learned judge that

evidence led at trial was not of a nature which could conclusively

prove pre-meditation. In such a situation it would be appropriate if the

conviction given to the appellant is converted from that under section

302(b) P.P.C. to 302 (c) P.P.C. Keeping in view the fact that the appellant

is 76 years old, potentially suffering from prostate cancer and was

arrested on 10.05.2008 and since that date has been suffering the

agony of these proceedings for 15 years, it may be appropriate to

reduce his sentence to 10 years. The jail roll shows that he has served

10 years and I month in prison to date. The appeal is therefore

dismissed however the sentence is reduced to 10 years. The appellant

shall however pay Rs. 300,000 as compensation to the legal heirs of the deceased. He has been on bail since 2015. His bail bonds shall remain

intact and surety will not be discharged until he has provided

evidence that the compensation has been paid.

JK/T-9/Sindh Sentence reduced