IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE UAZ UL AHSAN
MR. JUSTICE MUNIB AKHTAR
MR. JUSTICE SAYYEO MAZAHAR AL! AKBAR NAQVI
'9FA)
CRIMINAL PETITION NOs. 53-Q & 66-Q OF 2020
(On appeal against the judgment dated 30.06.2020 passed by
the High Court of Balochistan, Quetta in Criminal Appeal No.
43712017 & Murder Reference No, 1112017)
GuI Zarin S/O Abdul Hakim etc
Kamal-ud-Din
Petitioners
(in Cr.P. 53-QJ2020)
(In Cr.P. 66-0J2020)
Versus
Kamal-ud-Din and another 
(in Cr.P. 53-QJ2020)
The State 
(in Cr. P. 66-012020)
Respondent(s)
For the Petitioners: 
Mr. Kamran Murtaza, Sr. ASC
(in Cr.P. 53-QJ2020)
Mr. Jameel Ramzan, ASC
(in Cr.P. 66-013030)
For the State: 
Syed Pervaiz Bukhari, State counsel
Date of Hearing: 
09.03.2022
JUDGMENT
SAYVED MAZAHAR ALl AKBAR NAQV!, J.- Petitioner Kamal-ud-Din was tried by
the learned Additional Sessions Judge, Killa Abdullah at Chaman pursuant to a
case registered vide FIR No. 6812003 dated 31.05.2003 under Sections
302/324/337-A/147/148/149 PPCfor committing murder of Muhammad Sabir,
cousin of the complainant. The learned Trial Court vide its judgment dated
27.12.2017 convicted the petitioner Kamal-ud-Din under Section 302(b) PPC
and sentenced him to death. He was also directed to pay Compensation
amounting to Rs.500,0001- to the legal heirs of the deceased or in default
whereof to further suffer SI for six months. In appeal, the learned High Court,
while maintaining the conviction of the petitioner under Section 302(b) PPC,
altered the sentence of death into imprisonment for life. The amount of
Compensation and the sentence in default whereof was maintained. Benefit of
Section 382-B Cr.P.C. was also extended to him. Against the impugned
CRIMINAL PETITION NOs. 53-Q & 66-Q OF 2020 
-:2:-
judgment, the petitioner Kamol-ud-Din has filed Criminal Petition No. 66-
0J2020 whereas the complainant has filed Criminal Petition No. 53-0.12020
seeking enhancement of the sentence awarded to the petitioner-convict
Komal-ud-Din.
2. The prosecution story as given in the impugned judgment reads
as under:-
'2. The prosecution case as gleaned from the application
submitted by PW-1A GuI Zarin are that on 31st May, 2003 at 8:00
pm his three brothers Muhammad Hanfia, Muhammad Aulia,
Noor Shah and cousin Muhammad Sabir were on their way home
situated at Killi Salahuddin from border and when they reached
Boghra Road bypass the accused persons Kamal, Karam, Fateh
Khan, Abdul Samad Sons of Umai, Dilbar son of Fateh Khan,
Abdul Samad, Sher Ali, Muhammad Wali sons of Abdul Qadeer,
Shaista Khan, Gaji, Janon sons of Abdul Raheern and four
unknown person had blocked the road by parking their vehicles,
on which the brother of the complainant namely Hanfia told the
accused persons to open the road, whereupon the accused
persons became furious and attacked upon his brothers and
cousins with Churries, knives and pistols. It was alleged that
accused Kornai, Fateh Khan, Karam, Abdul Samad sons of Haji
Umai and Dilbar son of Fateh Khan were making firing with
pistols. It was alleged that due to firing made by accused Kornai,
Muhammad Sabir became seriously injured and succumbed to his
injuries on his way to hospital, whereas Muhammad Hanfia,
Muhammad Aulia and Noor Shah were injured by knives and
churries of accused persons. It was further alleged by the
complainant that he can recognize the four accused persons by
their appearance. With these allegations FIR No. 68 of 2003
under Sections 302, 324, 337-A, 147, 148, 149 PPC was registered
with Levies Thana Chaman, District Killa Abdullah."
3. After completion of the investigation, report under Section 173
Cr.P.C. was submitted before the Trial Court. The prosecution in order to prove
its case produced ten witnesses. In his statement recorded under Section 342
Cr.P.C, the petitioner-convict pleaded his innocence and refuted all the
allegations leveled against him. He also recorded his statement on oath as
envisaged under Section 340(2) Cr.P.0 and produced one witness Asmatu/lah in
his defence.
4. Learned counsel for the petitioner-convict argued that there are
glaring contradictions and dishonest improvements in the statements of the
CRIMINAL PETITION NOs. 53-Q & 66-Q OF 2020 
-: 3:-
prosecution  witnesses of the ocular account, which have escaped notice of the
courts be/ow. Contends that the prosecution has miserably failed to prove its
case against the petitioner beyond reasonable doubt, therefore, there was no
justification to convict the petitioner. Contends that when the learned High
Court after close scrutiny of the evidence has held that the occurrence took
place at the spur of the moment, there was no motive or premeditation on the
part of the petitioner, then there was no occasion to maintain his conviction.
Contends that on the some set of evidence, co-accused Samad has been
acquitted of the charge by the learned Trial Court, therefore, the petitioner also
deserves the some treatment to be meted out.
5.
On the other hand, /earned counsel for the complainant assisted
by learned Law Officer contended that the impugned judgment to the extent of
altering the sentence of death awarded to the petitioner-convict into
imprisonment for life is contrary to low and facts and as such is liable to be set
aside. Contends that the statements of the witnesses of the ocular account are
sufficient to sustain the conviction of the petitioner on the capita/ charge but
the learned High Court reduced the quantum of punishment on shaky and
vague grounds, which are not tenable in law.
6.
We have heard learned counsel for the parties at some length
and have perused the evidence available on the record with their able
assistance.
In order to prove its case, the prosecution has mainly relied upon
the statements of injured witnesses namely Muhammad Hanfia (PW-3), 0/ia
(PW-4), Noor Shah (PW-6) and the statements of Sirajuddin (PW-2) and
Nizamuddin (PW-5). These prosecution witnesses were subjected to lengthy
cross-examination by the defence but nothing favourable to the petitioner-
convict or adverse to the prosecution could be produced on record. These PWs
remained consistent on each and every material point inasmuch as they made
deposition exactly according to the circumstances happened in this case,
therefore, it can safely be concluded that the ocular account furnished by the
prosecution is reliable, straightforward and confidence inspiring. As far as
minor contradictions in the statements of the PW5 are concerned, the some ore
CRIMINAL PETITION NOs. 53-Q & 66-Q OF' 2020 
-: 4:-
natural  as admittedly the petitioner remained absconder for a period of 12
long years and the trial begun after his arrest on 24.09.2015. Aftersuch a lapse
of time, some minor discrepancies may occur but the some are neither
dishonest nor are sufficient to discard the testimonies of the PWs of the ocular
account. The medical evidence available on the record is in line with the ocular
account so for as the nature, locale, time and impact of the injury on the
person of the deceased is concerned. So for as the question that the PWs were
closely related to the deceased, therefore, their testimony cannot be believed
to sustain conviction of the petitioner-convict is concerned, it is by now a well
established principle of law that mere relationship of the prosecution witnesses
with the deceased cannot be a ground to discard the testimony of such
witnesses unless previous enmity or ill will is established on the record to
falsely implicate the accused in the case but no such thing could be brought on
record. All these PW5 have reasonably explained their presence at the place of
occurrence. Learned counsel for the petitioner-convict could not point out any
reason as to why the complainant has falsely involved the petitioner-convict in
the present case and let off the real culprit, who has committed murder of his
cousin. Substitution in such like cases is a rare phenomenon. The complainant
would not prefer to spare the real culprit and falsely involve the petitioner
without any rhyme and reason. The recovery is held to be inconsequential as
admittedly the petitioner was arrested after 12 years of the occurrence and it
W05 impossible to retain the crime weapon with him in such a long period of
time. The petitioner had also got recorded his statement under Section 340(2)
Cr.P.0 and produced one defence witness in support of his version that he was
not present at the place of occurrence at the relevant time. However, except
for the bald statement, no credible evidence in this regard could be brought on
record. As for as the argument of learned counselfor the petitioner that on the
some set of evidence co-accused Samad who was ascribed the similar role has
been acquitted whereas the petitioner has been convicted is concerned, the
learned High Court has rightly observed that the case of the petitioner is
distinguishable to that of the acquitted co-accused as all the eye-witnesses
stated that the bullet, which hit the deceased, was fired by the petitioner
whereas only a general role of firing was ascribed to the co-accused Samad. In
 these circumstances, it can safely be said that the prosecution has brought on
i1
CRIMINAL PETITION NOs. 53Q & 66-Q OF 2020 
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record reliable evidence to sustain the conviction of the petitioner. However, so
far as the quantum of punishment is concerned, we are of the view that when
the learned High Court itself has observed that the occurrence took place at the
spur of the moment over the blockage of passage and there was no pre-
meditation on the part of the petitioner; the petitioner only fired single shot
and did not repeat the some despite having ample opportunity to do so; no
motive has been alleged by the prosecution for the commission of the crime
and the recovery of the weapon is inconsequential, the sentence of
imprisonment for life was not justified. In this view of the matter, we convict
the petitioner Kamal-ud-Din under Section 302(c) PPC and sentence him to
fourteen years RI. So for as the argument of the learned counsel for the
complainant that it was not a sudden affair and the finding that the petitioner
only fired single shot is contrary to record is concerned, despite our repeated
queries he could not show us from record anything in support of his contention,
which could persuade us to hold otherwise.
7. For what has been discussed above, Criminal Petition No. 66-
0J2020 is converted into appeal and partly allowed and the impugned
judgment is modified as stated in the preceding paragraph whereas Criminal
Petition No. 53-012020 is dismissed. The above are the detailed reasons of our
short order of even date.
Islamabad, the 
9th of March, 2022
Approved For Reporting
Em
