2012 M L D 1205 [Balochistan]
Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ
FAZAL MIR alias ZALLAI and another ---Appellants
Versus
THE STATE and another ---Respondents
Criminal Appeal No.1 and Murder Reference No.2 of 2011, decided on 7th May, 2012. (a) Penal Code (XLV of 1860) ---
---Ss. 302(b) & 148---Qatl -e-amd, rioting armed with deadly weapons ---Appreciation of
evidence ---Sentence, alteration of ---Mitigating circum- stances ---Single fire -shot---Deceased
having ca used annoyance to the accused---Allegations against the accused were that he fired at
and murdered the deceased (complainant's brother) when the latter was making ablution in a disputed piece of land, and that the accused and his co- accused fired at the co mplainant and
prosecution witness ---Contention of the accused was that the prosecution had failed to prove its
case beyond reasonable doubt ---Validity ---Medical report of the deceased proved that his death
had been caused by means of a firearm injury---Pro secution witnesses included the brother and a
relative of the deceased, but only on account of their relationship with the deceased, they could not be termed as interested witnesses for the reason that they had no direct animosity with the accused ---Despit e lengthy cross -examination, the defence failed to create any dent in the veracity
of the witnesses, except a few immaterial discrepancies ---Occurrence had taken place in broad
daylight, therefore, question of mistaken identity did not arise ---Non -recovery of crime weapon
was not fatal to the prosecution case in the facts and circumstances of the case---Accused remained an absconder for two months after the commission of the offence ---Place of occurrence
was situated at a distance of fifty (50) kilometers f rom the police station, which fact explained
the delay of four hours in lodging the report ---Prosecution had successfully proved its case
against the accused beyond reasonable doubt ---According to prosecution's own admission, one
day prior to the incident, the accused claiming ownership of the disputed land and restrained the
deceased from working on it ---By working on the disputed land, the deceased caused annoyance
to the accused, who fired a single shot in spite of having the opportunity to repeat the fi ring---
Conviction of the accused, in view of such mitigating circumstances, was maintained, but his sentence of death was altered to that of imprisonment of life ---Order accordingly.
(b) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 148--- Qatl-e-amd, r ioting armed with deadly weapons ---Appreciation of
evidence ---Testimony of interested witness related to the deceased ---Reliance ---Scope---
Evidence furnished by an interested witness related to the deceased cannot be discarded merely
for the reason that the witness has a relationship with the deceased, however, in such a situation
efforts must be made to seek corroboration from other evidence on record ---Corroboration
should not necessarily come from an independent witness, but anything in the circumstanc es,
which tends to satisfy the court that the witness has spoken the truth, can safely be considered as corroborative evidence.
Muhammad Amin v. The State 2000 SCMR 1784 rel.
(c) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 148--- Qatl-e-amd, rioting armed with deadly weapons ---Appreciation of
evidence ---Interested witness ---Concept --Testimony of interested witness ---Scope ---Interested
witness is one who has a motive for falsely implicating an accused; is partisan and is involved in the mat ter against the accused ---Friendship or relationship with the deceased is not sufficient to
discredit a witness particularly when there is no motive to falsely involve the accused.
Muhammad Amin v. The State 2000 SCMR 1784 rel. (d) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 148--- Qatl-e-amd, rioting armed with deadly weapons ---Appreciation of
evidence ---Recovery of weapon and empties --Scope and nature of such evidence ---Recovery of
weapon of offence or empties is not a mandatory requirement of l aw, but is a circumstantial
piece of evidence, which tends to corroborate other pieces of evidence i.e. ocular account, motive, medical evidence and any other circumstance which may be deemed to be relevant in the
presence of direct evidence, credibility o f which has withstood the test of cross -examination.
(e) Penal Code (XLV of 1860) ---
----Ss.302(b) & 148--- Qatl-e-amd, rioting with deadly weapons ---Sentence ---Quantum ---
Principle ---Gravity of the sentence is always dependent upon the gravity of the offence---
Question of sentencing demands utmost care on part of the court dealing with the life and liberty of people ---Accused is entitled to extenuating benefit of doubt with respect to sentence.
Abdul Sattar Durrani, Add: P.G. for the State (in Murde r Reference No.2 of 2011).
Muhammad Aslam Chishti for the Complainant (in Murder Reference No.2 of 2011).
H. Shakil Ahmed for Appellant (in Murder Reference No.2 of 2011).
H. Shakil Ahmed for Appellant. Muhammad Aslam Chishti for the Complainant.
Abdul Sattar Durrani, Add: P.G. for the State.
Date of hearing: 26th March, 2012.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---The Sessions Judge, Loralai vide judgment
dated 29th December, 2010 has convicted appellant Fazal Mir alias Zallai under section 302(b)
of the P.P.C. and sentenced to death as ta'zir and under section 148 of the P.P.C. to suffer R.I. for
one (01) year and to pay an amount of Rs.10,000 (rupees ten thousand only) as fine, in default whereof to further undergo three (03) months' S.I., with the benefit of section 382 -B of the
Cr.P.C. The appellant challenged his conviction and sentence by way of filing Criminal Appeal No.1 of 2011, where as the Sessions Judge has sent Murder Reference No.2 of 2011 for
confirmation of the sentence of death or otherwise. Since common question of law and facts is involved, therefore, both the matters are being disposed of by means of this common judgment. 2. Complainant Shireen Khan (P.W.1) in his Fard -e-Bayan (Ex.P/1- A) alleged that on 29th
May 2010 at about 6- 00 p.m., his brother Saleh Muhammad was making ablution in fields, when
accused Fazal Mir alias Zallai made firing upon him with a rifle. Complainant further alleged
that he, Meerak, Nazar Gul and other relatives were also present there and as soon they move forward, accused Fazal Mir and his accomplices Saddo Mir, Lalo, Jan Mir alias Haji and Qutab Khan also made firing upon them with rifles and Kalas hnikovs. His brother Saleh Muhammad
expired on the spot and consequently a case vide Crime No.17 of 2010, under sections 302, 324 read with sections 148 and 149 of the P.P.C. was registered at Levies Station Mekhtar.
3. After registration of F.I.R. Exh.P /5-A, the investigation of the case was carried out by
P.W.5 Muhammad Asadullah, Naib Tehsildar, who visited and inspected the site, prepared site
sketch Exh.P/5- B, secured blood- stained earth, prepared inquest report Exh.P/5- C at the spot,
took into posse ssion blood- stained clothes of the deceased at hospital vide memo Exh.P/2- C. On
the next day of occurrence, he collected empties from the crime scene and recorded the statements of P.Ws. from time to time. After completion of investigation, he prepared inc omplete
challan Exh.P/5- D. He obtained the death certificate of the deceased and on 18th July, 2010
arrested accused Fazal Mir and prepared supplementary challan Exh.P/5 -E to his extent and he
was sent up to face the trial.
4. On the stated allegations, a formal charge was framed and read over to the appellant, to
which he did not plead guilty and claimed trial. The prosecution, in order to prove its case, produced five witnesses. P.W.1 Shereen Khan is complainant of the case, who placed on record his Far d-e-Bayan Exh.P/1- A. P.W.2 Mulla Muhammad Din is witness to the recovery memos
Exh.P/2- A to Exh.P/2- C regarding securing of blood- stained earth, collection of crime empties
from the place of occurrence and blood- stained clothes of the deceased. P.W.3 Dr. S yed Abdul
Bari, Senior Medical Officer, DHQ Hospital, Loralai examined the dead body of the deceased and issued death certificate Exh.P/3 -A. P.W.4 Nazar Gul alleged to have witnessed the
occurrence and P.W.5 Muhammad Asadullah, Naib Tehsildar is the invest igating office of the
case. Then the prosecution closed its side. 5. In his examination under section 342 of the Cr.P.C., the appellant denied and
controverted each and every allegation of facts levelled against him by the prosecution and
professed his i nnocence. He recorded his statement on oath under section 340(2) of the Cr.P.C,
and produced DW -1 Muhammad Shah and DW -2 Muhammad Khan in his defence.
6. At the conclusion of trial, the trial Court found the prosecution's case against the
appellant to ha ve been proved beyond reasonable doubt, thus, he was convicted and sentenced,
as detailed above.
7. We have heard learned counsel for the appellant as well as learned counsel for the State
and the complainant and have gone through the record with their valuable assistance. It has been argued by learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt, thus, this appeal warrants acceptance with a resultant acquittal of the appellant. On the other hand, learned counsel for the State and the complainant have maintained that prosecution had succeeded in proving the guilt of the appellant to the hilt and, therefore, the present appeal deserves to be dismissed. 8. After hearing learned co unsel for the parties and having gone through the record, we
have arrived at a confident conclusion that the prosecution had, indeed, succeeded to prove its case against the appellant beyond reasonable doubt. 9. As far as unnatural death of deceased Sal eh Muhammad is concerned, the same has not
been seriously disputed by the defence. Even otherwise, P.W.3 Dr. Syed Abdul Bari, Senior Medical Officer, District Headquarter Hospital, Loralai, who examined the dead body of deceased Saleh Muhammad, has proved unnatural death of the deceased by means of firearm injury.
10. However, the question arises, as to whether the appellant was the person, who committed
the murder of the deceased? It is the case of prosecution that on 29th May 2010 at about 6- 00
p.m., the deceased Saleh Muhammad was making ablution in fields, when appellant Fazal Mir alias Zallai made firing upon him by means of a rifle, who expired on the spot. The connection of the appellant with the the crime in question is sought to be established by the evidence of P.W.1 Shireen Khan (complainant) and P.W.4 Nazar Gul, who claimed to have seen the occurrence. In their dispositions before the trial Court, they had stated that on the fateful day at about 6- 00 p.m.,
deceased Saleh Muhammad was making ablu tion in fields, when appellant Fazal Mir alias Zallai
made firing upon him by means of a rifle, which resulted in his death. They had also stated that as soon as they moved forward, companions of the appellant, viz Sado Mir, Lalo, Jan Mir and Qutab also ma de firing upon them and, thereafter, the culprits escaped from the scene of
crime.
11. No doubt, P.W.1 Shireen Khan is brother of the deceased, whereas P.W.4 Nazar Gul is
also related to the deceased, but only on account of their relationship wit h the deceased, they
cannot be termed as interested witnesses, for the reason that they had no direct animosity with the appellant, who has been nominated as a principal perpetrator in the F.I.R. It is a settled principle of law that in criminal cases, ev idence furnished by interested witnesses related to the
deceased, cannot be discarded merely for the reason that the witnesses have relationship with the victim, however, the Courts have emphasized that in such like situation efforts must be made to seek corroboration from the other evidence on record. As far as corroboration is concerned, it
does not mean that it should come from an independent witness, but anything in the
circumstances, which tends to satisfy the Court that the witnesses have spoken truth, can safely be considered to be corroborative evidence. By holding this view, we are fortified from a case of "Muhammad Amin v. The State" reported in 2000 SCMR 1184, wherein it has been held by Hon'ble Supreme Court of Pakistan as under: --
"An interes ted witness is one who has a motive for falsely implicating an accused, is a
partisan and is involved in the matter against the accused. Friendship or relationship with the
deceased will not be sufficient to discredit a witness particularly when there is n o motive to
falsely involve the accused."
Despite lengthy cross -examination, the defence failed to create any dent in the veracity of
the witnesses, except a few discrepancies, which are immaterial and not fatal to their evidence. The occurrence has als o taken place in broad daylight and under such circumstances, no question
of mistaken identification arise at all. Their evidence is not suffering from any material contradiction, discrepancy or inherent infirmity and is consistent with the probabilities, materially fitting in with the other evidence, more particularly the medical evidence and supported by the abscondence of the appellant.
13. The contention of learned counsel regarding non- recovery of crime weapon is also devoid
of any force, for the reason that it is not fatal in the facts and circumstances of this case. Admittedly, the appellant remained absconder for a period of about two months after commission of the offence, as such, he cannot be allowed to take benefit of his own wrong. Even otherwise, it is a settled proposition of law that recovery of weapon of offence or empties is not the mandatory requirement of law, but is a circums tantial piece of evidence, which tends to
corroborate the other pieces of evidence i.e. ocular account, motive, medical evidence and any other circumstance, which may deem relevant in the presence of direct evidence, credibility of which has withstood the test of challenge through cross -examination, thus, the absence of
corroborative piece of evidence would not be fatal at all. 14. Much emphasis has been made on the point that the report has been lodged with
unexplained delay, which adversely affects the prosecution's case. It is not denied that undue and explained delay in lodging report leads to suspicion and reflects on the truth of the prosecution's case and earlier information is required to be supplied in order to avoid criticism of the report as being manipulated and result of consultation, but in the present case, we find that the place of
occurrence is situated at a distance of about 50 kilometers from Levies Thana, Mekhtar, as such, the lodging of report with a delay of four hours in the peculiar circumstances of the case is not fatal and delay has been fully explained. 15. Insofar as quantum of the sentence is concerned, we find that according to the
prosecution's own showing, one day prior to the incident, appellant Fazal Mir alias Zallai restrained the deceased from working in a disputed land, as he was claiming the ownership of the
land in question. The aforesaid circumstances suggest that the occurrence had taken place because of the fault of deceased Saleh Muhammad, who caused annoyance to t he accused and
having been disappointed by the discouraging attitude of the deceased, the accused decided to take a drastic action to vent his anger by firing upon the deceased, who on the day and time of
occurrence was working in the disputed land in the company of the prosecution witnesses. The
record is also indicative of the fact that it is a case of single shot and the appellant in spite of having opportunity did not repeat the firing, although, at the time of occurrence, he was, allegedly, accompanying by his companions, who were also armed with lethal weapons and the deceased was lying injured in helpless condition completely on their mercy. It is a recognized
principle of law that in criminal administration of justice, the question of sentence demand s
utmost care on the part of Court dealing with the life and liberties of people and an accused
person is also entitled to extenuating benefit of doubt on the question of sentence and it would be relevant to mention here that the gravity of the punishment/ sentence is always dependant upon
the gravity of the offence. In this regard, before deteimining the quantum of sentence, it would be advantageous to have a glance to the provision of section 302 of the P.P.C., which hold the field on the subject, which re ads as under: --
"302. Punishment of qatl -e-amd. ---Whoever commits qatl -e-amd shall, subject to the
provisions of this chapter be;
(a) punished with death as qisas;
(b) punished with death or imprisonment for life as ta'zir having regard to the facts and
circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or
(c) punished with imprisonment of either description for a term which may extend to twenty-
five years, where according to the Injunctions of I slam the punishment of qisas is not applicable:
Provided that nothing in this clause shall apply to the offence of qatl -e-amd if
committed in the name or on the pretext of honour and the same shall fail within the ambit of clause (a) or clause (b) , as the case may be."
16. A bare perusal of above provision of law clearly demonstrates that it provides two kinds
of punishment i.e. punishment with death as qisas or imprisonment for life as ta'zir. In case of application of section 302(a) of t he P.P.C., no discretion is left with the Court, while awarding
the sentence; however, in case of section 302(b) of the P.P.C., the Court is left with an option to award either death sentence or imprisonment for life.
17. Since the occurrence was the res ult of fault on the part of the deceased, who caused
annoyance to the appellant and it was a case of single shot, thus, we, in view of the observations made in Abdul Khaliq v. The State, 1989 SCMR 2002. Israr Ali v. The State 2007 SCMR 7525, and Saleemuddi n v. The State, 2011 SCMR 1171, considered it as a mitigating circumstance for
withholding the penalty of death and, while maintaining the conviction of the appellant, we alter his sentence of death to that of imprisonment for life, whereas the remaining s entences will
remain intact. The benefit of section 382- B of the Cr.P.C. shall also be given to the appellant.
Sentence reduced. Murder Reference is answered in negative.
M.W.A./31/Q Order accordingly.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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