2013 P Cr. L J 478
[Balochistan]
Before Muhammad Hashim Khan Kakar and Muhammad Noor Meskanzai, JJ
MUHAMMAD ISMAIL and others ---Appellants
Versus
The STATE and others ---Respondents
Criminal Appeal No.233 of 2007, Criminal Acquittal Ap peal No.268 of 2007 and Murder
Reference No. 19 of 2007, decided on 12th November, 2012.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl-e-amd---Appreciation of evidence ---Sentence, reduction in ---Conversion
of death sentence into life impri sonment ---Occurrence not premeditated ---Lack of intention
to commit murder ---Accused allegedly made firing upon the deceased ---Motive for the
occurrence was that prior to the incident deceased had allegedly assaulted and abused the
brother of accused ---Trial Court convicted and sentenced the accused under S.302(b), P.P.C.
to suffer death as well as to pay Rs. 100,000 as compensation to legal heirs of the deceased ---
Validity ---Accused did not deny the allegation at the time of his examination under S.342,
Cr.P.C. and also recorded his confessional statement before the Judicial Magistrate ---Ocular
account was fully supported by the medical evidence as well as recovery of crime weapon,
followed by positive report of Forensic Science Laboratory ---Although eye -witnesses were
related with the deceased, but their testimonies could not be discarded on such score
alone, as they were quite consistent with material particulars of the incident i.e. day, time,
mode and manner as put forward by the prosecution ---Despite lengthy cross -examination, the
defence failed to create any dent in the veracity of prosecution witnesses, except a few
immaterial discrepancies ---Prior to the occurrence a scuffle had taken place between the
parties and abuses were exchanged, afte r which deceased was killed ---Murder of deceased
was not premeditated and the accused did not have any intention of committing his murder,
therefore, death sentence awarded to accused by the Trial Court was against the principle of
safe administration of c riminal justice ---Death sentence awarded to accused was modified
to life imprisonment with the benefit of S.382 -B, Cr.P.C., however amount of
compensation ordered by Trial Court was not modified ---Appeal was dismissed accordingly.
Abid Hussain v. The State PLD 1994 SC 641; Abdul Haq v. The State PLD 1996 SC
1; Khurshid v. The State PLD 1996 SC 305 and Abdul Zahir v. The State 2000 SCMR 406
ref.
Abid Hussain v. The State PLD 1994 SC 641 and Abdul Haq v. The State PLD 1996
SC 1 rel.
(b) Pena l Code (XLV of 1860) ---
---S. 302(b) ---Criminal Procedure Code (V of 1898), S. 417 (2 -A)---Qatl-e-amd---Appeal
against acquittal, dismissal of ---Appreciation of evidence ---Accused persons while armed
with pistol and sticks allegedly launched an attack on the deceased ---Trial Court acquitted the
accused persons ---Validity ---Findings of Trial Court with regard to acquittal of accused
persons were well -reasoned ---Sufficient reasons existed to believe that wider net had been
thrown by the prosecution to impli cate all members of the family of the accused persons ---
Prosecution had failed to establish the case against accused persons ---Appeal against
acquittal was dismissed in circumstances.
Mohib Ullah Shah for Appellants (in Criminal Appeal No.233 of 2 007).
Shams -ur-Rehman for the Complainant (in Criminal Appeal No.233 of 2007).
Abdul Sattar Durrani, Additional P. -G. for the State (in Criminal Appeal No.233 of
2007).
Abdul Sattar Durrani, Additional P. -G. for the State (in Murder Reference No.1 9 of
2007).
Mohib Ullah Shah for Convict (in Murder Reference No.19 of 2007).
Shams -ur-Rehman for the Complainant (in Murder Reference No.19 of 2007).
Shams -ur-Rehman for Appellant (in Criminal Acquittal Appeal No.268 of 2007).
Abdul Sattar Durrani, Additional P. -G. for the State (in Criminal Acquittal Appeal
No.268 of 2007).
Mohib Ullah Shah for Private Respondent (in Criminal Acquittal Appeal No.268 of
2007).
Date of hearing: 7th November, 2012.
JUDGMENT
MUHAMMAD HASHIM KHAN KAK AR, J. ---This common judgment will
dispose of Criminal Appeal No.233 of 2007, Murder Reference No.19 of 2007 and Criminal
Acquittal Appeal No.268 of 2007, as all arising out of judgment dated 31st August, 2007 (the
"impugned judgment"), passed by the Addit ional Sessions Judge -IV, Quetta (the "trial
Court") and pertain to one and same incident, whereby appellant Muhammad Ismail son of
Haji Zarif Khan in Criminal Appeal No.233 of 2007 was convicted and sentenced under
section 302(b) of the Pakistan Penal Code , 1860 (P.P.C.) to suffer death, subject to
confirmation by this Court in Murder Reference No.19 of 2007, as well as to pay an amount
of Rs.100,000 (Rupees one hundred thousand only) as compensation to the legal heirs of
deceased Sher Zaman, whereas respon dents Shams -ul-Haq and Haji Zarif Khan in Criminal
Acquittal Appeal No.268 of 2007 were acquitted of the charge.
2. Complainant Ali Nawaz (P.W.l) in his Fard -e-Bayan (Exh.P/1), alleged that on 7th
August, 2005, he was sitting in the shop of his cousin, n amely, Sher Zaman, situated at Gohar
Abad, when younger brother of Sher Zaman and Noor -ul-Haq quarrelled with each other
outside the shop, however, Sher Zaman intervened and the matter was patched up. After a
while, accused Ismail, Noor -ul-Haq and Shams, d uly armed with pistol and sticks (dandas)
came at the shop and launched attack upon Sher Zaman. Accused Ismail made firing upon
Sher Zaman with pistol, due to which he sustained bullet injuries on his neck and left
shoulder, who was shifted to Civil Hospit al. Consequently, a case vide F.I.R. No.119 of 2005
(Exh.P/9 -J), under section 324 read with section 34 of the P.P.C. was registered at Shalkot
Police Station, Quetta. Subsequently, injured Sher Zaman expired and section 302 of the
P.P.C. was incorporated in F.I.R.
3. After registration of F.I.R., the investigation of the case was entrusted to P.W.11
Khalid Mehmood, SI, who visited the site, prepared site sketch (Exh.P/11 -A) and site
inspection note (Exh.P/8 -A), secured blood -stained earth of the deceased , collected crime
empty of TT pistol, took into possession blood -stained clothes of the deceased through
recovery memo, recorded the statements of P.Ws. and, thereafter, went to Civil Hospital,
where he also recorded the statements of P.Ws. On 9th August, 2005, he arrested accused
Haji Zareef and also arrested accused Muhammad Ismail and Shams -ul-Haq on 12th August,
2005. On 15th August, 2005 injured Sher Zaman succumbed to the injuries and his dead body
was brought from Karachi to Gohar Abad, at which he c arried out proceedings under section
174 of the Criminal Procedure Code 1898 (Cr.P.C.). On 21st August, 2005, accused
Muhammad Ismail made disclosure regarding commission of the offence and in consequence
whereof, recovery of crime weapon i.e. unlicensed T T pistol was effected from his house on
his pointation and a separate case under the Arms Ordinance was registered against him. He
prepared site sketch of the recovery of pistol (Exh.P/11 -B). On 22nd August, 2005, he took
into possession two led produced b y one Dawood, which were taken out during course of
operation from the body of the deceased. He got recorded the confessional statement of
accused Muhammad Ismail through Judicial Magistrate -V Quetta. He chemically got
analyzed the recovered blood -stained articles from Forensic Science Laboratory (FSL) and
obtained report (Exh.P/11 -C). He obtained death certificate of the deceased. He also obtained
report (Exh.P/11 -D) of Ballistic Expert from Karachi regarding pistol and crime empties. He
also prepared inqu est report (Exh.P/11 -E) of the deceased. After completion of investigation,
he placed the papers before SHO Abdullah Jan Afridi, who prepared challans (Exh.P/11 -F, G
and H).
4. On the stated allegations, a formal charge was framed and read over to the ap pellant
and the respondents, to which they did not plead guilty and claimed trial. The prosecution, in
order to substantiate the accusation, produced eleven (11) witnesses. P.W.1 Ali Nawaz is
complainant of the case, who placed on record his Fard -e-Bayan ( Exh.P/1 -A). P.W.2 Dr.
Ghulam Haider Somejo, Police Surgeon, Sandeman Provincial Hospital, Quetta, initially
examined injured Sher Zaman and, on his expiry, he issued death certificate (Exh.P/2 -A).
P.W.3 Muhammad Ismail soon after the incident reached at th e spot. P.W.4 Niamatullah and
P.W.5 Gul Zaman are eye -witnesses of the occurrence. P.W.6 Amanullah is recovery witness
of medical documents of the deceased (Exh.P/6 -A) and two bullet led (Ex.P/6 -B). P.W.7
Aurangzeb, SI, is recovery witness of TT pistol (Ex h.P/7 -A). P.W.8 Abdul Rauf, ASI, is
witness to the site inspection note (Exh.P/8 -A), recovery memo (Exh.P/8 -B) of blood of the
deceased, recovery memos (Exh.P/8 -C and D) regarding crime empty and blood -stained
clothes of the deceased. P.W.9 Gul -e-Nargis K akar the then Judicial Magistrate, Dasht,
recorded the confessional statement (Exh.P/9 -A) of accused Ismail. P.W.10 Sher Jan is
recovery witness of certain documents of the deceased (Exh.P/l0 -A) and P.W.11 Khalid
Mehmood, S.I. is the Investigating Officer of the case. Then the prosecution closed its side.
5. In their examinations under section 342 of the Cr.P.C., the appellant and the
respondents denied and controverted each and every allegation of fact levelled against them
by the prosecution and profess ed their innocence. They also recorded their statements on oath
under section 340(2) of the Cr.P.C., however, did not produce evidence in their defence. The
trial Court, after hearing the learned counsel for the parties, convicted and sentenced the
appella nt and acquitted the respondents, as mentioned hereinbefore, hence these appeals and
murder reference.
6. We have heard learned counsel for the appellant as well as learned Additional
Prosecutor -General (APG) duly assisted by learned counsel for the comp lainant. In view of
admission of appellant Ismail, during his examination under section 342 of the Cr.P.C.
regarding committing murder of deceased Sher Zaman, learned counsel for the appellant did
not advance any arguments on merits and submitted that in t he peculiar facts and
circumstances of the case, the death sentence awarded to the appellant was not called for, as
there were mitigating circumstances for awarding lesser penalty. He further argued that in his
confessional statement, the appellant has sta ted that he had committed murder of the
deceased, as he assaulted his brother and also abused him. There was no other motive alleged
by the prosecution for commission of the offence, as such, the motive attributed by the
appellant would be considered to be the motive for committing murder of the deceased and in
view of such motive, the appellant was liable to be sentenced to lesser penalty. He also
submitted that there is nothing incriminating available on record, tending to connect the
accused/respondents with the commission of the offence and the trial Court has rightly
exercised the jurisdiction while acquitting them of the charge. In support of his arguments, he
also placed reliance on the following reported judgments of Hon'ble Supreme Court: --
(i) Abid Hussain v. The State, PLD 1994 SC 641
(ii) Abdul Haq v. The State, PLD 1996 SC 1;
(iii) Khurshid v. The State, PLD 1996 SC 305, and
(iv) Abdul Zahir v. The State 2000 SCMR 406.
On the other hand, learned APG and learned counsel for the complain ant supported
the impugned judgment to the extent of appellant Ismail and requested for confirmation of
death sentence of appellant Ismail. According to them, there were no mitigating
circumstances for not awarding normal penalty of death, appellant Ismail had committed
murder of deceased Sher Zaman intentionally. They also submitted that the trial Court erred
in law while acquitting the accused/respondents of the charge, as there was sufficient material
available on record connecting them with the commissi on of the offence.
8. We have carefully considered the contentions put forth by learned counsel for the
parties in the light of provisions of law and have also gone through the evidence on record.
9. So far as committing murder of the deceased by appel lant Ismail is concerned; he did
not deny such allegations at the time of his examination under section 342 of the Cr.P.C.
Besides, he also got recorded his confessional statement before P.W.9 Gul -e-Nargis, the then
Judicial Magistrate, Dasht, which is rep roduced hereinbelow: --
"On 7th August, 2005 at about 3 -30 p.m., I had quarrelled with Sher Zaman, as he
used to beat my younger brothers, due to which I became fed up and committed his
murder by means of firing. When I killed the deceased, Gul Zaman, Taj Khan and
Muhammad Bakhsh were also present there. I was alone I made firing on deceased,
who received bullet injury and he expired after five days. I voluntarily surrendered to
police. My brother and father were already arrested by police. At that time, n o one
was accompanying me. There was no previous enmity. It all happened suddenly."
10. We find that learned counsel for the appellant is quite justified in not challenging the
conviction awarded to appellant for the episode, which culminated in unfortun ate death of
deceased Sher Zaman. The connection of the appellant with the crime in question has been
established through evidence of complainant Ali Nawaz (P.W.1), Muhammad Ismail (P.W.3),
Niamatullah (P.W.4) and Gul Zaman (P.W.5), who fully supported the prosecution's version.
The ocular account, furnished by the said witnesses, was further supported by the medical
evidence as well as the recovery of crime weapon, followed by the positive report of FSL.
The eye -witnesses are, through related with the dece ased, yet their testimonies cannot
discarded merely on this score, as they were quite consistent with material particulars of
the incident i.e. day, date, time, mode and manner as put forward by the prosecution. Depite
lengthy cross -examination, t he defence failed to create any dent in their veracity, except
a few discrepancies, which are immaterial and are not fatal. The ocular account, as
mentioned above, got full support from all the other attending circumstances of the case,
therefore, the conviction awarded to appellant Ismail is maintained.
11. Insofar as quantum of sentence of appellant Ismail is concerned, we find that,
according to P.W.5 Gul Zaman, prior to the occurrence, a scuffle had taken place and abuses
were exchang ed. It appears from the facts and circumstances of the case that something
unpleasant, admittedly happened, which both sides sup pressed in order to minimize their
role. So while sifting the grain from chaff, it can safely be inferred that brother of the
appellant, after calling and intimated him about a skirmish, which took place in between the
children of the appellant and the deceased. The appellant in response went to the shop of the
deceased to lodge a protest, when some hot words were exchanged and th e deceased was
done to death. Thus, it was not premeditated, nor had the appellant any intention of
committing the murder of deceased Sher Zaman. In such view of the matter, we have given
our anxious thought to the sentence awarded to the appellant and in our considered view, the
same is not proper and against the principle of safe administration of criminal justice, as
such being the case out of normal penalty of death. In this regard, we are also fortified
by the dictum laid down in case of Abi d Hussain v. The State PLD 1994 SC 641, wherein it
was held as under: --
"We are satisfied with the manner in which High Court has appraised the evidence
brought on the record. Both the Courts below have excluded from consideration
evidence of child witne ss P.W.6 Qaisar Nadeem who was present in the tractor all the
time before the incident. The other child eye -witness Nazim Waheed was not
examined in the trial Court. Complainant Singar Hussain did not see the beginning of
the incident and could not say wh at transpired between appellant and complainant
before shots were fired because admittedly complainant claims to have reached the
spot and saw appellant firing at the deceased. In such circumstances it can be said that
there is no evidence with regard to p relude or exchange of conversation between
appellant and deceased before the shots were fired. Something must have happened
before the incident otherwise in the normal course the parties resided in the same area
and incident could have taken place e arlier in point of time as well but it did
not take place and this clearly shows that some exchange of harsh words must
have taken place before the act of shooting. We, therefore, dismiss the appeal and
uphold conviction but reduce s entence from death to life imprisonment."
Similarly, in a case of Abdul Haq v. The State, PLD 1996 SC 1, Hon'ble Supreme Court
observed as under: --
"55. It is to be seen now as to under what particular provision of section 302, P.P.C. in
the amended fo rm case in hand will fall. After very careful consideration of the facts
of this case and deep scrutiny of amendments made in Chapter XVI of the Pakistan
Penal Code in the light of authoritative pronouncements contained in the books and
treaties on the sub ject, it appears that instant case is covered by section 302(b), P.P.C.
We are aware of the fact that before amendment of section 302, P.P.C., the case in
hand would have been covered by section 304, P.P.C., on the plea of grave and
sudden provocation in t he face of abusive language used by the deceased which
provoked the appellant and would have called for lesser penalty than death but now
after amendment this plea is not covered in Qatl -e-Khata, hence it is to be read within
four corners of Qatl -e-amd as is now defined under section 302, P.P.C. Now since
section 302, P.P.C. in the amended form is substantive law nor providing any
exception covering plea of grave and sudden provocation on account of abusive
language which is distinct and separate from the a ct of Zina as such, it would be
deemed to be the bounden duty of the prosecution to prove positively whether case
is covered by Qatl -e-amd liable to Qisas, not liable to Qisas, or liable to
Ta'zir. section 302(b), P.P.C. in the amended fo rm is reproduced once again as under: -
-
"(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"
56. In the instant case there are very peculiar facts and circumstances. Muhammad
Shafique was on trial on charge of murder of father of the appellant. Muhammad Shafique
used to attend the hearings of the case in custody and appellant Abdul Haque as complainant
in that case also used to attend hearings coming armed with pistol. Plea of Abdul Haque that
he fired shots at Muhammad Shafique in the Court -Room on the day of judgment for the
reasons that before announcement of judgment Muhammad Shafique abused Abdul Haque in
Pushto in respect of his wife and wives of his tribe while passing in front of him and on that
account Abdul Hague took out pistol and fired at him. This version is sufficiently
substantiated by two eye -witnesses P.W.4, Yar Muhammad, and P.W.9, Muhammad Aziz
who have admitted in their cross -examination that Muhammad Shafique did say something in
Pushto which was not understood by them as they were not conversant with that language. In
the old law before amendment the appellant could have got away with li ghter sentence
provided in section 304, P.P.C. In such circumstances appellant in this case cannot and
should not be punished with Qisas. Secondly, proof as demanded under section 304, P.P.C.
Qatl-e-amd is not available because the appellant has not made confession of Qatl -e-amd as
such before the trial Court. True that there is admission of firing by the appellant at the
deceased but that admission is to be read not in isolation of but in conjunction with his
specific plea that he was provoked by abuses i n respect of his wife and wives of his tribe
uttered by the deceased which he could not tolerate. Thirdly, witnesses produced in the trial
Court in support of the charge do not fulfil the requirement of Article 17 of the Qanun -e-
Shahadat. For such reasons it can be said that section 302(b), P.P.C. will apply in this case
and the appellant can be punished by way of Ta'zir. Under the said provision, power given to
the Court is only to punish with death or imprisonment for life as Ta'zir and nothing less than
that. We have also taken into consideration the fact that deceased Muhammad Shafique when
fired upon, was in custody and in handcuffs and therefore, helpless and unable to save
himself. We have also considered the fact that the appellant is Pathan and as s uch,
traditionally very sensitive about anything derogatory stated about his womenfolk and is
expected to react very quickly on account of provocation. In the circumstances, we consider
that plea of grave and sudden provocation on account of language can b e treated as mitigating
circumstance in awarding sentence under Ta'zir even if this plea as such is not available and
does not get any protection in the new amended law."
12. For the foregoing reasons, we are inclined to dismiss the appeal of appellant
Muhammad Ismail, but with the modification of sentence from death to life imprisonment,
with the benefit of section 582 -B of the Cr.P.C. However, the amount of commensation as
ordered by the trial Court shall remain intact.
13. So far as the findings of l earned trial Court regarding the acquittal of the private
respondents is concerned, the same are well -reasoned and in this regard, we find that there
are sufficient facts to believe that wider net was thrown by the prosecution to implicate all
male members of the accused's family. We feel that the prosecution has failed to establish the
case against respondents Shams -ul-Haq and Haji Zarif Khan.
Resultantly, Criminal Appeal No.233 of 2007 tiled by appellant Muhammad Ismail is
dismissed with the above mod ification and Murder Reference No.19 of 2007 is answered in
negative. Similarly, Criminal Acquittal Appeal No.268 of 2007 filed by the complainant is
also dismissed.
MWA/108/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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