2010 M L D 1676
[Quetta]
Before Mrs. Syeda Tahira Safdar and Ghulam Mustafa Mengal, JJ
KHAIR MUHAMMAD ---Appellant
Versus
THE STATE ---Respondent
Criminal Jail Appeal No.21 of 2009, decided on 14th July, 2010.
Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl-e-amd---Appreciation of evidence ---Specific motive was asserted for
commission of offence ---Accused had asserted existence of previous enmity between him
and brothers of the deceased, who being complainant had falsely involved him in the case,
but while one o f said two brothers appearing as prosecution witness, got recorded his
statement, no such suggestion was made to him ---In the present case though disclosure was
alleged to have been made by accused, while pointation of the site was also allegedly made
by him, but the crime weapon was not recovered by the Investigation authorities ---Disclosure
made by accused before the Police though was of less value, but the eye -witnesses of the
occurrence, had fully implicated accused in the commission of offence ---No con tradiction
existed in the statements of both the witnesses recorded before the court during trial ---
Sufficient evidence was available against accused to implicate him in the commission of
offence ---Nothing was on record from which it could be ascertained, that the Trial Court
restrained accused from producing evidence in his defence ---Trial Court had properly
assessed the material placed on record and also arrived at correct conclusion ---Accused had
failed to establish any ground on basis of which interfere nce could be made in the impugned
judgment ---Lenient view had already been taken by the Trial Court, no further reduction was
required in the matter --Accused having failed to make out case in his favour, impugned
judgment of the Trial Court was upheld.
Muhammad Ewaz Zehri for Appellant.
Haji Liaqat Ali for the State.
Date of hearing: 5th May, 2010.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J .---Instant appeal is a jail appeal wherein the
convict is aggrieved of judgment dated 18 -3-2009 of Additiona l Sessions Judge,
Lasbella at Hub, whereby he has been convicted for the offence punishable under
section 302(b), P.P.C., while sentenced to suffer imprisonment for life with fine of
Rs.100,000 to legal heirs of deceased Haji Muhammad Ramzan in terms of se ction 545
Cr.P.0 and in case of default further suffer simple imprisonment for one year. It is
contention of the appellant that he has no knowledge about commission of the offence,
he being falsely involved in the case, no recovery of arms was effected fro m him, while
no eye -witness is produced against him, rather interested witnesses have been produced.
It is further his contention that the victim was his brother -in-law, while there was no
previous enmity between them. Further, the complainant party had pr evious enmity with
him; the deceased was residing with him on last seven days from the incident at his
home at Wadh Khuzdar. Furthermore, the widow of the victim was ready to appear in
the court from his (appellant's) side but the trial court refused the s ame, he was also not
allowed to produce four witnesses. He has been involved in the case falsely. The
appellant prayed for setting aside of the conviction order and his acquittal of the charge
or reduction be made in the sentence.
As per record an incide nt was reported on 19 -11-2008 by one Gul Hassan with
averments that his brother Muhammad Ramzan was got killed near his house situated at
Jam Yousaf Colony at 9 -00 a.m. by Khair Muhammad son of Khamiso and Iqbal son of
Muhammad Aslam by making firing at hi m, who died at the spot due to firearms
injuries. It was further alleged in the report that said Khair Muhammad, who was
brother -in-law of the deceased, killed him on occasion of dispute existed between them
in respect of proposal of marriage. F.I.R. No.20 7 of 2008 Police Station Hub City
District Lasbella dated 19 -11-2008 was lodged; nominating therein Khair Muhammad
(present appellant) and lqbal son of Muhammad Aslam (absconding accused). The
appellant was thereafter, arrested on 25 -11-2008, while said Iq bal was not arrested and
remained absconder. On completion of investigation the case was challaned to the
extent of appellant. Charge was framed on 17 -1-2009 for the offence of committing
Qatl-e-Amd of Muhammad Ramzan by making firing at him with pistol al ong with co -
accused, thus committed offence punishable under sections 302, 34, P.P.C. On his
denial evidence was called. Ten witnesses appeared from side of prosecution, while in
defence the appellant only produced two witnesses, but refused to record his own
statement on oath. On completion of trial, the trial Court while finding him guilty of the
charge punished him for the offence under section 302(b), P.P.C. thereby sentenced him
for life imprisonment and fine of Rs.100,000 required to be paid to the le gal heirs of the
victim. Being aggrieved of the same instant appeal has been filed.
The counsel for the appellant mainly contended that there is no recovery from the
appellant, while there is contradiction in statements of the prosecution witnesses which
are not considered by the trial court, nor benefit of the same was given to the appellant.
While in rebuttal it is contention of State Counsel that appellant is nominated in F.I.R.,
while specific role has been assigned to him, further, motive is also est ablished.
As per appellant he has been falsely involved in commission of the offence due to
previous enmity between him and the complainant party, who were unhappy with
marriage of his sister with the victim Muhammad Ramzan. It is further his assertion t hat
the victim was residing in his house at Khuzdar Wadh, for seven days before occurrence
of incident. The victim being his brother -in-law having no enmity with him, while on
the other hand the prosecution tried to establish that as there exists dispute i n respect of
engagement and solemnizing of marriage between the appellant and one Mst. Rubina,
the marriage was allegedly not effected due to intervention of Muhammad Ramzan, the
appellant feeling aggrieved of the same threatened him for dire consequences, thereafter
killed him by making firing at him. The private witnesses appeared from side of
prosecution tried to establish the above mentioned facts. P.W. Gul Hassan is the
complainant also brother of the victim, while producing the written report exhibite d as
Exh.P/1 -A, only stated that he got information about killing of his brother by one Noor
Muhammad. He is not eye -witness, he, in his statement, did not depose about the
alleged motive, rather in his report he has asserted that accused Khair Muhammad is
brother -in-law of his brother (victim) who along with Iqbal killed him on occasion of
dispute in respect of proposal for marriage. P.W.2 Mst. Shahnaz, is also not an eye -
witness, rather she also deposed about existence of dispute between the parties. She is
mother of said Mst. Rubina. According to her, her daughter Rubina was engaged with
the appellant, who thereafter refused to marry him, while the appellant used to visit her
house and demanded for effecting of marriage, further suspected that refusal was made
due to intervention of victim Muhammad Ramzan. He (appellant) also advanced threats
for killing the victim, if she failed to arrange marriage of her daughter with him. P.W.7
Muhammad Saleem son of victim is also not an eye -witness, but he stated abou t an
occasion occurred on 16 -11-2008 when appellant and co -accused visited their house,
threatened them for dire consequences on occasion of allegation that his father was not
allowing the marriage of Mst. Rubina to be held with the appellant. Only prosecu tion
witness No.3 Noor Muhammad and Muhammad Anwar are the eye -witnesses of the
incident. As per P.W.3 he along with Muhammad Anwar (P.W.4) were drinking tea at
hotel, while the victim was standing at corner of the street, on noise of firing he saw
appella nt Khair Muhammad making firing on Muhammad Ramzan, while Iqbal was
boarding on motorcycle. P.W.4 deposed that he along with Noor Muhammad P.W. were
drinking tea on 19 -11-2008 at Hotel, on noise of firing he saw that appellant was
making firing on Muhammad Ramzan with pistol, while co -accused Iqbal was boarded
on the motorcycle in ready position, both of them left towards west. The remaining
prosecution witnesses are police officials recorded their statements in respect of
proceedings held during course of investigation and submission of challan. Medical
Officer Dr. Zahid Hussain appeared as P. W.9 confirming the unnatural death of the
victim. P.W.6 Mahiwal Khan S. -I. deposed about the disclosure made by the appellant
on his arrest, about commission of offen ce. According to him the appellant on 26 -11-
2008 disclosed that as his marriage with Mst. Rubina was not allowed by Mst. Shazia
and Muhammad Ramzan, whereupon he along with co -accused planned to get rid of
Muhammad Ramzan, on day of incident they reached a t site, where victim was standing
at end of the lane, whereby he fired at him 3/4 times, who got injured and fell down,
while he along with co -accused left the site, he handed over the pistol to Iqbal, who went
to Sakaran, while he himself went to his vill age Wadh. The appellant also made pointation of
the site.
To rebut the prosecution version the appellant took plea of his absence from the site. It has
been suggested to the prosecution witnesses that at the time of incident he was at Wadh. He
produced t wo witnesses in his defence. D.W.1 Muhammad Ismail stated that on 19 -11-2008
in between 9/10 hours the appellant was sitting with him having tea at Wadh. While D.W.2
Abdul Ghani deposed that on 19 -11-2008 the appellant was sitting with him in a vegetable
shop situated at Wadh, when on phone he (appellant) received information about murder of
his brother -in-law, on which he left.
It is to be observed that a specific motive is asserted for commission of the offence, while on
the other hand the appellant tho ugh not specifically denied the existence of said dispute
between the parties, rather raised plea of his absence from the site at the time of incident. He
claimed himself to be at Wadh, his native village. Though both the defence witnesses asserted
presenc e of the appellant with them on day of incident without confirming presence of each
other. Furthermore, the appellant asserted that there exists no enmity between him and the
victim despite the same there is nothing on record that on receiving information about murder
of his brother -in-law he went to his (victim's) house, to participate in his burial. Rather he
was arrested from Wadh on 25 -11-2008. Furthermore, in instant appeal the appellant asserted
existence of previous enmity between him and brothers of the deceased, who being
complainant falsely involved him in the case. But while one of them appearing as P.W. got
recorded his statement, no such suggestion was made to him. Though in present case
disclosure is alleged to be made by the appellant, while p ointation of the site was also
allegedly made by him, but the crime weapon is not recovered by the Investigation
authorities. In the circumstances though the disclosure made by the appellant before police is
of less value, but the eye -witnesses of the occa sion, appeared as P.W.3 and P.W.4, fully
implicated the appellant in commission of the offence, while there is no contradiction in
statements of both the witnesses recorded before the court during trial. There is sufficient
evidence against the appellant t o implicate him in commission of the offence. Further, there is
nothing on record from which it can be ascertained that the trial court restrained the appellant
from producing evidence in his defence.
The trial Court has properly assessed the material pl aced on record and also arrived to correct
conclusion. The appellant has failed to establish any ground on basis of which interference
can be made in the judgment impugned before this Court. As far as request of moderate
reduction is concerned, as a lenien t view is already taken by the trial Court, therefore, no
further reduction is required in the matter.
In view of above discussion the appellant has failed to make out any case in his favour,
therefore, the appeal is hereby dismissed. The impugned judgme nt dated 18.3.2009 of
Additional Sessions Judge, Lasbella is upheld.
H.B.T./84/Q Appeal dismissed.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,
let us know.