2011 M L D 1686
[Quetta]
Before Naeem Akhtar Afghan and Muhammad Noor Meskanzai, JJ
MUHAMMAD ALI ---Appellant
Versus
THE STA TE---Respondent
Criminal Jail Appeal No.90 and Murder Reference No. 20 of 2006, decided on 18th July, 2011.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl-e-amd---Appreciation of evidence ---Occurrence having been witnessed
by prosecution witnes s, who happened to be real sister of accused and widow of deceased,
no question of mistaken identity existed in the case at all ---Said prosecution witness had
attributed specific role of firing to accused resulting in death of her husband on the night of
occurrence ---Said witness was natural witness and had no animus for false implication of
accused ---Presence of the witness at the spot could not be doubted; her statement was
further corroborated in material aspects with the statements of other prosecution witnesses,
whose statements had not been shaken in cross -examination ---Injuries on the body of
deceased had been corroborated by an independent witness of the locality ---Said witness
further corroborated the recovery of two empties of kalashinkov from pla ce of incident,
recovery of blood stained ,earth as well as blood stained clothes of the deceased and had
supported all the recovery memos at the trial ---Substitution of an accused, who was
actually involved in the commission of offence under S.302, P.P.C. , was a rare
phenomenon particularly in an incident in which a single accused was involved by
nomination in F.I.R. from the very beginning and where the parties were inter se related to
each other due to close kinship ---Accused produced two witnesses in de fence, in support of
plea of alibi, but said witnesses had not corroborated the statement of accused on oath ---
Evidence of the defence with regard to the plea of alibi was not consistent and confidence
inspiring ---Defence witnesses had not been able to put a dent in the prosecution case ---
Accused having failed to substantiate his plea of alibi at the trial, same was of no
consequence, in circumstances of the case ---No misreading or mis -appreciation of evidence
was noticed , by the Trial Court, with regard to basing the conviction of accused on the
solitary statement of widow of deceased and sister of accused ---Prosecution throughout the
trial had not alleged any motive ---Lack of motive or weakness of motive was immaterial to
withhold the normal penalty of death in murder case, when trustworthy evidence had
brought home the guilt against accused beyond any doubt ---Ocular evidence, corroborated
by independent witnesses of the locality in all material aspects was trustworthy and
reliable; and the prosecution had abundantly proved its case against accused ---Trial Court
in circumstances had rightly imposed normal penalty of death to accused ---Conviction and
sentence awarded to accused under S.302(b), P.P.C. by the Trial Court, were upheld, in
circumstances.
Muha mmad Iqbal v. The State PLD 2001 SC 222; 1995 SCMR 1789; 2001 SCMR 199; 2001
SCMR 725; 2002 SCMR 1473; Muhammad Akbar and others v. The State PLD 2004 SC Page
44 and Muhammad Amin alias Irfan v. The State 2004 SCMR 1676 rel.
(b) Penal Code (XLV of 1860) ---
----S.302(b) ---Qatl-e-amd---Sentence ---Determination of quantum of sentence of death -
Lack of motive ---Effect ---If the prosecution had succeeded in establishing the offence, the
presence of motive or no motive, would not be ground for awarding lesser p unishment to
accused ---Lack of motive or weakness thereof was immaterial to withhold the normal
penalty of death in murder case, when trustworthy evidence had squarely brought home the
guilt of accused beyond any doubt.
(c) Penal Code (XLV of 1860) ---
----S.302(b) ---Qatl-e-amd---Sentence, award of ---Duty of court ---Court owed duty to the
legal heirs/relations of the victims and also to the society ---Sentence awarded should be
such which should act as deterrent to the commission of offence ---Approach of the court
should be dynamic; and, if the court was satisfied that the offence had been committed in
the manner as alleged by the prosecution, the technicalities should be overlooked without
causing any miscarriage of justice.
Miss Shabana Azeem for A ppellant.
Baqir Bakhtiar for the Complainant.
Abdul Sattar Durrani, Additional P.G. for the State.
Date of hearing; 28th June, 2011.
JUDGMENT
NAEEM AKHTAR AFGHAN, J .---This common judgment will dispose of Murder Reference
No.20 of 2006 forwar ded by learned Sessions Judge Lasbella at Hub against the appellant as well
as Criminal Jail Appeal No.90 of 2006 preferred by the appellant through jail against the
judgment dated 16 -12-2006 passed by learned Sessions Judge Lasbella at Hub, whereby the
appellant has been awarded conviction as under: --
"Accused Muhammad Ali son of Deen Muhammad is convicted under section 302(b)
Qisas and Diyat (P.P.C.) and sentenced to death as Taizir, he be hanged by neck till his
death, with an amount of Rs.1,00,000 pay able to the legal heirs of deceased Abdullah as
compensation as envisaged under section 544 -A, Cr.P.C. payable to the legal heirs of
deceased Abdullah in case of default he has to suffer for a period of six Months S I . "
Brief facts of the prosecution case revealed from F.I.R. No.10 of 2004 dated 27 -4-2004 lodged
with Thana Bella at 4 -45 p.m. by P.W. Atiq-ur-Rehman under section 302 Q&D Ordinance that
the complainant was informed by Muhammad Raheem, Muhammad Usman and Ghulam Nabi
that his real brother Abdul lah has been murdered by the appellant (Muhammad Ali son of Din
Muhammad) and when he reached along with them to the house of his brother and enquired from
his sister -in-law (widow of deceased) Mst. Sher Bano, she told that her brother Muhammad Ali
(appell ant) has made firing upon her husband while he was sleeping, when she woke up she saw
her brother armed, who was trying to run away and she tried to snatch the rifle and asked him
what he has done, upon which he stated that she should keep quiet and whatev er he has done is
right and thereafter he runaway armed. Complainant informed that previously as well the
appellant had been advancing threats. It was further informed that the appellant is maternal
cousin (Khala zaad) of the complainant. The complainant e xpressed lack of knowledge about the
motive of the occurrence.
In pursuance of F.I.R. registered on the basis of Fard -a-bayan of the complainant, investigation
was conducted, the police recovered two empties of Kalashnikov, blood -stained earth and blood
stand clothes of the deceased, search of accused was made in the vicinity and from near the
bushes in the area of Kellari Nadi, one pair of Chappal along with motorcycle bearing no
registration number allegedly left by the appellant, were taken into posses sion in presence, of
P.W.9 Abdul Razzaque, Constable/Mashir of recovery memo, statements of the witnesses were
recorded during investigation, inquest report was prepared. No postmortem of the deceased was
conducted, however death certificate was issued by Dr. Abdul Rasheed. The appellant was not
arrested, as such, incomplete challan was submitted on 10 -12-2004 against the appellant in
absentia. However, on 30 -5-2005 the appellant was arrested. No crime weapon was recovered
from the appellant. It is alleged that the appellant after his arrest made disclosure about the
occurrence and also made pointation of the place of occurrence. Complete challan was submitted
against the appellant on 13 -6-2005, whereafter the trial commenced before the learned Sessions
Judg e Lasbella at Hub.
At the trial the charge was denied by the appellant. The prosecution produced 14 witnesses,
whereafter the appellant was examined under section 342, Cr.P.C. the appellant of recorded his
statement on oath as envisaged under section 340 (2), Cr.P.C. and also produced Khan
Muhammad and Muhammad Hassan as defence witnesses to support his plea of alibi. After
conclusion of trial, the learned trial court awarded death penalty to the appellant vide impugned
judgment and also awarded compensati on of Rs.100,000 payable to the legal heirs of deceased
Abdullah, in default thereof the appellant was to further suffer S.I. for six months.
Murder Reference No.20 of 2006 was forwarded to this court under section 374, Cr.P.C. by
learned Sessions Judge Lasbella at Hub for confirmation of death sentence or otherwise, the
appellant also preferred Criminal Jail Appeal No.90 of 2006 to this court through jail. Mrs.
Shabana Azeem, Advocate, was appointed as counsel for the pauper appellant by this court.
Mrs. Shabana Azeem, learned counsel for appellant argued that the appellant has falsely been
involved in the instant case by his real sister Sher Bano at the behest of P.W. Atiq -ur-Rehman
due to landed dispute between the parties. She further argued that the prosecution has not proved
the case against the appellant beyond any shadow of doubt. She further stressed that no crime
weapon has been recovered from the appellant. Learned counsel argued that the appellant proved
plea of alibi, but trial court has not appreciated the same. She prayed for acquittal of the
appellant.
On the other hand Mr. Abdul Sattar Durrani, learned Additional P.G. appearing on behalf of
State and Mr. Baqir Bakhtiar, learned counsel for complainant while controverting the arguments
of the learned counsel for appellant supported the impugned judgment on the ground that sole
testimony of P.W.2 the solitary eye -witness duly corroborated in material aspects is sufficient to
maintain the conviction. They further argued that the case has bee n proved by the prosecution
beyond any shadow of doubt and normal penalty of death has rightly been awarded to the
appellant in absence of any mitigating circumstance.
After hearing arguments of learned counsel for parties, we have gone through the recor d of the
case.
Perusal of the record reveals that the occurrence has been witnessed by P.W.2 Sher Bano, who
happens to be real sister of appellant and widow of deceased, hence no question of mistaken
identity arises at all. P.W.2 in her statement before the court deposed as follows: --
"The incident is of 27 -4-2004. I was present in the court yard of my house sleeping
along with my husband and children, at about 12/12 -15 O'clock night I awoke and
gave water to my younger son, meantime by attracted by the voice of firing, saw my
brother Muhammad Ali having a Kalashinkove and torch in his hand was standing
near us who fired at my husband, I asked him that what has been done by him by
destroying our lives, I attempted to snatch his Kalashinkove but not succe eded to do
so accused after making fire decamped from the scene of occurrence, accused
committed the murder of my Husband. I was weeping on which Ghulam Nabi,
Muhammad Rahim and Usman came there, I intimated the incident to them with the
request for inform ing the same to his elder brother in law Atique Rehman (elder
brother of deceased), they conveyed the message to my brother in law, there was no
motive for committing crime or previous enmity between my deceased husband and
accused, I identify the accused present in the Court."
P.W.2 has attributed specific role of firing to the appellant resulting in unnatural death of her
husband on the night of occurrence. P.W.2 though related to the appellant, is natural witness and
has no animus for false implication of the appellant, her presence at the spot cannot be doubted,
which otherwise has not been challenged during cross - examination. The statement of P.W.2 is
further corroborated in material aspects with the statement of P.W. Atiq -ur-Rehman as well as
statem ents of P.Ws.3, 4, 5 and 11. P.W.3 Ghulam Nabi and P.W.4 Muhammad Rahim stated that
they along - with Usman (not produced at the trial) went to the house of deceased after hearing
fire shots and found deceased Abdullah lying dead on a cot, where P.W.2 infor med that his
brother Muhammad Ali. (appellant) has committed murder of her husband with Kalashnikov and
she requested them to intimate the brother of deceased Atiq -ur-Rehman P.W.1 and they went to
inform him on bike. The statements of these two witnesses h ave also not been shaken in cross -
examination. The statement of P.W.1 also finds corroboration of the circumstances, who on
getting information of the occurrence by P.Ws.3, 4 as well as Usman reached to the house of the
deceased. P.W.11 is an independent w itness of the locality, who further corroborates the
statement of P.W.2 by stating that in the night of occurrence his wife awoke him and told him
about the voice of firing and when he came out of his house he saw the appellant having
Kalashinkov on his sh oulder going towards Jamia Masjid Goth on a bike and on hearing hue and
cry from the house of deceased, he rushed to the house of deceased and found the dead body of
Abdullah in a pool of blood on a cot. These statements of P.Ws. are further corroborated b y the
statement of P.W.5, who happens to be brother in law of appellant, who was awoke by male
voice and when he came out of his house he found the appellant on a motorcycle having a
Kalashinkov on his shoulder and according to P. W.5 the appellant after i nforming him about the
occurrence left on his bike. Careful perusal of record reveals that all the prosecution witnesses
remained consistent throughout and there are no material contradictions or any dishonest
improvement to discredit their testimony.
It is pertinent to mention here, that in the inquest report Exh.P/12 -C it has been mentioned that
the deceased had one entrance wound of bullet on forehead having exist from the backside
of head, two entrances wounds on his chest having exit from the back. N o postmortem of the
deceased was conducted, however, death certificate Exh.P/7 -A was prepared by P.W.7 Dr.
Abdul Rasheed, which mentions only entrance and exit wound of the forehead/skull but
finds no mention of the entrance wounds on the chest. This omiss ion does not extend any
benefit to the appellant as unnatural death of the deceased due to firing with Kalashinkov
has not been disputed. More -so-over, the injuries have also been corroborated by P.W.8 an
independent witness of locality who is witness to t he (recovery of dead body) Exh.P/8 -E,
which finds mention of fire arm injuries on the forehead and chest of the deceased. P.W.8
Qamar Din, further corroborates the recovery of two empties of Kalashinkov from the place
of incident, recovery of blood -stained earth as well as blood stained cloth of the deceased
and has supported all the recovery memos at the trial.
The pair of Chappal Art.P/11 as well as motorcycle Art.P/12 cannot be used against the
appellant as no evidence has been brought on record by the prosecution to connect these
articles with the appellant. Further the alleged disclosure of the appellant is of no
consequence and is inadmissible as the same has not led to recovery of articles or
disclosure of any new fact. Similarly, the alleged pointa tion of the place of occurrence by
the appellant is also of no avail to the prosecution as the place of occurrence was already
known to the police. The alleged absconsion of the appellant for almost one year can also
not be used as corroborative piece of e vidence as in this regard no question was put to the
appellant by the trial court in statement under section 342, Cr.P.C. More -so-over over the
statement of circumstantial witness P.W.6 (Muhammad alias Mamoo) is also discarded for
the reason that his state ment under section 161, Cr.P.C. was not recorded on the day of
occurrence and same was recorded on 8 -6-2005 and no explanation has been offered for the
delay occasioned.
The appellant at the trial claimed innocence, pleaded substitution and false implica tion due to
landed dispute and also raised plea of alibi in support whereof the appellant recorded his
statement on oath and also produced DW -1 Khan Muhammad and DW -2 Muhammad
Hassan. At the trial all the prosecution witnesses denied the suggestion of the defence
about the existence of landed dispute between parties and also denied the substitution for
false implication of the appellant. It is to be appreciated that substitution of an accused
person, who is actually involved in the commission of offence fal ling under section 302,
P.P.C. is rare 1 phenomenon particularly in an incident in which a single accused is
involved by nomination in F.I.R. from the very beginning and where the parties are inter se
related to each other due to close kinship. Hence the theory of substitution cannot be
accepted. In this regard we are supported by the dictum laid down in case of Muhammad
Iqbal v. The State PLD 2001 SC 222 wherein it was held that: --
"Moreover we failed to persuade ourselves to hold that the accused was su bstituted
by the complainant party because in the cases of murder falling under section 302,
P.P.C. substitution of .an accused who is actually involved in the commission of the
crime is a rear phenomena in this country particularly in an incident in which single
accused was involved by nominating him in the F.I.R. from the very beginning. So
much so if the parties are intense related to each other, therefore, due to close
kinship it is very hard to accept the theory of substitution."
In support of plea o f alibi the appellant produced two witnesses in defence, but same are
not corroborating the statement of the appellant on oath as the appellant in his statement on
oath never deposed about the date on which he left for Ornach nor the appellant deposed
that in Ornach he lived with DW -1 for four days nor he mentioned that he visited D.W.2
Muhammad Hassan in Ornach. More -so-over, both the D.Ws. never appeared before the
Investing Officer for recording their statements. The evidence of the defence with regard t o
the plea of alibi is not consistent and confidence inspiring. The defence witnesses have not
been able to put a dent in the prosecution case. The plea of alibi finds no corroboration
from any piece of evidence. The appellant had raised special plea of al ibi at the trial and
burden of proving the same through reliable evidence was lying upon the appellant, but the
appellant at the trial failed to substantiate his plea of alibi by reliable evidence, as such, the
same is of no consequence in the circumstance s of the case.
In view of the -above discussed confidence inspiring testimony of solitary natural witness of
the occurrence i.e. P.W.2 being corroborated in material aspects by P.Ws.3, 4, 5, 8 and 11
and supported by recovery of empties of the Kalashnikov , blood stained earth and blood -
stained clothes we are convinced about sufficiency of the same for maintaining the
conviction of the appellant. We find no misreading or mis-appreciation of evidence by the
trial court. With regard to basing the conviction o f the appellant on the solitary statement
of P.W.2 we are supported by the dictum laid down in 1995 SCMR 1789, the relevant
portion whereof is reproduced below: --
'The conviction of the appellants rested on the solitary statement of Muzaffar Khan
P. W. 4. No doubt, in a criminal case the conviction of an accused can be based on
the statement of one witness without corroboration but the condition is that the
witness should be absolutely dependable."
Similar view was held in 2001 SCMR' 199, relevant port ion thereof is also reproduced below:
"The matter thus must depend upon the circumstances of each case and the quality
of the evidence of the single witness whose testimony has to he either accepted or
rejected. If such a testimony is found by the Court to be entirely reliable, there is no
legal impediment to the conviction of the accused person on such proof."
Similar view was also expressed in 2011 SCMR 725 in the following words: --
"even in a murder case conviction can be based on the testimony of a single witness,
if the Court is satisfied that he is reliable. "The reason being that it is the quality of
evidence and not the quantity which matters."
Being satisfied with regard to the reliability of the corroborated confidence inspiring statement o f
P.W.2, having no reason for false implication of the appellant being his real sister, we are only
left to determine the quantum of sentence of death awarded to the appellant in absence of any
motive and to determine as to whether the absence/lack of motive can be treated as a mitigating
circumstances for awarding lesser sentence. In this regard the settled principle is that, if the
prosecution had succeeded in establishing the offence, then presence of motive or no motive
would not be ground for awarding lesser punishment to the accused. Further this principle can
only be invoked when the prosecution has not alleged the motive and in the instant case
throughout the trial the prosecution has not alleged any motive and the witnesses have
throughout expressed their ignorance/lack of knowledge about the motive of the occurrence. In
this regard we are fortified by the dictum laid down in 2002 SCMR 1473, wherein it was held as
under: --
"Now turning towards the argument of learned counsel for petitioner that if the
prosecution has succeeded in establishing offence the presence of motive or no motive
would not be ground for awarding lesser punishment to the accused. As far as the legal
proposition is concerned there is no cavil with it "but this principle would on ly be
invoked when the prosecution has not alleged the motive but if the motive is alleged then
it becomes its duty to prove the sane but if the prosecution failed to prove the motive so -
alleged and it has also not proved through convincing evidence that t he accused has
committed the crime charge against him then on considering non -establishing of motive
to be a mitigating circumstance sentence can be awarded to the accused charged for the
murder having regard to the facts and circumstances of the case."
Similarly, in case of Muhammad Akbar and others v. The State PLD 2004 SC page 44 as well as
in case of Muhammad Amin alias Irfan v. The State 2004 SCMR 1676 it was held that, lack of
motive or weakness thereof is immaterial to was hold the normal penalty o f death in murder
cases when trustworthy evidence had squarely brought home the guilt against the accused
beyond any doubt.
Hence we conclude that ocular evidence corroborated by independent witnesses of the locality in
all material aspect is trustworthy and reliable and the prosecution has abundantly proved its case
against the appellant who effectively fired at the deceased causing hint fatal injuries resulting
into his unnatural death and there are no extenuating circumstances to award lesser punishmen t
to the appellant. Since the guilt of the appellant for causing murder stands proved beyond
reasonable doubt, the trial court has rightly imposed normal penalty of death to the appellant.
It is to be noted that courts owe duty to the legal heirs/relatio ns of the victims and also to the
society, therefore, the sentences awarded should be such which should act as deterrent to the
commission of offences. The approach of the court should be dynamic and if the court is satisfied
that the offence has been comm itted in the manner as alleged by the prosecution the
technicalities should be overlooked without causing any miscarriage of justice.
Hence for the above reasons and the dictum laid down by the apex Court, we find no merit in the
instant jail appeal. T he appeal having no force is dismissed. The conviction and sentence awarded
to the appellant under section 302(b), P.P.C. vide judgment impugned dated 16 -12-2006 by
learned Sessions Judge Lasbela at Hub is upheld, consequently Murder Reference No.20 of 200 6
is answered in affirmative.
H.B.T./65/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,
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