2011 Y L R 2618
[Quetta]
Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ
MUHAMMAD DIN ---Appellant
Versus
THE S TATE ---Respondent
Criminal Appeal No.S -55 and Murder Reference No.(S) 8 of 2009, decided on 28th July,
2011.
Penal Code (XLV of 1860) ---
----S. 302(b) ---Criminal Procedure Code (V of 1898), S.374 ---Qatl-e-amd---Sentence,
reduction in ---Accused who w as convicted and sentenced under S.302(b), P.P.C. to death as
ta'zir, had filed appeal for his acquittal, while Sessions Judge had sent Murder Reference
for confirmation of the sentence of death or otherwise --Occurrence, which took place in
broad daylight, was reported to the Police promptly without any delay ---Complainant and
prosecution witness were related to the deceased persons, but their evidence could not be
brushed aside merely on the ground of their such relationship ---Both the eye -witnesses
faced the test of cross -examination quite successfully, but their evidence could not be
shattered ---Medical evidence was also in line with the ocular account and fully corroborated
the same --Besides, the ocular evidence, got full support from all the other atten ding
circumstances ---Contention of counsel for accused that occurrence was unseen and the
'witnesses were planted, was repelled ---Motive seemed to be shrouded in mystery as neither
accused nor complainant party had uttered a single word in that regard ---Both the parties had
appeared to have tried to suppress the facts in order to minimize their role in the whole
episode, which culminated in the death of deceased persons ---Murder based on "Ghairat" did
not furnish a valid mitigating circumstances for awardin g a lesser sentence ---Motive for the
occurrence was stated to be the allegation of "Siahkari", but same had not been established by
the prosecution through any preponderant evidence --Prosecution, no doubt, was not required
to disclose or set up a motive, b ut once it chose to do so, then it would become its obligation
to prove the same by cogent evidence; and failure in doing so would not only damage the
credibility of the prosecution case beyond repair, but it would also be fatal for it ---Accused
had shown that a mitigating circumstance did exist for commuting the death sentence
awarded to him into that of imprisonment for life ---Death sentence awarded to accused on
two counts under S.302(b), P.P.C., was converted into that of life imprisonment, with benefit
of S.382 -B, Cr.P.C., in circumstances.
1998 PCr.LJ 990 rel.
Abdul Ghias Nausherwani P.G. assisted by Kamal Khan Kakar for the State (in Murder
Reference No.8 of 2009).
Nadir Ali Chagari for Respondent (in Murder Reference No.8 of 2009).
Nadir Ali Chalgari for Appellant (in Criminal Appeal No.S -55 of 2009).
Abdul Ghias Nousherwani P.G. assisted by Mr. Kamal Khan Kakar for the State (in Criminal
Appeal No.S -55 of 2009).
Date of hearing: 30th June, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR , J.---The Sessions Judge, Nasirabad at Dera
Murad Jamali vide judgment dated 26th May, 2009 has convicted and sentenced appellant
Muhammad Din son of Imam Din under section 302(b), P.P.C. to death as Ta'zir on two
counts with direction to pay compensation of Rs.200,000 to the legal heirs of deceased
persons as provided under section, 544 -A Cr.P.C., in default whereof to further undergo S.I.
for six (06) months. The appellant preferred Criminal Appeal No.(S)55 of 2009 for his
acquittal, while the Sessions J udge has sent Murder Reference No.(S)08 of 2009 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. Briefly sta ted the facts - of the case are that on 18th August, 2008 at about 8 -45 p.m., a case
vide F.I.R. No.20 of 2008 (Exh.P/5 -A), under section 302 read with sections 147, 148 and
149 of the P.P.C. was registered by the police officials of Allah Abad at Khan -kot Police
Station District Naseerabad on the basis of Fard -e-Bayan (Exh.P/1 -A) of complainant Dad
Muhammad alias Dadan (P.W.1). It was alleged by the complainant that on above date, he,
along with his brother Moula Bakhsh, cousin Sajjan Khan, relatives Aadam Khan and Mor
Khan, proceeded from Goth Hussain Bakhsh Umrani towards Sunhara Dap for purchasing
household articles. After purchase, when they reached between Goth and Soithara Dap at
about 6 -05 p.m., six persons appeared on two motorcycles and stopped near to them, out of
whom, three were Muhammad Din, Shuman Ali and Muhammad Alam, duly armed with
Kalashnikovs, while the remaining three, having pistol and Kalashnikov, were not identified
by them, however, they could be identified on appearance. He further a lleged that accused
Muhammad Din made firing upon his brother Moula Bakhsh with Kalashnikov, while
accused Muhammad Alam and Shuman Ali also made firing upon his cousin Sajjan Khan by
means of Kalashnikovs, due to which they expired at the spot and the acc used persons ran
away from the crime scene. The complainant also alleged that since they were empty -handed,
therefore, they could not intervene. The motive behind the incident was disclosed allegation
of fake 'Siyahkari' on the relatives of complainant.
3. After registration of the F.I.R. Exh.P/5 -A, investigation of the case was entrusted to P.W.5
Ghulam Mustafa, S. -I., who visited the site, recorded the statements of P.Ws., prepared site
sketch Exh.P/5 -B, examined the dead bodies of deceased Moula Bakhsh and Sajjan Khan and
prepared inquest reports Exh.P/5 -C and D, sent the dead bodies for postmortem examination,
also sent the sealed parcel of blood -stained clothes and earth to FSL for analysis and on his
transfer, further investigation of the case was ca rried out by P.W.6 Muhammad Salah, S. -I.
He arrested the accused Muhammad Din, remanded him to judicial custody and prepared
incomplete challan Exh.P/6 -A. He received report of FSL Exh.P/6 -B, at which supplementary
challan Exh.P/6 -C was prepared - and appe llant was sent up to face the trial.
4. On the stated allegation, charge was framed and read over to the appellant on 11th
November, 2008, to which he pleaded not guilty and claimed trial. The prosecution, in order
to substantiate the accusation, produc ed six witnesses. P.W.1 Dad Muhammad alias Dadan is
complainant of the case and produced Fard -e-Bayan Exh.P/1 -A. P.W.2 Adam Khan is stated
to have witnessed the occurrence. P.W.3 Dr. Ashiq Hussain Shah, Medical Officer, examined
the dead bodies of deceased Moula Baldish and Sajjan and issued Medico -legal certificates
Exh.P/3 -A and B. P.W.4 Deedar. Ali, HC, is witness to the site inspection memo. Exh.P/4 -A,
collec tion of four empties of Kalashnikov from the place of occurrence by the Investigating
Officer v ide memo Exh.P/4 -B, securing of blood -stained earth of deceased persons vide
recovery memos. Ex.P/4 -C and D and taking into possession of blood -stained clothes of
deceased persons vide recovery memos Exh.P/4 -E and F. P.W.5 Ghulam Mustafa, S. -I. and
P.W.6 M uhammad Salah, A.S. -I. are the Investigating Officers of the case and then the.
prosecution side was closed.
5. Thereafter, the appellant was examined under section 342, Cr.P.C., wherein he denied the
prosecution accusation and claimed to be innocent, ho wever, he did not - opt .to record his
statement on oath as' envisaged under section 340(2), Cr.P.C., nor produced any witness in
defence. The learned trial Court, after close of parties evidence, vide impugned judgment
convicted and sentenced the appellant , as mentioned hereinabove, hence this appeal and
murder reference.
6. Mr. Nadir Ali Chalgari, learned counsel for the appellant, contended that despite the fact
that prosecution failed to prove its case beyond the shadow of doubt, the trial Court convic ted
and sentenced the appellant illegally. In fact, it was a blind murder and the ocular account
furnished by related witnesses remained uncorroborated by any independent piece of
evidence. He further contended that the presence of eye -witnesses i.e. P.W.1 Dad
Muhammad and P.W.2 Adam Khan has been negated by P.W.4 Deedar Ali, constable, as
such, no reliance can be placed on their testimonies. In the alternative, the counsel has
contended that in any case the appellant does not deserve capital sentence, as t he prosecution
has failed to prove the alleged motive.
7. On the other hand, Mr. Abdul Ghias Nousherwani, Prosecutor -General, 'assistant by Mr.
Kamal Khan Kakar, Advocate, has supported impugned judgment of conviction and sentence
and submitted that the F.I.R. was got registered with promptitude, the presence of eye -
witnesses at the spot was quite natural, as they had accompanied the deceased persons at the
time of occurrence. The appellant acted in a brutal manner, who has rightly been sentenced to
death by the trial court, which is liable to be confirmed by this Court.
8. We have carefully considered the respective contentions put forth by the parties' counsel in
the light of evidence available on record and also gone through impugned judgment. So far as
the homicidal death of deceased Moula Bakhsh and Sajjan is concerned, external postmortem
examination of the dead bodies was carried out by P.W.3 Dr. Ashiq Hussain Shah, Medical
Officer, District Headquarter Hospital, 'Dera Murad Jamali on 19th August, 2008. He found
certain injuries on the persons of dead bodies, which were all ante -mortem and caused with
firearm. Even otherwise, the defence has not disputed the unnatural death of the deceased
persons by means of firearm injuries.
9. After going throu gh the record, we are of the opinion that learned counsel for the appellant
was quite justified/praying for commutation of the death sentence awarded to the appellant
into that of life imprisonment and not seriously challenging the conviction awarded to th e
appellant. The occurrence, which took place in broad -daylight, was reported to the police and
F.I.R. was lodged promptly without any delay. Although P.W. complainant Dad Muhammad
and P.W.2 Adam Khan are related to the deceased persons, but their evidence cannot be
brushed aside merely on the ground of their relationship with the deceased persons. Both the
eye-witnesses faced the test of cross -examination quite successfully, but their evidence could
not be shattered. The medical evidence is also in line wi th the ocular account and fully
corroborated the same. Besides, the ocular evidence, as mentioned above, got full support
from all the other attending circumstances.
10. We are not impressed by the feeble contention of learned counsel for the appellant t hat
the occurrence was unseen and the witnesses are planted. Although P.W.4 Deedar Ali,
constable, has stated that at the time of their arrival on the venue of crime, no one was present
there, yet we are of the opinion that P.W.4 is a police constable, who is found to be obliging
the defence in cross -examination with regard to matters, wholly unconnected with the part he
took in the investigation and such obliging concession made by said witness in cross -
examination cannot be considered to be of any value.
11. The motive seems to be shrouded in mystery. Neither the appellant nor the complainant
party has uttered a single word in this regard. It appears that both the parties have tried to
suppress the facts in order to minimize their role in the whole episo de, which culminated in
the unfortunate death of deceased Moula Bakhsh and Sajjan Khan. We are not impressed by
the contention of the learned counsel for the appellant that according to the prosecution own
showing the occurrence is the result of ' Siyahkari ', as such, the appellant is liable to be
awarded lesser punishment under section 302(c) of the P.P.C. It is true that in the rural areas
of Balochistan and especially in Naseerabad Division, the people do not swallow such kind of
insult, touching the hono ur of their womenfolk in usually commit murder of alleged
'Siyahkar' in order to vindicate and rehabilitate the family honour, but it is equally true that no
licence can be granted to anyone to take the law of the land in his hands and started executing
the culprits himself instead of taking them to the courts of law. The murder based on `Ghairat'
does not furnish a valid mitigating circumstance for awarding a lesser C sentence. The
Hon'ble Apex court, in a similar matter, has observed as under:
"Legally and morally speaking, nobody has any right nor can anybody be allowed to
take law in his own hands to take the life of anybody in the name of 'Ghairat'. Neither
the law of the land nor religion permits so -called honour killing which amounts to
murder (Qatl -e-amd). Simplicitor such iniquitous and vile act is violative of
fundamental right as enshrined in Article 9 of the Constitution of Islamic Republic of
Pakistan which provides that no person would be deprived of life or liberty except in
accordance with l aw any custom or usage in that respect is void under Article 9(1) of
the Constitution."
12. Insofar the quantum of sentence is concerned, the motive for the occurrence is stated to be
the allegation of 'Siyahkari', but the same has not been established b y the prosecution
through any preponderant evidence. According to the contents of the F.I.R., the complainant
alleged that the deceased persons were killed by the accused persons on the basis of fake
'Siyahkari' levelled against his relatives, but none of the relatives or any other piece of
evidence have been brought on record to prove the motive. Prosecution, no doubt, is not
required to disclose or set up a motive, but once it chooses to do so, then it becomes its
obligation to prove the same by cogent ev idence and failure in doing so would not only
damage the credibility of the prosecution case beyond repair, but it would also be fatal for it.
In this regard, we are fortified our view to a judgment -reported in 1998 PCr.LJ 990, wherein
it has been held as under: --
"(9) The motive set forth in the F.I.R., is that complainant party, after extracting
sugarcane juice from the sugarcane, threw the waste/ bagasse in the field of the
accused party but Rahim Gul (P. W. 6) and Mehrab Gul (P. W. 7) categorically
admitted in the cross -examination that land of the appellants is situated at a distance
of 700/800 yards from the 'Ghanai' in question. It is a fairly well -settled rule that once
the prosecution has set up a motive, it is required to be established by it. If it failed to
establish, it will adversely affect the credibility of the eye -witnesses."
In view of the said backdrop, we conclude that the appellant has become able to show that a
mitigating circumstance does exist for commuting the death sentence award ed to him into
that of imprisonment for life. Consequently, the death sentence awarded to the appellant on
two counts under section 302(b) of the P.P.C. is converted into that of life imprisonment,
with benefit of section 382 -B, Cr.P.C. The amount of compe nsation shall remain intact in
terms of the judgment dated 26th May, 2009 passed by the trial Court. Resultantly, the
Criminal Appeal, with above modi fication, is dismissed, and the Murder Reference is
answered in negative.
H.B.T./72/Q Order acco rdingly.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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