2016 M L D 2064
[Baluchistan (Sibi Bench)]
Before Muhammad Kamran Khan Mulakhail and Ghulam Mustafa Mengal, JJ
ABDUL RAZZAQ ---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.S -18 and Murder Reference No.S -1 of 2014, decided on 24th July, 2014.
Penal Code (XLV of 1860) ---
----S. 302(c) ---Qatl -i-amd---Appreciation of evidence ---Sentence, reduction in---Case of the
prosecution mainly rested upon the circumstantial evidence ---Court, in case of circumstantial
evidence was bound to be on guard, while appraising the evidence and to see that each
circumstance was proved independently and was so connected with the other circumstances that
it constituted an unbroken chain and led to no other inference, but to the guilt of accused ---
Accused had neither deni ed the recovery of dead body of his legally wedded wife from his
house, nor offered any explanation, as to how and under what circumstances his deceased wife,
while sleeping in his house, during night, sustained firearm injuries ---Accused had made a clean
breast extra judicial confession before the complainant regarding murder of his wife ---Accused
was arrested after about more than 8 months of occurrence; during that period accused neither
reported the matter to Police Authorities, nor attended the funeral ceremony of his wife---Such
conduct of accused, could lead to the inference that, none else but the accused had committed the
murder of his wife ---Neither the witnesses nor the complainant had any motive or grudge against
accused ---Extra judicial confessi on, was also not proved to be the result of prompting or
consultation---Was not necessary in every case to bring on record evidence directly, connecting
accused with the crime, nor lack of direct evidence, would mean that the guilt could not be fixed,
if there were strong circumstances existing on record against accused ---Nothing was on record to
suggest that accused was unhappy with his deceased wife; accused would have no reason to
commit murder of the deceased ---Circumstances, under which the occurrence took place showed
that something suddenly had happened between accused and the deceased, which provoked him
and lost self -control ---Case, in circumstances, was not of death penalty keeping in view the
principles of mitigating circumstances, charge under S. 302(c), P. P. C. was altered to that of
under S.302(b), P.P.C.---Accused would suffer life imprisonment with fine of Rs.1,00,000---
Murder reference was answered in negative, in circumstances.
The State v. Manzoor Ahmed and Muhammad Ismail Khan v. Manzoor A hmed, PLD
1966 SC 664; Ghulam Muhi -ud-Din v. The State 2014 SCMR 1034 and Hassan v. The State
PLD 2013 SC 793 ref.
Ahsan Rafiq Rana for Appellant (in Criminal Appeal No.S -18 of 2014).
Abdullah Kurd for the State (in Criminal Appeal No.S -18 of 2014).
Abdull ah Kurd for the State (in Murder Reference No.S -1 of 2014).
Ahsan Rafiq Rana for the Convict (in Murder Reference No.S -1 of 2014).
Date of hearing: 7th May, 2014.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---The Sessions Judge, Usta
Muhammad (the "trial C ourt"), vide judgment dated 22nd January 2014 (the "impugned
judgment") has convicted and sentenced appellant Abdul Razzaque son of Muhammad Alam
under Section 302(c) of the Pakistan Penal Code 1860 (P.P.C.) to death as ta'zir. The appellant
preferred Crim inal Appeal No.(S)18 of 2014 for his acquittal, while the learned trial Court has
sent Murder Reference No.(S)01 of 2014 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 stated facts of the case are that on 12th July 2011, a case vide FIR No.31 of 2011,
under Section 302(c) of the P.P.C. (Ex.P/1- B) was registered at Saddar Usta Muhammad Police
Station district Jaffarabad, on the Fard -e-Bayan (Ex.P/1 -A) of complainant Abdul Aziz (PW -1).
It was alleged by the complainant that by profession he is Chowkidar at Mobilink Tower and
residing at Shaheed Murad Colony, Usta Muhammad along with his family members. About
12/13 years back, Abdul Razzaque (the appellant) contracted marriage with his sister, namely,
Kaz Bano. On above date at about 2:20 p.m., he was informed by the appellant via mobile phone
that he has committed the murder of his sister on the pretext of s iyahkari with Haji Safar and he
has to take her dead body. On receiving said information, he, along with his relatives Abdul
Jabbar and Abdul Karim, went to the house of her sister, situated at Goth Allah Waraya Rind
near Faiz Abad Jamali, where he found t he dead body of his sister Kaz Bano in pool of blood in
the courtyard of the house. Consequently, the aforesaid FIR was registered at about 6:35 a.m.
3. After registration of the FIR (Ex.P/1 -B), investigation of the case was entrusted to PW -7
Allah Ditta, Sub- Inspector (SI), who, along with other police employees as well as the
complainant, went at the place of occurrence, found the dead body of deceased Mst. Kaz Bano,
prepared inquest report (Ex.P/7- A), inspected the site on the pointation of the complainant,
prepared site inspection memo (Ex.P/4- A), prepared site sketch (Ex.P!7- B), took into possession
a piece of blood -stained Chadar of the deceased vide memo (Ex.P/4- B), sealed it in a parcel, took
into possession four crime empties vide memo (Ex.P/4- C), prepared its sealed parcel, recorded
the statements of prosecution witnesses (PWs), shifted the dead body of the deceased to Civil
Hospital, Usta Muhammad, where the lady doctor handed over him the bloodstained clothes of
the deceased, which were sealed an d taken into possession vide memo (Ex.P/6- A). After
conducting post -mortem examination, he released the dead body of the deceased to its legal
heirs, obtained warrants of arrest of the appellant and on 2n4 August 2011, he received report of
post-mortem exa mination. Thereafter, he handed over the papers to Station House Officer
(SHO), who prepared incomplete challan (Ex.P/7- C). He sent the two sealed parcels to Forensic
Science Laboratory (FSL), Quetta for examination and obtained report (Ex.P/7- D) on 20th
January 2012, at which the SHO prepared supplementary challan (Ex.P/7- E). On 19th March
2012, he arrested the accused/ appellant, carrying out investigation from him and during course
whereof, he admitted commission of the offence, at which disclosure memo (Ex.P/5 -A) was
prepared and, thereafter, the accused/appellant was remanded to judicial custody on 2nd April
2012 and handed over the papers to the SHO, who prepared complete challan (Ex.P/7- F) and the
appellant was sent up to face the trial.
4. On the st ated allegation, charge was framed and read over to the appellant to which he
pleaded not guilty and claimed trial. The prosecution, in order to substantiate the accusation,
produced seven witnesses. PW -1 Abdul Aziz is complainant of the case, who exhibite d his, fard-
e-bayan (Ex.P/1- A) and FIR (Ex.P/1 -B). PW -2 is Abdul Jabbar, who, soon after receiving of the
information regarding commission of the offence, accompanied the complainant to the house of
her sister, found her dead body and recorded his statement before the police. PW -3 Dr. Raheela
Samejo, Lady Medical Officer, Civil Hospital, Usta Muhammad, conducted the postmortem
examination of the deceased and produced post -mortem examination report (Ex.P/3 -A). PW -4
Karam Ullah, Head Constable is witness to the site inspection note (Ex.P/4- A), recovery memo
of a piece of blood- stained Chadar (Ex.P/4- B) and recovery memo of four crime empties
(Ex".P14- C). PW -5 Muhammad Ishaque, constable, is witness to the disclosure memo (Ex.P/5-
A) of the appellant. PW -6 Juma Khan, constable, is witness to the recovery memo (Ex.P/6- A) of
bloodstained clothes of the deceased and PW -7 Allah Ditta, SI, is the investigating officer of the
case. Then the prosecution closed its side.
5. In his examination under Section 342 of. the Code of Criminal Procedure 1898 (Cr.P.C.),
the appellant denied and controverted each and every allegation of fact leveled against him by
the prosecution and professed his innocence. However, he neither made any statement on oath
under Section 340(2) of the Cr.P.C, nor produced any witness in his defence.
6. At the conclusion of the trial, the trial Court found the prosecution's case against the
appellant to have been proved beyond reasonable doubt and, thus, the appellant was convicted
and sentenced, as mentioned and detailed above.
7. We have heard the learned counsel for the appellant as well as learned counsel for the
State and have gone through the record with their valuable assistance. It has been argued by the
learned counsel, for the appellant that the prosecution had failed to prove its case against the
appellant beyond reasonable doubt and, thus, this appeal warrants acceptance with a result to
acquit the appellant.
8. As against that the learned counsel for the State has maintained that prosecuti on had
succeeded in proving the guilt of the appellant to the hilt. He added that the facts and
circumstances of the case clearly conclude that the charge had successfully been proved,
therefore, death sentence was correctly passed against the appellant being normal penalty
provided under the statute.
9. We have carefully considered the contentions put forth by the learned counsel for the
parties and have also minutely gone through the impugned judgment. The case of the prosecution
mainly rests upon the cir cumstantial evidence i.e. extra- judicial confession, recovery of dead
body from house of the appellant, securing crime empties from scene of occurrence, medical
evidence and unexplained abscondance of the appellant, immediately, after the occurrence.
10. In case of circumstantial evidence, it is the bounden duty of the Court to be on guard,
while appraising the evidence and to see that each circumstance is proved independently and is
so connected with the other circumstances that it constitutes an unbroken chain and leads to no
other inference, but to the guilt of the accused. While considering the case of the prosecution on
the touchstone of the criterion, as mentioned hereinabove, it may be observed that perusal of
record would show that the complainant Abdul Aziz was informed by his brother -in-law i.e.
appellant Abdul Razzaq on mobile phone that he committed the murder of his wife Mst. Kaz
Bano on the pretext of siyahkari with Haji Safar, who, after receiving the said call, rushed to the
house of the appel lant along with Abdul Jabbar and Abdul Karim and found the dead body of his
sister lying in pool of blood and, subsequently, the matter was reported to the police authorities.
The appellant has neither denied the recovery of dead body of deceased Mst. Kaz Bano, who was
his legally wedded wife from his house, nor offered any explanation as to how and under what
circumstances his deceased wife, while sleeping in his house, during midnight, sustained firearm
injuries. Bare denial of the appellant of knowledge of occurrence and not offering the required
explanation is a strong piece of circumstantial evidence to prove his guilt. It is evident from
record that the appellant had made a clean breast extra- judicial confession before the
complainant regarding murder of his wife. It may also be noted that the occurrence took place on
12th July 2011 and the appellant was arrested on 19th March 2012. During this period, neither he
reported the matter to police authorities, nor attended the funeral ceremony of his wife, t hus, the
conduq shown by the appellant is also abnormal and it leads to only inference that it was the
appellant, none else, who committed the murder of his wife. Neither the witnesses nor the
complainant, had any malice or grudge against the appellant. The extra- judicial confession was
also not proved to be the result of prompting or consultation. Needless to observe that non-
reporting of the matter to police authorities, recovery of dead body from house of the appellant,
medical report, recovery of crime empties from the place of occurrence, extra- judicial confession
and unexplained' abscondance of the appellant, immediately, after occurrence, are strong
circumstances and sufficient enough to connect appellant Abdul Razzaq with the crime in
question, which have, otherwise, not been rebutted by him successfully by producing reliable
evidence, nor had he come with a plausible plea, creating doubts to his guilt. The appellant has
simply denied to have committed the offence, which, in our view, is not sufficient to ignore the
above strong circumstances, existing against him. In every crime, it is not necessary to bring on
record evidence directly, connecting the accused with the crime, nor lack of direct evidence
means that the guilt 'Cannot be fixed, if there a re strong circumstances existing on record against
the accused and from which it could safely inferred that the accused is the person, who had
committed the offence, then conviction can be based on the basis of such evidence. In this
regard, we may fortify our view to the cases of "The State v. Manzoor Ahmed" and "Muhammad
Ismail Khan v. Manzoor Ahmed", PLD 1966 SC 664, while discussing the impact of
circumstantial evidence, observed as under: --
In a case where there is no direct evidence to show as to in w hat precise manner the
victim came to be killed the Court has to discharge its onerous duty of determining
whether the death was caused by the felonious act of some other person and, if so, what
offence, if any, had been committed by such a person. It is not sufficient in such a case to
say that since there is no direct evidence to connect any one with the felonious act the
guilt cannot be fixed. It is precisely in such cases that it is the duty of the Court to
examine the probabilities in the light of the indirect evidence of the injuries on the
deceased, the nature and condition of the place where the incident took place, the articles
found there, the motive for the crime and the other surrounding circumstances proved."
11. The medical evidence also lends support to the ocular account. Multiple circumstances
corroborate the involvement of appellant Abdul Razzaq in killing of the deceased. All the
circumstances, discussed hereinabove, prove beyond the shadow of doubt that it was none other
than appellant Abdul Razzaq, who had committed murder of the deceased. All the aforesaid
pieces of circumstantial evidence, when combined together, provides strong chain of
circumstances, leading to the irresistible conclusion that it was the appellant, who had committed
murder of the deceased.
It is also borne out of the record that according to appellant's own saying that he has
murdered his wife on account of her being involved in illicit relationship with one Haji Safar and
he after his arrest did not advance any plausible explanation in respect of his willful abscondance
and even during the course of trial no specific stance was adopted and the whole case was
revolving around the evasive denial and the appellant did not feel necessary even to enter into his
defense and t o depose in his favour on oath and the whole prosecution case was left unrebutted.
12. The only question, which now remains to be answered, is the quantum of sentence, to
which the appellant is liable for in the given facts and circumstances of the case. T herefore, we
have to determine this question of prime importance as on merits of the case and we after careful
reappraisal of the evidence have no legitimate cause to accept the assertion that death penalty is a
normal sentence provided for the charge unde r Section 302(b), P.P.C. We have not been able to
find anything, which could convince the prudent mind that a sentence of death shall necessarily
be passed in case of charge under Section 302(b), P.P.C. for the legitimate reason that both the
punishment wi th death or imprisonment for life as Ta'zir have been stipulated having regard to
the facts and circumstances of the case and for rendering this view we have been fortified by the
dictum laid down by the Hon'ble apex Court in Ghulam Muhi -ud-Din v. The Stat e (2014 SCMR
1034) and it would be instructive to reproduce paras 20 and 21 of the judgment supra, which
reads as follows: --
20. A single mitigating circumstance, available in a particular case, would be sufficient to
put on guard the Judge not to award the penalty of death but life imprisonment. No clear
guideline, in this regard can be laid down because facts and circumstances of one case
differ from the other, however, it becomes the essential obligation of the Judge in
awarding one or the other sentence to apply his judicial mind with a deep thought to the
facts of a particular case. If the Judge/Judges entertain some doubt, albeit not sufficient
for acquittal, judicial caution must be exercised to award the alternative sentence of life
imprisonment, les t an innocent person might not be sent to the gallows. So it is better to
respect the human life, as far as possible, rather to put it at end, by assessing the
evidence, facts and circumstances of a particular murder case, under which it was
committed.
Albeit, there are multiple factors and redeeming circumstances, which may be quoted,
where awarding of death penalty would be unwarranted and instead life imprisonment
would be appropriate sentence but we would avoid to lay down specific guidelines
because facts and circumstances of each case differ from one another and also the
redeeming features, benefiting an accused person in the matter of reduced sentence would
also differ from one another, therefore, we would deal with this matter in any other
appropriat e case, where, if proper assistance is given and extensive research is made.
In any case, if a single doubt or ground is available, creating reasonable doubt in the mind
of Court/Judge to award death penalty or life imprisonment, it would be sufficient
circumstances to adopt alternative course by awarding life imprisonment instead of death
sentence.
22. In the present case a specific motive was set up in the FIR at the time of reporting the
crime by the complainant. He had alleged that there was a dispute b etween the parties
over a 'Khokha' (wooden stall), however, no independent corroboratory evidence on this
point was furnished. Thus, the version, repeating the same stance at the trial, without any
independent corroboratory evidence in this respect, would have no legal worth and
judicial efficacy. It has been claimed that the dispute had led to civil litigation over the
'Khokha' but no document from judicial record was furnished to the trial Court to show
even to a little extent that indeed the dispute over a 'Khokha' was a burning issue between
the parties and they had already been battling for the same in the Civil Court. Thus, the
motive part of the incident has remained absolutely unproved.
Admittedly, there is no eyewitness of the occurrence and case of the prosecution mainly
based on circumstantial evidence. The appellant and deceased were husband and wife and there
is nothing on record to suggest that the accused was unhappy with the deceased and, thus, the
appellant would have no reason to commit murder of the deceased. The circumstances, under
which the occurrence took place; would lead to an inference that due to something suddenly
happened between the accused and the deceased, which provoked him while losing self -control
caused injuries to his wife and, thus, in any case, it was not a case of death penalty. For rendering
this view, keeping in view the principle of mitigating circumstances we are supported by the
judgment rendered in Hassan v. The State (PLD 2013 SC 793) relevant portion Para 12 where of
is reproduced here under:
"12 ... .... in a case of an occurrence developing at the spur of the moment this court,
depending upon the circumstances of the case, generally looks at the matter of sentence
with some degree of empathy and consideration"
As it has already been discussed herein above that the possibility' of sudden provocation
cannot be ruled out and appellant might had' murdered his wife on having found her in company
of her alleged paramour, therefore, while altering the charge under Section 302(c) of the P.P.C.
to that of under Section 302(b) of the P.P.C., appellant Abdul Razzaq son of Muhammad Alam is
convicted and sentenced under Section 302(b) of the P.P.C. to suffer life imprisonment with a
fine of Rs.1,00,000/ - (Rupees one hundred thousand only) or in default whereof to further
undergo six (06) months' SI, with the benefit of Section 382- B of the Cr.P.C.
With the aforesaid modification in the conviction and sentence, the appeal is hereby
dismissed and the murder reference is answered in negative.
HBT/53/Bal. Sentence reduced.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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