2017 M L D 1407
[Balochistan (Sibi Bench)]
Before Muhammad Ejaz Swati and Nazeer Ahmed Langove, JJ
SHAFI MUHAMMAD and others ---Appellants
Versus
The STATE and others ---Respondents
Criminal Appeal No.(S)123 and Criminal Revision Petition No.(S)41 of 2015, decided on 21st
March, 2017.
(a) Penal Code (XLV of 1860) ---
----Ss. 302, 324, 147, 148 & 149---Qatl -i-amd, attempt to commit qatl- i-amd, rioting, rioting
armed with deadly weapon, unlawful assembly ---Appreciation of evidence ---Prosecution case
was that accused party had demanded extortion in lieu of renovation work at canal, otherwise to
stop the work, accused party made firing upon the complainant party on refusal which resulted in
instant death of two sons of complainant and injuries sustained by his dri ver---Ocular account
was furnished by witnesses, including complainant and injured ---Complainant reiterated the
contents of FIR ---Said witnesses not only supported the prosecution version but even during
cross -examination, they remained firm and their testimony could not be shaken nor the defence
had been able to extract anything favorable to it ---Medical evidence was in line with that of
ocular account ---Evidence of eye -witnesses was in line with that of complainant---Witnesses had
supported each other in respect of date, time weapon used in the commission of offence and
firing made by the accused persons along with their other companions ---Defence failed to point
out any material contradiction, omission, improvement and discrepancy in the statements of
prosecution witnesses ---No misreading, non -reading, illegality or irregularity could be pointed
out by the defence either in the investigation or in the impugned judgment ---Allegedly, nothing
was recovered from the possession of accused persons, but non- recov ery of crime weapon
neither absolved the accused persons from the commission of offence nor was of any help to the
prosecution because accused persons had made their escape good from the spot and later on were
arrested from another city ---Accused persons h ad not only been nominated in FIR with specific
role of firing but were also identified by the eye -witnesses at the spot ---Accused persons by
committing double murder of two innocent persons and injured a person had proved themselves
to be oppressive and hardened criminals, as such did not deserve leniency ---Circumstances had
established that prosecution successfully built complete chain starting from feet of deceased and
touching the neck of accused by producing tangible and trustworthy evidence ---Appeal a gainst
conviction was therefore, dismissed.
(b) Penal Code (XLV of 1860) ---
----Ss. 302, 324, 147, 148 & 149---Qatl -i-amd, attempt to commit qatl- i-amd, rioting, rioting
armed with deadly weapon, unlawful assembly ---Appreciation of evidence ---Interested w itness --
-Testimony of closely related witness ---Reliance---Scope---Prosecution case was that accused
party demanded extortion in lieu of renovation work at canal, otherwise to stop the work and on
his refusal, accused party made firing upon the complainant party, which resulted in instant death
of two sons of complainant and injuries sustained by his driver ---Defence had alleged that eye-
witnesses being closely related to the deceased persons, their testimony was not above board---
Evidence furnished by clos e relatives, if rang true, straightforward, confidence inspiring and
corroborated by other material pieces of circumstantial evidence as well as medical evidence
could well be taken into consideration---Appeal against conviction was dismissed in
circumstan ces.
2016 YLR 1166 rel.
Adnan Ejaz and Ali Hassan Bugti for Appellant.
Ahsan Rafique Rana for the Complainant.
Jameel Akhter, A.P.G. for the State.
Date of hearing: 27th February, 2017.
JUDGMENT
NAZEER AHMED LANGOVE, J. ---Instant appeal is directed against the judgment
dated 29th June, 2015 passed by the learned Additional Sessions Judge, Dera Bugti at Sui,
whereby the appellants have been convicted and sentenced as under: --
i. Under sections 302(b)/149, P.P.C. to life imprisonment in addition to pay ment of
fine/compensation of Rs.200,000/ - (Rupees Two Lac only) each to the legal heirs of
deceased in default of payment the appellants were directed to further suffer S.I. for Six
Months.
ii. Under section 324, P.P.C. to suffer five years' imprisonment.
iii. Under sections 147 and 148, P.P.C. to suffer two years' S.I.
Benefit of section 382- B, Cr.P.C. was extended in favour for appellants.
2. Brief facts of the case are that on 6th June, 2013 complainant namely Giand Khan
submitted an application with th e Levies of Sui, on the basis whereof the FIR No.7/2013 was
registered wherein he alleged that on 25th May, 2013 he was busy in his work, the accused
persons named in the FIR came and demanded Rs.400,000/ - (Rupees Four Lacs Only) as
extortion in lieu of re novation work at Canal, otherwise to stop the work. On complainant's
refusal to pay the aforesaid amount the accused persons left the scene by making fires. It was
alleged that on the next day i.e. 26th May, 2013 when the complainant along with his sons
namely Peer Bakhsh and Mor Khan were present adjacent to their home and looking after the
work of Canal, whereas, the driver Mehrban was filling up the cracks of the Canal with the help
of tractor, meantime, the accused persons Rehan, Dawood, Muhammad Malook, Muhammad
Ayub, Gul Hassan and Muhammad Saleh along with their two unknown accomplices duly armed
with Kalashnikovs appeared and stated that yesterday we had demanded money from you. You
neither paid the money nor stopped the work. By uttering these words the accused persons
started indiscriminate firing which resulted in instantaneous death of complainant's sons Peer
Bakhsh and Mor Khan and injuries to driver Mehrban, however, the complainant and his wife
remained unhurt luckily. After committing crime th e culprits fled away from the scene of
occurrence on motor cycles by making aerial fires.
3. After registration of the case the levies arrested the accused/appellants while the co -
accused are still fugitive of law. On completion of investigation 'chalan' o f the case was
submitted and trial commenced.
4. On 27th May, 2014 charge was framed against the appellants to which they pleaded not
guilty and claimed trial, the prosecution in order to substantiate its claim produced 7 witnesses.
5. On examination under Section 342, Cr.P.C, the appellants denied all the incriminating
pieces of evidence and pleaded innocence by raising the plea of false implication. Neither the
appellants opted to get themselves examined on oath as envisaged under Section 340(2), Cr.P.C.
nor adduced any witness in their defence. The learned trial court after hearing the parties and
evaluating evidence found the appellants guilty as such convicted and sentenced them as
mentioned hereinabove. Hence instant appeal.
6. The learned counsel for the appellants argued that the judgment impugned passed by the
learned trial court is contrary to law, facts and principles of natural Justice because it failed to
consider the evidence in its true perspective. Learned counsel maintained that there were material
contradictions, dishonest improvements and significant defects in the evidence which could not
have been made basis for recording conviction against the appellants but the trial Court illegally
unlawfully and without any justifiable reason convicted the appellants. Learned Counsel stressed
that the medical evidence was at variance with the ocular account coupled with the recovery of
no crime weapon from the appellants further created serious doubts in the prosecution case but
this aspect of the case was also ignored by the trial Court which has caused serious injustice to
the appellants. He maintained that there was not an iota of independent piece of evidence
connecting the appellants with the commission of alleged offence but this important aspect a lso
escaped notice of the trial court, as such, the judgment impugned herein is liable to be interfered
with by this Court by way of setting aside the same and acquitting the appellants of the charge. It
was canvassed that the judgment impugned is result of mis -reading and non- reading of evidence
which is not sustainable.
Conversely the learned DPG opposed the appeal with vehemence by submitting that the
prosecution successfully brought home the guilt of appellants to the hilt by producing straight
forward , confidence inspiring and trust -worthy evidence connecting the appellants with the
commission of offence. The trial Court passed the judgment impugned after proper appreciation
of evidence and attending all the legal as well as factual aspects of the case. No material
contradictions, omissions or inherent defects warranting interference in the judgment by this
court could be pointed out by the learned counsel for the appellants and advanced being general
in nature did not appeal to a prudent mind, on the basis whereof the judgment impugned could
not be set aside. He urged that the judgment impugned does not suffer from misreading and non -
reading of evidence. Lastly the learned DPG prayed for dismissal of appeal.
Learned counsel for the complainant besides adopting the arguments raised by the
learned DPG, emphasized that the appellants/convicts are involved in the brutal and merciless
assassination of two innocent persons in presence of their parents, which too, without any rhyme
or reason, as such; he press ed for enhancement of sentence and awarding appropriate and normal
death penalty. He added that the convicts/appellants are hardened and desperate criminals. They
demanded 'bhatta' from the complainant and on his refusal to fulfill their illegal demand the
appellants quenched their thirst by committing Qatl- i-Amd of deceased persons and causing
injuries to the victim, therefore, they are not entitled for any leniency. He maintained that not a
single mitigating circumstance was available to the appellants bu t even then the learned trial
court failed to award death penalty which was very much warranted in the instant case. Learned
Counsel emphasized that while passing the impugned judgment the trial Court failed to record
reasons for not awarding the normal de ath penalty to the appellant, as such; the judgment
impugned herein is liable to be modified to the extent of not awarding death penalty.
7. We have heard the learned counsel for the parties at length and gone through the record
with their assistance. The record reflects that the instant unfortunate incident took place on 26th
of May 2013 whereas the FIR was registered on 4th June, 2013. At the time of incident the
complainant along with his wife and two sons were looking after the renovation work of Canal
while the driver (injured) Mehraban was busy in the work, the accused persons emerged and
resorted to firing on complainant's sons and driver which resulted in instantaneous death of his
sons and injuries to the driver. The motive behind the occurrence was that a day prior to the
incident the appellants arrived and demanded extortion money, and also threatened that in case
of failure on the part of complainant he should not continue further work of renovation at Canal.
As the complainant and his sons did not fulfill the illegal and unjustified demand/aspiration of
the appellants, thus, it annoyed and leaned them to commit the instant crime.
Admittedly the FIR was registered after about nine days of the incident and no plausible
explanation has been offered by the prosecution. As per the prosecution's plea the appellants
belonged to a militant group namely 'Aman' force, as such, they did not allow the complainant to
set the law at motion by lodging the FIR in time, however, in our considered opinion unnatural
death of the deceased persons, injuries to the victim Mehrban, date time and venue of incident
are not disputed.
8. Adverting to the veracity and evidentiary value of the evidence furnished by the
prosecution witnesses, it may be observed that PW.1 Jiand Khan, the father of the deceased,
(complainant) reiterated the contents of 'Fard -e-Bayan' and FIR. He produced the same as
Exh.P/1- A PW.2 Chathi, wife of complainant and mother of the deceased deposed that she
alongwith her husband and sons were sitting at the spot when 9 persons on three Motor Cycles
came and told them that we had demanded Rupees four lacs from you but you did not pay. By
uttering these words the accused Ayub, Dawood, Malook, Rehan, Shafi Muhammad, Gul
Hassan, Muhammad Saleh alongwith thei r two accomplices resorted to firing. As a result
whereof her sons Mor Khan and Peer Bakhsh died instantaneously whereas driver Mehrban
received injuries, however, she and her husband remained unhurt luckily. In cross -examination
she denied that she had not witnessed the incident. PW.3 Dr. Muhammad Yousif, ex -Medical
Officer, RHC Sui. examined the dead bodies of deceased persons wherein he noticed the
following injuries:--
INJURIES OF PEER BAKSH.
Two bullets entrance front of chest exit back of chest.
Cause of death.
Damage heart and lungs. Loss of blood
Duration of injuries: Fresh.
Weapon used: Gunshot.
INJURIES OF PEER BAKSH.
i. Three bullets entrance forehead exit back side of occipital region.
ii. One bullet entrance left kidney exit Rt. Kidney.
Cause of death.
Due to massive bleeding and damage of the vital organs.
(Loss of blood)
Duration of injuries: Fresh.
Weapon used: Gunshot.
He produced medical certificates Exh.P/3 -A and 3- B.
PW.4 Mian Khan is recovery witness of blood- stained articles and earth. He produced
'Fard -e-Maqboozgi' as Exh.P/4- A and identified his signatures thereon, he also produced Articles
1 to 3 and 4 to 7. PW 5 Mehrban Ali (injured) narrated same version as was deposed by PW.1
and 2. PW.6 Shah Nawaz Tehsildar (Fi rst I.O.) deposed that he was entrusted investigation of the
case. During investigation he inspected the site and prepared map. He recorded statements of
eye-witnesses and took into possession blood- stained clothes of deceased. He also took into
possession blood- stained earth and recorded the statements of witnesses under section 161,
Cr.P.C. the appellants, in connection with the instant case were arrested by Islamabad police and
he took the custody of appellants from Islamabad police. Thereafter he was tr ansferred and the
investigation was handed over to PW.7.
PW.7 deposed that on completion of investigation he submitted 'challan' Exh.P/7- A.
9. Perusal of above statements reveals that not only all the PW's have fully supported the
prosecution version but even during cross -examination they remained firm and their testimony
could not be shaken nor the defence has been able to extract anything favorable to it. The
medical evidence is in line with that of ocular account. PW.2 and 5 are the eye -witnesses of the
incident, their evidence too is in line with that of complainant. All the PWs. supported each other
in respect of date, time, weapons used in the commission of offence and firing made by the
appellants along with their other companions. The learned defenc e counsel failed to point out
any material contradiction, omission, improvement and discrepancy in the statements of PW.s.
No misreading, non -reading, illegality or irregularity could be pointed out by the defence either
in the investigation or in the judg ment impugned. Though the learned counsel laid much stress
that nothing was recovered from the appellants' possession but we are of the opinion that non-
recovery of crime weapon neither absolve the appellants from the commission of offence nor is
of any he lp to the prosecution because admittedly after commission of offence the appellants
made their escape good from the spot and later on were arrested by Islamabad police from
Islamabad. Appellants have not only been nominated in the FIR with specific role of firing but
were also identified by the eye -witnesses at the spot. So much so PW.2 in her statement deposed
that the appellants were known to her for the last 2/3 years. It is beyond comprehension that the
complainant whose two sons were assassinated will replace the appellants with that of the real
culprits, which too, for no rhyme or reasons. Furthermore, the defence has not disputed the
unnatural death of deceased nor it is their case that they were involved by the
Levies/complainant owing to previous enmity. The appellants by committing double murder of
two innocent persons and injuring a person have proved themselves to be oppressive and
hardened criminals, as such not deserve acquittal. Here it may not be out of place to mention that
the Courts are not supposed to do justice only with the accused but simultaneously it has owed a
responsibility to do justice with the victims and the society as well.
10. As far as contention of learned counsel that the eye -witnesses being closely related to the
deceaseds, therefore, their testimony is not above the board and should have been discarded by
the trial Court. We do not agree with the learned counsel because it has time and again being
held by the Courts that the evidence furnished by close relatives, if rings t rue, straightforward,
confidence inspiring and corroborated by other material pieces of circumstantial evidence as well
as medical evidence can well be taken into consideration. Reliance can be placed on the
judgment titled as Sher Azam Khan v. The State r eported in 2016 YLR 1166. Relevant
observation there from are reproduced herein below: --
"There is no denial of the fact that conviction can he recorded on the testimony of close
relative of the deceased provided the same is true, straightforward, confidence inspiring
and corroborated by other material pieces of circumstantial evidence as well as medical
evidence, however, in such like cases the Courts are duty bound to assess and evaluate
the evidence of such witness with great care and caution. Thus, we have to evaluate and
assess the testimony of the eye -witnesses named above at the touch stone of the aforesaid
principles."
11. All the above discussion lead us to irresistible and definite conclusion that the
prosecution successfully build complete chain s tarting from feet and touching the neck by
producing tangible and trustworthy evidence whereas the defence failed to prove innocence or
false implication of the appellants in the commission of offence, as such we are inclined to
dismiss the appeal filed by the appellants and maintain the judgment dated 29.06.2015 passed by
learned Additional Sessions Judge. Dera Bugti at Sui in case FIR No.7/2013 lodged with Levies
Station Sui.
So far as Criminal Revision petition No. (s) 41 of 2015 is concerned, the trial Court in its
judgment held that ocular account furnished by PWs 1, 2 and 5 lacks assignment of specific role
of firing to the appellants rather they attributed collective role of firing by all the accused persons
which created a mitigating circumstance in favour of appellants and such a position prevailed
upon the trial Court to sentence the appellants to life imprisonment instead of awarding normal
capital punishment. We have no reason to differ with the trial Court on the proposition, as such
the Crimina l Revision petition No. (s) 41 of 2015 is also dismissed.
JK/67/Bal. 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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