2017 Y L R 2434
[Balochistan]
Before Muhammad Ejaz Swati and Abdullah Baloch, JJ
SAADULLAH ---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.140 of 2009, decided on 5th June, 2017.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 353--- Qatl-i-amd, assault or criminal force to deter public servant from
discharge of his duty ---Appreciation of evidence ---Ocular account corroborated by medical
evidence ---Prosecution case was that accused -appellant fired at deceased wit h pistol, who
received two bullets on her person---Victim on way to hospital succumbed to the injuries ---
Accused -appellant, who was brother of deceased lady, was apprehended with pistol by the
Police ---Ocular account was furnished by the prosecution witnes ses including complainant ---
Medical Officer, who examined the deceased had confirmed that the deceased had received
two bullet injuries ---Complainant during trial reiterated the contents of FIR ---Prosecution
witnesses fully corroborated the statement of co mplainant by correctly mentioning the date,
time, place of occurrence and the manner in which the accused -appellant appeared at site and
fired on the deceased ---Statements of said witnesses had been corroborated by the other eye -
witnesses, who were present at the spot ---Statements of said witnesses being natural
witnesses justified their presence at the time and place of occurrence as three witnesses including complainant were deputed to bring the deceased to the court in the hearing of the case---Prosecuti on witnesses correctly identified the accused in the court being assailant, who
had committed the murder of deceased and was caught red handed along with the crime weapon ---Record showed that none of the witnesses had known the accused previously and
they had no ulterior motive to falsely implicate the accused in the crime ---Statements of the
prosecution witnesses were in- line and corroborating each other on all material counts ---Said
witnesses were cross -examined at considerable length, but nothing advanta geous/favouring
the defence had come on record ---Defence had failed to give slightest damage or dent to the
testimony of prosecution witnesses ---Circumstances established that accused -appellant was
rightly found guilty of the charge by the Trial Court ---Ap peal against conviction was
dismissed in circumstances.
(b) Witness ---
----Police official as witness ---Police officials were as good witnesses as the private
witnesses ---Testimony of Police officials could not be discarded solely on the ground that
they were police officials until or unless the defence succeeded in proving any ill -will or mala
fide on the part of Police official.
(c) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 353--- Qatl-i-amd, assault or criminal force to deter public servant from
discharge of his duty ---Appreciation of evidence ---Recovery of crime weapon ---
Corroborative evidence ---Reliance---Accused -appellant was caught red handed soon after the
occurrence and Police snatched the crime weapon (pistol) from him ---Two empties were
recove red from the place of occurrence ---Defence witnesses also confirmed the recovery of
crime weapon from the possession of accused ---Recovery of crime weapon would strengthen
the case of prosecution.
(d) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 353--- Qatl-i-amd, assault or criminal force to deter public servant from
discharge of his duty ---Appreciation of evidence ---Retracted confession of accused -
appellant --- Scope--- Record showed that accused- appellant recorded his confession before
the Judicial Magistrate, who fulfilled the legal requirements before recording his confessional
statement ---Mere retraction of the accused -appellant from his confessional statement was not
enough to affect its validity.
Masoom Khan Kakar for Appellant.
Muhammad Yahya Balo ch, D.P.G. for the State.
Date of hearing: 26th April, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal Appeal
No.140/2009 filed by the appellant Saadullah son of Bor Muhammad, against the judgment
dated 30th April 2009 (hereinafte r referred as, "the impugned judgment") passed by learned
Additional Sessions Judge -I Quetta (hereinafter as, "the trial Court"), whereby the appellant
was convicted under Section 302(b), P.P.C. and sentenced to suffer life imprisonment with fine of Rs.100,000/ - (Rupees One Lakh), which in case of recovery was directed to be paid to
the legal heirs of deceased Bibi Hafeeza under section 544 -A, Cr.P.C. as compensation and in
default thereof to further suffer one (01) year R.I., with the benefit of Section 382- B Cr.P.C.
2. Facts of the case are that on 25th August 2001, the complainant Muhammad Ismail,
Head Constable lodged FIR No.141/2001 at Police Station Civil Line Quetta under Section 302 Q&D read with section 353, P.P.C. stating therein that he along with other police
officials and a lady Constable Bibi Hajira went to Darulaman ( ) for the purpose of bringing Mst: Hafeeza to the Court for hearing of a case, hence they took the lady along with one Watchman Suleman in official vehicle and proceeded towards S essions Court's premises. He
and lady Constable Hajira Bibi alighted the Hafeeza Bibi from Suzuki and were proceeded towards main gate of Sessions Court, but at about 9.15 a.m. no sooner they reached at main gate of Sessions Court then a person already sta nding there made firing upon Mst. Hafeeza
with pistol, who received two bullets on her person i.e. one bullet below the right eye while the other on the abdomen. The police officials apprehended the appellant along with pistol, who on query disclosed his name as Saadullah and stated that he is the brother of lady Mst. Hafeeza. He further disclosed that the lady was kidnapped from Pishin and the case of her kidnapping is pending before Ad hoc Sessions Judge Quetta. The lady was taken towards hospital by ASI Jehangir, but in the way to hospital, she succumbed to the injuries.
3. In pursuance of above FIR, investigation was conducted by PW -10 Faiz Ahmed
Bhatti, IP/IO, who inspected the site and prepared site map, carried out proceedings under
Section 174, Cr.P.C. and prepared inquest report; took into possession the blood stained clothes, chaddar/scarf, earth etc.; seized the crime weapon i.e. pistol containing 03 live cartridges and sent the same to FSL for analysis; took into possession two empties from the place of occurrence; recorded the statements of witnesses under section 161, Cr.P.C.; got
recorded the confessional statement of appellant under section 164, Cr.P.C. and on completion of investigation submitted the challan in the trial Court.
4. At the trial, the prosecution produced ten (10) witnesses. The appellant was examined
under section 342, Cr.P.C. The appellant recorded his statement on oath under section 340(2), Cr.P.C., and also produced three witnesses in his defence. On conclusion of trial, vide judgement dated 24th September, 2001 the appellant was convicted under Section 311, P.P.C. and sentenced for fourteen (14) years, whereas he was acquitted from the charge under
Section 353, P.P.C. It appears from the record that the appellant assailed his conviction
before this Court through Criminal Appeal No.244/2001, whereas Criminal Revision Petition
No.123/2001 was filed by the State for enhancement of his sentence. After hearing this Court dismissed the criminal appeal filed by the appellant, whereas the Criminal Revision Petition
filed by the State was accepted and the sentence of the appellant was enhanced to life
imprisonment, vide judgment dated 29th July 2003. Thereafter, the appellant as well as the State approached the Hon'ble Supreme Court by f iling Criminal Appeal No.257/2003, while
the State filed Criminal Revision Petition No.374 of 2003. After hearing the Hon'ble Supreme Court on 19th November 2008 dismissed both the appeal and the petition and remanded the case to the trial Court for decidi ng the compromise deed/application under section 345,
Cr.P.C. as well as to determine the relationship of Muhammad Fayyaz with the deceased.
After remand of the case and as per directions of Hon'ble Supreme Court, the learned trial Court has formulated the following two questions for determination: --
1. Whether Muhammad Fayyaz was husband of deceased Hafeeza Bibi?
2. Whether Muhammad Fayyaz is and can be legal heir of deceased Hafeeza Bibi according to section 345 Cr.P.C.?
5. After formulation of above points/questions, the trial Court directed the State to
produce Muhammad Fayyaz, but the summons so issued could not be served and ultimately the statements of CW -1 and CW -2 were recorded, according to whom the said Fayyaz had
shifted to some unknown place . In support of his contention the accused produced record of
cases registered at Pishin through record -keeper of Sessions Judge Pishin as CW -3, who
produced the documents of record, on the other hand the prosecution further produced the record of cases bearing FIR No.45/1998 and FIR No.49/1998 of Levies Headquarter Pishin through CW -3 and CW -4. Thereafter the arguments were heard and vide impugned judgment
the trial Court after declaring Muhammad Fayyaz as legal heir and husband of deceased Bibi Hafeeza has dismissed the compromise deed/application under Section 345 Cr.P.C. and convicted and sentenced the appellant as mentioned above. Whereafter instant appeal has been filed.
6. Learned counsel for appellant contended that the impugned judgment is result of
misreading of the evidence available on record; that the offence under Section 302, P.P.C. is compoundable in nature and the legal heirs of deceased have entered into legal compromise, but the same was rejected on the ground that Muhammad Fayyaz was her husband and he has
not compromised the matter, but the learned trial Court has ignored this important aspect of
the case that two separate FIRs i.e. for abduction and under Hadood cases were registered against the appellant and even no valid Nikkah Nama or oral evidence was produced to establish that any Nikkah was performed, hence in no manner said Muhammad Fayyaz can be termed to be the husband of deceased and he is not her legal heir; that Muhammad Fayyaz did not appear before the Court in spite several opportunities; that deceased Mst. Hafiza fully implicated the Fayyaz for commission of offence, but this important evidence was not taken into consideration; that the trial was wrongly influenced by the findings of the learned Ad hoc Sessions Judge, whereby Fayyaz was acquitted of the charge; that the learned trial Court has
mis-appreciated the evidence brought on record.
7. On merits, the learned counsel for appellant further contended that the impugned
judgment is perverse and contrary to the material available on record; that the police officials in order to show their efficiency have wrongly implicated and involved the appellant in the
case in hand, whereas the appellant has no concern or nexus with the crime; that the alleged
confessional statement is re sult of torture and coercion and even recorded after considerable
delay, thus not admissible; that since the alleged murder was committed in the police custody,
thus the police is interested party, whereas the prosecution has only produced the evidence of
interested witnesses, thus the case of prosecution is lacking independent corroboration; that
all the witnesses made contradictory statements to each other and the prosecution has badly failed to establish the charge against the appellant beyond the shadow of reasonable doubt.
8. On the other hand, learned Deputy Prosecutor General contended that sufficient
incriminatory evidence is available on record to establish the fact that the deceased had contracted marriage with Muhammad Fayyaz and being the husband of deceased, the said
Muhammad Fayyaz is legal heir and without him no effective compromise can be effected, whereas the learned trial Court had rightly dismissed the compromise deed; that the prosecution witnesses through independent corroborative eviden ce has succeeded in
establishing the charge against the appellant, who otherwise was caught red handed along with crime weapon and the appellant has failed to bring on record any iota of evidence establishing his false implication, thus the appeal deserves dismissal.
9. Heard the learned counsel and perused the record minutely with their able assistance.
Perusal of record reveals that at the first round of litigation the trial Court convicted and sentenced the appellant for 14 years under Section 311, P.P.C . and this Court had not only
maintained the sentence, but also enhanced the same to that of life imprisonment, but the case was remanded by the Hon'ble Supreme Court of Pakistan to the trial Court with the directions to first determine the relationship/status of deceased with Muhammad Fayyaz and thereafter to decide the compromise deed under Section 345, Cr.P.C. However, after remand, the said Muhammad Fayyaz despite issuing summons did not appear before the Court and as per statement of CWs, who was shift ed to an unknown place, thus the trial Court recorded the
statements of four CWs, who produced the record of cases registered earlier against said Muhammad Fayyaz. In order to resolve the issue of relationship in between the deceased and Muhammad Fayyaz as well as the validity of compromise deed, at first instance we have to
analyze the record produced through CWs with regard to cases registered for alleged abduction of deceased and committing Zina with her by said Muhammad Fayyaz.
10. The admitted feature of the case is that the appellant was the brother of deceased Mst.
Hafeeza, who had liaison with Muhammad Fayyaz. Initially, on 8th August 1998 the father of deceased lodged FIR No.45/1998 at Levies Headquarter Quetta district Pishin under sections
365, 109, P.P.C. read with Sections 9/14 of Hadood Ordinance by nominating Muhammad
Fayyaz and others with the allegations of abducting his daughter (deceased) from his house. It appears from the record that the police arrested the said Muhammad Fayyaz and deceas ed
from Faisalabad and they were shifted to Pishin. The statement of deceased under section 161, Cr.P.C. was recorded on 18th August 1998, wherein she had admitted her liaison with Muhammad Fayyaz. She further admitted when Muhammad Fayyaz at night time ca me to her
house by scaling the wall, she joined him by eloping her parents' house and also took some clothes etc. Such statement was reiterated by the deceased in her Court's statement recorded in the case of abduction. The deceased during trial of case remained in Darul -Amaan. It is
pertinent to mention here that during trial of the case the deceased on 18th July 2001 had submitted an application to the trial Court requesting for handing over her custody to the mother of Fayyaz or to Edhi Center or to judi cial custody.
11. The minute scrutiny of deceased's statements recorded in the case of her alleged
abduction both by the I.O. and during trial, would make it clear that the deceased was not
abducted rather out of her free will and consent she eloped her pa rents' house, otherwise the
abduction of deceased from her parents' house where other inmates were also present was not
possible if the deceased had made any resistance or hue and cries at the time of her alleged
abduction or subsequently when she was bein g taken to somewhere else Quetta and thereafter
to Faisalabad. Since, in her statements allegedly the deceased had alleged commission of
Zina with her by Muhammad Fayyaz, thus second FIR No.49/1998 under Section 11 of Zina (Enforcement of Huddood) Ordinanc e was registered, but while examining in the Court the
deceased had specifically stated that Muhammad Fayyaz is her husband and she out of her free will and consent eloped her parents' house and joined Muhammad Fayyaz, who had taken her to his relative's house, wherein her Nikkah was performed. The deceased further
added that in the previous case of her abduction she due to fear and pressure of her parents deposed falsely against her husband.
12. The record further reveals that on conclusion of trial in bot h the cases, Muhammad
Fayyaz was acquitted of the charge as neither the allegations of abduction were proved nor commission of Zina was established rather according to the statement of deceased in Hadood case that she married with Muhammad Fayyaz. Even oth erwise, the postmortem report of
deceased is indicative of the fact that at the time of her murder she was pregnant. Furthermore, after acquittal of Muhammad Fayyaz in both the cases of alleged abduction as well as in Hadood case the parents of the decease d had not assailed the acquittal order before
the higher forums, thus the acquittal orders attained finality.
13. From perusal of both the judgments in the said cases, it has been established that the
deceased had not only eloped her parents' house with he r free will and consent, but also, she
had contracted marriage with Muhammad Fayyaz, thus the said Muhammad Fayyaz being the husband of deceased lady is termed to be her legal heir. So far as, the contention of the learned counsel for the appellant that no documentary evidence or Nikkah Nama or Nikkah
Khuwan was produced to establish the solemnization of Nikkah is concerned, the fact remains is that there is no bar on oral Nikkah, specially in our tribal and traditional society the marriages are being solem nized orally, even otherwise the findings of learned Sessions
Judge Ad hoc remained unchallenged and attained finality. However, mere his non-appearance does not disentitle him from the legal heirship of the deceased. Admittedly, Muhammad Fayyaz being lega l heir of deceased is also entitled for Qisas and Diayat. Besides
he has every right to enter into compromise, claim Badle -Sullah pardon anyone or Afw or
take his share from the Diyat regarding murder of his wife and without his participation no
effective compromise could be effected, thus the learned trial Court has rightly dismissed the
compromise deed. Reliance in this regard is placed on the case of Muhammad Amin v. The
State, 2016 SCMR 116, wherein it has been held that, "Another factor having some bea ring
upon the question of the appellant's sentence is that the husband of the deceased, on his own behalf as well as on behalf of the minor children of the deceased, had forgiven the appellant and had entered into a compromise with him which compromise was not given effect to by
the courts below because the compromise was incomplete. It has been clarified by Supreme Court in the case of Abdul Ghaffar and others v. The State (2015 SCMR 1064) that a partial compromise may not have any bearing upon conviction of an accused person in a case of Ta'zir but it may have, in the circumstances of a given case, some relevance to the question of sentence in such a case. In the above mentioned circumstances of this case we have felt persuaded to reduce the appellant's sentence of death to imprisonment for life on the charge under section 302(b), P.P.C. This appeal is, therefore, dismissed to the extent of the appellant's conviction for an offence under section 302(b), P.P.C. recorded and upheld by the courts below but the same is partly allowed to the extent of the appellant's sentence which is
reduced from death to imprisonment for life. The benefit under section 382- B, Cr.P.C. shall
be extended to the appellant. This appeal is disposed of in these terms."
14. Now adverti ng to the merits of the case, it is evident from record that the unnatural
death of deceased Mst. Hafeeza is not disputed. The appellant admitted the unnatural death of deceased during trial, but pleaded his false implication by the police. PW -2 Dr. Farida ,
Medico Legal Officer, examined the deceased and confirmed that the deceased had received two bullet injuries in her person and further opined the cause of death due to injury on vital organ in cranial of abdominal cavity bleeding to intra and extra crani al-abdominal
haemorrhage shock and death and injuries mentioned were caused by fire arm. PW -2 issued
medical certificate Ex.P/2 -A, which confirms the unnatural death of deceased.
15. Adverting to the statements of eye -witnesses, suffice to observe that the prosecution
in order to substantiate the charge has produced the evidence of ten witnesses. The complainant of the case appeared as PW -1, who reiterated the contents of FIR. According to
PW-1 on the day of occurrence he along with Constable Saadullah, lad y Constable Bibi
Hajira (PW -4) took the deceased from Darul -Amaan in an official vehicle and accompanied
Watchman of Darul -Amaan Suleman (PW -3) towards Sessions Court and when they reached
near Sessions Court main gate, the appellant already standing there opened firing upon the
deceased, due to which two bullets hit to the deceased, who fell down and while shifting to hospital she succumbed to the injuries. PW -1 further added that he along with other police
officials already present there apprehended the appellant and recovered the crime weapon. PW-3 and PW -4 fully corroborated the statement of PW -1 and reiterated the statement on
PW-1 by correctly mentioning the date, time, the place of occurrence and the manner in
which the appellant appeared at site and fired upon the deceased. The statements of PW -1,
PW-3 and PW -4 have fully been corroborated by the other eye -witnesses, who were present
in the Sessions Court premises. PW -6 Muhammad Jahangir, ASI, stated that he was present
in the Court premises for recor ding his statement in another case, when heard the voice of
firing, thus rushed towards gate and along with the complainant and others apprehended the appellant and recovery of pistol was effected from his possession. PW -6 is also the witness of
recovery m emo of crime weapon Ex.P/6- B, blood stained earth Ex.P/6- C and empty
cartridges as Ex.P/6 -D.
16. The minute scrutiny of statements of all the above witnesses being natural witnesses
justifies their presence at the time and place of occurrence, as the PWs -1, 3 and 4 were
deputed to bring the deceased to Sessions Court in hearing of the case, while PW -6 was
already present in the Court for recording his statement in another case. All the witnesses
correctly identified the appellant in the Court being assailant, who had committed the murder of deceased and was caught red handed along with the crime weapon. Furthermore, none of the witness had known the appellant previously and even they had no ulterior motives to falsely implicate the appellant in the crime. Th e learned counsel for the appellant made an
unsuccessful attempt to discredit the evidence of eye -witnesses being police officials, but
legally the police officials are as good witnesses as the private witnesses and their testimony cannot be discarded sole ly on the ground that they are police officials until and unless the
defence succeeds in proving any ill -will or mala fide on the part of police officials. The
police officials cannot be declared as interested witnesses merely on the basis of murder of a deceased committed by the assailant when she was in the police custody rather being deputed on the duty of deceased to produce her before the Court, the police officials are natural witnesses and their testimony can be considered a solid piece of evidence. Besides, none of the witnesses was derailed from the prosecution story while recording their statements in the Court, but to the contrary their statements are in line and corroborating each other on all material counts. The witnesses were cross examined at considerable length, but nothing
advantageous favouring the defence has come on record. Even, the defence has failed to give slightest damage or dent to the testimony of prosecution witnesses.
17. The case of prosecution has further been strengthened from the recovery of crime
weapon. Admittedly, the appellant was caught red handed soon after the occurrence and the police snatched the crime weapon i.e. pistol from him and the same was taken into possession through seizure memo. Besides, two empties were al so recovered from the place of
occurrence. The DWs appeared on behalf of the appellant also confirms the recovery of crime
weapon from the possession of the appellants PW -8 has produced the arm licence issued in
the name of the appellant.
18. The case of p rosecution has further been strengthened from recording the confessional
statement of the appellant. Careful perusal of confessional statement of appellant establishes the fact that the learned Judicial Magistrate (PW -5) before recording such statement had
introduced himself before the accused and also explained the consequences of such statement during trial of the case being used against him, besides assuring the appellant that he is in safe custody and thereafter being satisfied he commenced with recordi ng the confession,
therefore, mere retraction of the appellant from the confessional statement is not enough to effect its validity.
19. Now adverting to motive behind the occurrence, which is strong enough to provoke
the appellant to commit the murder of his deceased sister, who had eloped her parent's house and without the consent and knowledge of her parents contracted marriage with a stranger in violation of customs and traditions of our society.
20. We have also perused the impugned judgment delivered by the learned trial Court and
observed that the appellant was rightly found guilty of the charge. The learned trial Court has rightly appreciated the evidence so brought before him and each and every aspect of the case was discussed in detail as per directions of Hon'ble Supreme Court of Pakistan, hence the learned counsel for the appellant has failed to point out any illegality and irregularity in the impugned judgment for interference of this Court.
For the reasons discussed hereinabove, the appeal being devoid of merits is dismissed.
The appellant is on bail; be taken into custody and be sent to District Jail Quetta for serving
his remaining period of sentence. The appellant shall also enjoy the benefit of section 382- B,
Cr.P.C.
JK/98/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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