2017 M L D 992
[Balochistan]
Before Muhammad Ejaz Swati and Jamal Khan Mandokhail, JJ
EID MUHAMMAD ---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.229 and Murder Reference No.5 of 2016, decided on 23rd January, 2017.
(a) Criminal Procedure Code (V of 1898) ---
----Ss. 342 & 364(2) ---Penal Code (XLV of 1860), S. 302(b) ---Qatl -i-amd---Appreciation of
evidence ---Certificate on statement under S. 342, Cr.P.C., non- availability of ---Defence had
alleged that certificate of statement under S. 342, Cr.P.C. was not given under own hand of the
Trial Court and only typed written statement was signed, thus provision of S. 364(2), Cr.P.C.
were not complied with, which vitiated the trial--- Validity ---Record showed that at the end of the
statement of accused, certificate signed by the Trial Court showed that statement was recorded in
presence and hearing of the court, therefore, provision of S.364(2), Cr.P.C. had been complied with---Mere fact that such certificate was typed and signed by the Trial Court would not vitiate
the trial as it would neither prejudice the accused nor affected the case of prosecution.
PLD 2005 Kar. 177 rel.
(b) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Sentence, reduction in ---Ocul ar account
supported by medical evidence ---Allegation against the accused was that he stabbed the deceased
with dagger and injured him who succumbed to the injuries ---Ocular account was furnished by
two witnesses ---Eye -witnesses had narrated that there was exchange of hot words between the
accused and deceased, who were relieved ---Accused in rage went to his shop and brought a knife
and hit on the left thigh of the deceased, as a result of grievous injury, deceased fell down and became unconscious ---Said wi tness with the help of inhabitants of the area had taken the
deceased to hospital but he succumbed to the injury on way ---Other eye -witness supported the
version of the witness, who narrated the ocular account ---Defence objected that said witnesses
were ch ance witnesses and failed to justify their presence at the spot ---Incident took place at
public place, therefore, attraction of inhabitants of the area could not be termed by chance ---
Admittedly, murder was not committed with previous notice to the witness es for their presence--
-Evidence of said witnesses could not be rejected on the ground that they were partisan
witnesses, however their evidence had to be carefully scrutinized--- Both the said witnesses
remained consistent on all material particulars of th e prosecution case; their testimony was
corroborated by the post -mortem report of the deceased, which was consistent with the ocular
account as to the weapon, locale of injury and the time of occurrence ---Veracity and credibility
of said witnesses had been tested through lengthy cross -examination, but nothing came on record
to discredit their evidence or their testimony in any manner ---Post -mortem report of the deceased
showed that deceased had received single stab incised wound on the left thigh---Wound wa s
deep and femoral artery was found cut in two halves ---Death of deceased was homicidal in
nature and was caused by means of sharp weapon, which damaged vital blood vessels ---
Circumstances established that medical evidence had fully supported the ocular ac count
furnished by witnesses ---Conviction of accused was maintained and sentence of death was
altered to imprisonment for life, in circumstances.
Muhamams Ashraf and another v. The State PLD 1977 SC 538 rel.
(c) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl-i-amd---Appreciation of evidence---Non -mentioning the name of witnesses
in FIR ---Effect ---Names of eye- witnesses were not mentioned in the FIR but their statements
under S. 161, Cr.P.C. were recorded soon after the incident ---No motive or enmity for false
implication of the accused had been attributed to the said eye witnesses ---Circumstances
established that said persons were natural witnesses and they had brought the true facts of the
incident ---Evidence of said witnesses could not be discarded mer ely on the ground that their
names were not mentioned in FIR ---Occurrence took place at public place when the complainant
arrived at the place of incident, there was crowd of people and it was not proper for complainant to mention the names of said eye -witnesses in the FIR, which was an omission and would not
discredit the testimony of eye -witnesses ---Conviction of accused was maintained and sentence of
death was altered to imprisonment for life, in circumstances.
Muhammad Mushtaq v. The State PLD 2001 SC 107 rel.
(d) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Sentence reduction in ---Mitigating
circumstances ---No background of previous enmity or deep rooted hostility existed between the
accused and deceased ---Evidence of eye -witnesses revealed that the act of inflicting single knife
blow by accused at deceased was preceded by a dialogue between accused and complainant followed by scuffle ---Accused inflicted only single blow of knife and did not repeat ---
Prosecution c ase was silent with regard to motive ---Such factors cumulatively made out a case
for mitigation of sentence ---Accused was awarded death sentence for murder, which was
undoubtedly a normal penalty for the offence, but benefit could be extended in presence o f
mitigating circumstances ---Conviction was maintained, death sentence of accused was altered to
imprisonment for life, in circumstances.
Muhammad Aslam Chishti for Appellant.
Abdul Majeed Kakar for the Complainant.
Abdul Karim Malghani for the State.
Date of hearing: 26th December, 2016.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ---Through the instant Criminal Appeal No. 229 of
2016, the appellant has challenged the validity of the judgment dated 28th May 2016 (hereinafter
the "impugned judgment") passed by the learned Additional Sessions Judge -I, Quetta
(hereinafter the "trial Court"), whereby the appellant Eid Muhammad son of Abdul Hussain alias Abdul Khaliq had been convicted under section 302(b), P.P.C. and sentenced to death.
Murder Reference No. 05 of 2016 had been sent by the trial Court for confirmation of
death sentence or otherwise.
2. Facts of the prosecution case are that on the complaint of Qurban Ali (father of deceased
Zakir Hussain) through Fard -e-Bayan dated 29th June 2014, an FIR No. 134 of 2014 dated 29th
June 2014 was registered with Police Station Brewery, Quetta under section 302 Qisas and Diyat
Ordinance (P.P.C.), wherein it was alleged that on the same night at 8:15 p.m. someone knocked the door of the complainant's house and took his son namely Zakir Hussain (deceased) with him.
After some time, one boy came to him and told that someone stabbed his son with dagger and injured him, while the injured was taken to Bolan Medical Complex Hospital, Quetta, but he succumbed to the injuries on the way to hospital. The complainant rushed to the Hospital and found the dead body of his son in a pool of blood.
3. At the trial, the prosecution examined eight -(8) witnesses. The trial Court examined the
appellant on the incriminating aspect in the prosec ution evidence under section 342, Cr.P.C. The
appellant denied the offence. The appellant neither recorded his statement under section 340(2),
Cr.P.C. nor produced any witness in his defence.
4. The trial Court vide impugned judgment convicted and sentenced the appellant as
mentioned hereinabove.
5. The learned counsel for the appellant contended that the complainant was not an eye -
witness nor he disclosed the source of information; that the name of the eye -witnesses were not
mentioned in the FIR nor any motive was disclosed; that PW -2 and PW -3 were chance witnesses
and failed to justify their presence at the place of occurrence; that the incident occurred suddenly; that the deceased received one knife blow on his left leg and no intention under sect ion
300, P.P.C. was available; that the injuries on the person of dead body had not been supplemented through MLC; that the postmortem report indicates cause of death "excessive bleedings" and it was contributory negligence, therefore, the case of the appe llant falls under
section 302(c), P.P.C; that mandatory provisions of subsection (2) of section 364, Cr.P.C. were not complied with inasmuch as certificate was not given under own hand of the learned trial Judge and only typed written statement was signed by him, therefore, the matter is to be remanded to cure the mandate of law.
The learned State Counsel assisted by the learned counsel for the complainant contended
that the ocular account furnished by PW -2 and PW -3 had been corroborated by the postmortem
report and disclosure of the appellant; that under Article 17 of the Qanun- e-Shahadat Order,
1984 (hereinafter the "Order 1984") one witness is sufficient; that the appellant had taken the
plea of exception, but failed to substantiate through evidence as r equired under Article 21 of the
Order, 1984; that the incident was a preplanned, as the appellant came to the house of the appellant and had taken him to the place of incident; that in the first episode of altercation, the
appellant and the deceased were r elieved, but the appellant went to his shop and brought a
dagger and stabbed to the deceased; that it was a case of prompt FIR, wherein the appellant was
specifically named with specific role, which stands corroborated by the medical evidence and the evide nce of the disclosure; that normal sentence under section 302, P.P.C. is death and in
absence of any mitigating circumstance, the same is based on sound reasoning; that the statement of the appellant under section 342, Cr.P.C. was drawn and signed by the l earned trial Judge,
therefore, no illegality in this respect has been committed by the trial Judge.
6. We have heard the learned counsel for the parties and perused the record. The learned
counsel for the appellant besides contending that the convict/appel lant was not afforded
opportunity of appearing as his own witness in terms of section 340. Cr.P.C., also through Miscellaneous Application No. 394 of 2016 submitted that in the certified copy of section 342, Cr.P.C. of the appellant in Question No.11, when asked "Do you want to be examined on oath
under section 340(2), Cr.P.C.", the reply was written as "It is incorrect". We have considered this aspect of the matter and perused the original record. The question No.11 and answer thereof reads as under:
Q.No. 11- Do you want to be examined on oath under section 340(2), Cr.P.C.
Ans: No.
7. The original record of the case and paper book reveals the answer of Question No.11 that
the appellant was afforded opportunity of appearing as his own witness in terms of se ction
340(2), Cr.P.C. but he had not opted the same, therefore, the contention of the learned counsel for the appellant is contrary to record. The Miscellaneous Application No. 394 of 2016 is dismissed accordingly.
8. The learned counsel for the appellant through Criminal Miscellaneous Application No.
901 of 2016 and Criminal Miscellaneous Application No. 401 of 2016 in Criminal Appeal No. 229 of 2016 linked with Murder Reference No. 05 of 2016 submitted that certificate of statement under section 342, Cr.P.C. was not given under own hand of learned trial Judge and only typed written statement was signed by him and thus, provisions of subsection (2) of section 364, Cr.P.C. were not complied with, which vitiates the trial. We have considered this aspect of t he
matter. Examination of accused under section 342, Cr.P.C. was intended to afford him final opportunity to explain incriminating circumstances appearing in evidence against him and in this respect, provisions contained in section 342, Cr.P.C. are mandatory.
9. In the instant case, at the end of statement of the appellant, certificate signed by the trial
Judge showing that statement was recorded in presence and hearing of the Court, therefore, the provisions of subsection (2) of section 364, Cr.P.C. have been complied with. The mere fact that such certificate typed and signed by the trial Judge would not vitiate the trial, as it would neither prejudice the appellant nor affect the case on merit. Reference is placed on the judgment reported
in PLD 2005 Karac hi 177, therefore, the Criminal Miscellaneous Applications are dismissed
accordingly.
10. Adverting to the merit of the case, the fact that deceased Zakir Hussain met with
homicide death is beyond dispute. It was a case of prompt FIR, lodged within half an hour of the
occurrence. The appellant was specifically named therein, definite role of stabbing knife blow on
the left leg of the deceased was attributed to the appellant. The promptitude with which the matter reported would rule out the possibility of fa lse implication and even otherwise it is
repellent to common sense that the complainant Qurban Ali, who is the father of the deceased Zakir Hussain would leave the real culprit and involve someone else. During trial, the complainant Qurban Ali PW -1 support ed the contents of Fard- e-Bayan Ex.P/1- A and FIR
Ex.P/8 -A. PW -2 Ali Raza in his testimony deposed that on 29th June 2014 at about 8:15 p.m. he
attracted the crowd near Imam Bargah, where there was exchange of hot words between the appellant and deceased Zakir Hussain, who were relieved. The appellant in rage went to his shop and brought a knife and hit on the left thigh of the deceased, as a result of grievous injury, the deceased fell down and became unconscious. He with the help of inhabitants of the area had
taken the deceased to BMC Hospital, but he succumbed to the injuries in the way. PW -3 Altaf
Hussain being an eye -witness further supported the version of PW -2. This witness besides
narrating the facts of the incident also stated that after the inciden t, the father of the deceased
came at the spot. The ocular account furnished by above two prosecution witnesses had been challenged by the learned counsel for the appellant that they were chance witnesses and failed to justify their presence at the spot. T he incident had taken place near Hussain Abad Imam Bargah
Abutalib Road, Quetta, therefore, the attraction of inhabitants of the area cannot be termed by chance. Admittedly, murders are not committed with previous notice to the witnesses soliciting their p resence. If a murder is committed in a dwelling house, the inmates of the house are natural
witnesses. If murder is committed in a street/public place, passersby will be witnesses, their presence cannot be discarded or viewed with suspicion on the ground t hat they are mere
"chance" witnesses, therefore, the evidence of PW -2 and PW -3 cannot be rejected on the ground
that they are partisan witnesses, however, their evidence has to be carefully scrutinized. The evidence of chance witnesses could not be discard ed, if they justified their presence at the place
of occurrence. During trial, PW -1 and PW -2 remained consistent on all material particulars of
the prosecution case, insofar as the role attributed to the appellant is concerned, their testimony is corrobora ted by the postmortem report Ex.P/5 -A to Ex.P/5 -E, which is consistent with the ocular
account insofar as the weapon, locale of injury and the time, which lapsed between the injury and postmortem examination is concerned. The veracity and credibility of PW -2 and PW -3 had been
tested through lengthy cross -examination, but nothing came on record to discredit their evidence
or discredit their testimony in any manner, as the incident occurred at a public place and their credibility had been tested through cross -examination. Reference is invited to the case of
Muhammad Ashraf and another v. The State, PLD 1977 SC 538.
11. In the instant case, the evidence of PW -2 and PW -3 had also been challenged on the
ground that their names had not been mentioned in the FIR. T he statements of PW -1 and PW -2
under section 161, Cr.P.C. were recorded soon after the incident. No motive or enmity for false implication of the appellant had been attributed to the said witnesses, therefore, we are of the opinion that they being natural witnesses had brought the true facts of the incident and their testimony cannot be discarded on mere objection of the learned counsel for the appellant.
Besides the incident had taken place in a public place and at the time of arrival of the father of
the deceased i.e. complainant Qurban Ali, there was crowed/gathering of the people, therefore,
non-mentioning the name of PW -2 and PW -3 in the FIR by the complainant was an omission
would not discredit the testimony of PW -2 and PW -3. Reference is placed to the case of
Muhammad Mushtaq v. The State PLD 2001 SC 107, wherein the Hon'ble Supreme Court of
Pakistan observed as under: --
"We are not inclined to agree with him because as per record of the case this witness was
examined on the same day when FIR. was lodg ed. As far as non -mentioning his name in
the FIR. is concerned it was not necessary because such -like matters where heinous
crimes are committed the complainant can omit the name of any witness particularly where there is large gathering available either b efore or after commission of the offence.
However, no enmity or ulterior motive to involve the appellant in the commission of the offence has been attributed to the witness, therefore, we are of the opinion that he being a natural witness has brought on re cord true facts and his deposition cannot be disbelieved
because of the objection of the learned counsel. It is also to be noted that if the prosecution wanted to fabricate the evidence against the accused there was no hurdle for it to mention his name in the FIR from the very beginning. Since investigation of the case has been conducted in an honest way, therefore, whosoever was important witness notwithstanding the fact whether his name appeared in the FIR, his statement was recorded and he stood to the t est of cross -examination during Court statement "
12. Adverting to the next contention of the learned counsel for the appellant that the incident
had taken place at the spur of moment and exchange of hot words between the appellant and deceased and in absence of preplanned and premeditation, the appellant had no intention to
commit Qatl- i-Amd of the deceased, as the deceased received only one knife blow injury on his
left thigh and according to the postmortem report, the deceased died due to excessive bleeding. Learned counsel mentioned that as per statements of PW -2 and PW -3, there was two private
hospitals near the place of occurrence, but the deceased was not taken to the said hospitals, therefore, it was a contributory negligence and at the best case of the appellant falls within the ambit of section 302(c), P.P.C. is not tenable, because the postmortem report Ex.P/5- A to
Ex.P/5 -E reveals that the deceased Zakir Hussain received single stab incised wound of size
about 8.1 cm on left thigh. The wound was deep and femoral artery was found cut in two halves. The relevant is reproduced herein below: --
"After complete postmortem examination of the deceased Zakir Hussain, I am of the opinion that he died due to severe bleeding and damage of vital blood vessels on leg caused by sharp weapon and HOMICIDAL in Manner.
Probable time that elapsed --- Immediate.
(a) between injury and
Death
13. From the above, it reveals that the death of deceased Zakir Hussain was homicidal in
nature and was caused by means of sharp weapon, which damaged vital blood vessels and
probable time that elapsed between injury and death was "immediate".
The blow inflicted by the appellant by means of knife/dagger on the left thigh/leg of the
deceased Zakir Hussain was so imminently dangerous , which caused his death immediately and
the act of the appellant falls under section 300, P.P.C. Reliance is placed to the case of Malu and
another v. Ali Bakhsh and others 2013 SCMR 771, wherein the Hon'ble Supreme Court of Pakistan observed as under: --
"The learned High Court while converting the death sentence of the appellant to the life imprisonment has held that the appellant did not have the intent to commit qatl -e-amd of
the deceased who received only one injury at his left thigh and as per medico legal report the deceased died because of excessive bleeding and, therefore, the case of the appellant falls under section 315, P.P.C. punishable under section 316, P.P.C. We are not persuaded to accept this view of the learned High Court, as section 300, P.P.C. is clear on this issue, which is reproduced for sake of convenience: --
300. Qatl -e-amd. Whoever, with the intention of causing death or with the intention of
causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death or with the knowledge that his act is so imminently dangerous that
it must in all probability cause death, causes the death of such person, is -said to commit
qatl-i-amd
The above section categorizes offence of qatl -i-amd in three fo rms i.e. intention of
causing death or intention of causing bodily injury by doing an act which in the ordinary course may cause death and or the knowledge that his act is so imminently dangerous that
it must in all probability cause death. In the case in hand, the act of the appellant falls in the 3rd category of section 300, P.P.C. where the appellant had the knowledge that by causing firearm injury of Kalashnikov on the deceased, in all probabilities, his act would cause his death. The learned High Court while recording findings in the impugned
judgment has held that since the appellant had hit the deceased on his left thigh and the deceased died due to profuse bleeding, therefore, the appellant was not guilty of Qatl -i-
amd but was guilty of Qatl shibh- i-amd, defined under section 315, P.P.C., and while
commuting his sentence from death to life imprisonment convicted him under section 316, P.P.C. This finding is not only against the language of section 300 but is in deviation of the illustration to section 315, P.P.C. which defines Qatl shibh- i-amd. The appellant
had caused firearm injury with Kalashnikov, and in law, is liable to be punished under section 302(b), P.P.C., for which he was awarded lawful sentence of life imprisonment by the learned High Cour t. We, therefore, are of the view that the sentence of life
imprisonment awarded to the appellant was in accordance with law with the modification that the appellant shall be deemed to have been convicted under section 302(b), P.P.C."
14. Now adverting to quantum of sentence and mitigating circumstances, the trial Court has
awarded death sentence to the appellant on the charge of murder, which is undoubtedly is a normal penalty for the offence of murder, but in appropriate cases, the Court extends benefit of such mitigating circumstances in favour of the accused. In the present case, it is an admitted position that there exists no back ground of previous enmity or deep rooted hostility between the appellant and deceased. The evidence of PW -2 and PW -3 reveals that the act of inflicting single
knife blow by appellant at deceased was preceded by a dialogue between accused and deceased
followed by scuffle. It is also significant that the appellant inflicted only single below by means of knife and did not repeat i t. All these factors cumulatively make out a case for mitigation of
sentence. In Abdul Haq v. The State, PLD 1996 SC 1, wherein the appellant therein had taken the plea of provocation and stated that he was deprived of power of self -control. The provocation
made basis for self -defence was something said to him in Pashto by the deceased upon which he
took out his pistol and fired shot at the deceased. The abusive language was treated as mitigating circumstance.
15. In the instant matter, the case of the pros ecution is also silent with regard to motive.
There is no cavil to the proposition that a motive is not a condition precedent to warrant a finding of guilt, however, it has been observed by the Hon'ble Supreme Court of Pakistan that it is to be relevant wh ile considering the question of sentence. In Iftikhar Mehmood and another v. Qaiser
Iftikhar and others 2011 SCMR 1165, the Hon'ble Supreme Court did not interfere with the judgment of High Court on the question of sentence and observed as under: --
"We agree with the proposition that motive is not sine qua non for the proof of
commission of the crime and at time motive is not known to any other person other than the deceased or the accused person, which never surfaced on the record. However, it
cannot be denied that motive is always very relevant to determine the quantum of
sentence that might be awarded to a person against whom charge of murder is proved."
In Muhammad Yaseen v. The State, 2011 SCMR 905, the Hon'ble Supreme Court partly
allowed the appea l and converted the death sentence into life imprisonment inter -alia on the
ground that prosecution has failed to prove motive and observed as under: --
"The occurrence took place in a broad -daylight on a thoroughfare when Pervaiz Iqbal was
on his way back to his house after purchasing ice, therefore, the story of substitution
propounded by learned counsel for the appellant cannot be accepted. In the absence of any corroboration the Courts are expected to follow the rule of abundant care and caution in the m atter of sentence. It is not denied that no resident of the lane in which the
occurrence took place appeared and supported the prosecution story. The prosecution has failed to prove the motive for the offence. The appellant allegedly fired only one shot and decamped from the place of occurrence. The P.Ws. were at a considerable distance from the place where Pervaiz Iqbal was done to death. Therefore, in the above circumstances, we consider it just and proper to convert the sentence of death into imprisonment for life."
In view of the above, we partly allow the Criminal Appeal No.229 of 2016 and while
maintaining the conviction under section 302(b), P.P.C. convert the death sentence into life imprisonment and further award compensation of Rs.300,000/ - (three lac only) to be paid to the
legal heirs of deceased Zakir Hussain, in case of default, the appellant shall further suffer SI for six months. Benefit of section 382- B, Cr.P.C. is also extended in favour of the appellant.
Consequently the Murder Reference N o.5 of 2016 is answered in NEGATIVE.
JK/21/Bal Order accordingly.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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