2020 M L D 1040
[Balochistan]
Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ
JANAN alias JANAK ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 75 of 2017 and Criminal Revision No. 12 of 2017, decided on 11th
December, 2019.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Criminal Procedure Code (V of 1898), S. 161---Qatl -i-amd---Appreciation of
evidence--- Prompt FIR ---Motive, not disclosed--- Examination of witnesses by the police on
the day of occurrence ---Effect ---Accused was alleged to have murdered the son of
complainant ---Eye -witnesses of the occurrence had correctly stated the date, day, time, place
and manner in which the occurrence had taken place; had identified the accused in the Trial Court; were independent, natural and truthful; were neither relatives of the deceased nor were
they inimical towards the accused; were residents of the same vicinity; were examined under S.161, Cr.P.C. by the investigating officer on the same date and were duly named in the fard -
e-bayan which formed basis of the promptly lodged FIR wherein accused was nominated ---
Medical evidence was in complete harmony with the ocular testimony ---Real cause of the
occurrence was not disclosed by either of the sides ---Appeal was dismissed.
(b) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl-i-amd---Recovery of weapon--- Scope ---When neither the recovered
crime weapon was sent to the Forensic Laboratory nor blood was found on the same nor was it recovered from the exclusive possession of the accused; High Court held that such piece of evidence was of no help to the prosecution's case.
(c) Penal Code (XLV of 1860)---
----S. 302(b) ---Qatl -i-amd---Motive ---Scope ---Motive is not a necessary component of
crime, the weakness or absence of motive is not a factor to be essentially considered for the
purpose of acquittal, when otherwise medical, ocular and direct evidence is available on record to prove the charge.
Muhammad Saeed and 4 others v. Haq Nawaz Khurram and 3 others PLD 2008 SC
416 ref.
Muhammad Latif a lias Tifa v. The State 2008 SCMR 1106 rel.
(d) Criminal trial ---
----Sentence--- Scope ---When an offence is proved, it has to be met with the maximum
sentence provided therefor, however, no yardstick exists to restrict or curb the discretion of
the Trial Court while passing the sentence ---Circumstances of each case justi fy the severity
or leniency in passing the sentence.
Kamal Kakar, Ilyas Mughal and Abdullah Kurd for Appellant (in Criminal Appeal
No. 75 of 2017).
Munir Sikandar and Noor Bakhsh Baloch for the Complainant (in Criminal Appeal
No. 75 of 2017).
Habibulla h Gul, Additional Prosecutor General ("APG") and Wajahat Khan
Ghaznavi, State Counsel for PG for the State (in Criminal Appeal No. 75 of 2017).
Munir Sikandar and Noor Bakhsh Baloch for the Petitioner (in Criminal Revision No.
12 of 2017).
Kamal Kakar, I lyas Mughal and Abdullah Kurd for Respondent No.1 (in Criminal
Revision No. 12 of 2017).
Habibullah Gul, Additional Prosecutor General ("APG") and Wajahat Khan
Ghaznavi, State Counsel for PG for the State (in Criminal Revision No. 12 of 2017).
Date of hearing: 5th November, 2019.
JUDGMENT
ROZI KHAN BARRECH, J .---The appellant namely Janan alias Janak son of
Ameer Jan alias Meera Jan was involved in case FIR No.17 of 2014 registered under section 302, P.P.C. at Levies Thana Bostan District Pishin and was tried by the learned Additional
Sessions Judge, Pishin, (hereinafter "the trial Court"). The trial Court seized with the matter in terms of judgment dated 25.03.2017 (hereinafter "the impugned Judgment"), convicted and sentenced the appellants in the following terms: -
"The accused Janan alias Janak son of Ameer Jan alias Meera Jan is convicted under section 302(b), P.P.C. as Ta'zir and sentenced to suffer life imprisonment with fine of
Rs.5,00,000 /- (Rupees Five Lacs Only) as compensation envisaged by provision of
section 544(a), Cr.P.C., which amount on its recovery be paid to legal heirs of
deceased or in default to suffer RI for six (06) months. Benefit of section 382(b), Cr.P.C., is extended in favour of accused".
2. Aggrieved from the impugned judgment, the appellant Janan alias Janak son of Ameer
Jan alias Meera Jan has assailed his conviction and sentence through Criminal Appeal No.75
of 2017, while the complainant Habibullah son of Haji Kala Khan filed Criminal Revision
Petition No.12 of 2017 for enhancement of conviction awarded to the appellant by the trial
Court, as the appeal and criminal revision petition are arising out one and the same judgment of the trial Court, therefore, the same a re being disposed of through this common judgment.
3. The prosecution story as disclosed in the FIR (Ex.P/7 -A) recorded on the statement of
Habibullah (complainant) PW -1 is that on 14.08.2014 at about 12:00 O'clock (day time) he
was present in Kuchlak Bazar, when his brother namely Syed Muhammad informed him through mobile phone that accused persons Ameer Jan alias Meera Jan and Janan alias Janak with the help of keen edged weapon launched attack upon his son Nabiullah and committed his murder, on such information he reached on spot and found his son was died. Hence the criminal report.
4. After completion of investigation, the challan was submitted before the trial Court.
Charge was framed to which the accused/appellant pleaded not guilty and claimed trial.
5. In a full dressed trial, the prosecution examined seven (07) witnesses in all.
6. At the end of conclusion of the evidence of the prosecution, statement of the
accused/appellant was recorded under section 342, Cr.P.C., thereby posed innocence and state d to have falsely been implicated in the case. He, however, appeared in his own defence
and got recorded statement on oath under section 340(2), Cr.P.C. He also produce two defence witnesses namely Noor Muhammad and Wazaibullah as DW -1 and DW -2.
7. Having heard arguments of learned counsel for the accused/appellant, learned counsel
for the complainant and learned Additional Prosecutor General (Addl:P.G), record was gone through with their able assistance.
8. Perusal of the record reveals that unnatur al death of the deceased Nabiullah son of
Habibullah is not disputed. Soon after the occurrence, the deceased was shifted to District Headquarter Hospital, Pishin, where PW -6 Dr. Muhammad Hassan, examined dead body of
the deceased and issued MLC (Ex.P/6 -A). According medical certificate the deceased
received multiple injuries by means of sharp weapon and the PW -6 Dr. Muhammad Hassan
opined that the cause of death of deceased was damage to the great vessels and vital organs by means of sharp weapon. Beside t he Investigation Officer collected the bloodstained
clothes of the deceased. Furthermore, the unnatural death of the deceased Nabiullah has also been established from the inquest report of deceased (Ex.P/7- D) which confirms the sharp
weapon injuries by the deceased on his person.
9. Adverting to the ocular testimony produced by the prosecution, the prosecution in
order to substantiate the charge, has produced seven (07) witnesses in all, but complainant of the case namely Habibullah who is not eye witness o f the occurrence. However, he received
information of the incident through his brother on mobile phone. He reached to the place of occurrence and found death body of deceased at the spot. He lodged FIR promptly without any delay and the accused is nominate d in the report. This witness has mostly reiterated the
contents of his Fard- e-Bayan (Ex.P/1 -A).
10. The most important and star witnesses of the prosecution are PW -2 Muhammad Zahir
Shah and PW -3 Ghazi Muhammad who are eye- witnesses of the occurrence and s tated in
their statements that on 14.08.2014 they were present in the shop of one person namely Bore
at Poti Nasaran chock and in the shop younger son of Bore was sitting. In the meanwhile, at about 12:00 noon Janan alias Janak son of Ameer Jan alias Meera Jan came and took the Ice
needle lying outside ice and hit the ice needle at left side back/waist of Nabiullah and then
hit him on left hand and left rib. They stood to remove him but Nabiullah received injuries
and fell down on the ground while accused J anan alias Janak escaped from the spot and
Nabiullah succumbed to the injuries on the spot. They informed Syed Muhammad uncle of the deceased via phone. Syed Muhammad reached on the spot, the father of Habibullah also reached on the spot.
11. The above wit nesses have correctly stated the date, day, time, the place of occurrence
and the manner in which the alleged occurrence had taken place. They have correctly identified the accused in the trial Court. Statements of both witnesses are similar with each other on all accounts. In our considered opinion they are independent, naturally and truthful
witnesses. Neither they are relatives to the deceased nor inimical towards the accused.
12. The presence of the above witnesses are also established at the time at th e place of
occurrence, they are residing in the same vicinity. Their statements under section 161 Cr.P.C., were recorded by the I0 on the same date. The occurrence took place at 12:00 O'clock (day) on 14.08.2014 and the FIR was lodged at 12:35 p.m., (day) within 35 minutes, their names did appear in the Fard -e-Bayan (Ex.P/1- A).
13. The next piece of evidence i.e. recovery of crime weapon i.e. Ice Needle on the
pointation of the accused which was allegedly recovered in presence of PW -4 Inayatullah,
Naib Risa ldar near Railway Phattak Bostan which was hidden in the earth but it came on the
record that neither the said Ice Needle was sent to FSL nor blood was found on the same and it is also not recovered from the exclusive possession of the accused and was recovered from the open place near the Railway Phattak Bostan, therefore, this piece of evidence no help to the prosecution case.
14. It may be observed that the medical evidence is in complete harmony with the ocular
testimony of PW -2 and PW -3 and no conflict could be pointed out to create dent in the
prosecution case. It is the prosecution version that the accused/appellant attacked upon the deceased with Ice Needle which was a sharp weapon and the deceased received multiple injuries. The bloodstained clothes of the deceased were also taken into possession and sealed
through recovery memo.
15. Having concluded so, it has been observed by us that no specific motive was set out
by the complainant in the FIR and in his statement recorded before the trial Court. However, during cross -examination he stated that one day prior to the occurrence, the quarrel was
taken place between the appellant and deceased. In cross -examination of the PW -1/
complainant admitted that he had never reported to police about the said quarrel taken place between the appellant and deceased. There is also nothing on record to prove that incident of
altercation between appellant and deceased was ever reported to police. It appears that the
real cause of the occurrence has not been disclosed by either of the sides. Anyhow, suffice to
observe here that the motive is not a necessar y component of crime, the weakness or absence
of motive is not a factor to be essentially considered for the purpose of acquittal, when otherwise medical, ocular and direct evidence is available on record to prove the charge against the appellant. Even otherwise, the son of the complainant was murdered and it is not
believable to a prudent mind that he would substitute the real culprits with the appellant. The
Hon'ble august Court in the case of Muhammad Latif alias Tifa v. The State 2008 SCMR
1106 has held that, "Be that as it may, it is settled law that motive, provided or otherwise, is
immaterial in presence of ocular evidence and murder may be committed even for no motive or on a minor pretext. What to speak of proving motive, in certain cases where the motive
was shrouded in mystery or was not alleged, conviction was maintained and absence of motive was not taken, as a mitigating circumstance even". In this regard reference can also be made to the case of Muhammad Saeed and 4 others v. Haq Nawaz Khurram and 3 others
PLD 2008 Supreme Court 416.
16. Pursuant to above, we find that the prosecution has successfully established the
murder charge against the appellant who rightly stood convicted and sentenced by the trial Court. There is hardly any substantial ground for lawful challenging the impugned judgment. The appeal fails which is hereby dismissed.
17. Adverting to Criminal Revision Petition No.12 of 2017 there is no doubt that when an
offence is proved, it has to be met with the maximum sentence provided therefor. However,
there is no yardstick to restrict or curb the discretion of the trial Court while passing the sentence. It is the circumstances of each case which justify the severity or leniency in passing the legal sentence. In the case in hand, the trial Judge in his wisdom declined to award death
sentence to the appellant. We, in view of the circumstances of the case, also feel inclined to hold the same view and endorse the reason given by the trial Court for not awarding the sentence of death. Crim inal Revision is also dismissed.
SA/6/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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