2023 M L D 1086
[Balochistan]
Before Muhammad Hashim Khan Kakar and Shaukat Ali Rakhshani, JJ
PERVAIZ ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 505 and Murder Reference No. 17 of 2022, decided on 17th March,
2023.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Ocular account supported by
medical evidence---Accused was charged for committing murder of the deceased and causing injuries to the complainant by inflicting dagger blows ---Ocular account of the incident had
been furnished by the injured and complainant, who was also eye -witness of the occurrence --
-Complainant testified that on day of occurrence at 12.20 a.m., he was present in the hotel,
when owner of the hotel told him to account for the daily sale, as such deceased went to the accused party and asked to pay the dues, whereupon co- accused caught hold of the deceased
and present accused inflicted dagger blow and when he went to rescue the deceased, accused
injured him with his dagger ---Record showed that the statement of the complainant was
found to be natural and confidence inspiring, which had not been shattered by the defence ---
Though, the defence denied the testimony of complainant, but did not controvert the death of the deceased having been caused due to dagger blow ---Prosecution to establish the unnatural
death caused by dagger produced Medical Officer, who stated that on the same day, she medically examined deceased ---Medical evidence of the deceased showed three stab wounds,
one on the left side of the chest, second on the left arm and the last one on the right side of the abdomen ---Medical Officer opined the cause of death to be damaged vital organ caused
by a sharp weapon--- Medico -Legal Certificate of the injured showed that he had received
two wounds caused with a sharp weapon on his thigh---Medical evidence had confirmed the testimony of injured complainant ---Even otherwise, at no stage the defence had disputed the
unnatural death of the deceased caused by the dagger ---Circumstances established that the
prosecution had proved its case against the accused beyond any shadow of doubt ---However,
due to mitigating circumstances, the death sentence was altered to imprisonment for life---Appeal was dismissed with said modification in sentence.
(b) Penal Code (XLV of 1860)---
----S. 302(b) ---Qatl-i-amd---Appreciation of evidence ---Recovery of crime weapon on the
pointation of accused--- Reliance---Accused was charged for committing murder of the
deceased and causing injuries to the complainant by inflicting dagger blows ---Recovery
witness testified that during interrogation, the accused made disclosure regarding
commission of the offence by committing murder of the deceased by inflicting dagger blows as well as inflicting injury to complainant and threw the dagger on the roof top of the hotel and volunteered to recover the same on his pointation, as such, disclosure memo was prepared ---Said witness further testified that that the accused led them to food point, being
the crime scene, and made pointation of the place of occurrence, whereof memo of pointation
was prepared ---Recovery witness further stated that from the roof top of the hotel, accused
got recovered the dagger which was stained with blood---Forensic Science Laboratory
Report affirmed the dagger to be stained with human blood--- Circumstances established that
the prosecution had proved its case against the accused beyond any shadow of doubt ---
However, due to mitigating circumstances, the death sentence was altered to imprisonment for life ---Appeal was dismissed with said modification in sentence.
(c) Penal Code (XLV of 1860)---
----S. 302(b) ---Qanun -e-Shahadat (10 of 1984), Arts. 38, 39 & 40---Qatl -i-amd---
Appreciation of evidence ---Disclosure made by the accused ---Recovery of weapon---
Admissibility as evidence ---Accused was charged for committing murder of the deceased and
causing injuries to the complainant by inflicting dagger blows ---Statement regarding
admission of guilt amounting to confession was inadmissible in view of Arts. 38 & 39 of Qanun- e-Shahadat, 1984, but the second part, which related to the disclosure of a fact of
recovery of the dagger from the roof top of the hotel, on pointation of accused was admissible and relevant as comtemplated under Art. 40 of Qanun- e-Shahadat, 1984--- Thus,
the recovery of dagger being the crime weapon whereby deceased was murdered and complainant was injured by all means was a corroborative piece of evidence---Circumstances
established that the prosecution had proved its case against the accused beyond any shadow of doubt ---However, due to mitigating circumstances, the death sentence was altered to
imprisonment for life ---Appeal was dismissed with said modification in sentence.
Askar Jan v. Muhammad Daud 2010 SCMR 1604 and Muhammad Abid v. State 2016
PCr.LJ 257 rel.
(d) Penal Code (XLV of 1860)---
----S. 302(b) --- Qatl-i-amd--- Appreciation of evidence --- Sentence, reduction in--- Mitigating
circumstances ---No pre -mediation ---Accused was charged for committing murder of the
deceased and causing injuries to the complainant by inflicting dagger blows ---Occurrence
seemed to have erupted suddenly with no premeditation in a spur of moment with rage, thus it was a mitigating circumstance, which did not justify capital sentence ---Thus, the quantum
of sentence awarded to the accused under S. 302(b), P.P.C., being harsh was converted from death sentence to the imprisonment for life, which would serve the purpose and would be sufficient ---Appeal was dismissed with said modification in sentence.
Ghaffar Ali v. State 2021 SCMR 354 and Gul Mir v. State 2021 YLR 2041 rel.
Liaquat Ali for Appellant (in Criminal Appeal No. 505 of 2022).
Abdul Matin, Additional Prosecutor General for the State (in Criminal Appeal No.
505 and Murder Reference No. 17 of 2022).
Liaquat Ali for Respondent (in Murder Reference No. 17 of 2022).
Date of hearing: 6th March, 2023.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J. ---The captioned criminal appeal and murder
reference emanate from the judgment dated 21.10.2022, whereby the appellant has been
convicted and sentenced under section 302(b) of the Pakistan Penal Code, 1860 ("Penal Code") to suffer the penalty of death as Ta'zir, with the direction to pay Rs.400,000/ - to the
legal heirs of deceased Ghulam Rasool as compensation under section 544 -A of the Criminal
Procedure Code, 1898 ("The Code"), and in default thereof to further suffer six months' SI as well as convicted and sentenced under section 324 of the Penal Code for causing injuries to Amanullah (PW -2) to suffer ten years' RI with a fine of Rs.20,000/ - and in default to further
suffer SI for three months with the premium of section 382- B of the Code.
The murder reference has been sent by the Trial Court for confirmation or otherwise
to this Court as contemplated under section 374 of The Code.
2. Condensed but relevant facts of the case are that on 16.09.2021 at 12:20 a.m.
complainant Amanullah (PW- 2) reported the crime vide fard- e-bayan (Ex.P/2- A) with the
averments that on the said date at 12:30 a.m., while they were closing their hotel, accused Pervaiz beside co -accused Raziq and Waheed alias Malang along with his companions were
playing Ludo, who were told by the complainant that the hotel is being closed, so return the "Ludo", whereupon altercation took place between appellant Pervaiz with the deceased, who started beating him; the appellant Pervaiz inflicted injuries to Ghulam Rasool on his abdomen and chest; the complainant (PW -2) also received injuries on his right thigh inflicted
by the appellant, whereafter appellant along with co- accused fled away; Ghulam Rasool and
complainant (PW- 2) were taken to the hospital by Waseem Sajjad (PW- 1), but Ghulam
Rasool succumbed to his injuries.
3. After registration of the case, investigation was entrusted to Asif Ali, the first
Investigating Officer (I.O) (PW -7), who went to the crime scene, prepared site sketch
(Ex.P/7 -C) and memo of inspection (Ex.P/5- A), took into possession Ludo through memo
(Ex.P/5 -B), secured bloodstained earth through recovery memo (Ex.P/5- C), whereof parcel
No.1 was prepared, whereafter he went to hospital, where the Doctor concerned handed over him the bloodstained clothes of deceased Ghulam Rasool, which were taken into possession
through memo (Ex.P/5 -D), whereof parcel No.2 was also prepared. The complainant was
handed over him his bloodstained shalwar and kamiz, which where taken into possession through recovery memo (Ex.P/5- E) and prepared parcel No.3. He recorded the statements of
the witnesses Ali Hassan, Nasrullah and Waseem under section 161, Cr.P.C. On 17.09.2021, he arrested nominated accused Pervaiz and on 18.09.2021, he produced him before the competent Court and obtained his remand. On 21.09.2021, the investigation of the case was
entrusted to Bismillah SI (PW -9) on his transfer. He produced FIR (Ex.P/7- A), inquest report
(Ex.P/7 -B) and site sketch (Ex.P/7 -C). Bismillah SI (PW -9) is the second investigation
Officer of the, who was entrusted investigation on 22.09.2021. On 27.09.2021, during course
of investigation, the appellant made disclosure regarding commission of the offence. On the disclosure and pointation of the appellant, the crime weapon bloodstained dagger was
recovered on roof top of the hotel near the place of occurrence in presence of the witnesses,
which was taken into possession through recovery memo (Ex.P/6- C), whereof parcel No.4
was prepared. The third investigation officer in the instant case is Kamran Iqbal SI (PW- 10),
who obtained medical certificates of the deceased and injured from Police Surgeon as well as
received FSL reports from FSL Crime Branch Quetta and handed over it to IP/SHO and prepared supplementary challan. He produced examination report (Ex.P/10- A) and
supplementary challan as (Ex.P/10- B).
4. On conclusion of the investigation, the accused was sent up to face the trial before the
trial court. On the stated allegations a formal charge was read over to the appellant, to which he did not plead guilty and claimed trial. Thereafter, the prosecution produced as many as ten witnesses in the instant case. On close of the prosecution side, the appellant was examined under section 342, Cr.P.C., whereafter, the appellant neither stepped into the witness box to
depose on oath nor produced any evidence in his defence, hence at the end of the trial, the
appellant was convicted and sentenced in the terms mentioned in the para supra.
5. Learned counsel for the appellant inter alia contended that the prosecution has failed
to prove the case, but the Trial Court by misreading the evidence has held the appellant guilty of the charge. He emphasized that actually the complainant (PW -2) has committed
murder of the deceased as he was sodomized by him. According to him, there are material
contradictions, which has made the case highly doubtful, but the Trial Court while drawing the impugned judgment has failed to take into account such aspect of the matter. Added further that the recovery of the dagger has also not been proved by the prosecution, but the Trial Court has relied upon the same, which is incorrect; henceforth, requested to set at naught the impugned judgment and acquit the appellant.
Conversely, learned APG vehemently resisted the appeal as well as the contentions
put forth by learned counsel for the appellant. He argued that the prosecution has proved the case to the hilt and that the depositions made by the prosecution witnesses are trustworthy and confidence inspiring, particularly, statement of complainant (PW -2), having been
confirmed by the medical evidence and recovery of the dagger, as such, requested for dismissal of the appeal.
6. Arguments advanced by learned counsel for the adversarial parties have been heard
and considered in view of the evidence available on record. The entire edifice of the prosecution case is pillared upon the testimony of injured Amanullah complainant (PW -2),
who is eye -witness of the occurrence, circumstantial evidence of Waseem Sajjad (PW- 1),
Nasrullah (PW- 3) and Ali Hassan (PW -4) coupled with the medical evidence and recovery of
the crime weapon. Complainant (PW -2) testified that on 16.09.2021 at 12.20 a m, he was
present in the hotel, when owner of the hotel told him to account for the daily sale, as such Ghulam Rasool (deceased) went to Waheed, Raziq and appellant Pervaiz and asked to pay
the dues, whereupon accused Waheed caught hold of the deceased and Pervaiz inflicted
dagger blow and when he went to rescue Ghulam Rasool (deceased), appellant Pervaiz injured him with his dagger. According to Amanullah (PW -2) besides them, there were three
others accompanying them; all of them fled away and the owner of the hotel Waseem (PW -1)
took them to the hospital, but Ghulam Rasool succumbed. During cross -examination, he
affirmed the suggestion that before the occurrence, he knew the appellant, but denied the
suggestion that he had some altercation with Nasrullah (PW -3) and deceased. He denied that
Ghulam Rasool (deceased) used to sodomize him and on the fateful day, he committed
murder of the deceased with dagger.
7. After scanning testimony of the complainant (PW -2), we have found his statement to
be natural and confidence inspiring, which has not been shattered by the defence. Albeit, the defence denied his testimony, but did not controvert the death of the deceased having been caused due to dagger blow. The prosecution to establish the unnatural death caused by dagger produced Dr. Ayesha Faiz (PW -8), who stated that on 16.09.2021, she medically
examined Ghulam Rasool, who was brought with the history of assault. She (PW -8)
produced MLC No.4679/PS AF/DB dated 25.10.2021 (Ex.P/8- A) and stated to have had
examined injured Amanullah (PW -2) and issued MLC No.4680/PS AF dated 25.10.2021
(Ex.P/8 -B). The medical evidence of the deceased shows that three stab wounds, one on the
left side of the chest 2 x 1 c.m, second on the left arm 1 x ½ c.m and the last one on the right side of the abdomen 4 c.m. Dr. Ayesha Faiz (PW -8) opined the cause of death to be damage
of vital organ caused by a sharp weapon. The MLC of Amanullah (PW -2) shows that he had
received two wounds caused with a sharp weapon on his thigh. The medical evidence has been critically examined by us, which confirms the testimony of injured Amanullah (PW -2).
Even otherwise, at no stage the defence has disputed the unnatural death of the deceased
caused by the dagger.
8. In so far as the testimony of Waseem Sajjad (PW- 1) is concerned, he stated not to
have seen the occurrence, however, stated to have taken both the deceased and injured (PW -
2) to the hospital for medical treatment in a rickshaw as they had received injuries. Nasrullah (PW -3), Ali Hassan (PW -4) are witnesses of the circumstances. None of them had seen the
occurrence. They statedly arrived in the hospital so informed by the complainant (PW -1).
9. Adverting to the recovery of the crime weapon, the testimony of Ghulam Hassan ASI
(PW -6) is material. He testified that on 07.09.2021 during interrogation, the appellant made
disclosure regarding commission of the offence by committing murder of the deceased by inflicting dagger blows as well as inflicting injury to Amanullah (PW -2) and threw the
dagger on the roof top of the hotel and volunteered to get recover the same on his pointation, as such, disclosure memo (Ex.P/6- A) was prepared. He further testified that the appellant led
them to Food Point Samungli Road, being the crime scene and made pointation of the place of occurrence, whereof memo of pointation (Ex.P/6 -B) was prepared. Recovery witness
(PW -6) further stated that from the roof top of the hotel he got recovered the dagger
'GERBER' was engraved, having been stained with blood, which was sealed in parcel No.4 and secured through recovery memo (Ex.P/6- C). The FSL report (Ex.P/10- A) dated
12.05.2022 affirmed the dagger to be stained with human blood.
We are mindful of the legal proposition that the statement regarding admission of
guilt amounting to confession is inadmissible in view of Articles 38 and 39 of Qanun- e-
Shahadat Order, 1984 ("QSO of 1984"), but the second part, which relates to the disclosure
of a fact of recovery of the dagger from the roof top of the hotel, wherefrom the appellant made recovery is admissible and relevant as contemplated under Article 40 of QSO of 1984.
Thus, the recovery of dagger being the crime weapon, whereby deceased Ghulam Rasool was
murdered and complainant (PW -2) was injured by all means is a corroborative piece of
evidence, whereupon the Trial Court has rightly placed reliance. In this regard our view finds
support from the judgment reported as 'Askar Jan v. Muhammad Daud' (2010 SCMR 1604) and 'Muhammad Abid v. State' (2016 PCr.LJ 257). In so far as the memo of pointation of the crime scene is concerned that cannot be relied upon as it does not square within the meaning of disclosure of a new fact because the crime scene was earlier visited by I.O (PW- 7), thus
no reliance can be placed on such piece of evidence.
10. The above statements of the witnesses have been found to be confidence inspiring and
truthful, which have not been shattered by the defence. Moreover, it is a rare phenomenon to implicate an innocent falsely and let go the actual culprits. The appellant has remained unsuccessful to bring on record any evidence, convincing that the appellant was involved
falsely and the actual culprits were let go. Above all, the appellant has also failed to
substantiate the plea suggested during cross -examination that the complainant (PW -2) had
committed murder of the deceased as he was sodomized. The appellant merely made suggestions with regard to the above defence but failed to substantiate his plea through tangible evidence.
11. We have critically analyzed the impugned judgment in view of the evidence on
record, which has been found to be based upon proper appraisal of the evidence, suffering
from no illegality or infirmity except the quantum of sentence.
12. The occurrence seems to have erupted suddenly with no premeditation in a spur of
moment with rage, thus we believe and are of the considered view that there are mitigating circumstances, which do not justify capital sentence. Moreover, the Hon'ble Supreme Court, while dealing with the case titled as 'Ghaffar Ali v. State' (2021 SCMR 354) has held as infra;
"6. … The stance of both the witnesses remained the same but during cross -
examination they disclosed that as wife of the petitioner was not invited hence a quarrel took place. Although this was not a valid reason for mitigation of the sentence but we observe that occurrence took place suddenly at the spur of the moment after a quarrel between complainant an Aamir and petitioner fired indiscriminately. This could be a ground for mitigation and the High Court rightly extended such benefit to the petitioner by altering the sentence of death on three counts to imprisonment for life on three counts. We observe that High Court had withheld the benefit of section 382- B of the Cr.P.C. which was against the mandate of the said provision, hence the
benefit of section 382 -B, Cr.P.C. is extended to the petitioner. With the above
modification, this petition is dismissed and leave to appeal is declined."
Whilst this Court in the case titled 'Gul Mir v. State' (2021 YLR 2041 Balochistan) held as
follows;
"17. After concluding the guilt of the appellant in affirmative, the next question for
the court would be the quantum of sentence awarded to the appellant. Though the prosecution case was initially silent about the motive behind the occurrence but the testimonies of the prosecution witnesses transpire that the parties being paternal cousins were at loggerhead due to altercation between the children. It was also come on record that during the altercation the neighboring inhabitants of the vicinity also intervened for amicable settlement between the parties. It cannot be gathered from the record that murder of the deceases was premeditated or was based on some previous motive between the parties therefore awarding death sentence to the appellant would be against the dictates of justice when the possibility of sudden provocation developed at the spur of the moment cannot be ruled out. It is entirely possible that due to altercation between the parties, the deceased entered into his cousin's Hawaili, and the appellant under the fear of injury or due to sudden provocation fired upon him, therefore while deciding the quantum of sentence benefit of doubt can safely be extended in favour of the appellant, considering these aspects of the matter as mitigating circumstances on basis whereof capital punishment could not be awarded to him. Under such circumstances while upholding the conviction recorded against the appellant under section 302(b), P.P.C. his sentence of death is altered to that of imprisonment for life with fine of Rs. 200,000/ - (rupees two hundred thousand) to be
paid as compensation to the legal heirs of the deceased Muhammad Azam as envisaged under section 544- A, Cr.P.C. or in case of default shall further suffer
simple imprisonment for one year. While the benefit under section 382- B, Cr.P.C. is
also extended in favour of the appellant."
Thus, the quantum of sentence awarded to the appellant under section 302(b) of the
Penal Code, being harsh, is converted from death sentence to life imprisonment, which shall serve the purpose and would be sufficient; the premium of section 382- B of the Cr.P.C. is
also extended to the appellant; however, the amount of compensation of Rs.400,000/ -
payable to the legal heirs of deceased Ghulam Rasool under section 544 -A, Cr.P.C. as well as
conviction and sentence under section 324, Cr.P.C. with fine and the premium of section 382- B of Cr.P.C. shall remain intact.
13. For what has been discussed hereinabove, the appeal is dismissed for being bereft of
the merits with the above modification.
The murder reference is answered in negative.
JK/66/Bal. Sentence modified.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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