2012 Y L R 770
[Balochistan]
Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ
ZAHOOR AHMED ---Appellant
Versus
THE STATE---Respondent
Criminal Appeal No.(S) 42 and Murder Reference No.9 of 2010, decided on 18th August, 2011.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 337- F(iii) ---Qatl -e-amd, causing Mutalahimah---Appreciation of evidence ---
Complainant and other prosecution witness were respectively the son and cousin of the deceased,
who were accompanying the deceased at the time of incident ---Another prosecution witness was
not only victim of the alleged occurrence; but was also an independent witness, having no grudge or ill- will with accused --Witnesses had fully supported the prosecution version and had narr ated
a straightforward and confidence inspiring story and despite lengthy cross -examination,
remained firm to their deposition ---Nothing material was brought on record to doubt their
veracity, except a few minor contradictions, not affecting the intrinsic value of their statements ---
Presence of the witnesses at the spot at the relevant time could not be doubted---Defence had failed to lay down the foundation for substitution of accused in place of real culprits ---Fact that
the F.I.R. was promptly lodged, wherein accused was nominated, had shown that the complainant had narrated truthful account of the incident ---Prompt registration of the F.I.R., had
proved that prior to lodging of the F.I.R., no deliberation was made nor there was any time
available for the complainant to concoct the story---Occurrence having taken place in broad -
daylight, mistaken identification of accused was not possible ---Ocular account, furnished by the
prosecution witnesses, did not suffer from any material contradiction, discrepancy or inherent infirmity ---Same was supported by medical evidence and recovery of crime weapons i.e. pistol
from the possession of accused and the positive report of firearm expert ---Prosecution witnesses
though were near relatives of the deceased but they could not be termed as interested witnesses because they had no direct animosity with accused who had been attributed fatal injuries to the deceased ---Prosecution, in circumstances had fully proved case against accused.
2000 SCMR 727 rel.
(b) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 337- F(iii) ---Qatl -e-amd, causing Mutalahimah---Appreciation of evidence ---
Sentence, reduction of ---Motive ---Principles ---Prosecution had succeeded to prove the guilt of
accused to the hilt, but it had not been establishe d beyond doubt that as to by whose firing death
of deceased was caused, as the role of firing had been attributed to all the three accused persons --
-Imposition of death sentence to one accused, in circumstances, would not be justified and
uncalled for ---Pr osecution had failed to prove the alleged motive ---Prosecution, no doubt, was
not required to disclose or set up a motive, but once it chose to do so then it would become its
obligation to prove the same by cogent evidence; and failure in doing so would not only damage the credibility of the prosecution case beyond repair, but it would also be fatal for it ---Accused
had shown that mitigating circumstances existed for committing murder of the deceased ---Death
sentence awarded to accused under S.302(b), P.P.C . was converted into that of life
imprisonment, with benefit of S.382- B, Cr.P.C.
1998 PCr.LJ 990 rel.
Kamran Murtaza for Appellant.
Abdullah Kurd P.G. for the State.
Date of hearing: 4th August, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---The Additional Sessions Judge, Dera Allah
Yar, vide judgment dated 11th May, 2010 has convicted and sentenced appellant Zahoor Ahmed
son of Sajawal under section 302(b) of the P.P.C. to death with direction to pay. Diyat amount to the legal hei rs of deceased Haji Muhammad. He was further convicted and sentenced under
section 337- F(iii) of the PPC as ta'zir to suffer three years' R.I. and to pay Daman of Rs.10,000
to victim Zahid Hussain. The appellant preferred Criminal Appeal No. (S) 42 of 2010 for his acquittal, while the Additional Sessions Judge has sent Murder Reference No.(S)09 of 2010 for confirmation of the sentence of death or otherwise. Since common question of law and facts is involved, therefore, both the matters are being disposed of by means of this common judgment.
2. Briefly stated the facts of the case are that on 11th November, 2009 at about, 3- 30 p.m., a
case vide Crime No.254 of 2009, under sections 302, 324 read with section 34 of the P.P.C. was
registered at Police Station Dera Allah Yar, District Jaffarabad, on the written report of
complainant Inayatullah (P.W.1). It was alleged by the complainant that on above date, at about 2:50 p.m., he, along with his father Haji Muhammad and Ali Muhammad, after purchasing
household a rticles from city Bazaar Dera Allah Yar, when reached pear Hussain Hotel, Quetta
road, accused persons Dildar, Zahoor Ahmed (appellant) and Sajawal, duly armed with TT pistol, came in front of them and told his father that thy will not leave him alive and all of them
made firing upon him with TT pistols, due to which, his father, after sustaining bullet injuries, expired on the spot. It was further alleged by the complainant that one Zahid Hussain, who was standing nearby fruit -cart, also received injury due to firing of the above named accused persons.
The motive behind the incident was disclosed matrimonial dispute between the parties. Consequently, aforesaid case was registered.
3. After registration of the F.I.R. Exh.P/7, investigation of the Case wa s entrusted to P.W.7
Rafique Ahmed, S.- I., who inspected the site, prepared site sketch ExH.P/7- B, secured blood
from the crime scene, collected 7 empties of TT pistol vide memo, recorded statements of P.Ws.,
prepared inquest report Ex.P/7- A of deceased an d injury report of injured. Appellant Zahoor
Ahmed was arrested by S.H.O., whose custody, along with a TT pistol and one live cartridge, recovered from his possession, was handed over to the Investigating Officer. He received MLCs of the deceased and injur ed from hospital, took into possession the blood- stained clothes of
deceased and sent the same along with recovered crime weapon i.e., pistol to experts for analysis. He also prepared disclosure memo of the accused and thereafter placed the papers before S.H.O., who prepared incomplete challan Exh.P/7- C and on receiving reports of the FSL
experts Exh.P/7- E and Exh.P/7- F respectively with regard to crime weapon 30- bore and blood-
stained clothes, incomplete challans Exh.P/7- D and Exh.P/7- G were prepared and appellant was
sent up to face the trial.
4. On the stated allegation, charge was framed and read over to the appellant, to which he
pleaded not guilty and claimed trial. The prosecution, in order to substantiate the accusation,
produced seven witness es. P.W.1 Inayatullah is complainant of the case, who produced his
written report Exh.P/l -A. P.W.2 Zahid Hussain alleged to have received injuries by the hand of
appellant. P.W.3 Dr. Zulfiqar Ali Bugti, Medical Officer, examined the dead body of deceased, also examined the injured and issued Medico- legal certificates Exh.P/3 and Exh.P/3- A. P.W.4
Mehrab Khan and P.W.6 Ali Muhammad alleged to have witnessed the occurrence. P.W.4 produced site inspection memo. Exh.P/4, recovery memo of blood secured from the place of occurrence as Exh.P/4- A and recovery memo. of collection of 7 empties from the spot as
Exh.P/4- B. P.W.5 Ali Sher, constable, allegedly, along with other police party, arrested the
appellant and is witness to the recovery of TT pistol from his poss ession vide memo. Exh.P/5.
He is also witness to the blood- stained clothes of deceased vide memo. Exh.P/5- A and P.W.7
Rafique Ahmed, S.- I. is the Investigating Officer of the case. Then the prosecution closed its
side.
5. In his examination under section 342 of the Cr.P.C., the appellant denied and
controverted each and every allegation of fact levelled against him by the prosecution and
professed his innocence. However, he neither made any statement on oath under section 340(2)
of the Cr.P.C., nor he pro duced any witness in his defence.
6. At the conclusion of the trial, the trial Court found the prosecution's case against the
appellant to have been proved beyond and reasonable doubt and, thus, the appellant was
convicted and sentenced, as mentioned and detailed above. Hence, the present appeal before
this Court by the convict/appellant and murder reference by the Additional Sessions Judge.
7. We have heard learned counsel for the appellant as well as learned counsel for the State
and have gone through the record with their valuable assistance. Mr. Nadir Ali Chalgari, learned
counsel for the appellant, submitted that the prosecution had failed to prove its case against the appellant beyond reasonable doubt and, thus, this appeal warrants acceptance with a resultant acquittal of the appellant. On the contrary, as against that M Abdullah Kurd, Advocate, representing the State, has maintained that the prosecution had succeeded in proving the guilt of the appellant to the hilt and, therefore, the inst ant appeal deserves dismissal.
8. As far as unnatural death of deceased Haji Muhammad and firearm injury to P.W. Zahid
Hussain is concerned, the same has not been seriously disputed by the defence. Even otherwise,
P.W.3 Dr. Zulfiqar Ali Bugti, who examined the dead body of deceased Haji Muhammad and injured Zahid Hussain, has proved unnatural death of deceased and firearm injury to Zahid Hussain by means of firearm injuries. However, the question arises, as to whether the appellant
was the person, who com mitted the murder of deceased and causing injury to P.W. Zahid
Hussain? It is the case of prosecution that on the fateful day at about 2- 50 p.m., nearby Hussain
Hotel, Dera Allah Yar, appellant along with his absconding companions viz Dildar and Sajawal,
in furtherance of their common intention, made attack upon the complainant party, resultantly;
Haji Muhammad and Zahid Hussain received firearm injuries, whereas Haji Muhammad passed away at the spot. The motive behind the occurrence was stated to be matrim onial dispute
between the parties, which culminated in un- fortunate death of deceased Haji Muhammad and
firearm injury to P.W. Zahid Hussain.
In order to substantiate the accusation, the prosecution mainly relies on the statements of P.W.1
complainant In ayatullah, P.W.2 Zahid Hussain and P.W.6 Ali Muhammad P.W.1 complainant
and P.W.6 Ali Muhammad are respectively the son and cousin of the deceased, who were accompanying, the deceased the time of incident, whereas P.W.2 Zahid Hussain is not only victim of the alleged occurrence, but is also an independent witness, having no grudge or ill -will
with the appellant. The witnesses have fully supported the prosecution version, and stated that on the unfortunate day, the appellant and absconding accused persons ma de firing upon the
deceased and injured witness Zahid Hussain. They narrated a straightforward and confidence inspiring story and despite lengthy cross -examination, remained firm to their depositions and
nothing material was brought on record to doubt, the ir veracity, except a few minor
contradictions, not affecting the intrinsic value of their statements. The presence of the witnesses at the relevant time could not be doubted. Admittedly, P.W.1 Inayatullah is son and P.W.6 Ali Muhammad is cousin of the dec eased, but their statements could not be discarded only on the
ground of their relationship with the deceased. Similarly, P.W.2 Zahid Hussain is not only injured witness, but is also an independent -witness. Admittedly, he had no ill -will or motive, nor
any such thing was suggested to him during cross -examination, to falsely implicate the appellant
in the commission of the offence. On the other hand, the defence has failed to lay down the foundation for substitution of appellant in place of real culprits. The fact, that the F.I.R. was promptly lodged, wherein the appellant was nominated, shows that the complainant has narrated truthful account of the incident. The prompt registration of the F.I.R., coupled with the fact that the complainant had gone alone to the police station for the purpose, proves that prior to lodging of the F.I.R. no deliberation was made, nor there was any time for him to concoct the story. The occurrence has, admittedly, taken place in broad daylight and under such circumst ances, no question of mistaken identification arise at all.
9. The ocular account, furnished by the prosecution witnesses is not suffering from any
material contradiction, discrepancy or inherent infirmity and is consistent with the probabilities
materially fitting in with the other evidence, more -particularly the med ical evidence and
supported by the recovery of crime weapon i.e. pistol from the possession of appellant and
the positive report of Firearm Expert.
10. No doubt, the star prosecution witnesses i.e. P.W.1 Inayatullah and P.W.6 Ali
Muhammad are respe ctively the son and cousin of the deceased, but only on account of their
relationship with the deceased, they cannot be termed as interested witnesses for the reasons that
they had no direct animosity with the appellant Zahoor Ahmed, who has been attribute d fatal
injuries to the deceased Haji Muhammad and P.W. Zahid Hussain. The Hon'ble Supreme Court in a case reported in 2000 SCMR 727, while dealing with the proposition of interested witness, observed as under: --
"Moreover, we find that none of the two e ye-witnesses could be termed as interested witnesses
because none had any previous ill -will or grudge against the petitioner. Merely because P.W.4 is
father of the deceased and P.W.5 belongs to the "Baradari" of the deceased would not make them
interested as they had no reasons to substitute the petitioner for the real killer."
11. The only question, which now remains to be answered, is the quantum of sentence, to
which the appellant is liable for in the given facts and circumstances of the case. We have arrived
at a confident conclusion that the prosecution had succeeded to prove the guilt of the appellant to
the hilt, however, it has not been established beyond doubt that as to by whose firing, the deceased was caused to death, as the role of firing had been attributed to all the three accused persons, therefore, the imposition of death sentence to the present appellant, in the given circumstances, would not be' justified and uncalled for.
12. Regarding the quantum of sentence, the trial Court has overs ighted to the fact that the
prosecution has badly failed to prove the alleged motive. Prosecution, no doubt, is not required to
disclose or set up a motive, but once it chooses to do so, then it becomes its obligation to prove the same by cogent evidence and failure in doing so would not only damage the credibility of the prosecution case beyond repair, but it would also be fatal for it. In this regard, we are fortified our view to a judgment reported in 1998 PCr.LJ 990, wherein it has been held as under: -
-
"9. The motive set forth in the F.I.R., is that complainant party, after extracting sugarcane juice from the sugarcane, threw the waste/bagasse in the field of the accused party but Rahim Gul (P.W.6) and Mehrab Gul (P.W.7) categorically admitted in the cross -examination that land of the
appellants is situated at a distance of 700/800 yards from the 'Ghanai' in question. It is a fairly
well-settled rule that once the prosecution has set up a motive, it is required to be established by
it. If it failed to establish, it will adversely affect the credibility of the eye -witnesses."
13. In view of the said backdrop, we conclude that the appellant has become able to show
that mitigating circumstances do exist for committing murder of the deceased. Cons equently,
the death sentence awarded to the appellant under section 302(b) of the P.P.C. is converted into
that of life imprisonment, with benefit of section 382- B of the Cr.P.C. The amount of
compensation and conviction under section 337- F(iii) of the P.P.C. shall remain intact in the
terms of judgment handed down by the trial Court. Resultantly, the appeal filed by the appellant, with above modification in the quantum of sentence, is dismissed, being meritless, and the murder reference is answered in n egative.
H.B.T./91/Q 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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