2017 M L D 1778
[Balochistan]
Before Muhammad Ejaz Swati and Abdullah Baloch, JJ
ABDUL WASAY and another ---Appellants
Versus
The STATE and others ---Respondents
Criminal Appeal No.107 of 2014, Criminal Acquittal Appeal No.122 of 2014 and Murder
Reference No.3 of 2014, decided on 5th June, 2017.
(a) Penal Code (XLV of 1860) ---
----Ss. 302, 337- A, 337- D, 337- F, 147, 148 & 149---Qatl -i-amd, shajjah, jaifah, ghayr -jaifah,
rioting, rioting armed with deadly weapon unlawful assembly ---Appreciation of evidence ---
Sentence, reduction in ---Mitigating circumstances ---Ocular account corroborated by medical
evidence ---Prosecution case was that accused and co -accused equipped with knives attacked
upon the complainant party ---Accused repeatedly inflicted knife blows upon the son of
complainant, due to which, he died at the spot ---Co -accused attacked upon brother of
complainant and repeatedly inflicted knife blows to his brother, due to which, he sustained
injuries ---Co -accused persons had beaten the complainant with kicks and fists ---Motive behind
the occurrence was a landed dispute---Ocular account was furnished by three witnesses including
injured persons ---Both the injured witnesses in identical manner narrated the story of their
departure from the house, their intercept ion by the accused persons near Thana and second attack
was launched against them in front of the hospital ---Both the said witnesses had attributed
specific role to the accused being equipped with knife and inflicting repeated knife blows upon
the person of deceased ---Said witnesses remained firm in their deposition with regard to date,
time, place of occurrence and the manner in which repeated occurrence had taken place---Said
witnesses were cross -examined at sufficient length, but nothing advantageously h ad come on
record giving serious dent to the case of prosecution and overall the defence had failed to shake
their testimony ---Both the parties resided in the same vicinity and had civil and criminal disputes
with each other and they knew each other prior to the present incident, thus mistaken identity of
the accused with the real culprits was ruled out ---Prosecution had established the presence of
both the witnesses at the spot and witnessing the crime ---Record showed that accused party had
also lodged FIR against the complainant and others with regard to the incidents of said date of
occurrence, claiming that said occurrence had taken place prior to the incident reported in the
present case ---Co -accused, nominated in the FIR, had already been acquitted by the Trial Court,
thus mitigating circumstances could not be ruled out ---Circumstances established that
prosecution succeeded in proving the guilt of accused -appellant but in view of mitigating
circumstances, his sentence of death was converted into life im prisonment.
(b) Penal Code (XLV of 1860) ---
----Ss. 302, 337- A, 337- D, 337- F, 147, 148 & 149---Qatl -i-amd, shajjah, jaifah, ghayr -jaifah,
rioting, rioting armed with deadly weapon unlawful assembly ---Appreciation of evidence ---
Interested witness ---Scope--- Testimony of closely related witness ---Reliance---Witnesses were
related to the deceased being his father and uncle--- Validity ---Mere relationship of witnesses
inter se with the deceased was not enough to term them to be interested witnesses.
Irshad ali as Shada v. The State 1992 PCr.LJ 2273 rel.
(c) Penal Code (XLV of 1860) ---
----Ss. 302, 337- A, 337- D, 337- F, 147, 148 & 149---Qatl -i-amd, shajjah, jaifah, ghayr -jaifah,
rioting, rioting armed with deadly weapon unlawful assembly ---Appreciation of evidence ---
Recovery of crime weapon ---Effect ---Accused -appellant was arrested at the spot by the Police
officials along with the crime weapon (knife) ---Statement of recovery witness was impartial and
worth credence as he had no motive or grudge to substitute the r eal culprit with the innocent
within short span of time ---Recovery of knife corroborated the medical evidence, which showed
that the deceased was murdered due to injuries inflicted with sharp weapon---Circumstances
established that prosecution proved the g uilt of the accused.
Akhter Ali v. State 2011 SCMR 937 rel.
Sohail Ahmed Rajpoot for Appellant (in Cr. Appeal No.107/2014 and for
accused/respondents in Criminal Acquittal Appeal No.122 of 2014).
Muhammad Aslam Chishti and Muhammad Akram Shah for the Com plainant (in
Criminal Appeal No.107 of 2014 and for Appellant (in Criminal Acquittal Appeal
No.122 of 2014).
Muhammad Yahya Baloch, D.P.G. for the State.
Date of hearing: 2nd May, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This common judgment disposes of Cri minal Appeal
No.107/2014, Murder Reference No.03/2014 and Criminal Acquittal Appeal No.122/2014,
against the judgment dated 18th April 2014 (hereinafter referred as, "the impugned judgment")
passed by the learned Additional Sessions Judge Killah Abdullah a t Chaman (hereinafter referred
as, "the trial Court"), whereby the appellant Abdul Wasay Son of Abdul Baqi, was convicted
under section 302 subsection (b) Q&D and sentenced to death as Tazir and he was directed to be
hanged by his neck till he is dead. The appellant has also been directed to pay Rs.200,000/ -
(Rupees Two Hundred Thousand) as compensation to the legal heirs of deceased as envisaged
under section 544- A, Cr.P.C. and in default thereof to further suffer one (01) year S.I. Whereas,
the accused Ab dul Hadi son of Abdul Baqi, Abdul Rashid son of Abdul Ghani and Syed Ali son
of Abdul Hakeem were acquitted of the charge.
2. Facts of the case are that on 18th May, 2012 the complainant Abdul Shakoor son of
Khard lodged FIR No.22/2012, under Sections 302, 337-ADF Q&D Ordinance R/W Sections
147, 148, 149, P.P.C., stating therein that on the day of occurrence he along with his brother
Abdul Wadood were going to Bazar for buying household articles and when they reached near
Adda Kahol Levies Check Post, the a ccused Abdul Wasay and other started quarreling with
them, resultantly he received simple injures, hence he was being shifted to hospital by his brother
Abdul Wadood and son Najeebullah, but when they reached near main gate of Civil Hospital
Chaman, suddenly at about 08.00 a.m. accused Abdul Wasay, Abdul Hadi both sons of Haji
Abdul Baqi, Abdul Rasheed son of Abdul Ghani and Syed Ali sons of Abdul Hakeem, attacked
upon them. It is averred in the FIR that the accused Abdul Wasay was equipped with knife, who
repeatedly inflicted knife blows upon his son Najeebullah, due to which he died at the spot, while
accused Abdul Rasheed equipped with knife attacked upon his brother and repeatedly inflicted
knife blows to his brother, due to which he sustained injures, w hile accused Syed Ali and Abdul
Hadi beaten him with kicks and fists. The motive behind the occurrence is stated to be a landed
dispute.
3. In pursuance of the above FIR, the investigation of the case was entrusted to PW -7
Muhammad Aslam, IP/IO, who during investigation received the documents regarding inquest
report under section 174, Cr.P.C., took into possession the crime weapons i.e. a knife and a
dagger shaped knife from Amir Peter, IP/SHO, who had snatched the same from the accused
soon after commissi on of crime; obtained death certificate of deceased and medical certificates
of injured, inspected the site and prepared site map; arrested the accused; recorded the statements
of witnesses under Section 161, Cr.P.C.; took into possession blood stained cloths of deceased
and sent the same to FSL and received the FSL report in affirmative; obtained the Copy of FIR
No.84/2012 already registered against the accused at Levies Thana Chaman; on completion of
investigation submitted the challan, while on receipt o f FSL report submitted the same through
complete challan.
4. At the trial, the prosecution produced seven (07) witnesses, whereafter all the accused
were examined under Section 342, Cr.P.C. They also recorded their statements on oath under
Section 340(2), Cr.P.C. and produced three witnesses in their defence. On conclusion of the trial
and hearing arguments, the learned trial Court convicted the appellant Abdul Wasay and
sentenced him to death as Tazir, while the accused Abdul Hadi son of Abdul Baqi, Abdul Rashid
son of Abdul Ghani and Syed Ali son of Abdul Hakeem, were acquitted of the charge.
Whereafter, the appellant Abdul Wasay filed Criminal Appeal No.107 of 2013, while Murder
Reference No.03/2014 has been forwarded by learned trial Court for confirmati on of death
sentence or otherwise, while the complainant Abdul Shakoor filed Criminal Acquittal Appeal
No.122/2014 against the acquittal of accused Abdul Hadi son of Abdul Baqi, Abdul Rashid son
of Abdul Ghani and Syed Ali son of Abdul Hakeem.
5. Learned counsel for the convict -appellant Abdul Wasay contended that all the
prosecution witnesses made contradictory statements and dishonest improvements in their
depositions before the Court, due to which their testimony is not reliable to base convicti on as
sufficient doubts have been created in the case of prosecution, hence the case of appellant is on
the same footings to that of acquitted accused, but the benefit of such doubts were not extended
in favour of convict -appellant, resulting miscarriage o f justice; that the prosecution has only
produced the evidence of interested and related witnesses; that the ocular account of testimony is
in conflict with medical evidence; that the prosecution has also failed to establish the recovery of
crime weapon fr om the exclusive possession of the appellant rather the same was foisted upon
him by the police just to give strength to the case of prosecution; that the defence so taken and
establish through independent witnesses was discarded by the learned trial Court while
delivering the impugned judgment; that there are sufficient mitigating circumstances in the case
in hand, thus awarding death sentence to the convict -appellant is unwarranted under the law and
is very harsh.
6. To the extent of acquitted accused -respondents, it has been argued by the learned counsel
that after proper appreciation of evidence, the learned trial Court has come to just and right
decision by acquitting them; that double presumption of innocence is attached to the case of
acquittal and in terference is unwarranted until and unless it is established that the impugned
order of acquittal is perverse and contrary to the record, but perusal of impugned judgment to the
extent of acquitted accused it is evident that the same has been delivered in accordance with law.
7. Learned Deputy Prosecutor General assisted by learned counsel for complainant while
supporting the impugned judgment to the extent of convict -appellant stated that trial Court has
delivered a well -reasoned judgment by discussing eac h and every aspect of the case to the extent
of convict -appellant, but it has failed to properly appreciate the same to the extent of acquitted
accused; that the prosecution has not only produced direct, consistent confidence inspiring and
solid evidence a gainst the convict -appellant, but also to the extent of acquitted accused, but
wrongly the same were discarded to the extent of acquitted accused, hence the impugned
judgment is required to be maintained to the extent of convict -appellant and also the accu sed-
respondents are entitled to be convicted and sentenced in accordance with law; that the
statements of PWs are not suffering from material contradictions, infirmities or dishonest
improvements; that there are no mitigating circumstances to award lesser punishment to the
convict -appellant and that after proper appraisal of the evidence available on record the trial
Court has rightly awarded penalty of death to the appellant, which is not open for any
interference.
8. Heard the learned counsel and perused the available record. Perusal of record reveals that
the unnatural death of deceased Najeeb Ullah is not disputed. Even the defence has admitted the
unnatural death of deceased, but pleaded false implication. The admitted feature of the case is
that the oc currence took place at about 8.00 a.m. in the main gate of Civil Hospital Chaman,
where the deceased along with his uncle Abdul Wadood had brought his injured father to
hospital, who had received injuries in the earlier incident that had been taken place a t about 7.20
a.m. Since, the instant incident took place in front of main gate of Civil Hospital Chaman, thus
immediately the deceased was taken inside the hospital, where at about 8.20, a.m. he was
examined by PW -6 Dr. Rafiullah, Medical Officer and he is sued MLC Ex.P/6, perusal of which
suggests multiple major incised wounds on different parts of body of deceased especially on his
chest and on left femur and on left tibia. The inquest report Ex.P/7- B also suggests multiple
injuries on the person of deceas ed. The FSL report Ex.P/7- E also confirms that the waistcoat and
Chaddar of deceased were stained with human blood.
9. Now adverting to ocular testimony, the prosecution has produced seven witnesses. The
FIR was lodged on the basis of fard- e-bayan Ex.P/1- A of PW -1 Abdul Shakoor, who in his
statement reiterated the contents of fard -e-bayan correctly, PW -1 stated hat on the day of
occurrence at about 18th May 2012 he along with his brother Abdul Wadood were going to
Bazar when informed near Levies Thana by co nvict -appellant Abdul Wasay and his accomplices
and started quarrelling with them, due to which he received simple injuries, thus was shifted to
Civil Hospital Chaman when on the main gate of hospital, the accused once again reached there
and attacked upon the complainant and others. PW -1 categorically stated that the convict -
appellant Abdul Wasay was equipped with knife and he inflicted repeated knife blows to his son
Najeeb Ullah, while the accused Abdul Rasheed attacked upon him and his brother Abdul
Wad ood. PW -1 further deposed that there exists a landed dispute in between the parties. PW -1
also confirms the arrival of police soon after the occurrence. The statement of PW -1 has fully
been supported and corroborated by PW -2 Abdul Wadood, who recorded his statement in line to
the statement of PW -1. PW -2 narrated the story with regard to their departure from their house
towards Bazar and launching attack upon them by accused party near Levies Thana and
subsequently the second attack in front of Civil Hospita l Chaman. PW -2 has given a specific role
of equipping of the convict -appellant Abdul Wasay with knife and inflicting repeated blows to
his nephew Najeeb Ullah deceased. PW -2 confirms the arrival of police and arresting the culprits
from the spot. PW -3 Abdul Muhammad is also the alleged eye -witness of the occurrence, who in
his statement stated that at about 8.00 a.m. he was present in Barech Road, when received
information about the occurrence, thus rushed towards Civil Hospital and found the accused
party beating PW -1, PW -2 and the deceased Najeeb Ullah. PW -3 further ascribed a specific role
to convict -appellant Abdul Wasay that he inflicted knife blows upon the deceased.
10. We have scrutinized the statements of all the three eye -witnesses of the occurrenc e with
case. The evidence of PW -1 and PW -2 are at different footings from the statements of PW -3.
Though we have noticed some minor improvements in the statements of PW -1 and PW -2, but
despite such fact their testimonies are reliable, having weight and can be considered as worth
credence. Both the witnesses in identical manner narrated the story of their departure from the
house, their interception by the accused near Levies Thana and second attack launched against
them in front of main gate of Civil Hospit al Chaman. Both the witnesses have attributed specific
role to the convict -appellant Abdul Wasay being equipped with knife and inflicting repeated
knife blows upon the person of deceased Najeeb Ullah, due to which the deceased died at the
spot. Both the wi tnesses remained firm in their deposition with regard to date, time, place of
occurrence and the manner in which repeated occurrence had taken place. Both the witnesses
were cross -examined at sufficient length, but nothing advantageous has come on record g iving
serious dent to the case of prosecution and overall the defence has failed to shake their
testimony. The learned counsel for the appellant emphasized upon such minor improvements in
the statements of PW -1 and PW -2 and made an unsuccessful attempt to discredit the case of
prosecution, but in our view, those are not substantive enough to justify or create reasonable
doubt in the case of prosecution about the involvement and guilt of the appellant, when otherwise
both the parties are residing in the same vicinity and already having civil and criminal disputes
with each other and they also knew each other prior to the incident, thus mistaken identity of the
convict -appellant with the real culprits is ruled out of consideration. Besides, it does not
appealable to the logic that the PW -1 being father and PW -2 being uncle may substitute convict -
appellant with the real culprits, who have mercilessly inflicted knife blows upon the person of
deceased till he is dead. Though the witnesses are related to the deceas ed being his father and
uncle, but mere relationship of the witnesses inter se with the deceased is not enough to term
them to be interested witnesses, because the presence of both the witnesses at the time and the
place of occurrence is natural as due to earlier altercation PW -1 was taken to hospital for his
medical treatment. Hence, the prosecution has successfully established the presence of both the
witnesses at the spot and witnessing the crime.
11. We have taken into consideration the statement of PW -3 into juxtaposition with the
statements of PW -1 and PW -2 and observed that the presence of PW -3 and witnessing the crime
at the time and place of occurrence is entirely different. The Investigating Officer has recorded
his statement under Section 161, Cr .P.C. on 22nd May 2012 i.e. on the fifth day of occurrence.
The statements of PW -1, PW -2 as well as the contents of fard -e-bayan are completely silent with
regard to presence of PW -3 at the place of occurrence. During cross -examination PW -3 could
not stand on his own legs and the defence has succeeded in shaking his testimony and the learned
trial Court has rightly disbelieved his statement, because in presence of the evidence of direct
and natural witnesses, the testimony of PW -3 being chance witness is not helpful to the case of
prosecution. So, excluding the testimony of PW -3 Abdul Muhammad, which can be discarded as
that of a chance witness, the evidence of two other eye- witnesses does not suffer from any legal
infirmity, including that of interestedness . In this regard, we have placed reliance upon the case
of Irshad alias Shada v. The State, 1992 PCr.LJ 2273, relevant portion is reproduced herein
under: --
"There is no force in this argument as well. Mere relationship of a witness with a party
does not r ender him as an interested witness. He becomes interested witness only if he,
besides being related to the party producing him, is also inimical with the opposite party
and that too when his evidence does not inspire confidence. In the instant case, no doubt
Mst. Rehmat Bibi (P.W.8) being the mother of the deceased, Mst. Seeman (P.W.9) being
her maternal -niece and Bashir Ahmad (P. W.10) being her brother -in-law, were closely
related witnesses but they cannot be dubbed as "interested witnesses" because they had
no previous animosity with the opposite -party. So, excepting the testimony of Bashir
Ahmad (P. W.10), which can be discarded as that of a chance witness, the evidence of
two other eye -witnesses does not suffer from any legal infirmity, including that of
interestedness."
12. The case of prosecution has further been strengthened due to immediate arrest of the
convict -appellant along with crime weapon at the time and the place of occurrence. PW -5 Javed,
is the recovery witness of crime weapon i.e. knife, w ho stated that on the date and time of
occurrence he along with SHO was on patrolling duty and when reached near Civil Hospital
Chaman, found a crowd of people, hence rushed there and arrested the convict -appellant along
with the crime weapon, which was ta ken into possession through recovery memo. The statement
of this witnesses is impartial and worth credence as he had no motive or grudge to substitute the
real culprit with an innocent within such short -span of time. This also eliminates chances of
claim o f substitution of the culprit particularly when the death of the deceased in claimed manner
i.e. at place of incident with knife, is established and never disputed. We would like to take
advantage of the case of Akhter Ali v. State, 2011 SCMR 937, wherein it has been held that,
"...the appellant was apprehended immediately after the occurrence by the P.Ws. who have
absolutely no motive to implicate the appellant." Therefore, the statement of PW -5 has not only
corroborated the statements of PW -1 and PW -2, who have shown the presence of convict -
appellant at the place and the time of occurrence with crime weapon i.e. knife, but it has
corroborated the medical evidence, whereby it has been opined that the deceased was murdered
due to injuries inflicted with shar p weapon.
13. The re- appraisal of entire prosecution evidence has established the presence and
participation of the convict -appellant along with the crime weapon and causing the murder of
deceased with sharp weapon coupled with the fact that the appellant was caught red -handed soon
after the occurrence and recovery of crime weapon was also effected from his possession and
more particularly at the place of occurrence. The convict - appellant while recording his statement
on oath under section 340(2), Cr.P.C. has also admitted his arrest from the place of occurrence
by the police. The fact remains is that the police had no previous enmity with the convict -
appellant to falsely implicate him in the crime, when otherwise the convict- appellant was
nominated in the FIR registered promptly. Hence, the prosecution has successfully established
the charge against the convict -appellant beyond the shadow of reasonable doubt.
14. Now adverting to the Crl. Acquittal Appeal No.122 of 2014 field by the appellant -
complainant Abdul Shakoor against the acquittal of accused -respondents Abdul Hadi, Abdul
Rashid and Syed Ali, suffice to observe here that complainant -appellant in his fard -e-bayan and
Court statement has leveled specific allegations of assaulting him by the accused Abd ul Rashid
with knife, while beating him and his brother Abdul Wadood by the remaining accused with
kicks and fists and according to the case of prosecution they were also examined by the doctor,
but perusal of record reveals that the prosecution has failed to produce the evidence of any
medical officer that had examined the complainant and his brother. The exhibit of MLC through
the Investigating Officer in the Court has no legal and lawful value, unless the concerned
Medical Officer is produced and recorded his statement and his statement is tested through cross
examination. It has further come on record that two incidents within the intervening period of
few minutes were taken place and in the first incident about seventeen accused persons attacked
upon the complainant and his brother, due to which they sustained injured and FIR No.84/2012
was lodged at Levies Station Chaman. However, the fact remains is that prior to registering the
FIR and medically examining the injured, the second incident had taken pla ce, hence under the
circumstances it is very difficult to ascertain that in which incident they had received injuries.
Though the prosecution has established the presence of accused -respondents at the time and the
place of occurrence, but mere presence of accused -respondents is not enough to establish the
charge, hence rightly the trial Court has discarded the evidence to the extent of accused -
respondents and has come to a right and just conclusion by acquitting the accused -respondents.
The learned counsel for the appellant in Acquittal Appeal No.122/2014 has failed to point out
any illegality or irregularity in the impugned judgment of trial Court. Hence, the impugned
judgment to the extent of acquittal of accused -respondents being well reasoned is not open for
interference by this Court.
15. As regards the sentence of death awarded by the learned trial Court against the convict -
appellant Abdul Wasay for the offence of murder is concerned, suffice to observe here that there
are mitigating circumstances in th e matter, which were ignored by the learned trial Court while
passing the impugned judgment that a landed dispute that was culminated into civil and criminal
trials were pending in between the parties and after one incident the second incident had taken
place. Besides, the accused party has also lodged FIR No.94/2012 under sections 337- A, 147 and
149, P.P.C. against the complainant and others with regard to the incidents of said date of
occurrence claiming that the said occurrence had taken place at about 7 .00 a.m. i.e. prior to the
incident reported in the instant case. Apart from that the co -accused of the appellant, nominated
in the FIR have already been acquitted by the trial court and, thus mitigating circumstances could
not be ruled out and to be consi dered towards exercising caution in the matter of the appellant's
death sentence.
16. For the reasons discussed hereinabove, while upholding the conviction of convict -
appellant Abdul Wasay Son of Abdul Baqi, his sentence of death is converted into life
imprisonment. Compensation as ordered by trial Court is maintained. Benefit of Section 382- B,
Cr.P.C. is also extended to the convict -appellant. Accordingly, the instant appeal is partly
allowed. Death reference made by trial Court is answered in negative. Th e Criminal Acquittal
Appeal No.122 of 2014 is accordingly dismissed.
JK/97/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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