2018 P Cr. L J 617
[Balochistan]
Before Jamal Khan Mandokhail and Nazeer Ahmed Langove, JJ
KHAIR MUHAMMAD alias KHARIO and another ---Appellants
Versus
The STATE and another ---Respondents
Criminal Appeal No. 285 and Murder Reference No. 13 of 2014, decided on 12th September,
2017.
(a) Criminal trial ---
----Witness, statement of --- Contradictions in the statements of witnesses ---Effect ---
Contradictions in the statements of witnesses being minor in nature were not sufficient to make
the case of prosecu tion doubtful.
2009 SCMR 471 and 2013 PCr.LJ 692 rel.
(b) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl-i-amd---Appreciation of evidence ---Ocular account corroborated by medical
evidence ---Complainant (deceased) then alive, registered the case wherein he had alleged that
accused visited him for his treatment of piles ---Deceased demanded money so as to purchase raw
material to prepare medicines ---Next morning, deceased was confronted by the accused for
demanding money for medicines and made firing at hi m, which caused serious injuries to
deceased ---Sons of deceased came out from their house and saw the accused with pistol ---
Deceased told the story of assault by the accused to his sons ---Deceased was shifted to hospital
where he succumbed to injuries ---Oc ular account was furnished by the sons of deceased ---Ocular
account including the statements of sons of deceased and the contents of fard- e-bayan were in
line with the medical and recovery of empty, blood stained articles and other evidence available on re cord---Prosecution witnesses were cross -examined at length, but nothing could be unearthed
showing that they had involved the accused falsely on the basis of previous enmity or personal grudge or at the instance of someone else ---No reason was available to discard the evidence
produced by the prosecution---Ocular account furnished by the sons of deceased could not be discarded for being relatives of the deceased ---Case was not result of sudden provocation but a
preplanned and premeditated murder, thus no mi tigating circumstances for lesser punishment
were available---Circumstances established that Judgment passed by Trial Court, in circumstances did not suffer from any illegality, irregularity or misreading and non -reading of
evidence ---Appeal against convic tion and sentence was dismissed in circumstances.
2000 SCMR 163 and 1994 SCMR 1 rel.
(c) Criminal trial ---
----"Motive" and "intent" ---Distinction and scope ---Motive is the state of mind of accused, which
can be formed even at the spur of moment, therefore, absence of motive is of no consequence ---
Motive is impulse and desire that induces criminal action on the part of the accused ---Motive is
distinguished from intent, which is the design with which the act is done ---Absence of motive
can not be helpful i n presence of unimpeachable ocular evidence.
(d) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl-i-amd---Sentence, quantum of ---Object and scope---Normal sentence in case
of qatl -i-amd was death and the court while awarding the same was not under obligat ion to
record any reason ---While awarding a lesser sentence, court had to record reasons, equally to
prove the offence entailing extreme penalty of death, every possible care and caution had to be
adopted---When the offence was proved against the accused, the court had to award the
maximum sentence for that offence, even if it was a capital punishment.
2013 SCMR 1314; 2015 SCMR 856; PLD 2001 SC 475 and PLD 2015 Lah. 512 rel.
(e) Criminal trial ---
----Sentence---Meaning ---Consequence which flows after conviction can be looked as sentence.
(f) Criminal trial ---
----Punishment ---Objects.
(g) Criminal trial ---
----Sentence---Quantum ---Vital elements enumerated.
Muhammad Akram Shah for Appellant (in Criminal Appeal No.285 of 2014).
Ameer Hamza Mengal, Deputy Prosecutor -General (DPG) for the State (in Criminal
Appeal No. 285 of 2014). Ameer Hamza Mengal, Deputy Prosecutor -General (DPG) for Petitioner (in Murder
Reference No. 13 of 2014).
Muhammad Akram Shah for the State (in Murder Reference No. 13 of 2014).
Date of hearing: 28th August, 2017.
JUDGMENT
NAZEER AHMED LANGOVE, J. ---This appeal has been filed against the impugned
judgment dated 30.10.2014 (hereinafter "the impugned judgment") passed by the Additional
Sessions Judge, Killa Abdullah a t Chaman, (hereinafter "the trial Court"), whereby the
appellant/accused was sentenced under section 302(b), P.P.C. to death and also to pay an amount
of Rs.1.00,000/ - (Rupees One Lac Only) as compensation to the legal heirs of deceased, in case
of default to further undergo S.I. for six (06) months.
2. Brief facts of the case are that in pursuance of fard -e-bayan submitted by the complainant
Younas Masih (then alive), the instant case was registered at Police Station Killa Abdullah, wherein he alleged that on 26.01.2013 the accused visited him at home and asked for more
medicines and further treatment of his complain of piles with the contention that now he is feeling better, on which the complainant being a poor person, demanded money so as to purchase raw material and prepare the same, at that moment, the accused went away, however, next
morning when the complainant was on his way from Bazar to home, confronted by the accused near his house, obstructed his way by saying that knowing that "I am a well -known infamous
person how he dared to demand money". No sooner he resorted to firing at him, which caused serious injuries, firing made by the accused attracted the sons of complainant; that they came out from the house and saw the accused going, having a pistol in his hand. The complainant told his story of assault to his sons, he was shifted to the hospital where he succumbed to his injuries. Hence this case. Police laid hands on culprit, and arrested him after an encounter.
On completion of investigation, ch allan of the case was submitted and trial commenced.
On 09.03.2013 the charge was read over and explained to the accused, to which he pleaded not
guilty and claimed trial.
The prosecution, in order to substantiate its claim, produced as many as seven (07)
witnesses. On examination under section 342, Cr.P.C. the accused disputed the case of
prosecution and pleaded his innocence, however, did not opt to record his statement on oath as envisaged under section 340(2), Cr.P.C. nor produced any witness in his de fence.
3. The trial Court, after hearing the parties and evaluating evidence, found the accused
guilty, as such, convicted and sentenced him for the period mentioned hereinabove. Hence this appeal.
4. The learned counsel for the appellant argued that the j udgment impugned passed by the
trial Court is contrary to law, facts and principles of natural justice, because the learned trial Court failed to appreciate the evidence in its true perspective by holding that the prosecution has been able to prove its cas e against the accused beyond shadow of reasonable doubt. He added
that case of the prosecution was full of dents and doubts, there were material contradictions in the statements of eye -witnesses, medical evidence and report of ballistic expert but not
considered by the trial Court; that it was an unseen and blind murder of the deceased; that the
PWs 5 and 6 were managed and planted subsequently, but these important aspects of the case also escaped notice of the trial Court which caused miscarriage of justice. He added that the prosecution has badly failed to prove its case against the accused/appellant on the basis whereof the appellant being an innocent citizen and is behind the bars since his arrest is entitled to be acquitted of the charge.
5. The learned DPG strenuously opposed the appeal by submitting that the appellant is
involved in a heinous offence of Qatl -i-amd by committing broad daylight murder of an
innocent, belonged to minority community for no wrong on his part who statedly demanded
money for purchase of raw material to have prepared medicine for the accused. He added that the
prosecution has been able to prove its case against the accused/appellant beyond shadow of reasonable doubt; that the prosecution witnesses were consistent on material pa rts, medical
evidence was in line with the ocular account, therefore, the accused has rightly been convicted
and sentenced; that the learned counsel for the appellant/accused failed to point out any specific
illegality, irregularity or non -reading and misr eading of evidence or inherent defect in the
judgment impugned, as such, the appeal filed by the appellant is liable to be dismissed.
6. We have heard the learned counsel for the parties and gone through the record with their
assistance, which reflects that the instant fateful incident occurred on 27.01.2013 when the
complainant was on his way to home, when reached near his house confronted by the accused/appellant who committed his Qatl -i-amd by making fires at him, on a petty matter of his
last day demand of money to have prepared medicine for disease of piles being complained by
the accused, over all conduct of the accused, having tackled the episode in a quite light manner which shows his highhandedness in one hand and considering the complainant and his legal heirs
just as creatures on the other, which is a matter of grave concern. We know that under Article 25
of the Constitution all citizens are equal before law and are entitled to equal protection of law,
moreover, life and liberty of the citizens hav e been guaranteed without any discrimination of sex,
religion or race. Similarly under Article 36 of the Constitution legitimate rights of the minorities have further been guaranteed.
Now adverting to the merits of the case, we are clear in our minds that unnatural death of
the deceased with firearm injuries is not a matter of dispute, therefore, ballistic expert's report in
respect of the pistol in question being not in working condition is immaterial.
So far as, contradictions in the statements of witne sses are concerned, the same being
minor in nature are not sufficient to make the case of prosecution doubtful. In this respect
reliance is placed on 2009 SCMR Page 471. Relevant portion therefrom is as under:
"Both these witnesses had given consistent sta tements and they have corroborated each
other on material points. The minor contradictions pointed out in prosecution case are negligible and could be safely ignored".
Same view was taken in a judgment passed by this Court reported in 2013 PCr.LJ Page
692. Relevant observation therefrom is as under:
"It is a settled principle of law that the recovery of weapon of offence or empties is not the mandatory requirement of law, but is a circumstantial piece of evidence, which tends to corroborate the other piece s of evidence i.e. ocular account, motive, medical evidence
and any other circumstance which may deem relevant".
7. The prosecution otherwise has been able to prove its case against the accused beyond
shadow of reasonable doubt, ocular account including the statements of PWs Atif and Zafar, the sons of deceased and above all the contents of Fard- e-Bayan on the basis whereof the instant FIR
was registered by the deceased himself (then alive) are in line with the medical view coupled
with the recovery of empt y, blood- stained articles and other pieces of evidence available on
record.
Critical analysis of evidence and its deep appreciation reveals that despite lengthy and
searching cross -examination the prosecution witnesses remained firm on each and every mate rial
point, regarding date, time, venue of occurrence, committing Qatl -i-amd of the deceased by the
accused/appellant and his nomination in the FIR without loss of time, brief narration of evidence
and extract therefrom is as under:
PW-1. Muhammad Aslam, I P, is an important witness of disclosure made by the accused,
wherein the accused narrated the same details mentioned by the deceased and his sons and incorporated in the FIR, in this respect disclosure memo Ex.P/1- A was prepared and
signed by the witness.
PW-2. Naseer Ahmed, Constable, is an important witness, after receiving information in
respect of fateful incident through the son of deceased, he along with other officers
visited the place of occurrence and participated in the proceedings of site sketch, securing empty shells, bloodstained, earth, produced in the Court as articles P/1 to P/9.
PW-3. Muhammad Amin, SI, is also an important witness of visit of the place of
occurrence, participated in the proceedings of recovery of empty shells, bloodstained,
earth and other proceedings carried out on the spot.
PW-4. Aatif Iqbal, is an important eye -witness of this case, appeared before the trial
Court and stated that on 27.01.2013 at about 9:30 a.m. he was attracted by the voice of
firing, he along with his elder brother Zafar Iqbal, present inside the house, came out and
found their father in injured condition, who was laying in pool of blood, at some distance they saw Khair Muhammad alias Khairo equipped with pistol and running towards Bazar, on query, thei r father told that the accused Khair Muhammad injured him by making fires
with pistol, they went to Police Station Killa Abdullah and informed the matter to the police, his brother Zafar Iqbal along with police shifted his father in injured condition to Civil Hospital, Quetta, where he succumbed to his injuries.
PW-5. Zafar Iqbal, is also an important eye -witness of this case, appeared and recorded
his statement before the trial Court and corroborated the words deposed by PW -4 in letter
and spirit, cross -examined at length but remained firm with regard to last seen evi dence,
presence of the accused on the spot with pistol, his running towards Bazar, nomination of the accused/appellant by his injured father and other details as narrated by his brother and father (when alive).
PW-6. Dr. Ali Mardan, is also an important wi tness, appeared and recorded his statement
on oath, wherein he supported the ocular version narrated by the PWs named above and unnatural death of the deceased, he further deposed that during the course of recording his statement he vouched MLC No.44 4/MM Ex.P/6 -A whereupon he identified his
signatures.
PW-7. Muhammad Idrees, IP/SHO, is the Investigating Officer of this case, appeared and
recorded his statement on oath wherein he stated that after entrusting investigation, he
visited the place of occurrence, prepared site sketch, secured bloodstained earth, empty shells, recorded the statements of witnesses, in the meantime, the accused was arrested in an encounter in injured condition with the pistol, the articles were sent to experts for opinion, he received results and submitted the same through challans, he identified the
accused present in the Court.
As discussed, in supra paras that the above named witnesses were cross -examined at
length, but nothing could be unearthed showing that either they have involved the accused
falsely on the basis of previous enmity or personal grudge or at the instance of someone else,
which in the instant case is out of question and is manifest from the conduct of the parties, as
such, there is no reason to discard the evidence which too without any justification or a single
ground convincing a prudent mind. So far as the credibility of evidence furnished by PWs 4 and 5 is concerned, their evidence cannot be discarded only on the basis of their being relatives of the deceased. In this respect reliance can be placed on 2000 SCMR Page 163. Relevant observation
therefrom is as under:
"The contention that a witness who is related to the deceased is an interested witness, has since long been discarded by this Court. It is settled pr oposition of law by now that
interested witness is the one who has an animus for false charge. Mere relationship of a witness to the deceased is not enough of a reason to discard his testimony because such a witness is necessarily not an interested witness in the true sense of the term. This Court
has gone to the extent that even evidence of interested witness is always not discarded. Reference may be made to the law laid down by this Court in Niaz v. State (PLD 1965 SC 188). In Aslam and another v. The Sta te (1997 SCMR 1284), a Full Bench of this
Court had reiterated the law on this score that in the final analysis, it is neither the relationship of the witnesses with the deceased or that of the P. Ws. inter se nor in the appropriate cases even their being the interested witnesses that provided an ultimate guidance for according credence to their testimony.".
Further reliance is placed on 1994 SCMR Page 1. Relevant observation therefrom is as
under:
"Mere friendship or relationship does not make a witness a n interested one and testimony
of such a witness who otherwise seems to be a truthful witness cannot be rejected on such ground. An interested witness is one who has a motive for falsely implicating an accused, is a partisan and is involved in the matter a gainst the accused Friendship or relationship
with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused. The principles for accepting the testimony of even an interested witness are set out in Nazir v. The State PLD 1962 SC 269".
Coming back to the merits, it was a broad daylight murder of a poor and helpless man on
a petty matter of money requested by him to prepare medicine of appellant's complain of piles but responded in a cruel manner which too on next day, meaning thereby it was not the result of sudden provocation rather a preplanned and premeditated murder of a poor and helpless person, belonged to minority, therefore, in our considered view, no mitigating circumstances sine qua non for lesser punishment are available.
Further reliance is placed on a judgment of the Apex Court reported in 2013 SCMR Page
1314. Relevant observations therefrom are reproduced herein below:
"In the facts and circumstances of the case, the considerations pertaining to quantum of
sentence, have been examined. The reasons for the award of the death penalty far out weight the consideration for the award of lesser sentence. The tender age of the minor, the brutal and heinous nature of the crime and pre -mediation persuades us to agree with
the sentence awarded by the learned trial Court as well as the learned High Court. The deterrent aspect of the sentence cannot be lost sight of either as it was a crime of kidnapping for ransom of minor, followed by murder. In such an eventuality, the normal sentence of death should be awarded and the Court should neither hesitate nor search for labored pretexts to award a lesser sentence, as has been held by this Court, in the case, reported as Muhammad Sharif (supra)".
So far as motive for commission of offence is concerned, motive is the state of mind of
an accused, which can be formed even at the spur of moment, therefore, even absence of motive is of no consequence, because motive is impulse and desire that induces a criminal action on the
part of the accused. It is distinguished from "intent", which is the design with which the act is done. Therefore, it can safely be concluded that absence of motive is not helpful in presence of unimpeachable ocular evidence.
As a matter of fact, substitution of a perpetrator of crime is very rare phenomenon
particularly in the instant case is out of question, not acceptable to a man of prudent mind nor appeal to logic and reason.
So far as the quantum of sentence is concerned, we would like to define the word
"sentence" (as per the Penal Law by Gour) The word sentence is defined in Law Lexicon as the term is used in criminal law, is the appropriate word to denote the action, the action of the Court before, which the trial declaring the consequence to the convict of the fact thus ascertained,
therefore, any consequence which flows after conviction can be looked upon as sentence. Consequently disqualification would come within the expression sentence.
The object of punishment is four folded; -
(i) To serve as a deterrent to other persons who may be similarly inclined;
(ii) To be prevented;
(iii) To be reformative;
(iv) To be retributive.
Now, the vital elements to be considered for assessing quantum of sentence are; -
(a) Nature of the offence;
(b) Circumstances in which the offence was committed;
(c) Degree of deliberation shown by the offender;
(d) Provocation which the offender had received,.
(e) Antecedents of the person to be sentenced;
(f) Age and character of the offender.
We are clear in our minds that normal sentence in a murder case is death and the Court
while awarding the same is not under obligation to record any reason, but while awarding a
lesser sentence, it has to record reasons, equally to prove an offe nce entailing extreme penalty of
death every possible care and caution has to be adopted, in this behalf, however, when an offence is proved, it has to be met with maximum sentence provided thereof, as such, when an offence is
proved against an accused, the Court should never hesitate to award punishment for that offence,
even if it is a capital punishment. In this regard, it may be observed that in the instant case
requirement of 'Tazir' is fully available, therefore, to our perception, for awarding a deat h penalty
to the appellant Khair Muhammad, the Court was not bound to record any reasons because in such a case the Court is under legal obligation only if it awards lesser punishment. In forming this view, we are fortified by the judgments titled as Hamid Mahmood and another v. The State,
reported in 2013 SCMR Page No. 1314, relevant observations therefrom are reproduced herein below:
"Deterrence is a factor to be taken into consideration, while awarding the sentence specially, the sentence of death and in this behalf, reference can be made to the judgment
of this court, reported as Khurram Malik and others v. The State and others (PLD 2006 SC 354) wherein it was held that; -
"... It is also to be noted that justice is not for one but is for all and while ex amining the
case of convict; the Court owe a duty to the legal heirs/relatives of the convict and also to the society that justice should also be done with them as well, thus the sentence should be such which should serve as deterrent for the like -minded person as observed in the case
of Muhammad Saleem v. The State PLD 2002 SC 558, State v. Farhan Ali PLD 1995 SC 1."
Likewise in the judgment titled as Dadullah and another v. The State, reported in 2015
SCMR page 856 (relevant at 862), it held as under; -
"Conceptually punishment to an accused is awarded on the concept of retribution,
deterrence or reformation. The purpose behind infliction of sentence is twofold. Firstly, it would create such atmosphere, which could become a deterrence for the people who ha ve
inclination towards crime and secondly to work as a medium in reforming the offence. Deterrent punishment is not only to maintain balance with gravity of wrong done by a person but also to make an example for others as a preventive measure for reformati on of
the society. Concept of minor punishment in law is to make an attempt reform an individual wrongdoer. However, in such like cases, where the appellants have committed a pre- planned dacoity and killed two persons, no leniency should be shown to the
culprits. Sentence of death would create a deterrence in the society due to which no other
person would dare to commit the offence of murder. If in any proved case lenient view is
taken, then peace, tranquility and harmony of society would be jeopardized and vandalism would prevail in the society. The courts should not hesitate in awarding the maximum punishment in such like cases where it has been proved beyond any shadow of doubt that the accused was involved in the offence. Deterrence is a factor to be taken into
consideration while awarding sentence, specially the sentence of death. Very wide
discretion in the matter of sentence has been given to the courts, which must be exercised
judiciously. Death sentence in a murder case is a normal penalty and the Co urts while
diverting towards lesser sentence should have to give detailed reasons. The appellants have committed the murder of two innocent citizens and also looted the bank in a wanton, cruel and callous manner. Nowadays the crime in the society has reach ed on alarming
situation and the mental propensity towards the commission of the crime with impunity is increasing. Sense of fear in the mind of a criminal before embarking upon its commission could only be inculcated when he is certain of its punishment provided by law and it is only then that the purpose and object of punishment could be assiduously achieved. If a Court of law at any stage relaxes its grip, the hardened criminals would take the society on the same page, allowing the habitual recidivist to run away scot -free or with
punishment not commensurate with the proposition of crime, bringing the administration of criminal justice to ridicule and contempt. Courts could not sacrifice such deterrence and retribution in the name of mercy expediency. Spa ring the accused with death
sentence is causing grave miscarriage of justice and in order to restore its supremacy, sentence of death should be imposed on the culprits where the case has been proved."
We are of the considered view that while dealing with the question of sentence, approach
of the Court should be dynamic and the Court has to find ways and means to guarantee, complete dispensation of justice to all stake holders of a criminal case, as most of them being unaware of
the legal technicalities, flaws/lacunas left in the investigation and defects in conduct of their trials, only see the result announced by the Court and form an opinion about prevailing system of administration of justice.
In this respect, reliance is placed on PLD 2001 SC 475, rele vant observation therefrom is
as under:
"It may be observed that the normal sentence for an offence of murder is death sentence. This is to be awarded as a matter of course except where the Court finds some mitigating circumstances which may warrant imposition of lesser sentence namely imprisonment for life.
It was further observed that;
"The people are losing faith in the dispensation of criminal justice by the ordinary Criminal Courts for the reason that they either acquit the accused persons on technica l
grounds or take a lenient view in awarding sentence. It is high time that the Courts should realize that they owe duty to the legal heirs/relations of the victims and also to the society. Sentences awarded should be such which should act as a deterrent t o the
commission of offences."
While dealing with the quantum of sentence, approach of the Court should always be
dynamic. In this respect, reliance can be placed on PLD 2015 Lahore 512. It may not be
irrelevant to note down here that mitigating means, ma king something less harmful, pleasant or
bad, that there may be mitigating circumstances, which might help explain appalling behavior or criminal activity of the offender. While in the instant case, no such factor has been brought on
record, which may offe r even a slightest explanation for a terrible behavior of the accused, while
making repeated fires at the deceased, a poor, empty handed and helpless person, as such, we see
no extenuating circumstances in his favour, which could, justify our interference with the sentence awarded to him by the trial Court.
The learned trial Court passed a well reasoned and speaking judgment which does not
suffer from any illegality or irregularity or misreading and non -reading of evidence, therefore, is
not liable to be r eversed even on reappraisal of evidence we could not form a contrary view with
that of the trial Court, as such, the judgment impugned passed by the trial Court is not open to any exception hence is maintained consequently the appeal filed by the appellant /accused namely
Khair Muhammad alias Khairo is hereby dismissed, in the result thereof reference sent by the trial Court is answered in "Affirmative".
Orders accordingly.
JK/170/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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