2018 P Cr. L J Note 213
[Balochistan]
Before Naeem Akhtar Afghan and Abdullah Baloch, JJ
GHULAM HABIB ---Appellant
Versus
The STATE--- Respondent
Criminal Jail Appeal No. 17 of 2017, decided on 29th May, 2018.
Penal Code (XLV of 1860) ---
----Ss. 302 & 324--- Qatl-i-amd, attempt to, commit qatl -i-amd---Appreciation of
evidence--- Prosecution case was that complainant along with her son and
accused/husband were present in her house, when her minor daughter cried, her
husband/accused got annoye d and started abusing, in the meantime, her elder son came in
the room and her husband on seeing him got provoked, took out pistol and started firing, as a result, one bullet hit her arm, while the second bullet hit the chest of her son, who
died at the sp ot---Prosecution had produced seven witnesses including complainant ---
Complainant, who was injured in the incident, recorded her statement in line to her
previous statement contained in fard-e-bayan ---Said witness was cross -examined at
sufficient length by the defence, but nothing material had come on record in favour of
defence rather it further elaborated the scene of incident ---Accused being husband of the
complainant, while the deceased was her son and the complainant herself received a bullet injury, t hus, under peculiar circumstances of the case, neither the presence of the
complainant at the relevant time could be doubted nor it was acceptable for a prudent
mind that wife would involve her husband in the murder case of her son letting free the
real cu lprits ---Sole statement of the injured lady (wife of accused) was enough to
establish the charge against the accused in circumstances ---Statement of complainant on
all angles would divulge the fact that there existed not a single circumstance, creating
doubt in any manner with regard to her presence at the site being injured witness and her
ocular testimony had duly been supported by the medical evidence ---Confessional
statement of accused reflected that the same was recorded by the Judicial Magistrate in accordance with law, confessional statement of accused showed that same was recorded
without any coercion, pressure, torture or blackmailing, rather the accused realized his
shameful act and due to embarrassment, he immediately agreed to record his confessi on--
-Weapon of offence, T.T. pistol was recovered from the possession of accused ---
Circumstances established that prosecution had successfully established the charge
against accused ---Appeal being devoid of merits was dismissed accordingly. [Paras. 9,
10, 12 & 13 of the judgment]
Rashid Alam v. The State and others 2015 YLR 794 and Hashim Qasim v. The
State 2017 SCMR 986 rel.
Masood Ahmed Dotani and Asmatullah Mandokhail for Appellant.
Abdul Qahir Khan, State counsel.
Date of hearing: 7th May, 2018.
JUDGMENT
ABDULLAH BALOCH, J. ---The appellant Ghulam Habib son of Rehman Khan,
has filed this Criminal Jail Appeal through Superintendent Central Prison Mach, assailing
his conviction and sentence awarded by the learned Sessions Judge, Pishin (hereinafter referred as, "the trial Court") vide judgment dated 4th May 2017 (hereinafter referred as,
"the impugned judgment"), whereby he has been convicted under section 302(b), P.P.C.
and sentenced to suffer imprisonment for Life as Taz'ir with compensation of
Rs.3,0 0,000/ - (Rupees Three Lacs) to the legal heirs of deceased as envisaged under
section 544 -A, Cr.P.C. or in default thereof to further suffer R.I. six months' S.I.; under
section 337- F(i), P.P.C. and sentenced to suffer one (01) year's S.I. and to pay Daman of
Rs.10,000/ -, with the benefit of section 382- B, Cr.P.C. Needless to mention here that the
learned trial Court has directed that the sentences awarded in this case and in the
connected arm case, to be run concurrently.
2. Facts of the case are that on 1 5th October, 2016, the complainant Zar Bibi wife of
Ghulam Habib, lodged FIR No. 36 of 2016 at Levies Thana Huramzai District Pishin, under sections 302, 324, P.P.C., stating therein that on the day of occurrence at about 07.00 p.m. she along with her son Abdullah and husband Ghulam Habib (appellant) were
present in her house, when in the meantime her younger daughter was crying, her husband told her to keep the minor silent, hence she tried to keep her minor daughter silent, but all
in vain, due to which h er husband became annoyed and started abusive language. In the
meantime, her elder son Muhammad Hashim came in the room and her husband on seeing
her son became further provoked, took out pistol and started firing, as a result of firing, one bullet hit at her right arm, while the second bullet hit at the chest of her son
Muhammad Hashim, who died at the spot. After commission of crime, the accused
decamped from the place of occurrence.
3. In pursuance of the above FIR, investigation of the case was entruste d to PW -7
Ahmed Shah, Dafedar Levies/Investigating Officer (I.O.), who during investigation inspected the site and prepared site sketch: carried out proceedings under section 174,
Cr.P.C. and prepared inquest report; shifted the deceased and the injured (c omplainant) to
hospital for medical examination; obtained MLCs of deceased and injured; arrested the
appellant on 16th October 2016 and recovered the crime weapon i.e. pistol from his possession and accordingly due to non- production of any valid license or permit for the
recovered pistol, lodged separate FIR under the Arms Ordinance, 1965 against the
appellant; recorded the statements of witnesses under section 161, Cr.P.C.; got recorded the confessional statement of appellant under section 164, Cr.P.C., an d on completion of
investigation submitted the challan in the trial Court.
4. At the trial, the prosecution examined seven witnesses. The appellant was
examined under section 342, Cr.P.C. The appellant neither recorded his statement on oath under section 340(2), Cr.P.C. nor produced any witness in his defense. On conclusion of trial and after hearing the arguments, the appellant was convicted and sentenced as
mentioned above in Para No.1, whereafter instant Criminal Jail Appeal has been filed
before this Court.
5. Learned counsel for pauper appellant contended that the prosecution has badly
failed to establish the charge against the appellant; that the impugned judgment suffers
from mis -reading, non -reading and mis -appreciation of evidence available on recor d; that
the murder of deceased son of the appellant has not been proved on record as being father
the appellant cannot conceive to commit such crime rather his involvement in the crime is
due to some misconception; that the confessional statement of the appellant under section 164, Cr.P.C. is the result of coercion and pressure; that the recovery of crime weapon has not been established to have been recovered from the possession of the appellant; that the
prosecution has miserably failed to establish the ch arge against the appellant through
consistent and confidence inspiring evidence; that the impugned judgment suffers from
misreading and non- reading of material available on record.
6. Learned State counsel while supporting the impugned judgment of convicti on,
strongly opposed the arguments so advanced by the learned counsel for the appellant and
stated that the prosecution through concrete, solid and cogent evidence has succeeded in
establishing the charge against the appellant; that the case of prosecution has been
strengthened from recording the statement of appellant under section 164, Cr.P.C. as well
as recovery of crime weapon and the direct statement of injured witness, who otherwise is the wife of the appellant; that the appellant has failed to bring on record any mala fide or
ulterior motive on the part of prosecution with regard to his false implication.
7. Heard the learned counsel and perused the available record. Perusal of record
reveals that the prosecution in order to establish the charge has produced direct evidence,
circumstantial evidence, confessional statement of appellant recorded under section 164, Cr.P.C. and also produced the crime weapon through which the deceased was murdered.
Undoubtedly, the deceased Muhammad Hashim was the son of a ppellant Ghulam Habib,
who was murdered in the house of the appellant. Before dilating upon ocular testimony, it
would be appropriate to first discuss the medical evidence.
8. The unnatural death of deceased Muhammad Hashim and receiving of bullet injury
is not disputed. According to PW -4 Dr. Salimullah Pathan, Medical Officer, DHQ
Hospital Pishin, on the night of occurrence at about 09.00 p.m. the dead body of
Muhammad Hashim d eceased and injured namely Zar Bibi were brought by Levies
Huramzai for examination, hence he examined the deceased Muhammad Hashim and
observed an entrance wound on right side on the chest and exit on back side. PW -4 has
further opined the probable cause of death of deceased due to loss of blood caused by
firearm. He issued MLC Ex.P/4 -A, which confirms the unnatural death of deceased.
Likewise, PW -4 also examined the injured Zar Bibi (PW -1) and observed an entrance
wound on right hand upper side and exit back side. According to PW- 4 the duration of
injury was fresh and was caused by fire arm weapon. He issued MLC Ex.P/4 -B, bare
perusal of which establishes the fact that his death was unnatural as he received fire arm injuries on his vital part of body. Besi des, the MLC of injured also confirms receiving of
bullet injury. Even otherwise, the defence has also not disputed the unnatural death of
deceased, but pleaded false implication.
9. The prosecution in order to establish the charge has produced the evidenc e of
seven witnesses. The star witness of the prosecution is the complainant Zar Bibi, who was
injured in the incident and appeared in the Court as PW -1. This witness recorded her
statement in line to her previous statement contained in the fard -e-bayan Ex .P/1-A.
According to the PW -1 on the night of occurrence she was present in her house along
with her son Abdullah and with her husband Ghulam Habib (appellant), while her younger daughter was crying and making noise, due to which the appellant became annoy ed and told the complainant to calm down the minor, but despite her best efforts the
young daughter did not keep silence, due to which the appellant became further provoked
and started abusive language, while in the meantime his son Muhammad Hashim entered
in the room, the appellant took out his pistol and fired upon his son Muhammad Hashim and upon the complainant, which resulted into receiving of bullet injury by her son Muhammad Hashim on his chest, who succumbed to the injuries at the spot, while a
bullet also hit to the complainant (PW -1). This witness was cross -examined at sufficient
length by the defence, but nothing material has come on record in favour of the defence
rather the cross -examinations upon this witness has further elaborated the scene of
incident that was taken inside the house.
10. Since the appellant is the husband of PW -1, while the deceased was her son and
even in the said incident the PW -1 herself received a bullet injury, thus under peculiar
circumstances of the case neither the presence of the PW -1 at the relevant time can be
doubted nor it is acceptable for a prudent mind that a wife would involve her own husband in the murder case of her son letting free the real culprits, who took the life of her young son. Thus, being the injure d witness and keeping into consideration her relation
with the deceased and the appellant, her sole statement is enough to establish the charge against the appellant. Even otherwise, according to settled norms of justice very strong and convincing evidence is required to discredit the evidence of an injured witness,
because the testimony of such witnesses is accorded a special status in law, as she is a
witness that comes with a built -in guarantee of his presence at the scene of crime, he
minute scrutiny of the statement of PW -1 on all angles would divulge the fact that there
exists not a single circumstance that creates doubt in any manner with regard to her non-
presence at the site being injured witness and her ocular testimony has duly been
supported by t he medical evidence. Reliance in this regard is placed on the case of Rashid
Alam v. The State and others 2015 YLR 794, wherein it has been held as under:
"It is settled law that the evidence of an injured witness must be given due weight, being a stamped witness, thus, his presence at the spot, at the time of occurrence,
cannot be doubted. The statement of an injured witness generally, is to be considered very reliable and it is unlikely that he will spare the actual assailant in order to falsely implicat e some one else. His testimony has its own relevancy and
efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present at the time and place of
occurrence. Thus, the testimony of injur ed witness is accorded a special status in
law, as he is a witness that comes with a built- in guarantee of his presence at the
scene of crime. Very convincing evidence is required to discredit the testimony of
an injured witness. The statement of complaina nt, being a stamped witness, may
not be brushed aside on the basis of minor discrepancies or contradictions. Minor discrepancies do occur in the statements of P.Ws. with the passage of time, which are inbuilt proof of veracity of their statements. They are never expected to give a
tape- recorded statement, having no discrepancy inter se. Such like discrepancies
may not affect the merits of the case. Those contradictions are considered to be fatal which materially negates the prosecution version, but no such contradiction has been pointed out by learned counsel for the appellant -convict in the
prosecution evidence. It is well entrenched principle that in hurt cases solitary
statement of the injured corroborated by medical evidence, is sufficient for
recording conviction, if it rings true. In the instant case, complainant injured has
furnished the actual and truthful account of the occurrence which is corroborated by eye -witness Rehman Gul and supported by medical evidence." [BOLD
ADDED]
11. PW-2 Abdullah is the son of the complainant and appellant, according to whom at
the relevant time he was not present in his house, when the alleged incident had taken place, but on his arrival at his house, her mother (complainant) informed him about the incident. PW -3 Abdul Karim, Dafedar and PW -5 Syed Abdul Wadood, Levies Khasadar
are the witnesses of arrest of the appellant as well as the recovery witness of crime
weapon i.e. T.T. pistol recovered on the pointation of appellant. The statement of PW -4
has already been discus sed above. PW -6 Iftikhar Ahmed Shah, Judicial Magistrate
Huramzai recorded the confessional statement of the appellant, while PW -7 is the
Investigating Officer of the case.
12. The case of prosecution has further been strengthened by the confessional
state ment of the appellant. Admittedly, the FIR was lodged on 15th October, 2016 and on
the following day of occurrence i.e. 16th October, 2016, the appellant was arrested, while
he was produced before the Judicial Magistrate on the fifth day of his arrest i.e. 19th
October, 2016. Meaning thereby soon after his arrest the appellant was feeling guilty of
committing murder of his son and that's why soon after his arrest he shown his
willingness to record the said confessional statement. We have also perused the confessional statement of appellant Ex.P/6 -A and Ex.P/6- B, which reflects that the same
was recorded by the learned Judicial Magistrate in accordance with law by putting all relevant question upon the appellant and recording the answers replied by the appell ant.
The appellant in his confessional statement has uttered the story with regard to his presence in his house along with other family members, the arrival of his deceased son
and using of objectionable words against him, due to which he became emotional and
made firing upon him, which resulted into the death of his son and injuring his wife. The perusal of confessional statement of the appellant, confirms that the same was recorded without any coercion, pressure, torture or blackmailing rather the appella nt realized his
shamefaced act and due to embarrassment, he immediately agreed to record his
confessional statement. Thus, there is absolutely no reason available for us to disagree or
disbelieve such confessional statement, which on the face of it appears to be recorded in
accordance with law, without any fear or torture. The Hon'ble apex Court in the case of
Hashim Qasim v. The State 2017 SCMR 986, has held that, "For accepting a confession,
two essential requirements must be fulfilled; first, that the co nfession was made
voluntarily and was based on true account of facts leading to the crime and, second, the
same was proved at the trial." Admittedly, the said two essential requirements have been
fulfilled in the case in hand as through the evidence it has not only been established that
the same is voluntarily, but also it was proved at the trial.
13. The case of prosecution has also been strengthened from the recovery of crime
weapon. According to PW -3 and PW -5 on receipt of spy with regard to his conceali ng in
a hut shape house, hence the Levies Authorities conducted raid on the pointed place and
arrested the appellant and his personal search was resulted into recovery of T.T. pistol
from the armpit pocket of the appellant.
14. The conduct of the appellant has also strengthened the case of prosecution, who
despite murder of his son and receiving of bullet injuries by his wife has absconded from
the place of occurrence and he was arrested by the Levies on the following day of incident. Had the appellant was innocence, he immediately could have lodged the FIR instead of absconding or keeping mum upon such tragic incident. Besides, he has also not
disputed the unnatural death of his deceased son. All these facts suggest that actually it
was the appellant, who has committed the murder of his son.
15. The overall reappraisal of the evidence available on record, it is concluded that the
prosecution has successfully established the charge against the appellant in respect of his murder of his own son and injuring his own wife against the appellant through solid and
concrete evidence. The complainant of the case is the wife of appellant and also she was the mother of deceased and moreover she was also received bullet injury in the said incident, thus in no way her pres ence at the relevant time and witnessing the crime can be
doubted. The case of prosecution has further been strengthened by the confession
statement of appellant recorded by him voluntarily as well as the recovery of crime
weapon are the enough proof to es tablish the guilt of the appellant. Hence, we have no
hesitation to hold that the trial Court after proper appraisal of evidence available on
record has rightly awarded conviction and sentence to the appellant. The impugned
judgment is based upon proper appraisal of material available on record and the defence
has failed to point out any illegality or irregularity in the same, requiring interfere by this Court.
For the above reasons, the appeal being devoid of merits is dismissed.
JK/56/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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