2023 P Cr. L J 1429
[Balochistan (Sibi Bench)]
Before Abdullah Baloch and Shaukat Ali Rakhshani, JJ
IHSAN ALI ---Appellant
Versus
The STATE--- Respondent
Criminal Jail Appeal No. S -13 and Murder Reference No. S -4 of 2021, decided on 27th
December, 2022.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 324--- Qatl-i-amd, attempt to commit qatl- i-amd---Appreciation of evidence-
--Ocular account truthful and confidence inspiring---Accused was charged for committing
murder of his wife and injuring his cousin after proclaiming him to be siyakaar with his wife -
--Record showed that complainant was the brother of deceased and he reiterated what he had reported in his application on the basis whereof FIR was registered--- Complainant was cross -
examined from various angles with regard to timing, place of occurrence and other aspects, but he remained firm to his examination- in-chief ---Other witness was uncle of the deceased
and he testified and corroborated the testimony of his nephew ---Said witness gave similar
account of the occurrence as deposed by other eye -witnesses ---Another witness testified in
line with the testimony of both the said witnesses by furnishing the detailed account of murder of deceased and causing injuries to injured ---Said witnesses were cross -examined on
various points with the purpose to discredit and dispute their presence, but their testimony went unshaken---Though, some minor discrepancies were observed, but same were ignorable, having no importance to discredit their testimony or to be fatal to the case of the prosecution---Injured, who received injuries at the hands of the accused testified that while he was asleep, he woke up due to the clamor and had seen the accused armed with a hatchet, who attacked him, whereby he sustained injuries, and when complainant and witnesses tried to apprehend him, he escaped by proclaiming him siyakaar with his wife ---Testimony of
injured, despite lengthy cross -examination could not be shattered---Injured remained firm
and consistent to his testimony like other eye -witnesses ---Ocular account had been found to
be confidence -inspiring and truthful ---Eye -witnesses had proved their presence as all of them
were living together almost in the same premises ---Nothing had been brought on record to
justify that the testimony of the eye -witnesses was fabricated or false--- Even otherwise, there
was also no plausible justification as to why they would let go the real culprits and falsely implicate the accused for no reason ---Circumstances established that the prosecution had
proved its case against the accused beyond any shadow of doubt, however, due to mitigating circumstance sentence was converted and reduced from capital penalty to that of life imprisonment--- Appeal was dismissed with said modification in sentence.
(b) Criminal trial ---
----Medical evidence--- Scope ---Medical evidence is not considered as a corroborative piece
of evidence rather it merely confirms the nature, locale and timing of the injuries, but it does
not indentify an accused.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b) & 324--- Qatl-i-amd, attempt to commit qatl- i-amd---Appreciation of evidence-
--Medical evidence---Corroborating ocular account ---Accused was charged for committing
murder of his wife and injuring his cousin after proclaiming him to be siyakaar with his wife -
--Medical evidence confirmed that the injuries received by the deceased as well as by injured were caused by a sharp weapon, having been caused within a short span of time as rigor
mortis had not yet developed--- Even otherwise, homicidal death of the deceased had not
been disputed by the defence except suggesting that such Medico- Legal Certificates were
fake---Circumstances established that the prosecution had proved its case against the accused
beyond any shadow of doubt, however, due to mitigating circumstance sentence was converted and reduced from capital penalty to that of life imprisonment ---Appeal was
dismissed with said modification in sentence.
(d) Penal Code (XLV of 1860)---
----Ss. 302(b) & 324--- Qatl-i-amd, attempt to commit qatl- i-amd---Appreciation of evidence-
--Recovery of hatchet from the accused---Reliance---Accused was charged for committing murder of his wife and injuring his cousin after proclaiming him to be siyakaar with his wife -
--Crime weapon (hatchet) was recovered from the possession of the accused ---Forensic
Science Laboratory Report affirmed that clothes and the hatchet were stained with human blood--- Recovery of hatchet stained with blood from the accused soon after the occurrence
corroborated and strengthened the prosecution case ---Recovery witness, who produced the
memo was cross -examined at length, but he remained firm and consistent and his testimony
went unshaken---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, due to mitigating circumstance sentence was converted and reduced from capital penalty to that of life imprisonment ---Appeal was
dismissed with said modification in sentence.
(e) Penal Code (XLV of 1860)---
----Ss. 302(b) & 324--- Qatl-i-amd, attempt to commit qatl- i-amd---Appreciation of evidence-
--Sentence, reduction in ---Motive not proved--- Accused was charged for committing murder
of his wife and injuring his cousin after proclaiming him to be siyakaar with his wife ---
Prosecution had pleaded that the accused had committed murder of the deceased and had attacked the injured after proclaiming them siyahkar, but the prosecution failed to prove the motive by producing any independent, convincing and confidence inspiring evidence to establish that actually the occurrence took place due to the motive of siyahkari ---Thus,
failure by the prosecution to set up the motive and then not proving it gave rise to mitigating circumstance---Circumstances established that the prosecution had proved its case against the
accused beyond any shadow of doubt, however, due to mitigating circumstance sentence was
converted and reduced from capital penalty to that of life imprisonment ---Appeal was
dismissed with said modification in sentence.
Muhammad Shoban v. The State 2022 SCMR 1608 rel.
Nemo for Appellant (in Criminal Jail Appeal No. S -13 of 2021).
Jamil Akhtar Gajani, Additional P.G. for the State (in Criminal Jail Appeal No. S -13
of 2021).
Jamil Akhtar Gajani, Additional P.G. for Appellant (in Murder Reference No. S -4 of
2021).
Rizwan Ali Soomro for Respondent (in Murder Reference No. S -4 of 2021).
Date of hearing: 23rd November, 2022.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J. ---For culpable Homicide of Mst. Haseena Bibi
(deceased) and for committing attempt to murder of Sojhla (PW -4), the appellant was
indicted vide application (Ex.P/1 -A) submitted by brother of deceased Huzoor Bakhsh (PW -
1), whereupon FIR No.23 of 2021 (Ex.P/9- A) dated 23.02.2021 within the remits of Police
Station City Dera Murad Jamali was registered, who after a full -fledged trial was found
guilty of the charge, culminating into conviction and sentence in the following terms;
"Under section 302(b), P.P.C. 1860 as tazir and sentenced with death. He be hanged by the neck till he is dead. He is also directed to pay Rs. 4,00,000/ -(Rupees Four lac)
to the legal heirs of deceased Hasina as compensation under section 544- A of Cr.P.C.
In default of payment of compensation amount to the legal heirs of deceased person the accused shall further underone for simple imprisonment of Six (06) Months. The accused person is also convicted under section 324, P.P.C. and sentenced of suffer R.I for Ten (10) years with fine of Rs. 20,000/ - (Rupees Twenty Thousand), in default of
payment of fine to further S.I for three (03) months. The benefit under section 382- B,
Cr.P.C is extended towards accused."
The Trial Court also sent Murder Reference No.(S) 04 of 2021 for confirmation of the
capital sentence.
2. Facts germane for imparting the instant appeal as well as connected murder reference
reveals that complainant Huzoor Bakhsh (PW -1) got registered the report ibid, averring
therein that on 23.02.2021 at 5:40 a.m., while he along with his family members was asleep at home, he woke up on the clamour and saw that appellant Ihsan Ali was striking his (PW -1)
sister with hatchet and when they tried to apprehend him he went towards the room of his cousin Sojhla (PW -4) and the appellant attacked upon him as well with hatchet, whereby he
sustained injuries. According to him, appellant while making escape proclaimed his wife and
cousin injured Sojhla to be siyakaar.
As the investigation progressed, the crime scene was secured; the deceased and
injured were sent to Civil Hospital, where Dr.Razia Lady Medical Officer (PW- 5) examined
the deceased Mst. Haseena and issued MLC (Ex.P/5 -A), whereas injured Sojhla was
medically examined by Dr. Hamal (PW -6) Medical Officer District Headquarter Hospital
Dera Murad Jamali, who issued MLC (Ex.P/6- A).
3. Barkat Ali Bhangra SI -Investigating Officer ("IO") (PW -9) prepared site plan
(Ex.P/9 -B), inquest report of deceased (Ex.P/9- C) and arrested appellant with a hatchet,
allegedly stained with blood, which was taken into possession through recovery memo
(Ex.P/8 -A); the bloodstained clothes and hatchet were sent to Forensic Science Laboratory
Crime Branch, Balochistan, Quetta ("FSL, Quetta"), whereof positive FSL report (Ex.P/9- E)
was received and on conclusion of investigation, the appellant was put on trial, where after denial of the charge by him, the prosecution produced nine witnesses and on closure of prosecution side, he was examined under section 342, Cr.P.C. He did not opt to record his statement on oath or produced any defence evidence; henceforth, on conclusion of the trial, a verdict of guilt was recorded by the Trial Court and consequent thereto the appellant was convicted and sentenced in the terms mentioned in para supra.
4. Learned counsel for the appellant inter alia contended that the prosecution witnesses
PW-1 to PW -3 claiming to be the eye -witnesses of the occurrence and PW- 4 stated to have
received injuries are untrustworthy as there are material contradictions in their statements, which has made the case of the prosecution highly doubtful. He further added that the medical evidence as well as recovery of hatchet also do not corroborate the ocular account,
but the Trial Court by misreading the evidence has convicted and sentenced the appellant on the basis of improper appraisal of the evidence, which has made the impugned judgment a nullity in the eyes of law, thus the appellant deserves acquittal.
On the other hand, learned APG opposed the appeal and controverted the contentions
so raised by learned counsel for the appellant. It was argued that the prosecution has successfully proved the case beyond any reasonable doubt on the basis of ocular account furnished by PW -1 to PW -4, which has been corroborated by medical evidence as well as by
the recovery of hatchet. He maintained that the findings drawn by the Trial Court are legally correct, which does not call for interference by this Court, henceforth, requested for dismissal of the appeal and confirmation of the death penalty.
5. Heard. Record vetted and analyzed with utmost care and caution. The case of the
prosecution hinges upon the following pieces of evidence;
i) Ocular account furnished by PW -1 to PW -4,
ii) Medical evidence,
iii) Recovery of hatchet (Ex.P/9- E),
iv) FSL report confirming the suspected clothes and hatchet to be stained with human blood.
6. Huzoor Bakhsh complainant (PW -1) is the brother of deceased. He reiterated what he
had reported in his application (Ex.P/1- A) on the basis whereof FIR (Ex.P/9- A) was
registered. He testified that while he was asleep at his home on 23.02.2021, he was attracted
on the clamour of her sister. He testified that he saw appellant Ihsan Ali, striking and inflicting injuries with hatchet upon her sister Mst. Haseena and that on his intervention the
appellant ran towards the room of his cousin Sojhla (PW -4) and made an assault upon him
with the hatchet as well, whereby he sustained injuries and when they tried to apprehend the
appellant, he while fleeing stated that he has declared his wife Mst. Haseena and Sojhla (PW -
4) as siyakaar. He was cross -examined from various angles with regard to timing, place of
occurrence and other aspects, but he remained firm to his examination- in-chief. Ali
Muhammad (PW -2) is uncle of the deceased. He testified and corroborated the testimony of
his nephew Huzoor Bakhsh (PW -1). He gave the similar account of the occurrence as
deposed by other eye -witnesses. Allah Rakha (PW -3) testified in line with the testimony of
both the said witnesses by furnishing the detailed account of murder of deceased Mst. Haseena and causing injuries to Sojhla (PW- 4). They were cross -examined on various points
with the purpose to discredit and dispute their presence, but their testimony went unshaken. Though, some minor discrepancies were observed, but same are ignorable, having no importance to discredit their testimony or to be fatal to the case of the prosecution.
7. Injured Sojhla (PW -4), who received injuries at the hands of the appellant testified
that while he was asleept; he woke up on the clamour and saw the appellant armed with a hatchet, who attacked upon him, whereby he sustained injuries and when Huzoor Bakhsh (PW -1), Ali Muhammad (PW -2) and Allah Rakha (PW -3) tried to apprehend him, he made
off by proclaiming him siyakaar with his wife Mst. Haseena. His testimony, despite lengthy cross -examination also could not be shattered. He remained firm and consistent to his
testimony like other eye -witnesses.
8. We have analyzed and scanned the ocular account minutely, which has been found by
us to be confidence -inspiring and truthful. They have proved their presence as all of them
were living together almost in the same premises. Nothing has been brought on record to justify that the testimony of the eye -witnesses was fabricated or false. Even otherwise, there
is also no plausible justification as to why they would let go the real culprits and falsely implicate the appellant for no reason.
9. The medical evidence is the next important piece of evidence, whereupon the
prosecution rests its case. Dr. Razia (PW- 5) examined deceased Mst. Haseena, who issued
MLC (Ex.P/5 -A), observed the following injuries;
"Sharp cut wound on left side of face. Punctured wound about 7 inches. Left ear cut, cheek cut, bones exposed. Sharp cut wound on neck and chin."
Cause of death: Sever hemorrhage and shock.
Type of Weapon: - Sharp.
Duration: - Fresh."
Whilst, injured Sojhla was medically examined by Dr. Hamal (PW -6), who issued MLC
(Ex.P/6 -A) and observed the following injuries;
"1. Right occipital region of skull 2 c.m deep, 4 c.m wide, incised wound, bone
exposed, fresh bleeding, swelling.
2. Right temporal region of skull incised wound, bone exposed, stitches applied.
3. Right left hand thumb region incised wound exposed bone and muscles, fresh bleeding, stiches applied."
Type of Weapon: - Sharp.
Duration: - Fresh."
10. We are mindful of fact that the medical evidence is not considered as a corroborative
piece of evidence rather it merely confirms the nature, locale and timing of the injuries, but does not indentify an accused. In the instant case, the medical evidence confirms that the injuries received by the deceased as well as by injured were caused by a sharp weapon, having been caused within a short span of time as rigor mortis had not yet developed. Even otherwise, homicidal death of the deceased has not been disputed by the defence except suggesting that such MLCs were fake. The FSL report (Ex.P/9- E) affirms that clothes and the
hatchet were stained with human blood.
11. To prove the recovery of hatchet so recovered from the appellant soon after the
occurrence being stained with blood corroborates and strengthens the prosecution case. The recovery witness Abdul Karim (PW- 8), who produced the memo (Ex.P/8- A) was cross -
examined at length, but he remained firm and consistent; his testimony went unshaken.
12. Aftermath of above discussion is that the prosecution has proved the indictment
through confidence -inspiring and truthful evidence of eye -witnesses (PW -1 to 3) as well
inured (PW -4) supported by the medical evidence and cemented by recovery of blood stained
hatchet without any glimpse of doubt and as such the Trial Court has recorded verdict of guilt on the basis of proper appraisal of the evidence, which does not call for interference by this Court except to the extent of quantum of sentence.
13. The prosecution had pleaded that the appellant had committed murder of the deceased
and had attacked upon the injured after proclaiming them siyahkar, but the prosecution failed to prove the motive by producing any independent, convincing and confidence inspiring evidence to establish that actually the occurrence took place on the motive of siyahkari.
Thus, failure by the prosecution to set up the motive and then not proving it give rise
to mitigating circumstance as held in the case of 'Muhammad Shoban v. The State' (2022 SCMR 1608), the relevant portion of para 4 thereof is reproduced hereinbelow;
"The law of the land in this regard is much settled by now that absence of motive or absence of proof of the same would be a sufficient mitigating circumstance to determine the quantum of sentence. We can lay hands on some of the latest judgments of this court for a matter of reference i.e. Mst. Nazia Anwar v. The State (2018 SCMR 911), Nadeem Ramzan v. The State (2018 SCMR 149), Haq Nawaz v. The State
(2018 SCMR 21), Ghulam Muhammad v. State (2017 SCMR 2048), Saif Ullah v.
State (2017 SCMR 2041), Waris Ali v. The State (2017 SCMR 1572). So keeping in view the above discussion, we are of the considered view that the prosecution has utterly failed to prove the motive so alleged in the FIR, benefit of which for the purpose of quantum of sentence in this case will have to go to the appellant and the
appellant in the given circumstances, cannot be awarded major penalty of death."
For what has been discussed hereinabove, the appeal being meritless is dismissed;
however, quantum of sentence recorded under section 302(b) of the Penal Code is converted
and reduced from capital penalty to that of life imprisonment, which shall serve the purpose.
Corollary, the murder reference is answered in negative.
JK/57/Bal. Sentence reduced.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,
let us know.