2024 P Cr. L J 861
[Balochistan (Sibi Bench)]
Before Abdullah Baloch and Sardar Ahmed Haleemi, JJ
MUHAMMD AZEEM ---Appellant
Versus
The STATE--- Respondent
Criminal Jail Appeal No.(s) 10 of 2021, decided on 4th October, 2022.
Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Abscondance ---Murder of own wife -
--Crime weapon, non- recovery of ---Effect ---Accused was alleged to have murdered his own
wife and remained absconder for about two years ---Non -recovery of crime weapon was
immaterial as incident took place on 8 -7-2018 and accused was arrested on 16- 3-2020, thus
accused had sufficient time to dispose of or eliminate crime weapon in any manner ---
Recovery of crime weapon was only a piece of supporting evidence ---Prosecution proved its
case independently and mere non -recovery of crime weapon was no ground to discredit or
disbelieve entire prosecution case ---Accused committed murder of his wife and due to such
reason, he remained fugitive from law ---Dead body of deceased was recovered from the
house of accused, which fact was confirmed by direct eye- witnesses and police officials who
did not have any rivalry with accused--- Burden of proof shifted upon the shoulders of
accused to explain reasons of unnatural death of his wife committed in his own house but he
failed to shift such burden from his shoulders ---High Court declined to interfere in
conviction and sentence awarded to accused by Trial Court as accused failed to point out any mala fide on the part of complainant party for his false implication ---Appeal was dismissed,
in circumstances.
Irshad alias Shada v. The State 1992 PCr.LJ 2273; Allah Ditta v. The State PLD 2002
SC 52; Muhammad Amjad v. The State PLD 2003 SC 704; Sikander Teghani alias Muhammad Teghani v. The State 2016 YLR 1098; Muhammad Nadeem alias Deemi v. State 2011 SCMR 872; Wali Muhammad v. Ellahi Bakhsh 2005 SCMR 1526 and Saeed Ahmed v. The State 2015 SCMR 710 ref.
Nemo for Appellant.
Jamil Akhtar Gajani, Additional P.G. for the State.
Date of hearing: 30th September, 2022.
JUDGMENT
SARDAR AHMED HALEEMI, J. ---This judgment disposes of Criminal Jail Appeal
No.(S)10 of 2019 filed by the appellant (convict) Muhammad Azeem Son of Abdul Rehman, through Superintendent District Jail Dera Murad Jamali, against the judgment dated 16th April 2021 ("the impugned judgment") passed by learned Sessions Judge Dera Allah Yar ("the trial Court"), whereby the appellant was convicted under Section 302(b), P.P.C. and sentenced to suffer R.I. for life imprisonment and to pay compensation of Rs.200,000/ -
(Rupees two hundred thousand), which in case of recovery was directed to be paid to the legal heirs of deceased Mst: Noor Jahan as envisaged under Section 544- A, Cr.P.C. and in
default thereof to further suffer six (06) months S.I., with the benefit of Section 382- B,
Cr.P.C.
2. Facts of the case are that on 8th July 2018, the complainant Niaz Ali lodged FIR
No.21/2018 at Police Station Cattle Farm, under Section 302, P.P.C., stating therein that about 15/16 years ago he solemnized the marriage of his sister Mst. Noor Jahan with his cousin Muhammad Azeem. On 8th July 2018, he along with with his uncle Mumtaz Ali came
to Goth Muhammad Zaman Jamali for meeting his sister. At about 08.15 a.m. his brother -in-
law Muhammad Azeem came to his home by means of motorcycle. He started quarreling
with his sister Mst. Noor Jahan over family issues, while he came into rage and started firing over his sister by means of T.T. pistol, resultantly she was seriously injured, fell down and after a while she succumbed to her injuries, while his brother -in-law by taking his
motorcycle ran away from the crime scene, whereas the complainant and his uncle being
empty handed could not resist. The motive behind the occurrence was that her husband was
quarreling with her that why she gave birth only one son, while he needs further children.
3. After registration of FIR, the appellant remained fugitive from law and remained
absconder nearly for two years. He was arrested on 16th March 2020, who was subjected to investigation and on completion thereof, he was challaned before the trial Court.
4. At the trial, the prosecution examined seven (07) witnesses. The appellant was
examined under Section 342, Cr.P.C. However, he 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 arguments, the appellant was convicted and sentenced as mentioned above in Para No.1, whereafter the instant Criminal Jail Appeal has been filed through Superintendent District Jail Dera Murad Jamali. Mr. Abdul Jalil, Advocate, was appointed as counsel for pauper appellant, but he continuously remained absent on 29th September 2021, 26th May 2022, 14th September 2022 and on 15th September 2022, thus we have left with no other option, except to hear the learned A.P.G. and decided the matter on the basis of available record.
5. Heard the learned Additional P.G. and perused the available record. Perusal of record
reveals that the unnatural death of deceased Mst. Noor Jahan is not disputed. After the occurrence, she was shifted to District Head Quarter Hospital, Dera Allah Yar, where PW- 2
Dr. Sameena, Lady Medical Officer, examined the dead body and after examination, MLC
Ex.P/2- A was issued, perusal of which divulges that the deceased prior to shifting had
already died, while the deceased had received multiple bullet injuries on her neck just below
chin on left side with an exit on frontal area with black margins, on her back of groin with an exit on pelvic area and entrance and exit wounds on both legs. The PW -2 has opined the
probable cause of death as profuse hemorrhage and injury to vital organs. Besides, soon after the occurrence the Investigating Officer inspected the dead body, carried out proceedings under Section 174, Cr.P.C. and found multiple injuries on the person of deceased. The blood stained wearing clothes of deceased were also sent to FSL for analysis, which issued its report Ex.P/4- G, perusal whereof also confirmed that the said clothes were stained with
human blood. Admittedly, the unnatural death of deceased has been confirmed through medical evidence, which was also not refuted by the defence, but pleaded his false implication.
6. Now adverting to ocular direct evidence, suffice to observe here that the prosecution
has produced two star witnesses, who witnessed the occurrence directly. According to the complainant/PW -1 Niaz Ali, on the day of occurrence he along with PW -3 Mumtaz Ali,
being his uncle, went to the house of his sister Mst. Noor Jahan, when at about 08.15 a.m. his brother in law i.e. appellant arrived there in angered condition, who took his wife i.e. inside the room and started firing upon her with pistol, due to which she fell down and subsequently succumbed to her injuries. PW- 1 further brought on record that soon after the occurrence, the
appellant escaped from the scene of occurrence, while they (PWs) being empty handed could not resist. Thereafter, PW- 1 went to inform the police, who arrived at site and took the
deceased to hospital. PW- 1 established the motive behind the occurrence and stated the
motive behind the occurrence that out of wedlock of her sister and the appellant, only one son was born, while the appellant wanted more children, due to which he used to quarrel with his sister, which ultimately resulted into her murder. PW -3 Mumtaz Ali, is the second eye-
witness of the occurrence, who at the time of occurrence was accompanying the complainant in the house of his deceased niece Mst. Noor Jahan, when the appellant arrived in the house in angered condition and started firing upon the deceased and thereafter he escaped from the place of occurrence. PW- 3 confirmed that he stayed near the dead body, while PW -1 went to
inform the police, whereafter the police arrived and took the dead body of deceased to hospital.
7. We at our utmost care, caution and by applying judicious minds analyzed the
statements of both the eye -witnesses minutely and found the same reliable, because both the
witnesses were accompanying the deceased in her house and their presence has also not been
disputed by the defence rather being sister's house, their presence was natural. Both the witnesses have recorded their statements in line with each other and have rightly mentioned the time, date, the place of occurrence and the manner in which the occurrence had taken
place. Besides, the occurrence had taken place during the day light, thus there was no
occasion for mistaken identity of the appellant (accused). PW -1 being the real brother of
deceased and PW- 3 being real uncle of deceased will never raise their fingers on innocent
person leaving the actual and real culprits, who committed the brutal murder of their blood
relations. Both the PWs being the close relative of the accused and having no previous rivalry, landed dispute, tribal enmity or any sort of other disputes with the appellant (accused), thus there was no occasion for both the PWs to falsely implicate the appellant (accused) in the commission of such a heinous crime. Thus, in our view both the witnesses are credible witnesses. The defence has cross -examined both the witnesses at sufficient
length, but has failed to give any slightest dent or damage to their testimonies, rather from
the cross -examination the commission of crime by the appellant (accused) has been
confirmed and new facts were emerged. We are also conscious of the fact that though the
PW-1 and PW -3 were related to the deceased, but such relation does not render them as
interested witnesses until and unless it is proved that they are inimical with the opponent party, while in the case in hand both the PWs are also the close relatives of appellant, as the
PW-1 was his cousin, while PW -3 was his uncle, thus under the circumstances it is beyond
imagination that they both have falsely implicated the appellant in this case. In this regard,
reliance is placed upon 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 render 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.
Similar view has also been taken from the cases of Allah Ditta v. The State PLD 2002
SC 52 , wherein it was held as under:
" ... It is also to be noted that admittedly prosecution witnesses Muhammad Sadie and two others have no enmity of whatsoever nature against Allah Ditta and they have also no reason to falsely involve him in the commission of murder of their brother Muhammad Sabir. In addition to it, it is also not possible for them that they would allow real culprit to go scot- free and falsely involve another person for the
commission of the offence. Even otherwise it is well settled by now that substitution of real culprit is a rare phenomena in our system of criminal justice." (BOLD ADDED)
8. Besides, the medical and direct ocular evidence, the prosecution has also produced the
extra judicial confession of appellant, wherein the appellant narrated all the story with regard to occurrence and further brought on record that soon after the occurrence he was shifted to Karachi and working there in factories, while he had also sold out the crime weapon. The disclosure of the appellant also confirms the motive behind the occurrence. Since, new facts were emerged in the disclosure of the appellant with regard to disposing of the crime weapon and his absconsion and taking shelter in Karachi, which facts earlier not known to the prosecution, thus the disclosure of the appellant is admissible under the law rather further strengthened the case of prosecution. The disclosure of the appellant appears to be voluntarily and without any coercion, pressure, torture or blackmailing and there is absolutely no reason available for us to disagree or disbelieve such extra judicial confession statement, which on the face of it appears to be recorded in accordance with law, without any fear or torture. In the case titled Muhammad Amjad v. The State PLD 2003 SC 704, Hon'ble Supreme Court held as under:
"Further it is noted that as per Article 40, corresponding to Section 27 of the Evidence
Act, when any fact is revealed in consequence of information received from any accused in custody of a police officer, such information whether it amounts to a confession or not as it relates distinctly to the fact thereby discovered, may be proved. The information supplied by the appellant under Article 40 ibid relating to incriminating articles is admissible."
9. Insofar, the non- recovery of crime weapon is concerned, the same is immaterial in the
case in hand. As the incident had taken place on 8th July 2018 and the appellant was arrested on 16th March 2020, meaning thereby that the appellant had sufficient time to dispose of or eliminate the crime weapon in any manner. Besides, the recovery of crime weapon can only be a piece of supporting evidence, whereas the prosecution has to prove its case independently, hence mere non- recovery of crime weapon is no ground to discredit or
disbelieve the entire prosecution case. As discussed above, the appellant in his disclosure admitted that soon after the occurrence he escaped from the place of occurrence and was shifted to Karachi, where he was working in factory and he had also sold out the crime weapon to some other person, thus admittedly the appellant had disposed of the crime weapon and after lapse of considerable long period expanded on two years, the recovery of
crime weapon from his possession was not possible. Reliance in this regard is placed to the
case of Sikander Teghani alias Muhammad Teghani v. The State 2016 YLR 1098, whereby it
has been held that where the charge is proved by other direct, natural and confidence
inspiring evidence then non- recovery of the crime weapon was not held to be fatal even. The
Hon'ble Supreme Court in case Muhammad Nadeem alias Deemi v. State 2011 SCMR 872,
held that,
"...the recovery of crime weapon in a criminal case is not at all material. It can only
be a piece of supporting evidence. If other evidence goes to prove the case
independently, the recovery is not essential at all."
10. If the entire evidence as discussed in the preceding paras are discarded from
consideration, alone the conduct of the appellant is enough to establish the charge of murder
of his wife, who after murder of his wife kept mum and has not lodged report against anyone and even has not held responsible to any third person for such murder rather he escaped and went to Karachi as well as he did not take participation in the rites of his deceased wife and after two years of the occurrence, he was arrested by the police. Besides, he has also not disputed the unnatural death of deceased. All these facts suggest that actually it was the appellant, who has committed the murder of his wife and due to such reasons, he remained fugitive from law. Even otherwise, the dead body of the deceased was recovered from the house of the appellant, which fact has not only confirmed by the direct eye -witnesses, but
also the police officials, who otherwise had no rivalry with the appellant, thus under peculiar circumstances of the case the burden of proof has been shifted upon the shoulder of appellant to explain the reasons of unnatural death of his wife committed in his own house, but he has failed to shift such burden from his shoulders. It has also been observed that it is not appealable to a logic that some has murdered the wife of the appellant and her dead body was recovered from his own house, where the deceased was residing and the appellant being head of the family and also residing in the said house, was unaware about the murder of his wife rather he had concealed himself. The unnatural conduct of the appellant has not only strengthened the case of prosecution, but the same is so strong and reliable that there is no need to look into any other evidence. Reliance in regard is placed on the case of Wali Muhammad v. Ellahi Bakhsh 2005 SCMR 1526, wherein it has been held that:
"We have heard the learned counsel for the petitioner and perused the evidence produced by the complainant. It may be noted that dead body of deceased was recovered from the house of the petitioner where Mst. Safia was living with him as his wife. Therefore, it is not possible to disbelieve the story of the prosecution." [BOLD ADDED]
Similar view has also been taken in the case of Saeed Ahmed v. The State 2015
SCMR 710, for facilitation the relevant portion is reproduced herein below:
"8. In criminal cases it is for the prosecution to establish its case against an
accused. It is a fundamental principle of law that the burden of proof is on the prosecution (Article 117 of the Qanun- e-Shahadat Order, 1984). However, in this case
the young wife of the Appellant, who was living with him, was murdered. The
appellant did not participate in her last rites and disappeared for a period of two
months. The question that needs consideration is whether such unreasonable conduct of the appellant is of any consequence and also whether certain matters exclusively within his knowledge were not explained by him, that is, not informing the police about his wife's murder, not taking her to the hospital, not participating in her last rites and
disappearing for a long period of two months. [BOLD ADDED]
11. The entire reappraisal of the prosecution evidence available on record, it is concluded
that the prosecution has successfully established the charge of murder against the appellant
beyond any shadow of reasonable doubt, as all the witnesses remained firm in their
deposition and they fully supported the prosecution version and the defence has failed to
cause any dent in the same. Even otherwise, the appellant has neither taken any specific plea
for his false implication nor had established the same and simply denied the same, thus the confidence inspiring, direct, circumstantial and medical evidence cannot be brushed aside merely on the basis of bald denial of the appellant, who otherwise after the crime concealed
him to unknown place, as such, 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. Besides, the appellant has failed to point out any mala fide on the part of the
complainant party for his false implication, thus the judgment passed by the trial Court does
not call for interference of this Court.
For the above reasons, the appeal being devoid of merits is dismissed.
MH/185/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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