2012 Y L R 687
[Balochistan]
Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ
MUHAMMAD AFZAL and another ---Appellants
Versus
THE STATE and another ---Respondents
Criminal Jail Appeal No.(s) 1 and Murder Reference No.(s) 1 of 2007, decided on 28th July,
2011.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl-e-amd---Appreciation of evidence ---Sentence, reduction in ---Counsel for
accused instead of seeking for acquittal of accused, had prayed for commutation of death
sentence awarded to accused into that of life imprisonment ---Connection of accused with the
offence in question had been established through evidence of prosecution witnesses, who had
fully supported the prosecution version ---Ocular account furnished by said witnesses was
further supported by the medical evidence as well as by extra judicial confession mad e by
accused before prosecution witness ---Recovery of Kalashnikov from possession of accused
and positive report of firearm expert had further corroborated the ocular account
furnished by prosecution witnesses, who were present inside the house of de ceased at the
time of occurrence ---Despite lengthy cross -examination, the defence failed to create any dent
in their veracity, except a few discrepancies, which were immaterial and were not fatal ---
Prosecution witnesses being inmates of the house, where th e occurrence had taken place their
presence at the time of occurrence could not be doubted being natural witnesses ---Ocular
evidence, having got full support from all the other attending circumstances, conviction
awarded to accused on all the counts, was m aintained ---Murder being neither preplanned nor
premeditated, death sentence awarded to accused by the Trial Court was commutated
to life imprisonment, in circumstances.
(b) Qanun -e-Shahadat (10 of 1984) --
----Arts. 30, 31, 40 & 41 ---Criminal Procedure Code (V of 1898), S.164 ---
Disclosure/confession --- Disclosure/ con -fession had to be relied upon in its totality or to be
excluded in its entirety ---Such disclosure/confession could not be partly relied upon and the
portion, exonerating accused, could not be discarded.
Bahadur Khan v. The State PLD 1995 SC 336 rel.
Shabana Azeem for paupar Appellant (in Criminal Jail Appeal No.(s) 1 of 2007).
Abdullah Kurd for P.G. for Respondent (in Criminal Appeal No.(s) 1 of 2007).
Abdullah Kur d for P.G. for Respondent (in Murder Reference No.(S) 1 of 2007).
Mrs. Shabana Azeem for pauper Respondent (in Murder Reference No.(s) 1 of 2007).
Date of hearing: 28th July, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---Appellant Muhammad Afzal has sent
Criminal Jail Appeal No.(s) 1 of 2007 through Superintendent, Central Jail, Mach,
challenging the judgment dated 29th December, 2006, passed by the Sessions Judge, Sibi,
whereby he was convicted and sentenced under section 302(b), P.P.C. to death as ta'zir,
whereas the Sessions Judge has sent Murder Reference No.(s) 1 of 2007 for confirmation of
the sentence of death or otherwise. Since common question of law and facts is involved,
therefore, both the matters are being disposed of by means of this common judgment.
2. Complainant Abdul Hai in his Fard -e-Bayan Exh.P/1 -A has alleged that he is
permanent resident of Zareena Rind Ali and by profession is an Arabic teacher. He went to
Quetta in order to spend summer vacations there, whereas his brother Adam Khan and his
family members were residing at Rind Ali and he earned his livelihood by the source of
Zamindari. He further alleged that he was sleeping in his house at Quetta, when at about 1 -45
p.m., he was informed by his relative Karam Elahi by mean s of telephone that his brother
Adam Khan and maternal cousin Bakhsh Ali, who was stayed with his brother Adam Khan as
guest, at about 1 -30 p.m. were murdered by Muhammad Afzal (appellant) by means of
Kalashnikov, who was identified by him while fleeing aw ay by climbing over a wall. On that,
he went to the house of his brother situated at Rind Ali, where he saw the dead bodies of
Adam Khan and Bakhsh Ali in pool of blood and the relatives and neighbours were also
gathered there. He also alleged that one Abd ul Ghafoor told him that at about 1 -40 a.m., he
was sleeping in his house, when accused Muhammad Afzal came there along with a
Kalashnikov and told that he had committed the murder of Adam Khan and his guest by
means of firing and he may be given shelter, however, he could not give shelter to him.
Consequently, on the basis of Fard -e-Bayan, a case vide F.I.R. No.25 of 2005, under section
302, P.P.C. was registered by the Police Officials of Dhadhar Police Station District, Sibi
against the appellant.
3. After registration of the F.I.R. Exh.P/11 -A, investigation of the case was entrusted to
P.W.11. Muhammad Arif, S. -I., who visited the site, prepared site sketch Exh.P/11 -B and
site inspection memo. Exh.P/8 -A, secured blood of deceased persons, prepared it s parcels
Nos.1 and 2, collected thirteen empties vide memo and prepared its parcel No.3, took into
possession blood -stained clothes of deceased persons from Medical Officer, Civil Hospital,
Dhadhar and prepared its sealed parcels Nos.4 and 5, prepared inq uest reports Exh.P/1 -B and
Exh.P/1 -C of the deceased persons, recorded the statements of P.Ws. and after necessary
proceedings released the dead bodies to their heirs and arrested the accused.
Further investigation in the matter was carried out by P.W . 12 Ali Akbar, S. -I./S.H.O. On
14th September, 2005, witnesses Master Karam Elahi and Abdul Ghafoor came to Police
Station, who intended to record their statements under section 164 of the Cr.P.C., at which
they were produced before the Judicial Magist rate, Dhadhar, who recorded their statements
under section 164 of the Cr.P.C. On 15th September, 2005, during course of investigation, the
accused made disclosure and in consequence whereof, recovery of crime weapon i.e.
Kalashnikov, a magazine and nine ca rtridges, were recovered from his house, which were
taken into possession vide recovery memo. Exh.P/10 -A and separate case under the Arms
Ordinance was registered. On 20th September, 2005, he obtained the medical certificates of
the deceased Adam Khan and Bakhsh Ali. On 22nd September, 2005, the accused made
disclosure that he had committed the murder of deceased persons, at which the disclosure
memo was prepared. He sent the blood -stained clothes of the deceased to FSL, Quetta and
Kalashnikov and empties t o Ballistic Expert, Karachi. On 23rd September, 2005, after
completion of investigation, incomplete challan Exh.P/12 -A was prepared. On receiving FSL
report Exh.P/12 -B, he prepared -supplementary challan Exh.P/12 -C. He received report of the
Ballistic Exper t Exh.P/12 -D and prepared complete challan Exh.P/12 -E and appellant was
sent up to face the trial.
4. A formal charge was framed and read over to the appellant on 19th October, 2005, to
which he pleaded not guilty and claimed trial. The prosecution, in order to prove the charge,
produced twelve witnesses. P.W.1 Abdul Hai is complainant of the case, who exhibited Fard -
e-Bayan Exh.P/1 -A, inquest reports Exh.P/1 -B and C. P.W.2 Jam Khan, after hearing fire
reports, reached at the site and saw the accused Muh ammad Afzal, having Kalashnikov,
while scaling on the wall and saw the dead bodies of deceased persons when entered in the
house. P.W.3 Jam Bibi and P.W.4 Kifayatullah alleged to have witnessed the occurrence.
P.W.5 Allah Bakhsh is recovery witness of bloo d-stained clothes of deceased persons
Exh.P/5 -A and Ex.P/5 -B. P.W.6 Dr. Lal Muhammad, MS, Civil Hospital, Dhadhar examined
the dead bodies of deceased and issued certificates Exh.P/6 -A and Exh.P/6 -B. P.W.7 Abdul
Hafeez, the then Judicial Magistrate, Dhadha r recorded the statements of witnesses under
section 164 of the Cr.P.C. P.W.8 Abdul Sattar, H.C., is recovery witness. P.W.9 is Abdul
Ghafoor, to whom the accused, after commission of the offence, requested for shelter, but
was refused. P.W.10 Muhammad You saf, H.C., is witness to the disclosure of appellant.
P.W.11 Muhammad Arif, S. -I. and P.W.12 Ali Akbar, S. -I./S.H.O. are the Investigat -ing
Officers. Then the prosecution closed its side.
5. Thereafter, the appellant was examined under section 342, Cr.P. C., wherein he denied
the prosecution accusation and claimed trial. He recorded his statement on oath as envisaged
under section 340(2), Cr.P.C. and produced D.W -1 Bashir Ahmed and DW -2 Nabi Bakhsh in
defence. The trial Court, after close of parties eviden ce, vide impugned judgment convicted
and sentenced the appellant, as mentioned hereinabove, hence this appeal and murder
reference.
6. At the very outset, due to peculiar circumstances of the case, learned counsel for the
appellant contended that instead of seeking for acquittal of the accused, she would pray for
commutation of the death sentence awarded to the appellant into that of life imprisonment on
the ground that the murder of deceased persons was neither pre -planned, nor pre -meditated,
rather the offence was committed during the course of theft.
7. Mr. Abdullah Kurd, Advocate, appearing on behalf of the State, has vehemently
opposed the appeal on merit, however, conceded the prayer of learned counsel for
commutation of the death sentence into tha t of life imprisonment.
8. We have carefully considered the respective contentions put forth by the parties'
counsel in the light of evidence available on record. We find the learned counsel for the
appellant is quite justified in not challenging the con viction awarded to the appellant for the
episode, which culminated in unfortunate death of deceased Adam Khan and Bakhsh Ali. The
connection of appellant with the offence in question has been established through evidence of
P.W.2 Jan Khan, P.W.3 Mst. Jan B ibi and P.W.4 Kifayatullah, who fully supported the
prosecution version. The ocular account furnished by the said witnesses was further
supported by the medical evidence as well by extra judicial confession made by the appellant
before P.W.9 Abdul Ghafoor, who had stated before the court that on the day of incident, at
about 2'O Clock night time, he was called by appellant Muhammad Afzal outside the house
and disclosed that due to mistake, he has committed the murder of Bakhsh Ali and Adam
Khan and sought s helter. The recovery of Kalashnikov from possession of the appellant and
positive report of Firearm expert further corroborate the ocular account furnished by P.W.3
Jan Bibi and P.W.4 Kifayatullah, who were present inside the house of Adam Khan at the
time of occurrence. Despite lengthy cross -examination, the defence failed to create any dent
in their veracity, Except a few discrepancies, which are immaterial and are not fatal. P.Ws. 3
and 4 viz Jan Bibi and Kifayatullah are inmates of the house, where the occurrence had taken
place and their presence at the time of occurrence could not be doubted being natural
witnesses. The ocular evidence, as mentioned above, got full support from all the other
attending circumstances, therefore, the conviction awarded to the appellant on all the counts
is maintained.
9. Insofar as quantum of sentence is concerned, we find that according to the prosecution
own showing that on the fateful night of the incident, appellant entered in the house of
deceased for the purpose of committing theft. The trial Court, while passing the judgment,
has also made reliance on the disclosure memo. Exh.P/8 -E of the appellant. It would be
advantageous to reproduce the relevant portion of the disclosure made by the appellant before
the police officials in the following manner: --
"On the night of incident, I entered the house of deceased Adam Khan in connection with
theft while being equipped with Kalashnikov, however, Adam Khan woke up and, firstly, I
tried to detain him in bathroom, but he started scuffling with me and in order to save myself,
I made fire upon him, meanwhile his relative Bakhsh Ali also woke up. Bakhsh Ali, in order
to catch or kill me, started proceeding towards me. I also killed him."
It is well -settled principle of law that the disclosure/confession has to be relied upon in its
totality or to be excluded in its entirety. It cannot be partly relied upon and the portion,
exonerating the accused, cannot be discarded. In this regard, reliance is placed to a case of
Bahadur K han v. The State reported in PLD 1995 SC 336, wherein following observations
were made: --
"However, recognized well principle is that confession has to be read as a whole and not by
relying only on the inculpatory part of the statement. If the entire sta tement is to be read as a
whole and if it is to be taken as correct it creates an impression that on the payment of sale
price of the mule there seems to have occurred some dispute and altercation between the
parties."
10. The trial court has rightly obs erved that initially motive behind the incident was
shrouded in mystery, but, later on, it has brought on record that during the course of theft,
incident of dual murders was taken place. It appears from the facts and circumstances of the
case that, while committing theft, the appellant entered the house of deceased, suddenly,
which must have created a panic. The appellant, as per his disclosure Exh.P/8 -E, to save
himself, fired upon the deceased persons to make his escape good, which, obviously,
happened a t the spur of the moment. It can be safely concluded that it was not premeditated,
nor the appellant had any intention to commit the murder of deceased viz Adam Khan and
Bakhsh Ali. In such view of the matter, we have given our anxious thought to the sente nce
awarded to the appellant and, in our considered view, the same is not proper.
11. Thus, keeping in view the circumstances of the case and the aforesaid case law, relied
upon, we are convinced to hold that the murder of deceased Adam Khan and Bakhsh A li, as
discussed above, was neither pre -planed, nor premeditated, thus, in such circumstances, the
death sentence awarded by the trial court is commutated to life imprisonment.
12. With the above modification in the sentence, the appeal, being meritless , is
dismissed and Murder Reference is answered in negative.
These are the reasons of our short order dated 28th July, 2011 announced in the open court.
H.B.T./85/Q Sentence commutated.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.