2010 Y L R 1006
[Quetta]
Before Muhammad Noor Meskanzai and Jamal Khan Mandho Khail, JJ
HASIL KHAN and another ---Appellants
Versus
THE STATE and another ---Respondents
Criminal Appeal No.6 and Criminal Revision No.7 of 2007, decided on 11th November,
2009.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl-i-amd---Appreciation of evidence ---Sentence, enhancement of---Eye-
witnesses including the complainant had corroborated each other on every minor and major point
remaining firm and con sistent in their stand ---Ocular testimony did not suffer from any
contradiction, discrepancy or improvement ---Relationship of prosecution witnesses with the
deceased, by itself, was no ground to discard their truthful, reliable and creditworthy statements,
which had neither been misread nor mis -appreciated by the Trial Court ---Recovery of crime
pistol from the possession of accused having been effected in consequence of his disclosure,
non-association of private witnesses in recovery proceedings, was immate rial---Medical
evidence and undisputed motive had further supported the ocular evidence --Conviction of
accused was upheld in circumstanced ---Accused had committed a premeditated, intentional and
cold blooded murder of an innocent person ---Trial Court had i llegally entertained a document
without formal proof, exhibited the same in an illegal manner and treated as an extenuating
circumstance in favour of accused for imposition of lesser sentence of imprisonment for life ---
Normal penalty of death should follow on proof of prosecution case and the same should not be
altered to lesser punishment on flimsy grounds ---No mitigating circumstance appeared an record
in favour of accused and he deserved no leniency ---Sentence of imprisonment for life of accused
was enha nced to death accordingly.
The Holy Qura'n, Paara No.5 Sura Nisa IV in verse No.93; 1999 SCMR 1190; PLD 2007 SC
80; PLD 1975 SC 227; PLD 1976 SC 452; PLD 2000 SC 12; PLD 2001 SC 465; 1999 SCMR
2028 and 2001 SCMR 1750 ref.
(b) Criminal Procedure Code ( V of 1898) ---
----S.103 ---Penal Code (XLV of 1860), S.302 ---Qatl-i-amd---Presence of local private witnesses
not essential, if recovery eff ect ed on disclosure of accused ---When crime weapon is recovered
in consequence of the disclosure made by accused, non -association of private witnesses with the
recovery proceedings becomes immaterial.
(c) Penal Code (XLV of 1860) ---
----S.302(b) ---Qatl-i-amd---Appreciation of evidence ---Solitary statement sufficient to award
death sentence ---Solitary statement of a witness, if rings true, is sufficient to record major
penalty of death.
(d) Penal Code (XLV of 1860) ---
----S. 302 ( b)---Qatl-i-amd---Sentence ---Administration of Criminal justice ---Exemplary
punishment need of the day ---Murder cases must be seen with reference of society and to curb
the crime is the need of the hour ---One of the objects of criminal justice is to award exemplary
punishment to offenders in order to deter them from committing crime and in this way also to
serve a stern warning to those members of the society, who have behavioral leaning towards
criminality ---Normal penalty of death should follow when prose cution succeeds in proving its
case---Avoiding deterrent punishment is a factor, which indirectly contributes to manifest
incidents of crimes ---Normal sentence of death in murder cases should not be reduced to lesser
sentence on flimsy grounds.
1999 SCM R 1190 ref.
Kamran Murtaza for Appellants.
Miss Noor Jahan Kahoor for the State.
Date of hearing: 8th October, 2009.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. ---Through this common judgment, we intend to
dispose of Criminal Appeal(s) No.6 of 2007 fi led by appellant Hasil Khan against his
conviction recorded by Additional Sessions Judge, Dera Allah Yar dated 18th January, 2007,
whereby; the appellant was convicted under section 302(b), P.P.C. to suffer life
imprisonment with fine of Rs.50,000 to be pa id to the legal heirs of the deceased as
compensation or in default thereof to further undergo six months S.I. Benefit of section 382 -
B, Cr.P.C. was also extended in favour of appellant. Besides this, Dil Murad complainant has
also filed Criminal Revision Petition (S) No. 7 of 2007 being disagreed and dissatisfied with
the quantum of sentence; with the prayer to enhance sentence and to impose/inflict sentence
warranted by law i.e. death penalty to the appellant.
2. Facts as gathered from record are that o n 20th May, 2006, F.I.R. No.21 of 2006 was
lodged with Police Station, Cattle Farm on the report of one Lil Murad complainant. It was
alleged in F.I.R. that on 18th May, 2006, he along with his brother Saeed Bakhsh, nephew
Zareef Khan relatives Nabi Dad an d other family members went to. Kachhi Pul near Pat
Feeder in order to attend marriage ceremony of one Mashooq Ali Chinjani. On 20th May,
2006, after attending marriage ceremony when complainant along with said relatives were
coming back to their Goth, Sha bbir Khan Chalgari at about 12 -00 noon, Bus stopped at
Chalgari Dip, Hasil Khan (appellant) boarded in the bus and took out a T.T pistol from his
waist and started firing upon Saeed Bakhsh, in consequence whereof, Saeed Bakhsh, a kid
Muhammad Bakhsh son of Nabi Dad and one lady Mst. Sher Bano wife of Abdul Samad
received bullet injuries, thereafter, appellant fled away from the spot towards east and Saeed
Bakhsh succumbed to the injuries at the spot. Motive behind the occurrence was stated to be
that at Dob a Pur Sindh, appellant had murdered his sister Mst. Sobhan on the pretext of
`Siakari' with brother of complainant namely Sohna. It was also stated that since the
complainant party were empty handed, therefore; could not chase accused, as and when
Saeed Ba khsh was taken out from the said bus, he succumbed to his injuries. At the strength'
of this story, F.I.R. was registered, investigation was carried out, appellant was arrest and
incomplete challan No.22 of 2006 was filed before the Court of Additional Ses sions Judge,
Dera Allah Yar. Incomplete challan No.22 -A was filed on 17th August, 2006 on the receipt
of report of FSL, prosecution submitted another incomplete challan No.22 -A on 17th August,
2006, whereas incomplete challan Nos.22 -B and 22 -C were submitt ed on 15th September,
2006 and 17th October, 2006 respectively, because medical certificate of victim Muhammad
Bakhsh (minor) and Mst. Sher Bano were not available with prosecution, however; on the
availability of initial certificates these challans were s ubmitted. Charge was framed on 8th
July, 2006, which was denied by appellant. Prosecution in order to substantiate the
accusation produced 9 witnesses.
3. At the end of prosecution evidence, appellant was examined under section 342, Cr.P.C.
wherein; he d enied all the allegations levelled by prosecution, however, he neither recorded
his statement on oath as envisaged under section 340(2), Cr.P.C. nor produced any D.Ws. in
defence, except copy of judgment by the appellant in his statement recorded under sec tion
342, Cr.P.C. and the same was got exhibited as Exh.D/1.A.
4. On conclusion of trial, the learned Additional Sessions Judge, found the appellant guilty of
the charge and sentenced him as mentioned hereinabove. However, despite finding appellant
guilt y under section 302(b), P.P.C, learned trial Court proposed lesser sentence at the
strength of Exh.D/1 -A by treating the same as a mitigating circumstance.
5. Being aggrieved with the conviction recorded by learned Additional Sessions Judge, Dera
Allah Y ar, appellant filed present appeal, whereas; complainant being dissatisfied with the
quantum of sentence has called in question the legality of the quantum of sentence through
Criminal Revision Petition(s) No.7 of 2007.
6. Mr. Kamran Murtaza, learned counsel for appellant submitted that the evidence on record
have not been appreciated in its true perspective and undue weight has been given to the
prosecution version, whereas contention of appellant has totally been ignore d. This act on the
part of learned trial Court was not justified. He further submitted that according to
prosecution, incident took place in a bus, where numerous other passengers were also
boarded in the bus and shops and hotels were also situated near th e place of incident, but no
independent witness was examined by prosecution during course of investigation, nor any
other independent witness was associated with recovery of articles except the relatives of
deceased, who were admittedly interested witnesse s. Third contention raised by learned
counsel was that since statements of prosecution witnesses were contradictory and sufficient
doubts have been created, but the same were not extended in favour of appellant. He further
submitted that even otherwise it is habit of complainant to involve the accused party in
baseless case and this aspect was ignored by the trial Court. Learned counsel further
mentioned that there was no direct evidence available on record and the judgment delivered
is offended to provisio ns of section 367, Cr.P.C. and the same is not a speaking judgment.
The learned trial Court has committed material irregularity by believing FSL report in
respect of pistol and empties. He next contended that there is considerable delay in
dispatching the articles to FSL and secondly empties and pistol have been sent together,
which is illegal, hence learned counsel relied upon (sic) PCr.LJ 1997 stressed that
prosecution has withheld the best evidence i.e. driver of the bus, which creates doubt in case
of prosecution. Lastly he urged that sentence so awarded to appellant is very harsh, thus
requested for acquittal of appellant.
7. On contrary counsel for complainant Mr. Shah Muhammad Jatoi while controverting the
stand taken by counsel for appellant, submitted that prosecution has succeeded to establish
its case against the appellant beyond any shadow of doubt. He further submitted that despite
lengthy cross -examination, no contradiction and improvement was brought on record. He
further submitted that appellant has not only committed a cold blooded murder of an
innocent person; but also he is equally guilty of committing offence under section 324,
P.P.C. by injuring one minor Muhammad Bakhsh aged about five years and a female i.e.
Mst. Sher Bano. The pr osecution remained firm and consistent on its story during the trial
but the learned trial Court illegally proposed lesser punishment, despite the fact that there
was no justification for such lesser punishment. He further contended that in F.I.R. clear
motive of the offence was given and that was not at all denied nor disputed at any stage of
proceedings, even up to the stage of arguments in this Court; that piece of evidence has not
been disputed. He further contended that the appellant has committed murd er of his sister
namely Sohban without any rhyme or reason and in view of this undisputed fact, appellant is
a habitual, hardened and desperate criminal by committing murder of two innocent persons
and injuring two other persons i.e. small kid and a lady n amed above, as such; appellant did
not and does not deserve for any leniency. Lastly he prayed for enhancement of sentence i.e.
death penalty and also to convict appellant and pass sentence under section 324, P.P.C.
8. On the other hand, Mst. Noor Jehan Kahoor, learned State counsel while opposing appeal,
submitted that prosecution has proved its case to the hilt. There is no contradiction and
improvement in the statements of P.Ws, nor any ambiguity has been found in those
statements. Furthermore counsel for appellant has not been able to point out any infirmity in
statements of P.Ws, so she while opposing the appeal, supported revision petition filed by
complainant and also prayed that the sentence so imposed is not in accordance with law and
there is no justification nor any mitigating or extenuating circumstances justifying imposition
of lesser punishment. Mr. Kamran Murtaza, learned counsel in reply to submission made by
State counsel and counsel for complainant submitted that though appellant was charg ed
under section 324, P.P.C, but he was acquitted of that charge and no appeal by State or
complainant was filed, therefore, no question of any sentence under section 324, P.P.C, with
regard to quantum of sentence, he submitted that on the basis of stateme nt of interested and
relative P.Ws, request for capital punishment is absolutely illegal, particularly so when there
is a case of clear acquittal.
9. We have heard learned counsel for parties and have also gone through the available record
carefully and minutely. The case of prosecution, according to P.W.1, who is informant,
stated that on 18th May, 2006, he along with Saeed Bakhsh, Nabi Dad, Zareef Khan and
other family members/relatives went to attend marriage ceremony of one Mashooq Ali at
accused pres ent in the Court for the purpose of investigation. The Kacchi Pul. After attending
marriage ceremony, on 20th May, 2006 when coming back by bus at about 12 -00 noon on
Chalgari Dip, bus stopped, Hasil Khan boarded in the bus and started firing with a T.T.
Pistol, in consequence whereof, Saeed Bakhsh sustained serious injuries and died on the spot,
whereas; Muhammad Bakhsh minor kid and Mst. Sher Bano sitting along with him were also
injured. After firing Hasil Khan fled away from the scene towards East and S aeed Bakhsh
was taken out of bus where he died. Motive behind the occurrence was stated to be "Siakari"
as Hasil Khan has declared the brother of deceased as Siakar with his sister and on such
pretext he has also committed murder of his sister and on accou nt of that enmity, appellant
has committed murder of brother of complainant. This witness exhibited F.I.R. as Exh.P/1 -A.
There is no dispute with the fact that F.I.R. was lodged with promptitude, incident took place
at 12 -00 noon and the F.I.R. was lodged within 35 minutes and despite lengthy cross -
examination, no contradiction and improvements were made by this P.W. P.W. fully proved
contents of F.I.R. and narrated the actual story in a honest manner. It will not be out of place
of mention here that motive as alleged in F.I.R. narrated in the statement was not at all
disputed. He denied the suggestion that accused was involved in this case on account of
murder of one Jangi Khan.
P.W.2 Zareef Khan son of Muhammad Murad, who is also eye -witness of the incid ent stated
that two days prior to 20th May, 2006, I along with Nabi Dad, Dil Murad, Saeed Bakhsh and
other family members went to Kacchi Pul Pat Fedeer in order to attend marriage ceremony of
Mashooq Ali. He further stated that on 20th May, 2006, when they were coming back
through a bus at 12 -00 noon at Chalgari Dip bus stopped. Some persons boarded in the bus
and some disembarked, in the meanwhile accused/appellant present in the Court, namely
Hasil Khan boarded in the bus and made firing upon Saeed Bakhsh , already seated in the said
bus, in consequence of said firing, Muhammad Bakhsh a little kid, Mst. Sher Bano and Saeed
Bakhsh sustained injuries. Saeed Bakhsh, having received serious injuries, taken out from the
bus, expired on the spot, thereafter accus ed ran towards East. He further stated that thereafter
Dil Murad went to Police Station for lodging of F.I.R. police officials came at the venue,
inspected the site and prepared sketch, upon which, he identified his signature and same was
produced as Exh.P /2-B. This witness further stated that besides bloodstained earth, three
empties were also taken into possession. He produced bloodstained parcel as Exh.P/2 -C,
which was Art:P/2 -A and at the request of D.A, same was opened, which was sealed with
seal of FS L. Bloodstained earth was Art:P/2 -2, recovery memo of empties were exhibited as
Exh.P/2 -D, sealed parcel of empties was produced as Art:P/2 -3, which was opened at the
request of D.A and the same was sealed with seal of FSL. Empties produced as Art: P/2 -4 to
Art: P/2 -6. The witness stated that the accused/appellant present in the Court, committed
murder of Saeed Bakhsh on the pretext of "Siakari". Accused has committed murder of his
sister Soba. Perusal of lengthy cross -examination over this witness reveals that neither there
is any contradiction nor any improvement whatsoever in nature. P.W.2 has fully corroborated
P.W. on each and every major and minor point. The statement is firm, consistent and
confidence inspiring.
P. W.3, who is an eye -witness stated that witness Dil Murad, Saeed Bakhsh and Zareef Khan
along with other family members went to attend marriage ceremony of one Mashooq Ali. On
20th May, 2006 while they were coming back, after attending marriage ceremony, in a bus at
12-00 noon, when they re ached Chalgari Dip, bus stopped there, some people boarded and
some disembarked from the bus, in the meanwhile accused present in the Court i.e. Hasil
Khan boarded in the bus and started firing upon Saeed Bakhsh, in consequence whereof Mst.
Sher Bano, mino r Muhammad Bakhsh and Saeed Bakhsh sustained injuries. Due to serious
injuries sustained by Saeed Bakhsh was taken out the bus, where he expired and accused ran
away towards East, whereas, Dil Murad went to Police Station for lodging of F.I.R, Police
reach ed at the spot on 12 -30 p.m. inspected the site, prepared recover memo. This witness
acknowledge his sign of thumb at the recovery memo and produced those articles and
exhibits, which were produced by P.W.2 P.W.3 stated that accused after declaring his sis ter
and brother of deceased Sona Khan as Siakar. Appellant has already committed murder of his
sister Mst. Soban and with mala fide intention committed murder of Saeed Bakhsh. P.W.3
also corroborated P.W.1 and P.W.2 on each and every material points. There is no
contradiction and improvement whatsoever in nature except he has stated that police arrived
at the venue at.12 -30, whereas; F.I.R. was lodged at 12 -35. Since P.W.3 is illiterate person,
therefore; this difference of time is not material and insuffic ient to discard the statement, not
it appears that witness has told lie at any stage of statement.
P.W.4 Zafar Hussain stated that on 9th June, 2006, he was present at police station when S. -
I, Safdar Ali brought the accused/appellant was brought in inve stigating room, where Safdar
Ali, S. -I. interrogated the accused. During course of interrogation, accused disclosed that
pistol i.e. used by him in committing crime, could be recovered, which is lying in his
residential room, which he has concealed under t he quilts, so accused was taken to his house
in handcuffs. On reaching Goth, accused got estopped the vehicle, disembarked from the
same, voluntarily led the police party to his residential room where from beneath of quilts,
took out the pistol and handed over the same to Safdar Ali, S. -I., who took it into possession
vide recovery memo, which was produced as Exh.P/4. Since accused failed to produce any
licence, therefore; letter for registration of case was written and pistol was sealed in parcel,
which is produced as Art:P/4 -7, same was opened at the request of D.A, which was sealed
with seal of FSL. In cross -examination, witness admitted that he has not signed the parcel,
however stated that accused made disclosure on 9 -30 p.m. Further stated that accused was in
custody 2/3 days prior to disclosure. On further perusal, there was no contradiction and
improvement whatsoever in the statements of P.Ws. 1 to 3. The witness remained firm upon
his stance.
P.W.5 Dr. Naseer Ahmed, who produced medical certificate as Exh.P/5 -F and found
following injuries on his person: --
(1) A circular entrance wound on the back side of the chest just between the right 1st
and 2nd ribs (No exit wound.
(2) A circular entrance wound on the left lumbar region (No exit wound).
(3) A circular entrance wound on the right thigh.
(4) Exit wound on the right Glueteal region.
Witness remained firm upon his stance, however, this P.W. was again examined on 31st
October, 2006 on the application moved by prosecution under section 540, Cr.P.C. wherein
he stated that he examined Muhammad Bakhsh little kid and found following injuries: --
(1) A circular entrance wound on the left foot near the little phalanx of the left foot.
P.W.5 produced medical certificate as Exh.P/5 -F(A) and only one question was put to him
i.e. "I do not tell about distance of firing upon the injured".
P.W.6 Dr. Naila Yasmeen, Medical Officer, DHQ Hospital, Dr. Allah Yar produced initial
certificate issued in respect of injured Mst. Sher Bano and stated that on 20th May, 2006 at
about 2 -30 p.m. and found following injuries: --
INJURIES SUSTAINED BY MST. SHER BANO (INJURED)
(1) A lacerated entrance wound situated on left scapular region diameter 1/4 cm.
In reply to a question by defence, she stated that she c ould not tell about distance of firing
upon injured and also she did not tell about the weapon used upon the injured. She produced
medical certificate as Exh.P/6 -G.
P.W.7 is constable Muhammad Khan, stated that on 20th May, 2006, he was posted at Police
Station, Cattle Farm, on the same day Safdar Ali, S. -I. along with witnesses went to Deras
Allah Yar Hospital, where doctor handed over "Shalwar -Qameez" (shirt and trouser) of
deceased Saeed Bakhs to S. -I. The same were taken into possession vide recovery memo,
which was produced as Exh.P -7-H and parcel so sealed was produced as Art: P/7 -9, which
was bearing seal of FSL and at the request of DA parcel was unsealed and half white
"Shalwar -Qameez" were produced as Art:P/7 -10 and Art: P7 -11.
P.W.8 is injured Sher Bano stated that six months ago, she was going to Chalgari Dip in a
bus when accused boarded in the bus and gave `lalkara' to his enemy and made firing,
consequence whereof, he sustained injuries. During this firing she also sustained injuries.
She d id not identify the accused. She was declared hostile and admitted that she has made a
statement before police on 20th May, 2006, but denied the story, which she had narrated in
her statement recorded under section 161, Cr.P.C. She also denied the suggesti on that since
she has compromised with accused outside of Court, therefore; she is making a false
statement in order to save skin of accused.
P.W.9 Safdar Ali, S. -I, who is investigating officer of the case, stated that on 20th May,
2006, he was posted a s S.-I. at Cattle Farm Police Station. On the same day at the report of
Dil Murad, S. -I./S.H.O. lodged the F.I.R. and entrusted investigation to him. He inspected
the site, where dead body of deceased Saeed Bakhsh was lying in pool of blood. A kid
namely M uhammad Bakhsh and one Mst. Sher Bano were also lying in injured condition. In
presence of witnesses, site was inspected. Sketch was drawn, which was produced as
Exh.P/9 -J and acknowledged his signatures upon the same. Inquest report (Marg report) was
prepared, which was produced as Exh.P/9 -K, bloodstained earth was taken into possession
and parcel No.1 was prepared, besides this three empties were taken into possession and
parcel No.2 was prepared. The injured were given 'Naqsha -e-Mazroobi i.e. memo of inj uries
and were removed to hospital along with dead body. Statements of the witnesses were,
recorded at the spot and then left to search out accused. Accused was arrested on 26th May,
2006 and on his pointation on 9th June, 2006 weapon of offence i.e. T.T p istol was recovered
from the house of accused, which was taken into possession through a recovery memo and
parcel No.4 was prepared. Statements of P.Ws. regarding recovery of pistol were recorded at
the site and Murasala regarding lodging of case under sec tion 13 -E Arms Ordinance was sent
to police station, as accused failed to produce any license or permit of the same. Empties,
bloodstained earth, wearing of deceased and weapon of offence were sent for chemical
analysis. Challan has been prepared by Ghulam Sarwar S.H.O, which was produced by
P.W.9 as Exh.P/9 -L. After receiving FSL report, incomplete challan regarding analysis of
weapon was produced as Exh.P/9 -M. Report of FSL pertaining to weapon was produced as
Exh.P/9 -N and analysis report Pertaining to b loodstained clothes was produced as Exh. P/9 -
O. Incomplete challan to this extent was produced as Exh.P/9.P. After receiving medical
certificate, incomplete and complete challans were submitted in the Court, which were
Produced as Exh.P/9 -Q and Exh.P/9 -R.
This P.W. admitted that at the place of incident, hotel and shops were there. He further
admitted that bus, in which deceased was murdered was not there. He further admitted that
he did not record statement of any person at the site belonging to other tr ibes, however;
statement of bus driver and injured Mst. Sher Bano were recorded by him. He denied the
suggestion that he has recorded statements of Mst. Sher Bano and driver at his own. He
stated that after giving "Naqsha -e-Mazroobi" to her and recording h er statement, she was
removed to hospital. He further stated that corpse was removed to hospital at 3 -30 a.m. and
the statement of Zareef Khan and Nabi Dad were recorded at 2 -00 a.m. He stated that he does
not recollect that on what date empty and pistol w ere sent for chemical analysis. He denied
the suggestion that he himself made firing through T.T. pistol and then empty along with
pistol were sent for chemical analysis. He admitted that people present at the site were not
examined; voluntarily stated tha t he recorded statement of concerned persons. Appellant in
his statement recorded under section 342, Cr.P.C. denied the allegations levelled against him.
In reply to question No.15, he stated that ---
In reply to question No.17 he opted to produce D.Ws. a nd in reply to last question No.18
what else he wants to say, he stated that
10 Upon scrutiny of record no list of witnesses was found to have been filed by appellant,
however; case was adjourned for 4th December, 2006 for production of D.Ws. On that dat e
again appellant failed to produce any D.Ws., however; request for a long adjournment was
made in the interest of justice, request was acceded to and case was fixed for 19th December,
2006. On that date again appellant failed to produce any D.Ws, therefor e; case was fixed for
21st December, 2006 appellant did not produce any D.W. and requested for close of his side,
therefore; request was allowed and arguments were heard on the same date. We have given
our anxious thoughts to the contentions of learned cou nsel for the appellant. As far as first
contention of learned counsel pertaining to misappreciation, misreading or non -reading of
prosecution evidence is concerned, we do not subscribe to learned counsel for the appellant,
a perusal, analyzation and apprec iation of evidence leaves no room for doubt that admittedly
P.W. P. W.2 and P.W.3 are eye -witnesses of the incident, they have corroborated each other
on every minor and major points except statement of P.W.3, who mentioned arrival of police
at venue as 12 -30 with this exception there is no contradiction, no improvement or
discrepancy in the statements of prosecution witnesses at all. The prosecution's eye -witnesses
remained firm, they are consistent in their stand have not been shaken, despite lengthy cros s-
examination. So P.Ws. 1, 2 and 3 being eye -witnesses of the incident have rightly been
believed by the learned Additional Sessions Judge and no exception can be taken at all.
11. As far as relationship of P.Ws. with deceased are concerned, suffice it t o observe that
mere relationship, itself is not a ground to discard statement of eye -witnesses and particularly
so when the witnesses are truthful, reliable and their statement is worthy of credence,
therefore; in our considered opinion there is no misread ing, non -reading or misappreciation
of prosecution evidence by learned trial Court quo eye -witnesses.
12. In so far as non -examination of passengers, boarded at the relevant time in the bus of a
person residing where the incident took place, also lost fo rce, as admittedly bus was not
available at the site when police arrived, secondly since the incident has taken place in a bus,
therefore; any person, if at all resident of the areas where incident took place, has not seen
the incident with his own eyes, t herefore; there was no occasion for recording statement of
such person. P.Ws. 1, 2 and 3 have not named any other person known to them, boarded in
bus at that time, whose statement, according to defence was essential and liable to be
recorded. Statement of bus driver was recorded under section 161, Cr.P.C. though driver was
subsequently dropped.
13. As far as third contention raised by learned counsel for the appellant regarding
contradictions in statements are concerned, we are satisfied that in fact the re is no
discrepancy, contradiction or improvement in statements of eye -witnesses. Furthermore; the
learned counsel failed to pinpoint a single contradiction or improvement amongst statements
of prosecution witnesses. We have also minutely assessed the pro secution evidence, but have
arrived at definite conclusion that there is no contradiction, improvement and discrepancy in
statements of eye -witnesses, in fact eye -witnesses are natural, truthful, confidence inspiring,
reliable and firm to their stand, have stuck to their gun are entirely consistent, hence
contention so raised also fails for not finding support from record.
14. With regards to contention No.4 of learned counsel, suffice it to observe that this
contention is weightless and legless, as compl ainant has nominated only one person with
specific role, therefore; this submission is also of no avail. Contentions and arguments so
raised by learned counsel are without substance, as there are three eye -witnesses, who are
natural, were very much present at venue; , rather accompanying deceased at the time of
incident. Their statements were recorded within two hours of incident and were also
nominated in the promptly lodge F.I.R. In these circumstances, contention of learned counsel
for appellant has got no legal weight and thus is rejected. As far as objection with regard to
recovery of crime weapon and delay of sending of the same to FSL in concerned, this
contention does not find legal support for various reasons, firstly that the recovery of crime
weap on was effected in consequence of disclosure made by accused, therefore; non -
association of private witnesses is immaterial; secondly the safe custody of these articles
were never disputed and challenged and thirdly this piece of statement is not sole piec e of
statement, which has been believed for conviction; rather the same has been treated as
corroboratory evidence, hence we are unable to agree with this submission of appellant.
15. The next limb of arguments i.e. non -production of best evidence i.e. d river of the bus also
does not lend any support to this case of appellant. There is no cavil with the legal
proposition that solitary statement is sufficient to record major Penalty, if the statement rings
true. Here in this case, prosecution has produced three P.Ws. i.e. P.Ws. 1,2 and 3, who are
natural, truthful, honest, reliable and could not be shaken by the defence, despite lengthy
cross -examination. Moreover; there is no law; which binds the prosecution to adduce all the
witnesses mentioned in calenda r of witnesses. In our considered opinion this is idiosyncrasy
of prosecution as to, it remains satisfied with what number of witnesses, legally quality
matters and not the quantity, however; in this case prosecution has produced all three eye -
witnesses, t herefore; in our estimation, the number is more than sufficient.
16. The last submission by learned counsel with regard to quantum of sentence, we will be
dealing with the submission at the eve of dilating upon Criminal Revision Petition No.7 of
2007, si nce facts have already been narrated in the appeal, therefore; need not be repeated, so
in the light of above discussion and for the reasons recorded herein below, we are inclined to
accept the revision petition and enhance the sentence from life imprisonm ent to that of death,
in other words, the learned trial Court has committed material illegality while proposing
lesser sentence for various reasons. Firstly prosecution had proved its case to the hilt, there
was no rhyme or reason for awarding lesser punis hment. At the very outset, we are inclined
to hold that the contention of counsel for appellant has got sufficient force that appellant was
acquitted of the charge under section 324, P.P.C. and no appeal was preferred by
complainant or State, therefore, to that extent matter has attained finality. Request of Mr.
Shah Muhammad Jatoi counsel for complainant regarding passing of sentence under section
324, P.P.C. is rejected, for not filing any appeal against acquittal under section 324, P.P.C.
which has attai ned finality. The learned trial Court proposed lesser punishment at the
strength of Exh.P/1 -A, we observe that trial Court erred in law by exhibiting a document
through a person, who is neither author of document nor party to it nor is the custodian of
same. So the document was neither entertainable nor could have been received in evidence.
Exh.D/1 -A is liable to be ruled out of consideration, which was wrongly entertained in
evidence and treated as a mitigating circumstances for lesser punishment. Notwiths tanding
above legal infirmities, we perused Exh.D/1 -A, same does not render any support to the
version of defence nor makes out a case for commutation of sentence.
17. We are of firm opinion that prosecution has established the charge beyond any doubt.
Ocular account furnished by P.Ws.1,2 and 3 which finds complete support and full
corroboration from medical certificate Exh.P/5 -F and undisputed motive has proved that
respondent (convict) has committed a premeditated, intentional and cold blooded murder of
an innocent person i.e. Saeed Bakhsh through a barbaric act and in brutal manner not only
the murder of Saeed Bakhsh, rather murder of sister namely Mst. Sohban sister of appellant,
causing injuries by fire -arm to two innocent person by appellant are esta blished admitted
facts for committing murder of Mst. Sohban and causing injuries to little kid Muhammad
Bakhsh and Mst. Sher Bano, no punishment was awarded by any Court.
18. So in such situation, let us see what the Holy Quran says. The Holy Qura'n in P aara No.5
Sura Nisa IV in verse No.93 says "If a man kills a Believer intentionally, his recompense is
Hell, to abode therein (Forever): and the wrath and the curse of Allah are upon him, and a
dreadful penalty is prepared".
19. So, we are clear in our mind, one who, by his evil, ugly, barbaric, unfair execrable act
(commission of .murder) thereby violates the law of land disobeys the Devine Law, not only
renders himself liable for perpetual punishment, loses the mercies, deserves curse and wrath
of Almi ghty Allah the Creater, becomes deprived of sympathies of all the Creatures. On the
pretext of alleged unfounded, unproved and baseless allegation i.e. Siakaro/Karo Kari which
is a menace for society, no one can be given a blank cheque and permit/licence t o commit
murder of any one whom he likes to kill or to quench the thirst of enmity on such pretext.
20. Murder cases must be seen with reference of society and to curb is the need of hour. One
of the objects of criminal justice is to award exemplary puni shment to offenders in order to
deter them from committing crime and in this way also to serve a stern warning to those
members of society, who have behavioural leaning towards criminality.
21. By now this is settled law, normal penalty of death should f ollow when prosecution
succeeds in proving case. Avoiding deterrent punishment is a factor, which indirectly
contributes to incident of crimes, normal sentence in murder cases should not be altered on
flimsy grounds. Learned trial Court illegally entertain ed a document without formal proof,
exhibited the same in illegal manner and treated as an extending circumstances for
imposition of lesser punishment. This conduct of lower Court is disapproved and
depreciated, in fact quantum of sentence proposed by lowe r forum is contrary to law and
observations of Honourable Supreme Court made in cases reported in 1999 SCMR 1190,
wherein; it was held as under: --
"S.302. Normal penalty of death prescribed for murder should follow when
prosecution succeeds in proving ca se against accused person beyond reasonable
doubt. Supreme Court disapproves hesitancy and inhibition on part of Courts to award
sentence of death in cases under section 302 and their efforts to find laboured pretext
to alter death sentence to life impriso nment."
22. By taking the view for enhance ment of life imprisonment to normal punishment i.e.
death under section 302(b), P.P.C, we are supported by following judgments: --
(1) PLD 2007 SC P -80, (2) PLD 1975 SC P -227, (3) PLD 1976 SC P -452, (4) PLD
2000 SC P -12, (5) PLD 2001 SC 465, (6) 1999 SCMR P -2028, (7) 2001 SCMR P -
1750 and (8) MLD (CRL) 1995 SC P -540(sic).
23. In the light of above discussion, we have no hesitation in holding that there was no
mitigating and extenuating circumstances at all, war ranting the commutation of sentence.
Since appellant Hasil Khan son of Rab Dina has committed a premeditated, intentional cold
blooded murder of an innocent person, therefore; he deserves the normal penalty as provided
under section 302(b), P.P.C. i.e. dea th sentence. Sentence of life imprisonment awarded to
appellant Hasil Khan vide judgment dated 18th January, 2007 passed by Additional Sessions
Judge, Dera Allah Yar is hereby enhanced to death sentence. Convict/ appellant Hasil Khan
shall be hanged by his neck till he is dead. With this modification in the quantum of
sentence, impugned judgment is maintained with the result that Criminal Appeal (S) No.6 of
2007 is dismissed and Criminal Revision Petition(S) No.7 of 2007 filed by complainant Dil
Murad is ac cepted.
N.H.Q./6/Q Sentence enhanced.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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