2011 Y L R 1853
[Quetta]
Before Mrs. Syeda Tahira Safdar and Ghulam Mustafa Mengal, JJ
ABDUL ZAHIR and another ---Appellants
Versus
THE STATE ---Respondent
Criminal Appeal No.323 of 2009, decided on 1st February, 2011.
Penal Code (XLV of 1860) ---
----Ss. 315, 316, 302(c), 337 -A(i) & 337 -F(i)---Qatl-e-amd, Shajjah -i-Khafifah,
damihah, Qatl Shibh -i-amd---Appreciation of evidence ---Matter was reported without any
delay and accused were specifically nominated ---False im plication and deliberations on
the part of complainant were not likely ---One of the eye -witnesses was a chance witness,
therefore, his evidence had to be seen with care and caution ---Medical evidence suggested
that deceased suffered unnatural death ---Accus ed remained in abscondence for three
months without any explanation ---Burden of proof was on the accused persons to prove
the plea of alibi taken by them but they failed to discharge the same ---Trial Court
discussed the material on record properly and arr ived at the right conclusion ---Death of
the deceased resulted from sudden fight between the parties ---No common intention,
pre-meditation for killing or causing injury had been established ---Accused were not
armed with any weapon, instead, they were alle gedly in possession of the spade and rods
which were tools for cultivation of land ---Circumstances showed that offence under
S.302, P.P.C. was not made out, rather the act of the accused was covered by S.315,
P.P.C. ---Prosecution failed to prove that the a ccused gave blow to the deceased with
intention to kill him ---Trial Court wrongly found that the blow given to the
deceased could cause death in ordinary course of nature ---Case against the accused was
covered by S.315, P.P.C. ---Accused was ther efore sentenced to 14 years' imprisonment
under S.316, P.P.C.
Zafar Hayat v. The State 1995 SCMR 896; Muhammad Altaf and 5 others v. The
State 2002 SCMR 189 and Ali Asghar v. The State 2004 PCr.LJ 1308 ref.
Shaukat Ali Rakhshani for Appellants.
Miss R ubina Butt Additional P. -G. for the State.
Date of hearing: 20th September, 2010.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J .---The appellants preferred instant appeal, being
aggrieved of judgment dated 28 -9-2009 of Additional Sessions Judge, Killa Saifull ah,
whereby both being found guilty of the offences thus convicted, with prayer for setting
aside of conviction order, and their acquittal of the charge. It is contention of the
appellants, that the trial court has not appreciated the evidence properly, no r considered
the facts apparent from record. Further, the ocular evidence is in conflict with the medical
evidence, which has been ignored by the trial Court. Furthermore, the disclosure and
pointation of place of occurrence have no relevance, as per Artic les 38, 39 and 40 of
Qanun -e-Shahadat Order 1984. It is further contended that there are dishonest
improvements and contradictions in statements of prosecution witnesses, which are not
considered by the trial Court. Furthermore, the allegation of Qatl -e-amd is not established
against appellant Abdul Zahir, despite the same the trial court while completely relying
on the version taken by the prosecution awarded punishment to him for the offence,
which is neither just, nor legal.
It is case of the prosecutio n, according to F.I.R. No.4 of 2009, Police Station Killa
Saifullah, registered on 17 -2-2009 at 10 -30 a.m., it has been reported by one Abdul
Sattar that nearly at 9 -00 a.m. his brothers namely Juma Gul and Murad Khan were
working in their fields, wh en Muhammad Ghani son of Abdullah Khan, Abdul Khaliq and
Abdul Ghaffar sons of Aaloo, Khan Muhammad son of Char Shambay, Alam Khan son of
Naseer and Abdul Zahir son of Naseer arrived there, armed with rods and spades and
started beating his brothers. Meanw hile, on having glace of occasion he (complainant)
reached at the site, on his hue and cry Salam Mullahzai, Alaf son of Sardar Khan, Gula
Khan Batozai,and other residents of locality also reached at the site and get his brothers
out of assailants claw, whi le his brothers were seriously injured, who were taken to
hospital by vehicle of Abdullah Yahyia Zai, but on their way to Quetta one of his brothers
namely Juma Gul succumbed to the injuries, whereupon they returned. After registration
of F.I.R., the compl ainant Abdul Sattar filed his affidavit on 18 -2-2009 repeating the
contents of F.I.R. with further assertions, that the nominated persons had two tractors
with them, further when he (complainant) reached near the site of incident he saw that
accused Abdul Zahir was holding spade with which he hit Juma Gul on his head, while
Khan Muhammad was in possession of rod, he started beating Juma Gul with it, while
Abdul Khaliq also had a rod, who attacked Murad Khan. It is further asserted that,
remaining three nomi nated persons were also assaulted his brothers with rods.
Investigation was carried out on reporting of the incident, all the nominated persons
except Alam Khan were arrested on 15 -5-2009 and 18 -5-2009, case was chal -laned.
Charge was framed on 9 -6-2009, as all the arrested accused persons denied the same and
claimed trial, therefore, evidence was called. In order to establish the case ten witnesses
were produced by the prosecution, while in defence only accused Khan Muhammad and
Abdul Zahir got recorde d their statements on oath and produced one witness namely Said
Muhammad. On completion of evidence, the trial court while arriving to the conclusion
that prosecution failed to establish charge against accused Khan Muhammad, Abdul
Ghaffar and Abdul Ghani, thus acquitted them of the charge. As far as accused Abdul
Khalaq is concerned, being found him guilty for the offence, thus convicted him under
sections 337 -A(i) and 337 -F(i), P.P.C., while sentenced him to suffer imprisonment for a
period of one year as Tazir for each offence and also to pay an amount of Rs.10,000 as
Daman to victim Murad Khan. As far as accused Abdul Zahir is concerned, he being
found guilty for the offence of murder punishable under section 302(c), P.P.C., thus
awarded him senten ce to suffer rigorous imprisonment for a period of 25 -years, while he
(Abdul Zahir) is also directed to pay Diyat amount to legal heirs of deceased Juma Gul.
Feeling aggrieved of the same both the convicts preferred instant appeal with prayer for
setting a side of impugned judgment and their acquittal of the charge on grounds as
mentioned hereinabove.
Learned counsel for the parties are heard, while record is perused. The learned
counsel for the appellants contended that there are clear contradictions and v ariations in
statements of the prosecution witnesses, which are not considered by the trial court. It is
his contention that cause of death is not mentioned in Medico Legal Certificate Exh.P/7 -
C, while no head injury is mentioned therein. Further, statemen t of P.W.3 is contradictory
to prosecution witness No.7 the Doctor. Furthermore, there was delay of three days in
recording statement of P.W.2. Muhammad Yousaf, who otherwise was a chance witness.
It is contended that the remaining witnesses are closely re lated to complainant, thus being
interested witnesses, less reliance can be made on their evidence. Furthermore, the
persons, who were asserted to be present at site at time of occurrence, were not produced
before the court during course of trial, an adver se inference can easily be drawn from the
same. According to learned counsel for appellants the prosecution has failed to bring
home the charge against the appellants, as such they are liable to be acquitted.
Furthermore, the trial court has made an error while convicting them. He relied on
judgments in cases tilted as Zafar Hayat v. The State reported in 1995 SCMR page -896,
Muhammad Altaf and 5 others v. The State reported in 2002 SCMR page -189 and Ali
Asghar v. The State reported in 2004 PCr.LJ page -1308. In reply learned Additional
Prosecutor -General contended that the appellants were specifically nominated in F.I.R.,
while P.W.1, P.W.2 and P.W.3 fully supported the prosecution case being the eye -
witnesses. She further contended that there are only minor contradictions in statements of
the witnesses, which are of no consideration. Further, existence of old enmity is also an
admitted fact. She further contended that as the appellants had taken plea of Alibi,
therefore, they were under legal requirement to e stablish the same. She prayed for
dismissal of appeal while upholding the conviction order.
As per prosecution case the incident occurred at 9 -00 a.m. on 17 -2-2009,
while reported on same day at 10 -30 a.m. by Abdul Sattar, brother of both Juma Gul, the
deceased, and Murad Khan, the injured. While reporting the matter, complainant Abdul
Sattar specifically nominated the accused persons namely Muhammad Ghani, Khan
Muhammad, Abdul Ghaffar, Abdul Khaliq, Abdul Zahir and Alam Khan. Except accused
Alam Khan, the remaining five were arrested, thereby faced trial. The trial court through
impugned judgment convicted Abdul Zahir and Abdul Khalaq founding them guilty of the
offences, while acquitted the remaining accused persons for lack of evidence. Feelin g
aggrieved of the conviction order instant appeal has been filed by the appellants/convicts.
As per impugned judgment the trial court arrived to the conclusion that accused Abdul
Zahir (appellant No.1) with knowledge caused such injury to the victim (Juma Gul),
which can cause death in ordinary course of nature, thus committed offence under section
302(c) P.P.C., thereby sentenced him to suffer rigorous imprisonment for a period of 25 -
years, and also to pay Diyat amount to legal heirs of the deceased. As f ar as accused
Abdul Khalaq (appellant No.2) is concerned, he is convicted only for the offence of
causing hurt to Murad Khan, punishable under sections 337 -A(i) and 337 -F(i), P.P.C.,
thereby sentenced to suffer imprisonment for a period of one year for eac h offence as
Tazir and also to pay an amount of Rs.10,000 as Daman to the injured.
As per record the matter was reported without any delay, with specific nomination
of the culprits. The complainant Abdul Sattar, who appeared before the court as
prosecuti on witness No.1 (P.W.1), while reporting the matter through Exh.P/1 -A
alleged that his brothers namely Juma Gul and Murad Khan were working in their fields,
while nominated persons Muhammad Ghani, Abdul Khalak, Abdul Ghaffar, Khan
Muhammad, Alam Khan a nd Abdul Zahir armed with rods and spades arrived there and
attacked his brothers, while he along with other persons including Salam Jalalzai, Alaf
and Gulla Khan reached at the site, and got escaped his brothers from their claws, due to
serious nature of injures his brothers were referred to Quetta, but on their way, Juma Gul
died due to the injuries. The complainant on very second day of incident filed his
affidavit as his second statement, which is placed on record as Exh.P/1 -B. In the same
though he nom inated same persons, but with addition that the said persons had two
tractors with them, further, when he (complainant P.W.1) reached at site he saw accused
Abdul Zahir (appellant No.1) having spade in his hand, who attacked his brother Juma
Gul with it, h it on his (victim) head, on the other hand accused Khan Muhammad beat
Juma Gul with rod. Further, Abdul Khaliq had rod in his hand, who attacked Murad Khan
and, started beating him with the same, while the remaining three nominated persons were
also beatin g his brothers with rods. While appearing before the court and recording his
statement as P.W.1, Abdul Sattar, asserted the same facts with addition that the accused
persons were ploughing the fields of his brother with tractors. Except specifying the act
done by each of the accused persons, there is no improvement in statement of the
complainant (P.W.1). It seems some how natural that two of his brothers were injured, out
of whom, one died due to the injuries sustained in the incident. The occurrence was o f
broad -daylight, while there was specific nomination of accused persons at first instance,
the report was lodged without any delay, therefore, there is less chance of false
implication and deliberation on part of the complainant.
As far as eye -witnesses of the occasion are concerned, the complainant though
named three persons out of the persons who reached at the site on his hue and cry,
allegedly they were Abdul Salam, Alaf and Ghumrac Khan, though these persons are
cited as witnesses in challan, but non e of them were produced before the court during
course of trial. Rather one Muhammad Yousaf got recorded his statement as P.W.2,
claiming him to be eye -witness of the occasion. As per his statement on 17 -2-2009 at 9 -
00 a.m. he was proceeding towards bazar on road, when he saw fighting on land of Juma
Gul. At said occasion Zahir had spade in his hand, while Khan Muhammad had rod in his
hand, the remaining three accused persons Abdul Khalaq, Alam Khan and Abdul Ghaffar
also had rods in their hands. He further stated that Zahir gave a blow at head of Juma Gul
with spade, while Khan Muhammad hit him (Juma Gul) with rod, further accused Abdul
Khalaq attacked Murad Khan with rod, meanwhile Abdul Salam reached there and
separated them with help of other persons. Th ough this witness asserted to witness the
incident while proceeding on his way, he can be deemed to be a witness by chance,
therefore, his evidence is required to be seen with more caution and care. The
complainant in his court statement though asserted ar riving of Muhammad Yousaf at the
site, on his call of help, at time of incident with other persons with further assertion that
he (Muhammad Yousaf) along with other persons escaped his brothers from claws of
accused persons. But contrary to the same Muhamm ad Yousaf (P.W.2) in his statement
only asserted that he saw the assailants, assaulting Juma Gul and Murad Khan, while
Abdul Salam and others rescued them, but he asserted to accompany them to hospital.
The other eye -witness of the incident is the injured Murad Khan, who appeared before the
court as P.W.3. In his statement he specifically named the accused persons including the
appellants, who entered their lands and started working there with tractors, on their
objections the accused persons attacked them. He stated that Abdul Zahir gave a blow on
head of Juma Gul with spade, while accused Khan Muhammad attacked him (Juma Gul)
with rod. When he (witness) reached there, Khalaq (appellant No.2) hit him with rod on
his head, due to which he became unconscious. He further stated that he remained in
hospital for two days. His later part of statement is contrary to Medico Legal Certificate
Exh.P/7 -B and statement of P.W.7. As the Doctor, while recording his statement as
P.W.7, deposed that Murad Khan was conscious when he was brought to hospital and he
was not admitted in the hospital. But as per Medico Legal Certificate four injuries of
grievous nature are recorded with no head injury.
From whole set of evidence the unnatural death of Juma Gul is established. Th e
medical evidence supported the fact. As per Medical Officer Dr. Jamal Abdul Nasir,
P.W.7, the cause of death of Juma Gul was injury No.1, as mentioned in Medico Legal
Certificate Exh.P/7 -A. He further deposed that there was only one injury noted on body of
deceased Juma Gul. Medico Legal Certificate Exh.P/7 -A also shows only one injury at
left temporal region of Juma Gul. As per P.W.7 the bleeding from nose was also due to
Injury No.1 i.e. head injury. As far as Medico Legal Certificate to the extent of i njured
Murad Khan is concerned, which is present on record as Exh.P/7 -B, it disclose four
injuries on body of the injured, that too described as grievous in nature, while the nature
of weapon is noted as hard. Though P.W.3 Murad Khan asserted that he had b een hit on
his head by Khalaq with wooden rod, but no such injury is noted in the certificate
Exh.P/7 -B.
A part from the same it is to be noted that medical evidence only establish the
prosecution case to the extent of unnatural death of Juma Gul and sust aining of injuries
on body of Murad Khan, in addition to the same, it is the prosecution who has to establish
that the injuries were caused to the deceased and the injured by the accused persons
including the present appellants. There is specific nominati on of accused persons in First
Information Report, while it is also an admitted position that the accused persons, though
residents of same area, remained absconded, while got arrested on 15 -5-2009 and 18 -5-
2009, that is after lapse of three months, that too without any explanation about their
absence from the area. For the very first time accused Abdul Zahir and Khan Muhammad,
while recording their statements on oath raised contention that at time of incident they
were at Quetta, but asserted to reach the area at night after occurrence of incident. It was
their statement that on 16 -2-2009 they (Abdul Zahir and Khan Muhammad) were in
Police Plaza Quetta and were shopping when they met with one Said Muhammad, who
invited them for dinner, they spent the night at house of Said Muhammad, while on next
date after completing their shopping they returned to Killa Saifullah in wagon, and
reached there at 7 -00 or 7 -15 p.m. The said person namely Said Muhammad also
appeared as defence witness No.1 and got record ed his statement. He stated that on 16 -2-
2009 Khan Muhammad and Abdul Zahir met him at Police Plaza, as it was evening, he
offered them meal, whereupon they companied him and spent night at his house and on
next morning at 10 -00 O'clock they left his house . These two accused persons, including
appellant No.1, took plea of Alibi, thus the burden was on them to establish the same. It is
to be noted that this was never suggested to the witnesses appearing on behalf of
prosecution. Rather the only plea taken b y the accused persons was to the effect that the
complainant and his men attacked the accused persons with spades and rods, while Juma
Gul and Murad Khan were injured by act their own men during course of fighting. Their
(accused persons) presence at the s ite of incident at relevant time was never denied, nor
disputed. No such defence plea was taken, nor suggested to the witnesses during course of
their cross -examination. The burden was completely on the accused persons to establish
the same, but they faile d to discharge it.
The trial Court discussed the material present on record properly and arrived to the
right conclusion that the death of Juma Gul was unnatural, further, the offence under
section 149, P.P.C. is not made out, as the prosecution failed to establish the existence of
common object between the accused persons for commission of offence of murder and
causing hurt. The alleged recovery of crime weapon is also rightly disbelieved by the trial
Court. Furthermore, the trial court fixed liability on accused Abdul Zahir and Abdul
Khalaq/appellants for the offences alleged, which in light of the evidence on record is
established as discussed hereinabove, as such no interference is required to be made in the
same. The only blow to the temporal region of Juma Gul was fatal, thus caused his death.
This blow was attributed to accused Abdul Zahir/ appellant No.1. P.W.1, P.W.2 and
P.W.3 asserted the same and their statements to said extent are not shaken during course
of cross -examination; therefore, it canno t be disbelieved. At this stage the point, which
requires consideration is nature of the offence made out against appellant Abdul Zahir
and what would be the quantum of sentence. As far as accused Abdul Khalaq/appellant
No.2 is concerned, he is only awarde d sentence of one year imprisonment each for the
offences punishable under sections 337 -A(i) and 337 -F(i), P.P.C. While he had to pay an
amount of Rs.10,000 to the victim/injured Murad Khan as Daman. In view of evidence
brought on record no interference is required in findings of the trial court to extent of
appellant No.2 Abdul Khalaq. But as far as punishment awarded to appellant No.1 Abdul
Zahir is concerned, the trial court while finding him guilty of offence of murder i.e.
Qatl-e-amd of Juma Gul awarded him punishment under section 302(c), P.P.C. to suffer
rigorous imprisonment for a period of 25 years and also liable to pay the Diyat amount to
legal heirs of victim Juma Gul. But keeping in view the material present on record, there
seems that a sudden fight held between the parties, which resulted in death of one person.
No common intention premeditation for killing or causing injury has been established, the
accused persons were not armed with any sort of weapon, rather they were allegedly i n
possession of the spade and rods, which were described as crime weapon. Spade is
admittedly a tool used in cultivation of land. Thus in the circumstances offence under
section 302(c), P.P.C. is not made out, rather the act is covered by section 315, P.P. C.,
which states as under: --
315. Qatl Shibh -i-amd.---Whoever intent to cause harm to the body or mind of any
person causes the death of that or of any other person by means of a weapon or an
act which in the ordinary course of nature is not likely to cau se death is said to
commit Qatl Shibh -i-amd."
The punishment of the offence is provided under section 316, P.P.C., which states
as under: --
"316. Punishment for Qatl Shibh -i-amd.---Whoever commits Qatl Shibh -i-amd
shall be liable to Diyat and may also be punished with imprisonment of either
description for a term which may extend to twenty five years as Tazir."
The prosecution has failed to bring on record any evidence that accused Abdul
Zahir/appellant No.1 with intention gave blow to victim Juma Gul in order to kill him.
Rather, as per given circumstances the act happened during scuffle between the parties.
Keeping in view the above discussion, the trial court has wrongly held that the
accused having knowledge that with the said blow the death could b e caused in ordinary
course of nature, thereby convicted accused Abdul Zahir/appellant No.1 under section
302(c), P.P.C. Thus in the circumstances as discussed hereinabove offence under section
315. P.P.C. is made out against accused Abdul Zahir/appellant. Therefore, keeping in
view the provisions of section 316 P.P.C. he (Abdul Zahir) is sentenced to suffer rigorous
imprisonment for a period of 14 -years as Tazir, while he is liable to pay Diyat to the legal
heirs of deceased Juma Gul.
The judgment of the trial Court dated 28 -9-2009 is hereby upheld with above
modification.
A.R.K./19/Q Order accordingly.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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