2012 P Cr. L J 750
[Balochistan]
Before Muhammad Hashim Khan Kakar and Muhammad Noor Meskanzai, JJ
KHUDAI DAD alias PEHLWAN--- Appellant
Versus
THE STATE ---Respondent
Criminal Jail Appeal No.12 and Criminal Revision Petition No.11 of 2007, decided on 29th December, 2011.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b), 324 & 337- F(i)---Qatl -a-amd, attempt to commit qatl- eamd, causing Damiyah to
any person---Appreciation of evidence ---Both prosecution witnesses, though were closely related
inter se as well as to the deceased, but their evidence could not be discarded merely on the basis of their relationship with the deceased ---Accused was nominated in the promptly recorded F.I.R.
as a principal perpetrator ---Defence, despite lengthy cross -examination, failed to create any dent
in the veracity of statements of prosecution witnesses, except , a few discrepancies, which were immaterial and not fatal to their evidence ---Prosecution witnesses were residents of the
adjacent Refugee Camp an d one of the prosecution witnesses had also got injured by the
firing made by accused ---Presence of said witnesses at the place or time. of occurrence could
not be doubted being natural -witnesses ---Occurrence having taken place in broad daylight,
there was no possibility of mistaken identification---Evidence of the witnesses did not suffer
from any material contradiction, discrepancy or inherent infirmity and was consistent with the probabilities materially fitting in with other evidence, more particularly the medical
evidence supported by the recovery or crime weapons from the possession of accused and
positive report of Forensic Science Laboratory ---Accused, in the light of material available
on record had committed the murder of the deceased and caused fire- arm injuries to the
prosecution witness ---Appeal filed by accused, was dismissed, in circumstances.
(b) Penal Code (XLV of 1860) ---
----Ss. 302(b), 324 & 337- F(i)---Qatl -e-amd, attempt to commit qatl- eamd, causing Damiyah-
--Appreciation of evidence ---Evidence of interested witness ---Evidence furnished by
interested witnesses related to the deceased, could not be discarded merely for the reason that the witness had relationship with the deceased in such like situation, efforts must be made t o
seek corroboration from other evidence on record--= Corroboration did not mean that it should come from an independent witness, but any thing in the circumstances, which tended to satisfy the court that the witness had spoken truth could safely be considered to be corroborative evidence.
(c) Penal Code (XLV of 1860) ---
----Ss. 302(b), 324 & 337- F(i)---Criminal Procedure Code (V of 1898), S.439---Qatl -e-amd,
attempt to commit qatl -e-amd, causing Damiyah to any person---Sentence---Accused was
convicted and sentenced to suffer life imprisonment, and the prosecution had filed petition
for enhancement of said sentence to that of death penalty--- Murder in question was neither
preplanned nor premeditated, as accused was unaware about the arrival of the compla inant
and his deceased brother ---Deceased had approached the accused who was present at the
tube-well; and record was completely silent about the fact as to what had happened,
immediately, prior to the occurrence between accused and the deceased ---Incident was not
started by accused and in fact it was the deceased, who approached accused at the time of
incident and the motive behind the incident was shrouded in mystery---Real motive for commission of the alleged offence had been withheld by the prosecution- --High Court in
circumstances, declined to interfere with. the sentence awarded by the Trial Court ---Death
sentence, however, could not be inflicted on the accused in view of delay of about six years occurring on account of intervening circumstances of the case---Petition for enhancement of
sentence, was dismissed, in circumstances.
Haji Liaquat Ali for Pauper Appellant.
Nazeer Aghan for the Complainant/Petitioner
Abdul Sattar Durrani, Additional A.- G. for the State.
Date of hearing: 19th December, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---Pauper appellant Khuda -e-Dad alias
Pehalwan has challenged the validity of judgment dated 15th March, 2007, passed by the Additional Sessions Judge -II, Quetta, by means of instant Criminal Jail Appeal No. 12 of
2007 sent through Superintendent, District Jail, Quetta, whereby he was convicted and sentenced under section 302(b) of the P.P.C. to suffer life imprisonment as ta'zir and to pay a
fine of Rs.50,000 (rupees fifty thousand only), in defaul t whereof to further undergo SI for
two (2) years, and under section 324 of the P.P.C. to suffer five (5) years and to pay a fine of Rs.5,000 (rupees five thousand only), in default whereof to further undergo six (6) months' SI as well as under section 337 -F(i) of the P.P.C. to suffer six (6) months and to pay an
amount of Rs.5,000 (rupees five thousand only) as Daman, if recovered, be paid to the legal
heirs of the deceased. The aforesaid sentences were ordered to run concurrently, with the benefit of sect ion 382 -B of the Cr.P.C. Whereas complainant Amir Muhammad has filed
Criminal Revision Petition No.11 of 2007 for enhancement of the sentence of life imprisonment to that of death penalty.
2. Complainant Amir Muhammad (P.W.1) in his Fard -e-Bayan Exh.P/1- A alleged that on 1$t
June., 2006, he, along with his brother Miran Jan, was going towards their house from
Refugee Camp No.5, when at about 6- 30 p.m., his brother Miran Jan, on seeing Khuda -e-Dad
alias Pehalwan on a Bawari, told him that he would meet Khuda -e-Dad, at which he
proceeded towards his house. The complainant further alleged that he heard fire'shots from
the Bawari, went there and saw that Khuda -e-Dad made firing on Miran Jan and committed
his murder. On hearing fire report, his cousin Muhammad Khan also reached at the Bawari
on that accused Khuda -e-Dad also made firing upon him as well as his cousin Muhammad
Khan, who sustained a bullet injury in his belly whereas he luckily remained safe.
Consequently, a case vide Crime No.6 of 2006, under sections 302 and 324 of the P.P.C. was
registered at Police Station, Panjpai, Quetta.
3. After registration of F.I.R. Exh.P/7- A, the investigation of the case was entrusted to P.W.7
Muhammad Ilyas, IP, who visited and inspected the site, pre pared inquest report Exh.P/7- 13, site
sketch Exh. P/7- C, secured blood- stained earth, collected four empties of .303 bore rifle,
recorded the statements of P.Ws., released the dead body of the deceased to its heirs without
conducting postmortem examination, took into possession blood- stained Sadri of the deceased,
admitted the injured Muhammad Khan in hospital, arrested the accused and on his disclosure and pointation, recovered arms and ammunitions, prepared site sketch of the recovery of arms and
ammunitions Exh. P/7- D and separate case under the Arms Ordinance was registered against
him. He prepared site sketch of the place of occurrence through Patwari, obtained death
certificate of the deceased and on completion of the investigation, the accused was rem anded to
judicial custody and incomplete challan Exh.P/7- G was prepared. On receiving report from FSI,
Exh.P/7- E regarding blood- stained articles as well as Medico -legal Certificate of injured
Muhammad Khan, supplementary challan Exh.P/7- H was prepared. Th ereafter, on receiving the
report of Firearm's Expert Exh.P/7- F, complete challan Exh.P/7- J was prepared.
4. On the state allegation, a formal charge was framed and read over the appellant, to which he
did not plead. guilty and claimed trial. To prove the accusation, the prosecution produced seven
witnesses. P.W. Amir Muhammad is complainant of the case, who placed on record his Fard -a-
Bayan P.W.2 Muhammad Khan is injured eye -witness of the occurrence. P.W.3 Asghar Ali,
ASI, is witness to the recovery mem os Exh.P/3- A, Exh.P/3- B, Exh.P/3- C, Exh.P/3- D and
Exh.P/3- E regarding blood- stained earth of the deceased and injured, crime empties, site
inspection note and blood- stained Sadri respectively. P.W.4 Muhammad Tahir, constable, is
witness to the disclosure m emo Exh.P/4- A of the accused and in consequence whereof, recovery
of crime weapon was effected. P.W.5 Dr. Ghulam Haider, Medical Legal Officer, Sandemart Provincial Hospital, Quetta, examined the dead body of the deceased and issued death certificate
Exh.P /5-A. He also examined injured Muhammad Khan and issued Medico- legal Certificate
Exh.P/5- B. P.W.6 Muhammad Amin, Patwari, prepared the site sketch of the place of occurrence
vide Exh.P/6- A on the pointation of Investigating Officer and P.W.7 Muhammad Ilyas , IP, is the
Investigating Officer of the case. Then the prosecution closed its side.
5. The accused was examined under section 342 of the Cr.P.C., wherein he once' again denied the prosecution allegation. He did not opt to record his statement on oath a s provided under
section 340(2) of the Cr.P.C., nor produced any witness in his defence.
6. On conclusion of the trial, the trial Court found the prosecution's case against the appellant to
have been proved beyond reasonable doubt and, thus, the appellant was convicted and sentenced,
as mentioned and detailed above.
7. We have heard the learned counsel for the pauper appellant as well as the counsel for the State and have gone through the record with their valuable assistance. It has been argued by the learned counsel for the pauper appellant that the prosecution had failed to prove its case against
the appellant beyond reasonable doubt and, thus, this appeal warrants acceptance with a resultant
acquittal of the appellant.
8. On the contrary the learne d counsel for the State, duly assisted by learned counsel for the
complainant/petitioner, has maintained that the prosecution had succeeded in proving the guilt of the appellant to the hilt and therefore, the present appeal deserves dismissal. Learned counsel for the complainant/petitioner requested for enhancement of the sentence of life imprisonment to that of death penalty. 9. The connection of the appellant with the crime in question is sought to be established by the evidence of P.W. Ameer Muhammad a nd P.W.2 Muhammad Khan, who have furnished the
ocular account. It is the case of the prosecution, as deposed by the complainant in his Fard e-
Bayan (Exh.P/I -A) that on 1st June, 2006, the complainant, along with his brother Miran Jan
was going towards thei r house from Afghan Refugee Camp No.5. At about 6- 30 p.m., his brother
Miran Jan, on seeing Khuda -e-Dad alias Pehalwan, told him that he would meet Khuda e-Dad
(appellant), at which he proceeded towards his house. Meanwhile, he heard fire shots and saw that Khuda -e-Dad made firing on deceased Miran Jan and committed his murder. The
complainant further alleged that, on hearing fire reports, his cousin Muhammad Khan (P.W.2) also reached there and the appellant also made firing upon him, who sustained a bullet injury in
his belly. Admittedly, both the witnesses are closely related inter se as well as to the deceased,
but their evidence cannot be discarded merely on the basis of their relationship with the deceased. It is a recognized principle of law that in cr iminal administration of justice, evidence,
furnished by interested witnesses related to the deceased, cannot be discarded, merely for the reason that the witness has relationship with the deceased, however, the Courts have emphasized that in such like sit uation, efforts must be made to seek corroboration from other evidence on
record. As far as corroboration is concerned, it does not mean that it should come from an independent witness, but anything in the circumstances, which tends to satisfy the Court that the witness has spoken truth, can safely be considered to the corroborative evidence.
10. The appellant is nominated accused in the promptly recorded F.I.R. as a principal perpetrator. The occurrence took place at a tube- , well of Syed Muhammad Mashwani, situated
near Refugees Camp No.3, at about 6- 30 p.m., on 1st June, 2006, which was reported at
.8-30
p.m., at Police Station Panjpai, situated at a distance of 16/17 kilometers from the place of occurrence. The statement of Muhammad Ilyas, SI, (P.W.7), who collected the blood- stained
earth from the tube -well, where the dead body was lying, on his arrival, shows that the
occurrence took place at the tube- well as alleged by the prosecution.
11. Despite lengthy cross -examination, the defence failed to create any dent in
' the veracity of
statements of P.Ws., except a few discrepancies, which are immaterial and not fatal to their
evidence. They are residents of the adjacent Refugees Camp and P.W.2 Muhammad Khan has also got injured due to the firing made by
.the appellant, as such, their presence at the place of
occurrence or at the time of occurrence could not be doubted being natural witnesses.
12. The occurrence took place in broad- daylight and under such circumstances, no question of
mistaken identification arise at all. The evidence of the witnesses is not suffering from any
material contradiction, discrepancy or inherent infirmity and is cons istent with the
probabilities, materially fitting in with other evidence, more particularly the medical evidence
and supported by the recovery of crime weapons from possession of the appellant and positive
report Exh.P/7- F of Forensic Science Laboratory, C rime Branch, Balochistan.
13. In the light of above discussion and material available on record, it is safely concluded that the appellant has committed the murder of the deceased and causing firearm injury to prosecution witness Muhammad Khan, therefore , the Criminal Jail Appeal No.12 of 2007 is
hereby dismissed.
14. Now adverting to Criminal Revision Petition No.11 of 2007, filed by complainant Ameer Muhammad, calling in question the legality of quantum of the sentence. No doubt, after finding the acc used guilty of the offence, the paramount and important question, that requires
the utmost care and attention by the Court dealing with the life and liberty of the people, is the sentence sought to be awarded. The perusal of impugned judgment shows that the trial Court has proposed the lesser punishment on the ground that it was the deceased, who approached the accused in connection with some work and got murdered, afterwards on account of something going wrong between him and the accused. The relevant findings of the trial Court reads as under: --
"Death penalty was not awarded to the accused in view of the contents of the F.I.R. and the
deposition of the eye -witnesses to the effect that the accused was present by the tube well of
Syed Muhammad Mashwani an d the deceased while passing through the same on his way
home along with his complainant brother approached the accused. In other words, it was the deceased who approached the accused in connection with some work and got murdered afterwards on account of s omething going wrong between him .and the accused. The accused
did not make a deliberate and pre planned preparation for the commission of Qatl -e-and of the
deceased. "
We have given our serious thoughts to the quantum of sentence and have gone through t he
record minutely, in order to ascertain, as to whether any circumstance does exist on record to justify the departure from the normal rule i.e. the awarding of death sentence to the person, whq is found guilty of an offence, punishable with death. After having gone through the entire evidence, we are of the view that the murder in question was neither preplanned nor premeditated, as the appellant was unaware about the arrival of the complainant and his deceased brother. It was the deceased who approached the appellant, present at his tube -well and the
record is completely silent about the fact that what happened, immediately, prior to the occurrence between the appellant and the deceased. The incident of 1st June, 2000 was not started by the appellant and in fact it was the deceased, who approached the appellant at the time of incident and the motive behind the incident is shrouded in mystery. The real motive for commission of the alleged offence had been withheld by the prosecution. Ordinarily, this Court would be too reluctant to interfere with the sentence awarded by the trial Court, unless the
sentence is against the law or it is not in consonance with the sound judicial principles,
particularly in such a case, when accused was given expectation of life, resulting from the
decision of the trial Court. Death sentence could not be inflicted on the accused in view of a long delay of about six years occurring on account of intervening circumstances of the case.
For the facts, circumstances and reasons stated hereinabove, the Revision Petition No.11 of 2007
is dismissed being meritless.
H.B.T./11/Q Appeal and revision 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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