2012 Y L R 661 [Balochistan]
Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ
MAJEED and another ---Appellants
Versus
THE STATE and another ---Respondents
Criminal Appeal No.(s) 128 and Murder Reference No.(s) 19 of 2009, decided on 22nd September, 2011.
Penal Code (XLV of 1860) ---
----Ss. 302(b), 324/34, 337- F(i) & 337 -Y(ii) ---Qatl -e-amd, attempt to commit qatl- e-amd,
causing damiyah ---Appreciation of evidence---Sentence, reduction in ---Counsel for accused
instead of p raying for acquittal of accused, had sought for commutation of death sentence
awarded to accused into that of life imprisonment ---Complainant and injured witness were the
eye-witnesses of the occurrence, who had furnished straightforward and confidence ins piring
evidence and despite lengthy cross -examination the defence had failed to create any dent in their
veracity, except a few discrepancies which were immaterial and not fatal to their evidence ---Said
witnesses were accompanying the deceased at the time of occurrence and being residents of the area, their presence at the relevant time could not be doubted by any degree of seriousness ---
Occurrence had taken place in broad -daylight, in such circumstances there could be no question
of mistaken identity at all ---Evidence of said witnesses did not suffer from any material
contradiction, discrepancy or inherent infirmity and was consistent with the probability, materially fitting in with other evidence, more particularly the medical evidence ---Complainant
and ot her prosecution witness though were real brothers of deceased, but only on account of
relationship, they could not be termed as interested witnesses, for the reason that they had no direct animosity with accused, who had been nominated in the F.I.R. with s pecific role of firing --
-Even otherwise, such witnesses were not expected to let the real culprits go scot -free and
substitute accused in such kind of offence, because substitution was a rare phenomenon---Accused after commission of the offence, absconded and remained a fugitive from law ---
Abscondence, by itself, was not sufficient to convict accused, but was a strong corroborative piece of evidence of other direct and circumstantial evidence in the case---Said conduct of accused, immediately after the inci dent, was indicative of his guilt ---Role of firing having been
attributed to four accused persons, it had not been established beyond doubt as to by whose fire shot the deceased had been killed, imposition of death sentence on accused was not warranted ---
While maintaining the convic -tion of accused, his sentence of death was altered to imprisonment
for life, in circumstances.
H. Shakil Ahmed for Appellant (in Criminal Appeal No.(s) 128 of 2009).
Abdullah Kurd, A.P.- G. for the State (in Criminal Appeal No.(s) 128 of 2009).
Abdullah Kurd, A.P.- G. for the State (in Murder Reference No.(s) 19 of 2009).
H. Shakil Ahmed for Respondent (in Murder Reference No.(s) 19 of 2009).
Date of hearing: 18th August, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---The Additional Sessions Judge, Jhal Magsi at
Gandawah, vide judgment dated 19- 11-2009 has convicted and sentenced appellant Majeed son
of Sher Dil under section 302(b) read with section 34 of the P.P.C. to death as ta'zir with direction to pay compensation of Rs.100,000 to the legal heirs of deceased Afzal Khan as provided under section 544- A of the Cr.P.C., in default whereof to further undergo R.I. for six
months. He was further convicted and sentenced under section 324 read with section 34 of the P.P.C. to suffer five (5) years' R.I. with direction to pay compensation of Rs.20,000 to injured Sohrab Khan, in default whereof to further undergo R.I. for six months and under section 337-F(i) of the P.P.C. to suffer one (1) year's R.I. and to pay Daman of Rs.5,000 to the injured, in default whereof to be dealt with as provided under section 337- Y(ii) of the P.P.C. The appellant
preferred Criminal Appeal No.(S)129 of 2009 for his acquittal, while the Additional Sessions Judge has sent Murder Referen ce No.(S)19 of 2009 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 Ghulam Rasool (P.W.1) in his Fard -e-Bayan dated 4- 11-2006
(Exh.P/1- A) alleged that he, along with his brothers Afzal Khan and Sohrab Khan, went to
Mouza Lakhti Tehsil Gandawah for the purposes of grazing their cattle. It was further alleged that when they went to a stream Badara, accused persons Doda Khan, Majeed, Dost Muhammad and Aslam, already present there, made firing upon them with Kalashnikovs, due to which Afzal Khan expired at the spot, whereas Sohrab Khan sustained bullet injuries. Consequently, a case Crime No.23 of 2006 (Exh.P/1- 8), under sections 302, 324 read with section 34 of the P.P.C. was
registered at Levies Station Gandawah District Jhal Magsi.
3. After registration of the F.I.R., initially the investigation of the case was carried out by
Ishfaq Ahmed, the then Tehsildar, Gandawah, who visited and inspected the site, where he found
the dead body of deceased Afzal Khan and his brother Sohrab in injured condition, who was sent to hospital for treatment. He prepared site sketch Exh.P/5- A, seized the dead b ody vide recovery
memo Exh.P/5- C, took into possession the blood- stained clothes of the deceased vide memo
Exh.P/5- D and since the accused persons 'could not be arrested, therefore, he prepared
incomplete challan Exh.P/5- E.
On arrest of accused Abdul Maj eed, further investigation of the case was conducted by P.W.6
Muhammad Iqbal Marwat, IP and after completion of the investigation, he prepared incomplete challan Exh.P/6- A and accused was sent up to face the trial.
4. On the stated allegation, a formal c harge was framed and read over to the appellant, to
which he pleaded not guilty and claimed trial. The prosecution, in order to substantiate the accusation, produced six witnesses. P.W.1 Ghulam Rasool is complainant of the case, who produced his Fard -e-Bayan Exh.P/1- A and F.I.R. Exh.P/1- B. P.W.2 Dr. Raziq, Medical Officer,
examined the dead body of the deceased and the injured and issued Medico- legal Certificates
Exh.P/2- A and Exh.P/2- B. P.W.3 Sohrab Khan is injured of the occurrence. P.W.4 Mureed Khan
is witness to the release of dead body of the deceased to the complainant vide memo. Exh.P/4- A
by the Tehsildar. In whose presence, the blood- stained clothes of the deceased were also taken
into possession by the Tehsildar vide memo. Exh.P/4- B. P.W.5 Ishfaq Ahmed and P.W.6
Muhammad Iqbal Marwat, IP, are the Investigating Officers of the case. Then the prosecution closed its side.
5. In his examination under section 342 of the Cr.P.C., the appellant denied and
controverted each and every allegation of fact lev elled against him by the prosecution and
professed his innocence. However, he neither made any statement on oath under section 340(2) of the Cr.P.C, nor produced any witness in his defence.
6. At the 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. At the very outset, H. Shakil Ahmed, learned counsel for the appellant, contended that
instead of praying for acquittal of the appellant, he would seek for commutation of the death sentence awarded to the appellant into that of life imprisonment, on the ground that the role of
firing has been attributed to four accused, but it has not been established beyond doubt as to by whose fire shot the deceased had been killed. 8. On the other hand, Mr. Abdullah Kurd, learned Additional Prosecutor -General, has
opposed the appeal on merit, but conceded the prayer for commutation of the death sent ence into
that of life imprisonment.
9. After hearing the learned counsel for the parties and having gone through the record, we
have arrived at a confident conclusion that the prosecution had, indeed, succeeded to prove its case against the appellant beyond reasonable doubt, however, we found that learned counsel for the appellant was quite justified, praying for commutation of the sentence awarded to the appellant from death to life imprisonment, for the occurrence, which culminated in, unfortunate, death of deceased Afzal Khan and injuries to P.W.3 Sohrab Khan. P.W.1 Ghulam Rasool and injured witness P.W.3 Sohrab Khan are the eye -witnesses of the occurrence, who have furnished
straightforward and confidence inspiring evidence. Despite lengthy cross -exam ination, the
defence failed to create any dent in their veracity, except a few discrepancies, which are immaterial and not fatal to their evidence. They were accompanying the deceased Afzal Khan at the time of occurrence and being residents of the area, their presence at the relevant time could not be doubted by any degree of seriousness. The occurrence has also taken place in broad daylight and under such circumstances, no question of mistaken identification arise at all. Their evidence is not suffering fr om any material contradiction, discrepancy or inherent infirmity and
consistent with the probabilities, materially fitting in with other evidence, more particularly the
medical evidence.
10. No doubt, P.W.1 Ghulam Rasool and P.W.3 Sohrab Khan are real br others of deceased
Afzal Khan, but only on account of relationship, they cannot be termed as interested witnesses,
for the reasons that they had no direct animosity with the appellant, who has been nominated in
the F.I.R. with specific role of firing. Eve n otherwise, the witnesses are not expected to let escort
free the real culprits and substitute the appellant in such kind of offence, because substitution is a
rare phenomenon.
11. It may be noted that the appellant, after commission of the offence, abs conded and
remained fugitive from law. Though the abscondence, by itself, is not sufficient to convict an accused person, but is a strong piece of corroborative piece of evidence of other direct and circumstantial evidence in the case. As the appellant is fugitive from justice since long, therefore, his conduct, immediately, after the incident, is indicative of his guilt, when considered in conjunction with the ocular and circumstantial evidence.
12. Diverting to quantum of the sentence of imprisonment, as already stated hereinabove,
learned counsel for the appellant, instead of challenging the conviction on merit, has prayed for commutation of the death sentence into that of life imprisonment. Keeping in view the concession extended by lea rned Additional Prosecutor -General and the fact that as it has not be
established beyond doubt as to by whose fire shot the deceased had been killed, therefore, in the peculiar circumstances of the case, the imposition of death sentence on the appellant is not
warranted.
13. In the circumstances discussed above, appeal is partly allowed and while maintaining the
conviction of the appellant, we alter his sentence from death to imprisonment for life, plus the same amount of compensation as awarded by the tr ial court. However, the convictions and
sentences of the appellant recorded under section 324/34 and 337- F(i), P.P.C. shall remain intact.
The aforesaid sentences shall order to run concurrently, with benefit of section 382- B of the
Cr.P.C.
These are the reasons of our short order dated 18- 8-2011 announced in the open court.
H.B.T./135/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,
let us know.