2012 M L D 224 [Balochistan]
Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ
MUHAMMAD HAYAT ---Appellant
Versus
THE STATE---Respondent
Criminal Appeal No.(s)19 and Murder Reference No.3 of 2008, decided on 6th October, 2011.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -e-amd---Appreciation of evidence---All the prosecution witnesses were inter
se related, as well as closed to the deceased ---Mere relationship with the deceased by itself was
not sufficient to discard their evidence ---All the witnesses had fully supported the prosecution
version and the defence had failed to create any dent in their veracity ---Said witnesses were
residents of same village and their presence at the time and place of occurrence, co uld not be
doubted by any degree of seriousness ---Occurrence having taken place in broad daylight, neither
any question of mistaken identification, nor substitution would arise at all ---Evidence of said
witnesses did not suffer from any material contradict ion or discrepancy, but was consistent with
the probabilities materially fitting in with the other evidence, more particularly the medical
evidence supported by the recovery of crime weapon from the possession of accused and positive report of Firearm Expe rt---Besides ocular account, furnished by two prosecution witnesses, the
prosecution had also placed reliance on the last seen evidence furnished by a witness ---Accused
had been nominated with specific role of firing in the promptly lodged F.I.R.; it was not believable that complainant would involve accused falsely and would allow the real culprits to go scot -free---Positive report of Firearms Expert, further corroborated the ocular evidence
furnished by prosecution witnesses ---Prosecution had proved its ca se against accused beyond
shadow of doubt ---Counsel for accused had not been able to point out any illegality in findings
of fact, recorded by the Trial Court, which could persuade to hold that they were against the evidence produced on record--- Impugned j udgment passed by the Trial Court was neither
perverse, nor arbitrary nor against the evidence on file ---Order of the Trial Court whereby
accused was convicted was upheld.
2000 SCMR 727 rel
(b) Penal Code (XLV of 1860) ---
----S.302(b) ---Qatl-e-amd---Appreciation of evidence ---Circumstantial evidence ---Capital
punishment could be based on circumstantial evidence, provided all circumstances constituted chain and no link was missing; and their combined effect was that the guilt of accused was establishe d beyond shadow of doubt.
(c) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl-e-amd---Appreciation of evidence ---Sentence, reduction in---Counsel for
accused was quite justified, while not challenging the conviction awarded to accused on merits,
as the prosecution had proved its case against accused beyond the shadow of doubt ---Motive as it
was mentioned in the F.I.R. had not been proved by cogent evidence ---Capital punishment, was
not at all warranted, in circumstances ---Sentence of death of accused was converted into
imprisonment for life ---Amount of compensation to the legal heirs of deceased as provided under
S.544- A, Cr.P.C., would remain intact ---Benefit of S.382- B, Cr.P.C. would also be extended to
accused.
Muhammad Ishaq Khan and others v The State and others PLD 1994 SC 259 rel
Ahsan Rafiq Rana for Appellant (in Criminal Appeal No.(s) 19 of 2008).
Anwar -ul-Haq for the Complainant (in Criminal Appeal No.(s) 19 of 2008).
Abdullah Kurd Addl. P.G. for the State (in Cri minal Appeal No.(s) 19 of 2008).
Abdullah Kurd Addl. P.G. for the State (in Murder Reference No.3 of 2008)
Anwar -ul-Haq for the Complainant (in Murder Reference No.3 of 2008)
Ahsan Rafiq Rana for Appellant (in Murder Reference No.3 of 2008)
Date of hearing: 29th September, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---The Sessions Judge, Dera Allah Yar vide
judgment dated 12- 3-2008 has convicted and sentenced appellant Muhammad Hayat under
section 302(b) of the P.P.C. to death, with direction to pay compensation of, Rs.1,00,000 to the legal heirs of deceased Abdul Nabi, as provided under section 544- A of the Cr.P.C. The
appellant preferred Criminal Appeal No.(s)19 of 2008 for his acquittal, while the Sessions Judge has sent Murder Reference No. (s)03 of 2008 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 Zakir Hussain, in his report date d 18- 12-2004, alleged that on above date at
about 7- 30 a.m., accused Liaquat Ali, Zulfiqar and Muhammad Hayat came to his Bhaitak
situated in Dera Allah Yar, where they had taken tea with them and, thereafter, at about 8 -00
a.m., accompanied his younger br other Abdul Nabi along with them on the pretext of a tea party
of their friends in their Goth on a motorcycle and they told him (complainant) that they will drop Abdul Nabi at Primary School situated in Tehsil Gandakha Goth Abdullah Palal after the tea party, where he was Junior Vernacular Teacher. The complainant further alleged that his brother
Abdul Nabi had gone with accused Liaquat on one motorcycle, whereas the other accused
Zulfiqar. Ali and Muhammad Hayat went on another motorcycle. Thereafter, he a lso went to his
school on a motorcycle situated at Taj Pur. At about 11 -30 a.m., he was informed by his
nephew Zafarullah that Liaquat Ali, Zulfiqar and Muhammad Hayat had committed the murder of his brother Abdul Nabi by means of firing at him with a K alashnikov in their 'Autaq', at which
he went at the crime scene, where he found the dead body of his brother Abdul Nabi in pool of
blood, who had sustained bullet injuries on his chest and both thighs. The complainant also
alleged that the above named accused persons committed the murder of his brother without any motive. Consequently, a case vide Crime No.278 of 2004, under section 302 read with section 34 of the P.P.C. was registered at Police Station Dera Allah Yar.
3. After registration of the F.I.R., the investigation of the case was carried out by P.W.8 Sikandar Hayat, IP, who visited and inspected the site, prepared site inspection note and site sketch Exh.P/8- A, prepared inquest report Exh.P/8- B of the deceased, sent the dead body of the
deceased to Civil Hospital, Dera Allah Yar for conducting postmortem examination and report,
secured blood- stained earth, collected one empty of TT pistol and a bullet lead, six empties of
Kalashnikov, also took into possession seven live cartridges of Kalashnikov, which were
produced to him by the complainant, through separate recovery memos, recorded the statements of P.Ws. On the spot, he recorded Fard- e-Bayan of one Ghulam Rabbani in respect of murder of
one Mst. Khalida on the pretext of siyahkari. Thereafter, he went to civil hospital, where he took into possession the blood- stained clothes of the deceased produced by the complainant through
recovery memo and released the dead body of the deceased to the complainant on his application without conducting postmor tem examination. On 19- 12-2004, he arrested accused Muhammad
Hayat. On 25- 12-2004, he obtained the medico legal certificate of the deceased. On 30- 12-2004,
on the disclosure of accused Muhammad Hayat, he recovered a TT pistol on his pointation from
a resid ential room of his house, which was taken into possession through recovery memo and
after completion of the investigation; he placed the papers before IP/S.H.O. Naseebullah, who prepared incomplete challan Exh.P/8- C. On 6- 4-2005, on receiving the report of ballistic expert
Exh.P/8- D regarding pistol, a supplementary challan Exh.P/8- E was prepared by the IP/S.H.O.
On 5 -6-2005, on receiving the FSL report Exh.P/8- F, another incomplete challan Exh.P/8- G was
prepared.
4. On the stated allegation, a formal charge 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 eight witnesses. P.W.1 Zakir Hussain is complainant of the case, who produced his F.I.R. Exh.P/1- A. P.W.2 Zafarullah and P.W.4 Muhammad Ismail alleged to have witnessed the
occurrence. P.W.3 Dr. Amanullah, Medical Officer, examined the dead body of the deceased and issued medico legal certificate Exh.P/3 -A. P.W.5 is Abdul Razaq, in whose presenc e, the
accused persons came to the Bhaitak of the complainant and accompanied the deceased along with them. P.W.6 is Abdul Ghaffar, in whose presence the blood- stained clothes of the deceased
were handed over to the investigation officer by the complainant through recovery memo
Exh.P/6- A. P.W.7 Punhal Khan, HC, is witness to the site inspection memo Exh.P/7- A, recovery
memo Exh.P/7- B regarding blood- stained earth of the deceased, an empty of TT pistol Exh.P/7-
C, bullet led Exh.P/7- D, disclosure memo Exh.P/7- E and recovery memo Exh.P/7- F of TT pistol
and P.W.8 Sikandar Hayat, IP, is the investigation officer 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 levelled 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. It may be noted that in respect of the same incident, another case F.I.R. No.280 of 2004 was
also registered on the report of one Ghulam Rabbani, wherein he alleged that accused Muhammad Hayat had committed the murder of deceased Abdul Nabi, the brother of complainant of the present case, and Mst. Khalida daughter of Lal Bakhsh, by declaring them siyahkar. It appears that both the aforesaid matters i.e. arising out of F.I.Rs. Nos.278 and 280 of 2004 were tried separately by the trial Court, however, after hearing the parties, the same were
decided by the trial Court through common judgment dated 5- 8-2006, which judgment was
assailed by the appellant by filing Criminal Appeals Nos.(S)38 and 39 of 2006, whereas the Sessions Judge had sent Mur der References Nos.(S)11 and 12 of 2006 for confirmation of the
death sentences or otherwise. The aforesaid matters came up for hearing before this Court and vide judgment dated 5- 3-2007, the impugned judgment of the trial Court was set aside and
matters w ere remanded to the trial Court for re- writing of the judgments separately and
distinctly. It may additionally be noted that the aforesaid judgment of this Court was assailed before Hon'ble Supreme Court by the appellant, but the judgment of this Court was upheld.
7. On remand, the trial Court, after hearing the learned counsel for the parties, convicted and sentenced the appellant, as mentioned hereinbefore, hence this appeal and murder reference.
8. Mr. Ahsan Rafique, learned counsel for the appellant , contended that the ocular account,
furnished by the prosecution, is based on interested, related and chance witnesses, as such, no reliance can be placed thereon; that the trial Court has fallen in error while placing reliance on the last seen evidence, which is always considered as a weak type of evidence, requiring strong corroboration, which is lacking in the instant case; that the F.I.R. has been lodged after unexplained delay of about three hours, meaning thereby the same was lodged after deliberation and consultation; that the prosecution has failed to prove the alleged motive; lastly, in alternative, he prayed for conversion of the death sentence into that of life imprisonment, on the ground that neither the alleged motive has been proved, nor it ha s been established beyond reasonable doubt
that from whose shot the deceased had been killed, as such, capital punishment is not warranted in the clear circumstances of the case, where the role of firing has been alleged against two persons.
9. Conversel y, the appeal has been opposed by Mr. Abdullah Kurd, learned Additional
Prosecutor General, appearing on behalf of the Prosecutor General, Balochistan, by arguing that the prosecution has proved his case against the appellant beyond reasonable doubt, as such, the instant appeal deserves dismissal.
10. We have heard the arguments and submissions of the learned counsel for the parties and also gone through the record of the case with their valuable assistance. The learned counsel for the appellant has not been able to point out any illegality, which could persuade us to hold that the findings of fact, recorded by the trial Court, are against the evidence produced on record. The
impugned judgment is neither perverse, nor arbitrary, nor against the evidence on file. Dr.
Amanullah, who conducted the autopsy on the dead body of the deceased Abdul Nabi son of Ghulam Haider, came forward as P.W.3 and furnished the detail of injuries, observed by him on the corpse of deceased. In his opinion, all the injuries were ante- mortem and homicidal in
character, caused by firearm and sharp edged weapon.
11. After hearing the learned counsel for the parties, we have arrived at confident conclusion that
the prosecution had, indeed, proved its case against the appellant beyond the shadow of doubt. The conviction of the appellant is sought to be established with the crime in question by the evidence of P.W.1 Zakir Hussain (complainant), P.W.2 Zafarullah, P.W.4 Muhammad Ismail and P.W.5 Abdul Razaq.
12. It is the case of pros ecution that on the fateful day at about 7 -30 a.m., the appellant, along
with his absconding companions, Liaquat Ali and Zulfiqar, taken the deceased with them on motorcycle on the pretext that there is a tea -party in their Goth, however, after their depar ture, it
was 11 -30 a.m., when his nephew Zafarullah came on a motorcycle and informed the
complainant Zakir Hussain that Liaquat Ali and Zulfiqar by means of firing have killed Abdul Nabi. Undoubtedly, all the witnesses are inter se related as well as clos ed to the deceased Abdul
Nabi, but mere relationship with the deceased by itself is not sufficient to discard their evidence. In this regard, our view is fortified from the judgment -reported in 2000 SCMR 727, wherein the
Hon'ble Supreme Court, while dealing with the proposition of interested witness, observed as under: --
"Moreover, we find that none of the two eye -witnesses could be termed as interested witnesses
because none had any previous ill -will or grudge against the petitioner, merely because P.W.4 is
father of the deceased and P.W.5 belongs to the "Baradari" of the deceased would not make them interested, as they had no reasons to substitute the petitioner for the real killer."
13. All the witnesses have fully supported the prosecution version and the defence has failed to create any dent in their veracity. They are residents of said village and their presence at the time and place of occurrence cannot be doubted by any degree of seriousness. The occurrence has taken place in broad daylight, as such, neither any question of mistaking identification, nor substitution arises, at all. Their evidence is not suffering from any material contradiction or discrepancy and consistent with the probabilities materially fitting in with the other evidence, more particularly the medical evidence, supported by the recovery of crime weapon from the
possession of the appellant and positive report of firearm expert. Besides, the ocular account, furnished by P.W.2 and P.W.4, the prosecution has also placed reliance on the last seen evidence, furnished by P.W.1 Zakir Hussain and P.W.5 Abdul Razaq. It is a settled principle of law that capital punishment can be based on circumstantial evidence, provided all circumstances constituted chain and no link is missing and their combined effect is that the guilt of the accused
is established beyond shadow of doubt. 14. In the instant case, the deceased Abdul Nabi was taken by the appellant and his companions on the pretext of a tea -party and he had been lastly seen in the company of the appellant and,
subsequently, his dead body was recovered from the house of the appellant. We are conscious of the fact that the deceased had been lastly seen in the company of the appellant is not by itself
sufficient to constitute the charge of murder and the same requires further evidence to link him
with the murder charge. In the instant case, the recovery of crime weapon from the possession of the appellant and, thereafter, the positive report of firearm expert fully establish the link of the appellant with the crime in question. All the pieces of evidence, produced by the prosecution, are
so linked that it gives a picture of complete chain. One corner touched the neck of the deceased
and the other corner to the neck of the accused and no link i s missing in the prosecution
evidence. The incident took place on 18- 12-2004 at 9- 30 a.m. and the F.I.R. was lodged at 12- 25
a.m. on the same date, while the distance of police station from the place of occurrence is about
7/8 kilometers. The appellant has been nominated with specific role of firing in the promptly
lodged F.I.R. It is not believable that complainant would involve the appellant falsely and would allow the real culprits to go scot -free. The positive report of firearm expert further corroborat ed
the ocular evidence furnished by P.W.2 and P.W.4. The learned counsel objected on the admissibility of the said report on the ground that it was without any reasoning. It may be seen that the report was brought on record without any objection and if the appellant was not satisfied
with the report, he could have call the expert to stand the test of cross -examination, as envisaged
under the provision to 510 of the Cr.P.C., thus, we are of the considered view that the prosecution has succeeded to prove its case against the appellant Muhammad Hayat beyond the
shadow of doubt.
15. Learned counsel for the appellant contended that the appellant was acquitted by the same Court in case Crime No.280 of 2004, lodged by one Ghulam Rabbani regarding the murder of Mst. Khalida, as such, he is also liable to be acquitted in the instant case. The contention so raised by the learned counsel for the appellant is devoid of any force, for the reasons that the deceased Mst. Khalida was murdered on the bald allegation, of siyahkari and she was nephew of the appellant Muhammad Hayat, as such, in the peculiar circumstances of the case, no one came
forward to record his evidence against the appellant and the same fact does not affect the veracity of ocular account furnished in the instant case by the witnesses.
16. The only question, which remains to be answered, is the quantum of sentence. In this regard, we are of the view that the learned counsel for the appellant was quite justified, while not challenging the conviction awar ded to the appellant on merits, as the prosecution has proved its
case against the appellant beyond the shadow of doubt. The motive, as it is mentioned in the F.I.R. Exh.P/1- A, has not been proved by cogent evidence, as such, the capital punishment is not
at all warranted. In this regard, we are fortified from the dictum laid down in case of Muhammad Ishaq Khan and others v. The State and others reported in PLD 1994 Supreme Court 259, wherein it was held as follows:--
"We have already observed that in the present case the prosecution had alleged specific motive
against the accused persons which could not be established at the trial. What actually happened just before the incident remained shrouded in mystery and the parties have not taken the Court into confidence to reveal the full facts. In these circumstances, the trial Court rightly awarded the lesser punishment of life imprisonment to appellant Muhammad Ishaque Khan. There was no justification for enhancement of the sentence of life imprisonment awarde d by the trial Court to
appellant Muhammad Ishaque Khan to death, by the High Court in the circumstances of the case. We, accordingly, partly allow Criminal Appeal No.168 of 1992 filed by Muhammad Ishaque Khan and alter the death penalty awarded to him by the High Court and restore the sentence of
life imprisonment awarded by the trial Court. Sentences under section 324/34, P.P.C. and fine
and compensation awarded by the High Court are maintained."
17. Thus, being so, the sentence of death of appellant Muhammad Hayat is converted into imprisonment for life. However, the amount of compensation of Rs.100,000 to the legal heirs of
deceased Abdul Nabi as provided under section 544- A of the Cr.P.C. shall remain intact, or in
default whereof to further undergo S.I. for six (6) months. The benefit of section 382- B shall also
be extended to him.
With the above modification in the quantum of sentence of imprisonment, we partly allow this
appeal. Sentence reduced and murder reference is answered in negative.
H.B.T./140/Q Appeal partly allowed.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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