2012 Y L R 63
[Balochistan]
Before Mu hammad Noor Meskanzai and Naeem Akhtar Afghan, JJ
Haji GHAIBI KHAN and another ---Appellants
Versus
THE STATE and another ---Respondents
Criminal Appeal No. 82 and Murder Reference No.6 of 2007, decided on 18th July, 2011.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 337 -A(ii) ---Qatl-e-amd and causing Shajjah -i-Mudihah ---Appre -cation of
evidence ---Defence, despite hectic efforts, had failed to create doubt about the date, time and
presence of prosecution witnesses on the spot at the time of occurre nce---Presence of one
prosecution witness at little distance from the scene of occurrence, being natural could not be
doubted, but his statement being hearsay could not be given due weight ---Defence, despite
lengthy cross -examination, could not shake the v eracity of the statements of the prosecution
witnesses and could not create doubt in the prosecution case ---Medical evidence produced by
the prosecution, had fully corroborated the statements of prosecution witnesses ---Positive
report of chemical expert, h ad further strengthened the prosecution story ---Recovery of
licensed T.T. pistol and magazine, soon after the incident from the possession of accused, had
further strengthened the prosecution version ---No enmity or hostility of prosecution witnesses
was no ticed against accused ---Statements of eye -witnesses were straight, coherent and
confidence -inspiring ---No reason existed for prosecution to involve an innocent person; or
substitute accused in the commission of offence instead of real culprit ---Avail -ability and
presence of eye -witnesses at the venue and the act of firing, stood estab -lished beyond
reasonable doubt ---Prose -cution version, in circumstances, could not be discarded ---Since
prosecution was fully satisfied with the statements of two eye -witnesse s produced, it did not
produce the third witness ---Prosecution was not under legal obligation to have produced all
the eye -witnesses; as it was the prerogative of prosecution to produce whatever number of
witnesses mentioned in calendar of witnesses ---No d elay took place in recording of
statements of prosecution witnesses ---Accused having committed a cold -blooded murder of
an innocent person in the heart of city, there was no room for awarding lesser punishment ---If
prosecu -tion would succeed to make out a case against an accused within the ambit of
S.302(b), P.P.C., then normally death sentence was to be awarded to him ---Prosecution
having been able to prove the guilt of accused to the hilt, Trial Court had rightly passed a
well-reasoned judg -ment, which wa s not open to any exception, which was upheld, in
circumstances.
2004 SCMR 1185; 2004 YLR 2408; 2004 YLR 216; 2008 SCMR 1221; 2004 PCr.LJ 140
and 1996 SCMR 167 distinguished.
2002 MLD 872; 2002 PCr.LJ 1902 and PLD 1987 SC 45 ref
Manzoor Ahmed v. Th e State 1999 SCMR 132; Muhammad Tahir Aziz v The State 2010
PCr.LJ 1787; Nabi Bakhsh v. The State and another 1999 SCMR 1972 and PLD 1976 SC
452 rel
(b) Criminal trial ---
----Prosecution was not under legal obligation to have produced all the eye -witne sses; as it
was the prerogative of prosecution to produce whatever number of witnesses mentioned in
calendar of witnesses.
Rubina Butt for Appellant (in Murder Reference No.6 of 2007)
Rauf Hashmi and Sarwat Hina (in Murder Reference No.6 of 2007)
Rauf Hashmi and Sarwat Hina for Appellant (in Criminal Appeal No.82 of 2007)
Rubina Butt for Respondent (in Criminal Appeal No.82 of 2007)
Date of hearing: 31st May, 2011.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. ---By this common judgment we propose to decide
Criminal Appeal No.82 of 2007 and Murder Reference No.6 of 2007 as both arise out of one
and same judgment dated 29 -3-2007 passed by Additional Sessions Judge -IV, Quetta,
involving common question of facts and similar law points.
2. Facts of the c ase are that on the basis of Fard -e-Bayan submitted by one Pukar Khan
F.I.R. No -124 of 2004 under sections 302 and 324, P.P.C. was registered in Police Station
City, Quetta on 24 -8-2004 at about 8:05 p.m. alleging therein that he used to ply handcart for
selling cosmetics items. On the fateful day at about 6 -55 p.m. he was present on his cart
when he was informed by Muhammad Yonsaf that his Brother Asal Khan alias Baram had an
altercation with Haji Ghaibi Khan whereupon the later fired upon Asal Khan wit h pistol, who
fell down on the ground. A passer by Adel Masih also received injury in the incident. On
receiving this information the complainant along with Turk Khan and Jaffar who were sitting
with him rushed to Civil Hospital and found the dead body/cor pse of his brother in pool of
blood. It was further alleged that police reached the place of occurrence and arrested the
appellant on the spot.
3. After registration of the F.I.R. investigation commenced. During course whereof
P.W.11 Muhammad Khan along with A.S. -I. Abdul Ghafoor, Muhammad Anwar and other
police personnel as well as Muhammad Ayaz Additional S.H.O. (P.W.12) arrested the
appellant and despatched the injured to hospital. Statements of witnesses under section 161,
Cr.P.C. were recorded. Inq uest report Exh.P/11 -A was prepared. He also prepared site plan
Exh.P/11 -B, inspection report Exh.P/8 -A, blood -stained earth was taken into possession vide
recovery memo. Exh.P/7 -A. He took into possession pistol along with two magazines and 15
cartridges vide recovery Exh.P/7 -D, an empty cartridge as Exh.P/7 -B, led was taken into
possession and parcel No.4 was prepared. He also sent a separate murasila for registration of
case under section 13 -E Arms Ordinance. He recorded statements of witnesses under sec tion
161, Cr.P.C. The recovered pistol was sent to Fire Arm Expert Sindh and on receipt of report
P.W.13 submitted challan before the court for trial.
4. Charge was framed against appellant on 5 -11-2004 to which he pleaded not guilty.
Thereafter prosecut ion in order to substantiate the accusation examined as many as following
14 witnesses: --
PW.1 Pukar Khan Complainant produced his Fard -e-Bayan as Exh.P/1 -A.
P.W.2 Muhammad Yousaf is the eye -witness.
P.W.3. Adil Masih is the injured and eye -witness o f incident.
P.W.4 Dr. Ghulam Sarwar, MLO Civil Hospital, Quetta examined the dead body of deceased
Asal Khan and injured Adel Masih issued death Certificate as Exh.P/4 -A and MLC Exh.P/4 -
B.
P.W.5. Abdul Majeed is Patwari prepared map of the place of occ urrence and produced as
Exh.P/5 -A.
P.W.6 Abdul Wali is also eye -witness:
P.W.7 Muhammad Anwar A.S. -I P.S. City is the witness of recovery.
P.W.8. Asif Ghafoor S.H.O. the recovery witness.
P.W.9 Syed Abdul Jabbar Chemical Expert Crimes Branch Quetta , who produced Analysis
Report Exh.P/9.
P.W.10 Naseebuallah Junior Clerk Arms Section DCO Office Pishin) produced record of
Exh.P/10 -A (Arms Licence No.207 -85/Pishin dated 7 -11-1985.
P.W.11 Muhammad Khan S. -I the recovery witness
P.W.12 Muhammad Ayaz A.S.H.O., I.O.
P.W.13 Muhammad Qasim S.H.O. P.S. City Quetta he received Fire Arms Expert's Report
Exh.P/13. He signed the challan Exh.P/13 -A.
P.W.14 Tariq Manzoor he recorded statement under section 161, Cr.P.C. of P.W.3 Adel
Masih and prepared chall an Exh.P/14.
After recording prosecution evidence appellant was examined under section 342, Cr.P.C.
wherein he denied the incriminating pieces of evidence. Appellant did not opt to record
statement on Oath as envisaged under section 340(2), Cr.P.C. nor p roduced any witness in his
defence.
Learned trial court after hearing the parties found the appellant as such convicted and
sentenced him as under: --
(i) Under section 302(b), P.P.C. to death
(ii) Further convicted to pay a fine of Rs.100,000 as comp ensation with in the purview of
section 544 -A, Cr.P.C. to the legal heirs of deceased Asal Khan alias Baram.
(iii) Under section 337 -A(ii), P.P.C. to suffer RI for one year and to pay Daman of
Rs.2,000 to injured Adel Masih.
The learned trial court sent the murder reference to this court for confirmation or otherwise.
Simultaneously appellant feeling aggrieved of his conviction and sentence referred to
hereinabove has challenged the same by way of filing Criminal Appeal No.82 of 2007.
5. We have h eard Syed Ayaz Zahoor, learned counsel for the appellant whereas State
was represented by Miss Sarwat Hinna Additional P.G. and Mr. Abdul Rauf Hashmi for
complainant.
Learned counsel for appellant argued that the trial court misappreciated the evidence and
relied upon inadmissible evidence. He further submitted that the case of prosecution suffers
from material irregularities. The evidence available on record was/is not sufficient to justify
the conviction so recorded. P.W.1 is not the eye -witness, there fore, his statement could not be
made basis for recording capital punishment. As far as the statement of P.W.2 is concerned,
his conduct is unnatural and the presence of eye -witnesses could not be proved by the
prosecution. The natural human conduct requir es that instead of conveying the information to
informant the witness should have removed the victim to hospital, as he knew him. But
instead of doing so he allegedly informed the complainant, which does not appeal to reason,
therefore, statement of P.W.2 cannot be relied implicitly. It was strenuously urged that
according to P.Ws. their statements under section 161, Cr.P.C. were recorded after 7/8 days;
whereas according to I.O. the statements were recorded at 11 -00 p.m. Another inescapable
fact which enfe ebles the prosecution case is that the prosecution has failed to produce the
eye-witness Zakaria. Learned counsel stated that defence has successfully created doubt in
the prosecution case and there are inherent defects in the prosecution case but the lea rned trial
court did not take into consideration the same, as such appellant is entitled for acquittal. The
non-production of eye -witness namely Zakaria has badly affected the case of prosecution,
there -fore, a presumption within the ambit of Article 129(g) of Qanun -e-Shahadat Order has
to be drawn against the prosecution. Learned counsel placed reliance on the following
judgments: --
(i) 2004 SCMR 1185, (ii) 2004 YLR 2408, (iii) 2004 YLR 216, (iv) 2008 SCMR 1221 (v)
2004 PCr.LJ 140 and (vi)1996 SCMR 167.
Whereas on the other hand Miss Sarwat Hinna learned Additional P.G. supported the
impugned judgment and argued that prosecution has proved its case against appellant by
producing two eye -witnesses who inspire confidence. On the contrary the defence has not
been able to create a slightest doubt in the prosecution case nor for that matter the veracity of
prosecution witnesses could be shaken. The place of incident is situated near the police
station and the offence was committed in the heart of city, therefore, the appellant does not
deserve any leniency. The gun shot report attracted the police who arrived at the spot and
apprehended the appellant, who was in possession of crime weapon. The act of appellant was
wilful and intentional. The trend of cro ss-examination itself unearths the motive on record. In
such circumstances the statements of eye -witnesses coupled with medical evidence, recovery
of pistol and report of Fire Arm Expert prove the charge against the appellant, hence sentence
so awarded by the trial court is reasonable and justifiable.
Learned counsel for complainant adopted the arguments advanced by Additional P.G. and
submitted that the prosecution has proved the guilt to the hilt. By committing wilful and
intentional murder of an innoce nt person appellant has deprived himself from any leniency.
Learned counsel placed reliance on the following citations: --
(i) 2002 MLD 872, (ii) 2002 PCr.LJ 1902 and (iii) PLD 1987 SC 45
6. We have considered the contentions advanced by learned counsel f or the parties and
with their able assistance have gone through the record of the case minutely. It may be noted
that the prosecution case hinges upon following pieces of evidence.
(i) Ocular evidence comprising of statements of P.W.2 Muhammad Yousaf, P. W.3 Adel
Masih injured and P.W.6 Abdul Wali.
(ii) Circumstantial evidence;
(a) Recovery of 4 live cartridges from the magazine of the recovered pistol, two spare
magazines and 15 live cartridges of T.T. Pistol from possession of appellant, an empty
cartridge and a led pulled out from the body of injured Adel Masih;
(b) Report of Chemical Expert FSL/ Crimes Branch Quetta;
(c) Medical evidence produced by P.W.4.
Before dilating upon contention of learned counsel for parties we deem it expedient to
reproduce gist of prosecution evidence.
P.W.1 Pukar Khan in his statement stated that on 24 -8-2004 at about 6 -55 p.m. he along with
Jafar and Turk were standing on his handcart. In the meanwhile Muhammad Yousaf came
there and informed that his brother Asa l Khan has been shot and injured by Haji Ghaibi
Khan. He along with Jaffar and Turk reached at Faran Hotel where some blood was lying on
earth. They rushed to hospital where injured Asal Khan had already expired and another
Christian person was lying in an injured condition. He recorded his Fard -e-Bayan as Exh.P/1 -
A and on the said Fard -e-Bayan F.I.R. was registered. He acknowledged his signature on
Fard-e-Bayan and also identified the appellant who was present in the court.
P.W.2 Muhammad Yousaf an ocula r witness of the occurrence. He stated that six months ago
he along with Asal Khan and Abdul Wali reached Liaqat Bazar at about 6 -15 p.m. Near Faran
Hotel appellant Haji Ghaibi Khan was found standing there, who had some conversation with
Asal Khan. Subseq uently appellant made a fire on the head of Asal Khan, who sustained
bullet injury and died at the spot. He stated that he tried his level best to help the victim but
condition of Asal Khan was too serious. He left the injured with Abdul Wali and rushed to
inform his brother Pukar Khan who was running his handcart near Baldia Plaza. P.W.2
informed about the incident to Pukar and told him that his brother has been shot by Haji
Ghaibi Khan. They proceeded towards the venue but Asal Khan had already been remov ed to
hospital. He told Muhammad Khan police official about his intention to record his statement,
which was ultimately recorded at 8 -00 p.m. he identified the appellant. In cross -examination
he denied the suggestion that there was previous enmity between appellant and deceased Asal
Khan. Further replied that it is incorrect to suggest that prior to incident, there was no
conversation between appellant and deceased. Voluntarily stated that he was accompanied by
Abdul Wali. The bullet hit the deceased just a bove the ear and pierced his head. He denied
that due to heavy crowd at the venue he had not seen that who had shot the deceased.
P.W.3 Adel Masih is another victim who was affected by the said incident. He deposed that
he was a student and studying in St. Mary School in Matric in the morning and in the evening
he was working in private Shoes Shop at Liaqat Bazar opposite to City Police Station. On 24 -
8-2004 at about 6:40 p.m. he was bringing shopping bags from Masjid road to the shop where
he was workin g. On his way to the shop near Faran Hotel, he heard gun shot report and at the
same time, in the meanwhile the bullet hit him just below the left ear, which had penetrated to
his jaw and remained in the jaw. He fell down on the earth and lost conscious. W hen he was
in hospital operation was carried out and his wound was stitched, the bullet was removed
after 7 days through an operation in a private hospital i.e. Akram Hospital. Later on, the
police informed him that the bullet was fired by appellant Ghai bi Khan. In cross -examination
he stated that his statement was recorded by the police on 21 -12-2004.
P.W.4 Dr. Ghulam Sarwar deposed that on 24 -8-2004 he was working as Medical Legal
Officer, Civil Hospital Quetta. On the same day at about 7:10 p.m. inj ured Asal Khan alias
Baram Khan was brought by police with the history of fire arm. According to P.W.4 he
examined the injured and noted following injuries: --
"(1) Fire Arm entrance wound above the right ear 1x1/2 c.m. circular wound margin
(2) Exit on left side forehead 3 x 3 c.m. brain matter was coming out.
(3) Patient exposed in Casualty at 7:50 p.m. of the same date.
The injured remained half an hour in the Casualty and he was put life saving Emergency and
he was declared as emergency patient, however, the injured died at 7:50 p.m. on the same
date.
DURATION OF INJURIES Fresh
KIND OF WEAPON Fire Arm.
CAUSE OF DEATH
The cause of death of deceased is head injury caused by fire arm.
In this regard he issued Medical Certificate Exh.P/4 -A an d acknowledged his signature on the
same. He further deposed that on the same date at 7 -30 p.m. another injured Adil Masih son
of Nithail Masih was brought by Muhammad Khan, S. -I. of Police Station City Quetta. He
examined the injured and noted following i njuries: --
(1) Fire Arm entrance wound 2/2 x 1 -1/2 c.m. on left side mandible below left ear.
(2) No exist wound.
Nature of injury Grievous
KIND OF WEAPON Fire Arm.
Duration of Injuries Fresh
He issued Medical Certificate Exh.P/4 -B and a cknowledged his signature on the same.
In cross -examination he stated that he has not mentioned the identification mark of the
deceased. He further stated that when injured was brought he was un -conscious. He was
unable to tell the court that what sort a nd what bore of fire arm was used. He cannot state the
distance of firing. He denied the suggestion that he had issued medical certificate which was
not according to law.
P.W.5 Abdul Majeed Patwari, deposed that on 3 -9-2004, the S.H.O. City Police Statio n had
sent a Murasala through Muhammad Riaz, S. -I. for preparation of Map of venue. The
Tehsildar ordered him to go along with the said S. -I. He went along with Muhammad Riaz
S.-I. and prepared the Map of the place of incident on the pointation of said Muh ammad Riaz.
He produced the same as Exh.P/5 -A.
P.W.6 Abdul Wali stated in his statement that on 24 -8-2004 he along with Muhammad
Yonsaf and Asal Khan alias Baram Khan were roaming at Liaqat Bazar Quetta. When they
reached near City Police Station appell ant was sitting there Asal Khan alias Baram Khan
turned towards them and they talked to each other. The appellant took out pistol and fired on
the head of Asal Khan alias Baram, which pierced through and hit a passer by. After
receiving fire am injury Asa l Khan fell down on the earth. He further stated that Muhammad
Yousaf informed the brother of deceased namely Pukar Khan who runs a handcart near
Baldia Plaza. Police reached there and arrested the appellant. The dead body of deceased Asal
Khan was removed to hospital by police and he was also accompanied. He identified the
appellant in the court.
The seizure of empties from the place of occurrence, recovery of pistol from the possession
of accused/appellant Haji Ghaibi Khan, seizure of blood -stained eart h cloths and report of
FSL are the circumstantial evidence.
P.W.7 Muhammad Anwar A.S. -I. stated that on 24 -8-2004 at about 6 -40 p.m. he along with
Muhammad Ayaz S.H.O., Muhammad Khan Additional S.H.O. and Asif Ghafoor A.S. -I.
were present in the police s tation. Upon hearing hue and cry they came out from police
station and heard gun shot report. In the corner of police station in front of Faran Hotel
appellant Ghaibi Khan was present with a pistol in his hand and a person who sustained bullet
injury on hi s head was lying on earth. While another person who had sustained bullet injury
near ear was standing. P.W.7 further stated that they managed to snatch the TT Pistol from
the appellant and upon unloading 4 live cartridges were recovered from the magazine. Upon
further personal search of appellant two spare magazines containing 11 cartridges were
recovered from the possession of appellant. The recovered pistol and cartridges were taken
into possession through recovery memo. He produced Exh.P/7 and identified his signatures
over recovery memo. He produced and identified pistol and bullets as Art -P/1 to Art -P/4.
Two bullets were consumed by Fire -arms Expert during analysis. Blood -stained earth was
collected through cotton from the place of occurrence through re covery memo Exh.P/7 -A. He
produced Art -P/5 to Art -P/6 as parcel of blood -stained earth. An empty cartridge of TT Pistol
was also taken into possession through recovery memo Exh.P/7 -B. He further identified and
produced the parcel of empty cartridge as Art-P/7 and an empty cartridge as Art -P/9. On 25 -
8-2004 blood -stained clothes of injured Adil Masih were taken into possession and recovery
memo. Exh.P/7 -C was prepared. He also produced blood -stained cloth of injured as Art -
P/10. He produced sketch of TT Pistol as Exh.P/7 -D. He identified the appellant.
P.W.8 Asif Ghafoor A.S. -I. is also the recovery witness deposed that in his presence blood -
stained clothes of deceased were taken into possession through recovery memo. Exh.P18 and
he identified his signatures upon the same. He produced blood -stained Kameez of deceased
as Art -P/12 and waistcoat of deceased as Art -P/I3. He further stated that in his presence
and in the presence of Ejaz Shah, Muhammad Khan S. -I. prepared the site inspection memo.
Exh.P/8 -A. He identified the appellant in the court.
P.W.9 Syed Abdul Jabbar, Chemical Expert produced chemical examination report as
Exh.P/9 which reflects that the blood -stained cloth of deceased and blood -stained earth
contained human blood.
P.W.10 Naseebullah Junior Clerk, Arm Section DCO Office Pishin produced record of
Exh.P/10 -A (Arms Licence No.207 -85/Pishin dated 7 -11-1985).
P.W.11 Muhammad Khan SIP deposed that on 24 -8-2004 he was posted as S.I. P.S. City. On
the same day Guard Amanual lah informed that a person has been injured due to firing. On
receiving said information he along with A.S. -I. Abdul Ghafoor, A.S. -I. Muhammad Anwar
and other police personnel under the supervision of ASHO Muhammad Ayaz Khan reached
to Faran Hotel Liaqat B azar/ place of incident. They found Asal Khan and Adel Masih in
injured condition. Appellant was present there and was arrested, who was in possession of a
pistol. The injured persons were shifted to hospital. He sent Muraslia to Police Station for
registr ation of case. He produced F.I.R. Exh.P/11. Investigation was entrusted to him. He
prepared inquest report Exh.P/11 -A. He took into possession blood -stained clothes of
deceased. He prepared Sketch Exh.P/11 -B and inspection report Exh.P/8 -A. He also took into
possession blood -stained earth vide memo. Exh.P/7 -A. He took into possession Pistol along
with two magazines, 15 cartridges and an empty shell. He recorded statements of witnesses
under section 161, Cr.P.C. and took into possession blood -stained cloth es of injured Adel
Masih vide Exh.P/7 -C. He also took into possession led pulled out from the body of injured
Adel Masih which was produced by his father vide Exh.P/11 -E. Thereafter investigation was
entrusted to Muhammad Ayaz A.S.H.O.
P.W.12 Muhammad Ay az ASHO, is I.O. of the case. He corroborated the statements of
ocular evidence up to the extent of arrest of appellant and recovery of TT Pistol from the
possession of appellant. He produced led of bullet recovered from the jaw of injured Adel
Masih as Ar t-P/16. He further stated that investigation of the case was entrusted to him on 1 -
9-2004. He took Patwari to the venue where site inspection sketch was prepared. Incomplete
challan as Exh.P/12 was produced by him in the court. Upon receipt of FSL report
incomplete challan Exh.P/12 -A was produced before the court. He identified the appellant
before the court. --
P.W.13 Muhammad Qasim S.H.O. P.S. City Quetta deposed that on 27 -9-2005 he was
posted as S.H.O. P.S. City. On the same day he received Fire Arms Expert's Report Exh.P/13.
He signed the challan Exh.P/13 -A.
P.W.14 Tariq Manzoor IP/S.H.O. Sariab deposed that on 21 -12-2004 he was posted as
S.H.O. P.S. City. On the same day Adel Masih came to police station and he recorded his
statement under sectio n 161 Cr.P.C. and prepared challan Exh.P/14.
Appellant Haji Ghaibi Khan in his statement recorded under section 342, Cr.P.C. denied all
the allegations levelled against him.
As already stated the case of prosecution rests on ocular as well as circums tantial evidence.
Ocular evidence comprises of statements of P.W.2 Muhammad Yousaf, P.W.3 Adel Masih
and P.W.6 Abdul Wali. Due appraisal of these statements show that defence despite hectic
efforts failed to create doubt about the date, time and presence o f P.Ws. on the spot at the
time of occurrence. The evidence of P.W.1 shows that his presence at little distance from the
scene of occurrence was natural which cannot be doubted, however the statement of P.W.1
being hearsay cannot be given due weight. Simil arly the presence of P.W.3 on the spot is
established as he himself was injured in the incident. Perusal of statements of P.W.2 and
P.W.6 reflects that both of them are eye -witnesses. Statement of P.W.7 has further proved
presence of accused/ appellant at the place of incident. As stated earlier P.W.2 and P.W.6 are
eye-witnesses and deposition of P.W.7, P.W.8, P.W.9 and P.W.12 is circumstantial evidence,
as the witnesses soon after the incident reached at the place of incident. Testimony of P.W.7,
P.W.8 and P.W.12 is further supported by the circumstantial evidence i.e. securing of blood -
stained earth and a shell of T.T. Pistol, which has not been disputed by the defence.
On the other hand defence despite lengthy cross -examination could not shake the vera city of
their statements nor for that matter it could succeed to create doubt in the prosecution case.
The medical evidence produced by the prosecution through P.W.4 fully corroborates the
statements of P.W.2 and P.W.6. Moreover, positive report of Chemica l Expert FSL has
further strengthened the prosecution story. The recovery of licensed TT Pistol and magazines
soon after the incident from the possession of appellant, who was present at the venue and an
empty from the place of incident recovered by police personnel, has further strengthened the
prosecution version. There is no enmity or hostility of prosecution witnesses against the
appellant. The statements of eye -witnesses are straight, coherent and confidence -inspiring.
There is no reason for prosecutio n to involve an innocent person or substitute the appellant in
the commission of offence instead of real culprit. The availability and presence of eye -
witnesses at the venue and the act of firing stand established beyond reasonable doubt. In
such circumsta nce, it is not only difficult rather impossible to discard prosecution version.
Now coming to the contentions of learned counsel for the appellant that P.W.1. is not the eye -
witness is concerned, no doubt P.W.1. is not eye -witness but he has specifically mentioned
the name of P.W.2 Muhammad Yousaf who passed on the information to him by specifically
nominating appellant Haji Ghaibi Khan responsible for making fire upon the brother of
P.W.1. As far as the statement of P.W.2 is concerned, he has offered pla usible explanation for
not removing the victim to Hospital, besides the critical condition of victim, as the brother of
victim was available at a little distance from the venue, therefore he thought it proper to
inform the brother. As far as the next conte ntion that prosecution has not produced Zakaria an
eye-witness is concerned, it is suffice to observe that prosecution has produced two eye -
witnesses. There is no cavil with the legal proposition that it is the prerogative of prosecution
to produce whateve r number of witness mentioned in calendar of witnesses. Since
prosecution was fully satisfied with the statements of P.W.2 and P.W.6 both eye -witnesses,
therefore, it did not produce the P.W. Zakaria. Prosecution was not under legal obligation to
have prod uced all the eye -witnesses. However, the defence could have produced witness
namely Zakaria if according to the defence version of the statement of Zakaria could have
helped the defence. As far as the question of delay in recording of statements of P.Ws.
recorded under section 161, Cr.P.C. is concerned learned counsel for the appellant has not
been able to point out any such delay. In this regard P.W.2 has categorically stated that his
statement was recorded after one hour i.e. at about 8 -00 p.m. Similarly , the statement of
P.W.6 was recorded on the same day as about 6 -30 or 7 O'clock, therefore, there is no delay
in recording of statements of P.Ws. hence the argument is repelled. As far as the argument of
learned counsel with regard to the quantum of sente nce vis -a-vis the murder reference is
concerned we have given our anxious thought to the contention. No doubt in F.I.R., the
complainant has stated that there was an altercation between victim and accused.
Complainant has not stated in Court statement that there was an altercation. Secondly the
complainant is not an eye -witness and already it has been declared as hearsay. Thirdly eye -
witnesses have stated about conversation but not of any altercation, scuffle or exchange of
harsh and hot words. Moreover, th e defence has never pressed into service the said
conversation as a mitigating or extenuating circumstance during the course of trial nor even
before this Court. Rather any conversation between victim and accused prior to incident has
specifically been den ied and disputed by the defence. Besides, the non -availability of motive
can neither make the evidence of P.Ws. doubtful nor it can benefit the accused in any manner
as it cannot be considered as a mitigating circumstance. So in our opinion appellant has
committed a cold -blood murder of an innocent person in the heart of city, therefore, there is
no room for awarding lesser punishment.
The judgments relied by the learned counsel for the appellant were perused but the facts and
circumstances of the same ar e distinguishable and the same do not apply to the facts and
circumstances of the instant case.
Now coming to the legal requirement of passing the normal sentence there is no slightest
ambiguity and doubt in prosecution case. Law on the subject stands se ttled that if prosecution
succeeds to make out a case against an accused within the ambit of section 302(b), P.P.C.
then normally death sentence is to be awarded. By holding the view we are fortified by the
dictum laid down in the case of Manzoor Ahmed v. The State reported in 1999 SCMR 132,
wherein it has been held that: --
"The prosecution has been able to prove that the murder committed by the appellant, was in
most cruel and brutal manner as a defenceless and an un -armed person was given numerous
injur ies on vital parts of his body when he was lying down in a helpless state. On the other
hand the appellant has not been able to prove any mitigating circumstance to justify lesser
penalty. Even otherwise keeping in view seven incised wounds on the person of the deceased
almost all on very vital parts of his body would suggest that the appellant dealt with the
deceased very brutally and callously on a very petty grievance. It is settled law "to punish the
offender in proportion to the character and extent of his guilt, to be deterrent for him and for
the rest of the society without being unnecessarily harsh or needlessly indulgent.
In view of all these facts the High Court was legally correct in convening the sentence of life
imprisonment into death whi ch is normal penalty for the type of murder perpetrated by the
appellant. The appeal is found without merits and is, accordingly, dismissed."
In the case of Muhammad Tahir Aziz v. The State reported in 2010 PCr.LJ 1787 observed as
under: -
"It is well -settled principle of law that where a case under section 302, A.P.C. is proved
against the accused beyond reasonable doubt, then the normal penalty of death is required
and in such case leniency should not be shown, except where strong mitigating circumsta nces
for lesser sentence are available. Where the prosecution has established the guilt of accused
under section 302 through satisfactory and reliable evidence, then the penalty of death has to
be awarded. The basic object of punishment in civilized societ y is to create deterrence among
the citizens so that no one should dare to commit the slay of any person. The sentence of
death shall create a deterrence in the society due to which no other person shall dare to
commit the offence of murder. If in any prov ed case lenient view is taken then peace,
tranquillity and harmony of society will be jeopardized and vandalism shall prevail in the
society."
Further we are supported by the dictum laid down in case titled Nabi Bakhsh v. The State and
another reported i n 1999 SCMR 1972 wherein it has been held that: --
"(15). Lastly, adverting to contention regarding quantum of sentence, needless to say that
once prosecution accusations regarding involvement of convict for causing established duly
established then in th e absence of justifiable extenuating circumstances normal punishment
required to be awarded is "Death". Reference in this behalf can be made to following
observations in cases (i) Abdur Rashid v. Umid Ali (PLD 1975 SC 227), (ii) Mst. Bismillah
v. Muhammad Jabbar (1998 SCMR 862) and (iii) Pervaiz v. The State (1998 SCMR 1976)
Reliance can also be placed on the judgments reported in 1998 SCMR 862 and PLD 1976
Supreme Court 452.
In the light of above discussion, we are of the considered opinion that the pr osecution has
been able to prove the guilt of appellant to the hilt. The trial court after taking into
consideration the entire evidence and attending all circumstances has rightly passed a well -
reasoned judgment, which is not opened to any exception. As s uch we uphold the impugned
judgment dated 29 -3-2007 passed by Additional Sessions Judge -IV, Quetta. Resultantly,
appeal is dismissed. Accordingly, Murder Reference No.6 of 2007 is answered in affirmative
and death sentence awarded to the appellant Haj i Ghaibi Khan son of Haji Sher Muhammad
is hereby confirmed.
H.B.T./93/Q Appeal 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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