2014 Y L R 699
[Balochistan]
Before Muhammad Noor Meskanzai and Muhammad Ejaz Swati, JJ
NOOR AGHA alias ABDULLAH ---Appellant
Versus
The STATE---Respondent
Criminal Jail Appeal No.19 and Murder Reference No.3 of 2013 decided on 31st October, 2013.
Penal Code (XLV of 1860) ---
----S.302(b) ---Qatl-e-amd---Appreciation of evidence --- Confessional statement ---Medical
evidence ---Scope---Accused was convicted by Trial Court and sentenced to death on two counts
for committing murder of two persons ---Validity ---Confessional statement recorded by accused
was voluntary and in accordance with law, besides it rang true ---Confessional statement coupled
with ocular account furnished by prosecution witnesses established the fact that accused had
committed cold blooded murder of two innocent helpless and armless persons ---Non -production
of medical certificate of both the deceased was not fatal nor it could extend any benefit to
accused ---Real father and brother of deceased were eye -witnesses, they, could not possibly
substitute any one else, except the real culprits ---Shop of one prosecution witness was situated in
front of place of incident who also supported prosecution version---Evidence of prosecution
witnesses were reliable and confidence inspiring, conf essional statement of accused was true and
voluntary and sufficient to sustain conviction---Prosecution had proved guilt of accused and Trial
Court after taking into consideration entire evidence and attending all circumstances rightly
passed well reasoned judgment, which was not open to any exception--- Appeal was dis -missed
in circumstances.
PLD 1985 Kar. 661; 1976 PCr.LJ 426; Khan Muhammad v. The State 1999 SCMR 1818;
Sikandar v. The State 2006 SCMR 1786; Muhammad Haneef v. The State PLD 1993 SC 895 a nd
Abdul Wahab v. The State 1999 SCMR 1668 ref.
Mrs. Sabira Islam for Appellant.
Ameer Hamza Mengal, D.P.G. for Respondent.
Date of hearing: 25th September, 2013.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ---This judgment shall dispose of Criminal Jail Appeal
No. 19 of 2013 filed by appellant Noor Agha alias Abdullah son of Fida Muhammad through
Superintendent Central Jail, Machh, wherein the appellant has assailed the judgment dated 31st
May, 2013 passed by the learned Additional Sessions Judge -VI, Que tta, whereby the appellant
has been convicted and sentenced as under: --
"Under section 302(b) P.P.C. to be punished with death as Tazir on two counts. He shall
be hanged by neck till the time he is dead. The convict shall pay Rs.100,000 (Rupees One Lac
Only) each as compensation to the legal heirs of deceased Abdul Mateen and Muhammad Nabi
as provided by under section 544- A Cr.P.C. and in case of default shall undergo six months' S.I."
The learned Additional Sessions Judge -VI, Quetta has also sent Mur der Reference No.3
of 2013, for confirmation of death sentence or otherwise as required under section 374, Cr.P.C.
2. The facts of the case, in brief, are that an F.I.R. bearing No. 230 of 2009 (Exh.P/8- A), on
the basis of Fard -e-Bayan Exh.P/2- A was regi stered by Satellite Town Police Station, Quetta on
5th October, 2009 at 11- 30 a.m. under sections 302, 109 and 34, P.P.C. on the complaint of Haji
Jalandar Khan in respect of the incident taken place on the fateful day at Ghous Abad, Quetta at
10-30 a.m., wherein it was alleged that the appellant Noor Agha at the instance and in
furtherance of common intention of absconding accused namely Gul Muhammad and
Muhammad Dawood committed murder of two sons of complainant namely Muhammad Nabi
and Abdul Mateen by ma king firing with small machine gun outside the shop of complainant
situated at Ghous Abad, Quetta.
3. On the basis of said F.I.R., the appellant was arrested, investigation commenced, which
culminated in submission of challan before the trial Court. The trial Court, framed charge on
20th April, 2010, to which, the appellant pleaded not guilty and claimed trial. Whereafter, the
prosecution in order to substantiate the charge produced following P.Ws.: --
P.W.1 Abdul Khaliq, IP/SHO, arrested the appellant on 5th October, 2009 along with
crime weapon and registered F.I.R. No.231 of 2009 under section 13 -D of the Arms Ordinance,
1965 against the appellant.
P.W.2 Haji Jalandar Khan is complaint and an eye -witness of the incident. He produced
Fard-e-Bayan Ex h.P/2- A on the basis whereof F.I.R. was registered.
P.W.3 Abdul Khaliq son of Haji Jalandar Khan, he furnished ocular account.
P.W.4 Shafique Ahmed A.S.- I., is mushir to the recovery memo of MP -5, security Pistol
Exh.P/4- A and produced the MP -5 secur ity pistol as Art.P/3, Magazine as Art.P/4 and 10 live
cartridges as Art.P/5.
P.W.5 Muhammad Naseem, furnished ocular account.
P.W.6 Malik Asif, A.S.- I., is mushir to the recovery memos and produced site inspection
report Exh.P/6- A, recovery memo of 6 empties Exh.P/6 -B, empties as Art.P/9 to Art.P/11, led
Art.P/12 to Art.P/17, recovery memo of blood -stained earth of deceased Muhammad Nabi
Exh.P/6- C and blood- stained earth of deceased Abdul Mateen Exh.P/6 -D and blood- stained earth
material of deceased persons as Art. P20 and Art.P/23.
P.W.7 Abdul Ali Jalalzai Judicial Magistrate, recorded the confessional statement of
appellant under section 164, Cr.P.C. and produced sealed envelope as Art.P/24, statement as
Exh.P/7- A and identified his signature on certificate Exh.P/7 -B.
P.W.8 Faiz Ahmed, S.I, is Investigating Officer of the case and produced F.I.R. Exh.P/8-
A.
4. After prosecution evidence, the appellant was examined under section 342, Cr.P.C,
wherein he denied all the incriminating pieces of evidence produced by the prosecution. The
appellant has also recorded his statement on oath as envisaged under section 340(2), Cr.P.C,
however did not produce any witness in his defence.
5. The learned trial Court after hearing the parties and evaluating the evidence found the
appellant guilty of the offence, as such convicted and sentenced him as mentioned hereinabove.
6. The learned counsel for the appellant raised following points:
(i) that there are material contradictions in the statement of pros ecution witnesses;
(ii) the MLC of both the deceased were not produced nor inquest report made part of the
record;
(iii) the appellant was arrested on 5th October, 2009 and his alleged confessional statement
was recorded on 9th October, 2009;
(iv) the motive as alleged in the F.I.R. has not been proved;
(v) the injuries, statements of deceased recorded in the F.I.R. and ocular witnesses are
contradictory.
Learned counsel for the appellant placed reliance on the judgments reported in PLD 1985
Kar. 661 and 1976 PCr.LJ (Lahore) 426.
On the other hand, the learned DPO controverted the contentions and stated that the
prosecution through reliable, trustworthy ocular witnesses has proved its case. Their statements
are consistent on material particular s and having no improvements therein. The appellant has
committed murder of two persons in a broad- daylight in presence of father and brother of
deceased, besides an independent witness also supported their version. The confessional
statement of appellant further corroborates the prosecution version and the conviction recorded
by the learned trial Court is based on sound reasoning, as such, the same is required to be upheld.
7. We have carefully considered the contentions put forth by the parties' learned counsel and
have gone through the record of the case minutely. It is the case of prosecution that P.W.2 Haji
Jalandar Khan complainant (father of the deceased Muhammad Nabi and Abdul Mateen)
deposed that at the time of incident, his above two sons were si tting in the shop, whereas he
along with his other son namely Abdul Khaliq was sitting outside the shop. In the meanwhile, the
appellant equipped with small machine gun appeared and started firing, which hit on the head of
his sons and thereafter, the appe llant decamped towards Western side. He along with other
inhabitants of Mohalla had taken the deceased to hospital. He further stated that the appellant has
committed murder of his sons on the instigation of absconding accused Muhammad Dawood and
Gul Muham mad. This prosecution witness lodged the F.I.R. through Fard -e-Bayan in Civil
Hospital, Quetta. P.W.3 Abdul Khaliq is brother of deceased furnished ocular account and
supported the version of P.W.2. P.W.5 Muhammad Naseem is an independent witness, as his
shop is situated in front of the shop of the complainant. Despite lengthy cross -examination,
nothing favourable came out to discredit the credibility of above witness. In cross -examination,
P.W.5 in reply to a question stated that after firing, one victim w as lying in the shop, whereas the
other was lying outside the shop. This version also finds support from the statement of P.W.6
Malik Asif, who attested the recovery memo of blood- stained earth of Muhammad Nabi
Exh.P/6- C and blood- stained earth of deceased Abdul Mateen Exh.P/6- D at the spot. In cross -
examination, P.W.6 replied that blood- stained earth of deceased Muhammad Nabi was taken
from inside of the shop and blood- stained earth of deceased Abdul Mateen was taken from
outside of the shop. This assertion has further been affirmed by P.W.8 Faiz Ahmed Investigating
Officer and in cross -examination, he replied the same as stated by the above two prosecution
witnesses and P.W.8 further explained that the place of occurrence was pointed out by the
complainant . The ocular account furnished by P.W.2, P.W.3 and P.W.5, are also consistent with
other circumstantial evidence. Besides the above ocular account, we have perused the
confessional statement of appellant Exh.P/7- A. The Judicial Magistrate after taking all
precautions and complying with the formalities as required under section 364, Cr.P.C. recorded
the same. The volunteerness of the confession also appears from the question put to the appellant
before recording of his confessional statement and he specifica lly stated that he is recording
voluntary statement without any fear, coercion or inducement. The appellant in his confessional
statement stated that he had committed the murder of deceased on the instigation of Muhammad
Dawood and Gul Muhammad (absconding accused), who paid him money and provided crime
weapon. The contention of counsel for the appellant that the above confessional statement was
recorded after delay of four days carries no legal substance. In this regard, the Hon'ble Supreme
Court in the ca se titled (Khan Muhammad v. The State) reported in 1999 SCMR 1818, held as
under: --
"It was further contended that the appellants were arrested on 9 -8-1989 and their custody
having been remanded to the police, their confession was recorded on 20- 8-1989 and, therefore,
the same cannot be termed voluntary. We have considered this aspect of the case and we are of
the view that this issue cannot be resolved in its generality, but each case has to be considered on
its own facts. Delay in recording the confess ion by itself cannot render the confession nugatory if
otherwise it is proved on record that the same was made voluntarily."
8. We have no doubt that the confessional statement recorded by the appellant, is voluntary
and in accordance with law, besides it rings true. The confessional statement of appellant
coupled with the ocular account furnished by P.W.2, P.W.3 and P.W.5, establish the fact that the
appellant has committed the cold blooded murder of two innocent helpless and armless persons.
The other limb of argument of appellant's counsel is regarding non- production of medical
certificate of both the deceased. This contention, in the circumstances of the present case is not
fatal nor it can extend any benefit to the appellant. The Hon'ble Supreme Cour t in the case titled
(Sikandar v. The State) reported in 2006 SCMR 1786 held as under: --
"The medical evidence is not substitute of direct evidence rather is only a source of
corroboration in respect of nature and seat of injury, the kind of weapon used, the duration
between the injury and death and may confirm the ocular account to a limited extent but cannot
establish the identity of the accused or connect him with the commission of offence, therefore, if
the charge of murder is otherwise proved through the direct evidence, the absence of medical
evidence may not be fatal."
9. The case of prosecution on the strength of injuries, recorded in the F.I.R. has been
objected by the counsel for the appellant that it contradicts the ocular evidence. This aspe ct of
the matter has also gone through. The prosecution case is based on the statements of ocular
witnesses and confessional statement of appellant, which are in line with each other and there is
no contradictory view, in view of such overwhelming statements, the mere non -availability or
non-production of MLC, does have no adverse impact on the prosecution case, particularly,
where unnatural death is undisputed. The Hon'ble Supreme Court in the case titled (Muhammad
Haneef v. The State) reported in PLD 1993 SC page 895 held as under: --
"The Expert's evidence may it be, medical or that of Ballistic Expert, is entirely in the
nature of confirmatory or explanatory of direct or other circumstantial evidence, but if there is
direct evidence as in the instant case, which is definite, trustworthy, the confirmatory evidence is
not of much significance. In any case, it cannot outweigh the direct evidence."
10. The real father and brother of the deceased, are eye -witnesses, they, therefore, cannot
possibly substit ute any one else, except the real culprits. The shop of P.W.5 is situated in front of
the place of incident and this independent eye -witness also supported the prosecution version,
therefore, we are of the view that the evidence of above eye- witnesses are reliable and
confidence -inspiring, confessional statement of appellant being true and voluntary are sufficient
to sustain conviction.
12. Coming to the point of motive and question of mitigating circumstances, the Hon'ble
Apex Court in the case titled (A bdul Wahab v. The State) reported in 1999 SCMR 1668 held as
under: --
"Motive shrouded in mystery" is not a legal principle which can be applied in all murder
cases for reduction of capital sentence where there is no motive alleged/proved by the
prosecut ion or where initially a motive is alleged but the same is not proved or withdrawn or a
different motive appears in the prosecution evidence. "Motive shrouded in mystery" by itself is
not a mitigating circumstance for lesser sentence."
13. In such a cold -blooded murder, where the case has been established beyond reasonable
doubt by the evidence on record, no argument can be built up for reduction of sentence on the
ground that the motive was "shrouded in mystery". In the present case, we after having gone
through the record minutely, hold that the appellant has committed a cold- blooded murder in a
brutal and gruesome manner, which has been proved by the ocular witnesses coupled with
voluntary confessional statement of appellant. The appellant as per his co nfessional statement,
committed the murder of two innocent persons, as he was paid for the same by absconding
accused, therefore, do not deserve any leniency in the sentence.
In the light of above discussion, we are of the considered opinion that the pr osecution has
been able to prove the guilt of the 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 open to any exception, as such we uphold the impugned
judgment. With the result, the appeal is dismissed. Accordingly, Murder Reference No.3 of 2013
sent by the learned Sessions Judge VI, Quetta for confirmation of death sentence or otherwise, is
answered in affirmative and death sentence awarded to the appellant in hereby confirmed.
MH/112/B 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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