PLJ 2018 Cr.C. (Quetta) 130 (DB)
Present : ABDULLAH BALOCH & MUHAMMAD EJAZ SWATI , JJ.
SAADULLAH-- Appellant
versus
STATE--Respondent
Crl. Appeal No. 140 of 2009, decided on 5.6.2017
Oral Nikah --
----Scope--There is no bar on oral nikah especially in our tribal and traditional society, where
the marriages are being solemnized orally. [P. 135] A
Police Official--
----Testimony --Evidentiary value --Validity --Police officials are as good witnesses as p rivate
witnesses and their testimony can not be discarded solely on ground that they are police
officials until and unless the defense succeeds in proving any ill -will or mala fide on part of
police official. [P. 137] B
Mr. Masoom Khan Kakar, Advocate for Appellant.
Mr. Muhammad Yahya Baloch, D.P.G for State
Date of hearing: 26.4.2017.
JUDGMENT
Abdullah Baloch, J. --This judgment disposes of Criminal Appeal No. 140/2009 filed by the
appellant Saadullah Son of Bor Muhammad, against the judgment dated 30th April 2009(hereinafter referred as, “the impugned judgment”) passed by learned Additional Sessions Judge -I Quetta (hereinafter as, “the trial Court”), whereby the appellant was
convicted under Section 302(b), PPC and sentenced to suffer life imprisonment wit h fine of
Rs. 100,000/ - (Rupees One Lakh), which in case of recovery was directed to be paid to the
legal heirs of deceased Bibi Hafeeza under Section 544 -A, Cr.P.C. as compensation and in
default thereof to further suffer one (01) year R.I., with the bene fit of Section 382- B, Cr.P.C.
2. Facts of the case are that on 25th August 2001, the complainant Muhammad Ismail, Head Constable lodged FIR No. 141/2001 at Police Station Civil Line Quetta under Section 302 Q&D R/W Section 353, PPC stating therein that he alongwith other police officials and a
lady Constable Bibi Hajira went to Darulaman ( داراﻻﻣﺎن
)for the purpose of bringing Mst.
Hafeeza to the Court for hearing of a case, hence they took the lady alongwith one Watchman Suleman in official vehicle and pr oceeded towards Sessions Court’s premises. He and lady
Constable Hajira Bibi alighted the Hafeeza Bibi from Suzuki and were proceeded towards main gate of Sessions Court, but at about 9.15 a.m. no sooner they reached at main gate of
Sessions Court then a p erson already standing there made firing upon Mst. Hafeeza with
pistol, who received two bullets on her person i.e. one bullet below the right eye while the
other on the abdomen. The police officials apprehended the appellant alongwith pistol, who on query disclosed his name as Saadullah and stated that he is the brother of lady Mst.
Hafeeza. He further disclosed that the lady was kidnapped from Pishin and the case of her kidnapping is pending before Adhoc Sessions Judge Quetta. The lady was taken towards
hospital by ASI Jehangir, but in the way to hospital, she succumbed to the injuries.
3. In pursuance of above FIR, investigation was conducted by PW -10 Faiz Ahmed Bhatti,
IP/IO, who inspected the site and prepared site map, carried out proceedings under Section
174, Cr.P.C. and prepared inquest report; took into possession the blood- stained clothes,
chaddar/scarf, earth etc.; seized the crime weapon i.e. pistol containing 03 live cartridges and
sent the same to FSL for analysis; took into possession two empties from the place of occurrence; recorded the statements of witnesses under Section 161, Cr.P.C.; got recorded the confessional statement of appellant under Section 164, Cr.P.C. and on completion of
investigation submitted the challan in the trial Court.
4. At the trial, the prosecution produced ten (10) witnesses. The appellant was examined
under Section 342, Cr.P.C., The appellant recorded his statement on oath under Section 340(2), Cr.P.C., and also produced three witnesses in his defence. On conclusion of trial, vide
judgement dated 24th September 2001 the appellant was convicted under Section 311, PPC and sentenced for fourteen (14) years, whereas he was acquitted from the charge under Section 353, PPC. It appears from the record that the appellant assailed his conviction before this Court through Criminal Appeal No. 244/2001, whereas Criminal Revision Petition No. 123/2001 was filed by the State for enhancement of his sentence. After hearing this Court dismissed the criminal appeal filed by the appellant, whereas the Criminal Revision Petition
filed by the State was accepted and the sentence of the appellant was enhanced to life imprisonment, vide judgement dated 29th July 2003. Thereafter, the appel lant as well as the
State approached the Hon’ble Supreme Court by filing Criminal Appeal No. 257/2003, while the State filed Criminal Revision Petition No. 374 of 2003. After hearing the Hon’ble Supreme Court on 19
th November 2008 dismissed both the appeal and the petition and
remanded the case to the trial Court for deciding the compromise deed/application under Section 345, Cr.P.C. as well as to determine the relationship of Muhammad Fayyaz with the deceased. After remand of the case and as per directions of Hon’ble Supreme Court, the
learned trial Court has formulated the following two questions for determination:
1. Whether Muhammad Fayyaz was husband of deceased Hafeeza Bibi?
2. Whether Muhammad Fayyaz is and can be legal heir of deceased Hafeeza Bibi
according to Section 345, Cr.P.C.?
5. After formulation of above points/questions, the trial Court directed the State to produce
Muhammad Fayyaz, but the summons so issued could not be served and ultimately the
statements of CW -1 & CW -2 were recorded, acco rding to whom the said Fayyaz had shifted
to some unknown place. In support of his contention the accused produced record of cases registered at Pishin through recordkeeper of Sessions Judge Pishin as CW -3, who produced
the documents of record, on the othe r hand the prosecution further produced the record of
cases bearing FIR No. 45/1998 and FIR No. 49/1998 of Levies Headquarter Pishin through
CW-3 and CW -4. Thereafter the arguments were heard and vide impugned judgement the
trial Court after declaring Muha mmad Fayyaz as legal heir and husband of deceased Bibi
Hafeeza has dismissed the compromise deed/application under Section 345, Cr.P.C. and
convicted and sentenced the appellant as mentioned above. Whereafter, instant appeal has
been filed.
6. Learned counsel for appellant contended that the impugned judgement is result of
misreading of the evidence available on record; that the offence under Section 302, PPC is compoundable in nature and the legal heirs of deceased have entered into legal compromise, but the same was rejected on the ground that Muhammad Fayyaz was her husband and he has
not compromised the matter, but the learned trial Court has ignored this important aspect of the case that two separate FIRs i.e. for abduction and under Hadood cases were registered
against the appellant and even no valid Nikkah Nama or oral evidence was produced to establish that any Nikkah was performed, hence in no manner said Muhammad Fayyaz can be termed to be the husband of deceased and he is not her legal heir; that Muhammad Fayyaz did not appear before the Court in spite several opportunities; that deceased Mst. Hafiza fully
implicated the Fayyaz for commission of offence, but this important evidence was not taken into consideration; that the trial was wrongly influe nced by the findings of the learned Adhoc
Sessions Judge, whereby Fayyaz was acquitted of the charge; that the learned trial Court has mis-appreciated the evidence brought on record.
7. On merits, the learned counsel for appellant further contended that t he impugned
judgement is perverse and contrary to the material available on record; that the police officials in order to show their efficiency have wrongly implicated and involved the appellant in the case in hand, whereas the appellant has no concern or nexus with the crime; that the alleged confessional statement is result of torture and coercion and even recorded after considerable delay, thus not admissible; that since the alleged murder was committed in the
police custody, thus the police is intereste d party, whereas the prosecution has only produced
the evidence of interested witnesses, thus the case of prosecution is lacking independent corroboration; that all the witnesses made contradictory statements to each other and the prosecution has badly fai led to establish the charge against the appellant beyond the shadow
of reasonable doubt.
8. On the other hand, learned Deputy Prosecutor General contended that sufficient incriminatory evidence is available on record to establish the fact that the deceased had contracted marriage with Muhammad Fayyaz and being the husband of late deceased, the said Muhammad Fayyaz is legal heir and without him no effective compromise can be effected, whereas the learned trial Court had rightly dismissed the compromise deed; that the prosecution witnesses through independent corroborative evidence has succeeded in establishing the charge against the appellant, who otherwise was caught red handed alongwith crime weapon and the appellant has failed to bring on record any iota of evidence establishing his false implication, thus the appeal deserves dismissal.
9. Heard the learned counsel and perused the record minutely with their able assistance. Perusal of record reveals that at the first round of litigation the trial Court co nvicted and
sentenced the appellant for 14 years under Section 311, PPC and this Court had not only maintained the sentence, but also enhanced the same to that of life imprisonment, but the case was remanded by the Hon’ble Supreme Court of Pakistan to the trial Court with the directions to first determine the relationship/status of deceased with Muhammad Fayyaz and thereafter to decide the compromise deed under Section 345, Cr.P.C. However, after remand, the said Muhammad Fayyaz despite issuing summons did not appear before the Court and as per statement of CWs, who was shifted to an unknown place, thus the trial Court recorded the
statements of four CWs, who produced the record of cases registered earlier against said
Muhammad Fayyaz. In order to resolve the issue of relationship in between the deceased and Muhammad Fayyaz as well as the validity of compromise deed, at first instance we have to analyze the record produced through CWs with regard to cases registered for alleged abduction and deceased and comm itting Zina with her by said Muhammad Fayyaz.
10. The admitted feature of the case is that the appellant was the brother of deceased Mst.
Hafeeza, who had liaison with Muhammad Fayyaz . Initially, on 8th August 1998 the father of
deceased lodged FIR No. 45/1998 at Levies Headquarter Quetta district Pishin under Sections 365, 109, PPC R/W Sections 9/14 of Hadood Ordinance by nominating Muhammad Fayyaz and others with the allegations of a bducting his daughter (deceased) from his house. It
appears from the record that the police arrested the said Muhammad Fayyaz and deceased from Faisalabad and they were shifted to Pishin. The statement of deceased under Section 161, Cr.P.C. was recorded on 18
th August 1998, wherein she had admitted her liaison with
Muhammad Fayyaz. She further admitted when Muhammad Fayyaz at night time came to her
house by scaling the wall, she joined him by eloping her parents’ house and also took some
cloths etc. Such st atement was reiterated by the deceased in her Court’s statement recorded in
the case of abduction. The deceased during trial of case remained in Darul -Amaan. It is
pertinent to mention here that during trial of the case the deceased on 18th July 2001 had submitted an application to the trial Court requesting for handing over her custody to the
mother of Fayyaz or to Edhi Center or to judicial custody.
11. The minute scrutiny of deceased’s statements recorded in the case of her alleged abduction both by the I.O. and during trial, would make it clear that the deceased was not
abducted rather out of her free will and consent she eloped her parents’ house, otherwise the abduction of deceased from her parents’ house where other inmates were also present was not possible if the deceased had made any resistance or hue and cries at the time of her alleged abduction or subsequently when she was being taken to somewhere else Quetta and thereafter to Faisalabad. Since, in her statements allegedly the deceased had alleg ed commission of
Zina with her by Muhammad Fayyaz, thus second FIR No. 49/1998 under Section 11 of Zina
(Enforcement of Huddood) Ordinance was registered, but while examining in the Court the deceased had specifically stated that Muhammad Fayyaz is her hus band and she out of her
free will and consent eloped her parents’ house and joined Muhammad Fayyaz, who taken her to his relative’s house, wherein her Nikkah was performed. The deceased further added that in the previous case of her abduction she due to fe ar and pressure of her parents deposed
falsely against her husband.
12. The record further reveals that on conclusion of trial in both the cases. Muhammad
Fayyaz was acquitted of the charge as neither the allegations of abduction were proved nor
commissio n of Zina was established rather according to the statement of deceased in Hadood
case that she married with Muhammad Fayyaz. Even otherwise, the postmortem report of deceased is indicative of the fact that at the time of her murder she was pregnant. Furth ermore, after acquittal of Muhammad Fayyaz in both the cases of alleged abduction as
well as in Hadood case the parents of the deceased had not assailed the acquittal order before the higher forums, thus the acquittal orders attained finality.
13. From pe rusal of both the judgments in the said cases, it has been established that the
deceased had not only eloped her parents’ house with her free will and consent, but also, she had contracted marriage with Muhammad Fayyaz, thus the said Muhammad Fayyaz being the husband of deceased lady is termed to be her legal heir. So far as, the contention of the
learned counsel for the appellant that no documentary evidence or Nikkah Nama or Nikkah
Khuwan was produced to establish the solemnization of Nikkah is concerned, the fact
remains is that there is no bar on oral Nikkah, specially in our tribal and traditional society the marriages are being solemnized orally even otherwise the findings of learned Sessions Judge Adhoc remained unchallenged and attained finality. How ever, mere his non-
appearance does not disentitle him from the legal heirship of the deceased. Admittedly, Muhammad Fayyaz being legal heir of deceased is also entitled for Qisas and Diayat. Besides
he has every right to enter into compromise, claim Badle -Sullah pardon anyone or Afw or
take his share from the Diyat regarding murder of his wife and without his participation no
effective compromise could be effected, thus the learned trial Court has rightly dismissed the compromise deed. Reliance in this regard is placed on the case of Muhammad Amin vs. The State, 2016 SCMR 116, wherein it has been held that, “Another factor having some bearing
upon the question of the appellant’s sentence is that the husband of the deceased, on his own behalf as well as on behalf of the minor children of the deceased, had forgiven the appellant and had entered into a compromise with him which compromise was not given effect to by the Courts below because the compromise was incomplete. It has been clarified by this Court in the case of Abdul Ghaffar and others v. The State (2015 SCMR 1064) that a partial
compromise may not have any bearing upon conviction of an accused person in a case of Ta’zir but it may have, in the circumstances of a given case, some relevance to the questio n
of sentence in such a case. In the above mentioned circumstances of this case we have felt persuaded to reduce the appellant’s sentence of death to imprisonment for life on the charge under Section 302(b), P.P.C. This appeal is, therefore, dismissed to t he extent of the
appellant’s conviction for an offence under Section 302(b), P.P.C. recorded and upheld by the Courts below but the same is partly allowed to the extent of the appellant’s sentence which is reduced from death to imprisonment for life. The benefit under Section 382- B, Cr.P.C. shall
be extended to the appellant. This appeal is disposed of in these terms.”
14. Now adverting to the merits of the case, it is evident from record that the unnatural death of deceased Mst. Hafeeza is not disputed. T he appellant admitted the unnatural death of
deceased during trial, but pleaded his false implication by the police. PW -2 Dr. Farida,
Medico Legal Officer, examined the deceased and confirmed that the deceased had received two bullet injuries in her person and further opined the cause of death due to injury on vital
organ in cranial of abdominal cavity bleeding to intra and extra cranial -abdominal
hemorrhage shock and death and injures mentioned were caused by fire -arm. PW -2 issued
medical certificate Ex.P/ 2-A, which confirms the unnatural death of deceased.
15. Adverting to the statements of eye -witnesses, suffice to observe that the prosecution in
order to substantiate the charge has produced the evidence of ten witnesses. The complainant of the case appeared as PW -1, who reiterated the contents of FIR. According to PW -1 on the
day of occurrence he alongwith Constable Saadullah, lady Constable Bibi Hajira (PW -4) took
the deceased from Darul -Amaan in an official vehicle and accompanied Watchman of Darul -
Ama an Suleman (PW -3) towards Sessions Court and when they reached near Sessions Court
main gate, the appellant already standing there opened firing upon the deceased, due to which two bullets hit to the deceased, who fell down and while shifting to hospital s he succumbed
to the injures. PW -1 further added that he alongwith other police officials already present
there apprehended the appellant and recovered the crime weapon. PW -3 and PW -4 fully
corroborated the statement of PW -1 and reiterated the statement on PW-1 by correctly
mentioning the date, time, the place of occurrence and the manner in which the appellant appeared at site and fired upon the deceased. The statements of PW -1, PW -3 and PW -4 have
fully been corroborated by the other eye -witnesses, who were present in the Sessions Court
premises. PW -6 Muhammad Jahangir, ASI, stated that he was present in the Court premises
for recording his statement in another case, when heard the voice of firing, thus rushed
towards gate and alongwith the complainant and others apprehended the appellant and recovery of pistol was effected from his possession. PW -6 is also the witness of recovery
memo. of crime weapon Ex.P/6- B, blood- stained earth Ex.P/6 -C and empty cartridges as
Ex.P/6 -D.
16. The minute scrutiny of stateme nts of all the above witnesses being natural witnesses
justifies their presence at the time and place of occurrence, as the PW -1, 3 & 4 were deputed
to bring the deceased to Sessions Court in hearing of the case, while PW -6 was already
present in the Court for recording his statement in another case. All the witnesses correctly
identified the appellant in the Court being assailant, who had committed the murder of deceased and was caught red handed alongwith the crime weapon. Furthermore, none of the witness had known the appellant previously and even they had no ulterior motives to falsely
implicate the appellant in the crime. The learned counsel for the appellant made an
unsuccessful attempt to discredit the evidence of eye -witnesses being police officials, but
legally the police officials are as good witnesses as the private witnesses and their testimony
cannot be discarded solely on the ground that they are police officials until and unless the
defence succeeds in proving any ill -will or mala fide on the part of police officials. The
police officials cannot be declared as interested witnesses merely on the basis of murder of a
deceased committed by the assailant when she was in the police custody rather being deputed on the duty of deceased to produce her before the Court, the police officials are natural witnesses and their testimony can be considered a solid piece of evidence. Besides, none of the witnesses was derailed from the prosecution story while recording their statements in the Court, but to the contrary their statements are in line and corroborating each other on all
material counts. The witnesses were cross -examined at considerable length, but nothing
advantageous favouring the defence has come on record. Even, the defence has failed to give sligh test damage or dent to the testimony of prosecution witnesses.
17. The case of prosecution has further been strengthened from the recovery of crime weapon. Admittedly, the appellant was caught red handed soon after the occurrence and the police snatched t he crime weapon i.e. pistol from him and the same was taken into possession
through seizure memo. Besides, two empties were also recovered from the place of occurrence. The DWs appeared on behalf of the appellant also confirms the recovery of crime weapon from the possession of the appellant. PW -8 has produced the arm licence issued in
the name of the appellant.
18. The case of prosecution has further been strengthened from recording the confessional statement of the appellant. Careful perusal of confessio nal statement of appellant establishes
the fact that the learned Judicial Magistrate (PW -5) before recording such statement had
introduced himself before the accused and also explained the consequences of such statement during trial of the case being used against him, besides assuring the appellant that he is in safe
custody and thereafter being satisfied he commenced with recording the confession, therefore, mere retraction of the appellant from the confessional statement is not enough to effect its validity.
19. Now adverting to motive behind the occurrence, which is strong enough to provoke the appellant to commit the murder of his deceased sister, who had eloped her parent’s house and without the consent and knowledge of her parents contracted marriage with a stranger in
violation of customs and traditions of our society.
20. We have also perused the impugned judgement delivered by the learned trial Court and
observed that the appellant was rightly found guilty of the charge. The learned trial Court ha s
rightly appreciated the evidence so brought before him and each and every aspect of the case was discussed in detail as per directions of Hon’ble Supreme Court of Pakistan, hence the learned counsel for the appellant has failed to point out any illegalit y and irregularity in the
impugned judgement for interference of this Court.
For the reasons discussed hereinabove, the appeal being devoid of merits is dismissed. The
appellant is on bail; be taken into custody and be sent to District Jail Quetta for serv ing his
remaining period of sentence. The appellant shall also enjoy the benefit of Section 382- B,
Cr.P.C.
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