2018 Y L R 1021
[Balochistan]
Before Jamal Khan Mandokhail and Nazeer Ahmed Langove, JJ
MUHAMMAD JAVED and others ---Petitioners
Versus
ZAMEER HAIDER and 2 others ---Respondents
Criminal Revision No. 37 of 2014, Criminal Jail Appeals Nos. 9 and 24 of 2015, decided on 25th
September, 2017.
(a) Penal Code (XLV of 1860) ---
----S. 302--- Qatl-i-amd---Appreciation of evidence ---Circumstantial evidence ---Accused was
charged for the murder of brother of the complainant by firing with pistol ---Record showed tha t
illicit relations existed between the accused and wife of the deceased and the deceased was hurdle in their way ---Accused, stated to have arrived from other city, stayed in a hotel and co-
accused/wife of the deceased took the deceased to a Hakim, on thei r way back to home, incident
of qatl occurred, which was premeditated and preplanned ---Co -accused despite being the on
same bike did not receive single bruise ---Admittedly, except the lady co -accused, there was no
other eye -witness of the incident, but cir cumstantial evidence; conduct of the accused persons,
arrival of the accused from other city, his stay in a hotel; confessional statements of the accused persons; recovery of empty shells, blood stained clothes of the deceased with positive report; medical evidence furnished by the Medical Officer; cell phone data of the accused persons and
accused going back to his native city after committing crime, made unbroken chain of circumstantial evidence ---Prosecution had been able to prove its case against the accused persons
beyond shadow of reasonable doubt in circumstances ---Appeal against conviction and sentence
was dismissed in circumstances.
(b) Penal Code (XLV of 1860) ---
----S. 302---Qatl -i-amd---Appreciation of evidence ---Minor discrepancies in the statements of
prosecution witnesses ---Effect ---Minor discrepancies, in the statements of witnesses and
irregularities in the investigation were of no avail to the defence and could be ignored in circumstances.
(c) Penal Code (XLV of 1860) ---
----S. 302---Crimin al Procedure Code (V of 1898), S. 164--- Qatl-i-amd---Appreciation of
evidence ---Judicial confession--- Scope --- Confessional statement of the accused was recorded
after following the procedure, which, admittedly, being not under the influence of the police , was
admissible under the law and could be made basis for recording conviction.
Manjeet Singh v. The State PLD 2006 SC 30; Anwar Khan and another v. The State 2006
SCMR 1343 and Murad Ali v. The State 2007 SCMR 146 rel.
(d) Penal Code (XLV of 1860) ---
----S. 302---Qatl -i-amd---Appreciation of evidence ---Non -recovery of weapon of offence from
accused ---Scope---Crime weapon not recovered by police but explained properly, would not be
fatal to the case of prosecution. 2007 SCMR 146 rel.
(e) Penal Code (XL V of 1860) ---
----S. 302---Qatl -i-amd---Appreciation of evidence ---Sentence, quantum of ---Mitigating
circumstance---Case was based on circumstantial evidence, mitigating circumstance existed
particularly in favour of the lady accused, as such lesser punishment had rightly been awarded.
2017 SCMR 880 and 2017 SCMR 630 rel.
Ahsan Rafique Rana for Petitioners (in Criminal Revision No.37 of 2014).
Saif-ur-Rehman, Inamullah Kundi and Jamal Khan Lashari for Respondent No.1 (in
Criminal Revision No.37 of 2014).
Abdul Karim Malghani for Respondent No.2 (in Criminal Revision No.37 of 2014).
Ameer Hamza Mengal, D.P.G. for the State (in Criminal Revision No.37 of 2014).
Saif-ur-Rehman, Inamullah Kundi and Jamal Khan Lashari for Appellant (in Criminal
Jail Appeal No.09 of 2015). Ameer Hamza Mengal, D.P.G. for the State (in Criminal Jail Appeal No.09 of 2015).
Abdul Karim Malghani for Appellant (in Criminal Jail Appeal No.24 of 2015). Ameer Hamza Mengal, D.P.G. for the State (in Criminal Jail Appeal No.24 of 2015).
Date of hearing: 23rd August, 2017.
JUDGMENT
NAZEER AHMED LANGOVE, J. ---Criminal Jail Appeals Nos. 9/2015, 24/2015 and
Criminal Revision Petition No. 37/2014, are arising out of same judgment, therefore, we would
like to decide them through this common judgment.
2. Brief facts of the case are that in pursuance of report submitted by the complainant
Muhammad Javaid, instant case was registered against the unknown culprits at Police Station
Kharot Abad on 28th May 2012, wherein he alleged that he is a permanent resident of District
Dera Ghazi Khan, has been performing his duty as Stenographer at F.C. headquarter Quetta,
while his brother, Rafique along with his family is residing in the area of Hudda Quetta. That tonight he was present at home, at about 11:30 PM, received a call from the cell phone of his brother that Muhammad Rafiq, his brother, has been fired and caused injuries and now he is in
BMC. No sooner he rushed hospital where he found his above named brother lying in pool of
blood, in opera tion theatre of the Hospital. That wife of deceased, (the sister -in-law of the
complainant) disclosed that tonight's he along with deceased and their younger son, after visiting
peer Hakim Abdul Hakim resident of Jamiat Rai Road, were on their way to home, on a bike, at
about 10:45 PM, when they reached near a Street confronted by two cars and a motor cycle, unknown rider of bike, resorted to firing with pistol and caused injuries to her husband, after committing crime all of them fled away from the scene o f occurrence. The injured was shifted to
hospital where he succumbed to his injuries. Hence this case against the unknown culprits, investigation commenced, during course whereof it was transpired that the appellants/accused persons were involved in the commission of crime. Police laid hands and arrested them finally. On completion of investigation Challan of the case was submitted and trial commenced. On 22nd April, 2013 the charge was read over and explained to the accused to which they pleaded not guilty and claimed trial. The prosecution, in order to substantiate its claim, produced as many as
nine witnesses. On examination under section 342, Cr.P.C. the accused disputed the case of prosecution and pleaded their innocence having no concern or connection with the commission of alleged offence, the accused Rabia Kanwal further stated that at the time of incident she was in company of her deceased husband. Confessional statement recorded before the Judicial Magistrate was fear of death at the hands of her br other -in-law who wanted to kill her. They
prayed for their acquittal however did not opt to get themselves examined on oath as provided under Section 340(2), Cr.P.C, nor produced any witness in their defence.
3. Trial court, after hearing the parties, and evaluating evidence, found the
accused/appellants guilty, as such, convicted and sentenced them for the period mentioned hereinabove. Hence these jail appeals in this respect Mr. Jamal Khan Lashari and Mr. Abdul Karim Mulghani, Advocates were appointed as counsel for the appellants at state expenses.
However, before filing these jail appeals, the complainant also filed a Criminal Revision Petition for enhancement of sentence.
4. The learned counsel for the appellants argued that the judgment impugned passed by the
trial court is contrary to law, facts and principles of natural, because there is no iota of evidence connecting the accused/appellants with the commission of alleged offence. It was a blind murder, neither the accused were nominated in the FIR nor ascribed any role, however they have falsely
been implicated in the instant case after deliberations and consultations, with mala fide intention, but this important aspect of the matter lost sight of the trial Court. That the prosecution has failed to prove its case against the accused behind shadow of reasonable doubt, the evidence furnished by the witnesses was not tangible unimpeachable and confidence inspiring but this important aspect also escaped notice of the trial court. They added that the judgmen t impugned is the result
of non- reading, misreading and non- appreciation of evidence, defence version, nearer to the real
facts for which the accused should have been benefited was not considered at all, which finally caused miscarriage of justice.
5. The learned DPG strenuously opposed the appeals by submitting that the judgment
impugned passed by the trial court is based on proper appreciation of evidence, no illegality or
glaring irregularity had been committed by the Police while investigating the matte r, in
pursuance thereto evidence collected and produced has rightly been appreciated by the trial court with good grounds and reasons. He added that the learned counsel for the appellants failed to
point out any specific illegality, irregularity, inherent defect or non- reading or misreading of
evidence in the judgment impugned warranting interference by this court and submitted for
dismissal of the appeals. Whereas learned counsel for the petitioner criticized the judgment to the extent of awarding lesser p unishment with the contention that since the appellants/accused are
involved in a preplanned and premeditated Qatl -e-Amd of an innocent and empty -handed person,
as such, they deserve no leniency. He submitted for enhancement of sentence.
We have heard the learned counsel for the parties and gone through the record with their
assistance which reflects that instant fateful incident occurred on 28th May, 2012 at 10:45 PM,
when the deceased Rafiq along with his wife Rabia and younger child were on their way to home
on a bike confronted by the accused, fired and committed his Qatl -e-Amd. Initially the FIR was
registered against the unknown culprits, subsequent thereto the appellants have been named as real culprits and responsible for unnatural death of the dece ased Rafique.
Careful perusal of record and evidence shows that the appellants, after having joined
hands with each other alleged to have committed the murder of deceased, illicit relations alleged to have existed between them and definitely the deceased was a hurdle in their way, therefore, after having planned the whole episode, the accused Zamir Haider, stated to have arrived Quetta from Dera Ismail Khan, stayed in a hotel and former took the deceased to a Hakim, on their way back to home, incident occurred, which was premeditated and preplanned because the lady
accused despite having been on same bike did not receive a single bruise, she went back to the house of said Hakim and intimated the incident to them, in our perception this was also a part of aforesaid plane to have intimated the matter to relatives of the deceased through someone else.
Admittedly except the lady accused, there is no other eye- witness of this incident, but
circumstantial evidence, conduct of the appellants, arrival of the accused Zameer Haider from his
native town and his stay in a hotel at Quetta from 22.05.2012 to 28.05.2012, which is manifest from the record of the hotel, and confessional statements of the appellants proved to have been recorded voluntarily, after observing leg al formalities wherein they confessed their guilt which
corroborates the other pieces of evidence available on record, coupled with the recovery of empty shells, blood- stained clothes of the deceased with positive report and medical evidence
furnished by t he Doctor, conformity in nature wherein he opined that the deceased Rafiq died an
unnatural death caused by fire arm injuries. Further supported with the cell phone data of both the accused where in it has clearly been mentioned with location that they rem ained in contact,
the accused Zamir Haider came Quetta and went back after committing crime, this was an unbroken chain of circumstantial evidence, as such, there is no reason to disbelieve the same.
Critical analyses of evidence and its deep appreciation shows that the prosecution has
been able to prove its case against the accused/appellants beyond shadow of reasonable doubt, minor discrepancies, contradictions and inconsistencies in the statements of witnesses and irregularities in the investigation are of no avail to the defence and can be ignored in the
circumstances. Brief narration of evidence and extract therefrom is as under: -
PW-1, Muhammad Javed, is the complainant, in his testimony reiterated the contents of
application Ex.P/1- A and supplementar y statement of facts Ex.P/1 -B.
PW-2, Muhammad Tahir, deposed that on 27.05.2012, deceased Muhammad Rafiq along
with his wife and child came to his house at about 10:30 or 10:00 p.m, after having
dinner, they left for home, however, few minutes back the acc used Rabia Kanwal, came
back and informed that some people assaulted Muhammad Rafiq, her husband and made
fires at him. He came out and found Muhammad Rafiq laying injured. Thereafter, he with
the help of passerby sent him to hospital in a vehicle identified the accused Rabia Kanwal present in the Court.
PW-3, Khalil Ahmed Head Constable, is an important witness of collecting data of cell
phone on 17.07.2012, he along with Muhammad Shehbaz ASI and Sanaullah SI were present in the investigation room. Receive d detail data of Mobile Phone bearing No.
0344- 8167313 registered in the name of accused Rabia Kanwal bearing CNIC No.54400-
1011477- 6, second Mobil bearing No. 0333- 3557127 registered in the name of accused
Zamir Haider bearing CNIC No. 12101- 8530627- 1, which were taken into possession
through Ex.P/3- A, and placed on record as Art.P/1 to Art.P/2. On 02.11.2012 he along
with other Police Officials, under supervision of D.S.P were interrogating accused Zamir Haider, who disclosed and led the police party to point out the place where he threw crime upon. Whereupon, extra judicial confession and pointation memo were prepared. He produced the same as Ex.P/3- B and Ex.P/3.B.
PW-4, Rasam Ali, Manager Asia Hotel, deposed that as per the record, accused Zamir
Haider s tayed in his hotel from 22.05.2012 to 28.05.2012. He identified the accused in
Court.
PW-5. Muhammad Shahbaz SI, is an important witness of recovery proceedings secured
three empty shells, blood stained earth, and motorcycle bearing registration No.QAK -
1956, through memo as Ex.P/5- A Ex.P/5 -B. He produced blood stained earth as Art.P/6,
three empty shells as Art.P/9 and motorcycle as Art.P/15. On the same day two Nokia Mobil were taken into possession through recovery memo Ex.P/5- C and produced before
the court as Art.P/10 and Art.P/11. At 10:00 blood stained cloths of deceased through recovery memo Ex.P/5- D and placed on record as Art.P/14. On 20.06.2012, 68 pages of
calling data were taken through recovery memo Ex.P/5 -E, and placed on record as
Art.P/16 to Art.P/19.
PW-6, Muhammad Ibrahim Judicial Magistrate, is an important witness of confessional
statements of the appellants. He produced confessional statement of accused Rabia Kanwal, as Ex.P/6 -B, his certificate as Ex.P/6 -C, confessional statement of accused
Zamir Haider as Ex.P/6 -E, and his certificate as Ex.P/6 -F. He identified both the accused
before the court.
PW-7, Dr. Amir Muhammad, Police Surgeon deposed and produced death certificate of
deceased as Ex.P/7 -A.
PW-8, Sanaullah SI/Investigating Office r, deposed that after registration of FIR Ex.P/8-
A, he was deputed on investigation. During course whereof, he prepared site map Ex.P/8-
B of place of incident, blood stained earth, three empties, Motorcycle bearing No.QAK -
1950, two Mobile Phones model number N -73 and X -1 of deceased and his 'wife accused
Rabia Kanwal and blood stained clothes of deceased. Cell phone number were sent to the concerned Department for report. On 20.06.2012 data of cell phone was received, which
revealed that from 05.05.2012 to 31.05.2012 a suspected phone number 0333- 3557127
was found in contact with the phone of accused Rabia Kanwal. Pursuance thereto a letter
was sent to concerned Department and on 23.06.2012 detail whereof transpired that said number was registered on the nam e of accused Zamir Haider. Further 24 pages calling
data was received, which revealed that the said sim number was brought to Quetta on 22.05.2012 and was in contact with accused Rabia Kanwal. Witness further said that after incident both the phone numbers of accused Zamir Haider and Rabia Kanwal were in
contact within the area of Kharotabad, Quetta. On completion of investigation handed over case file to SHO for preparation of challan Ex.P/8- C, where upon he identified the
signature of SHO.
PW-9, Muhammad Shehbaz SI/investigating Officer deposed that on 16.10.2012 he was
deputed on investiga -tion. During course whereof he arrested the accused Zamir Haider
from Faisal Abad and brought him to Quetta. He identified accused Zamir Haider before the court.
So fa r as the admissibility of confessional statement recorded by the accused/appellant is
concerned, in our view point, confessional statement recorded by PW.6, Muhammad Ibrahim, Judicial Magistrate, after following the procedure, who admittedly, was not in the influence of the police, is admissible under the law and can be made basis for recording conviction. In this respect, reliance can be placed on a judgment titled as Manjeet Singh v. The State reported in
PLD 2006 SC page 30: --
"there is no cavil to the General Rule that it is not prudent to base the conviction in a criminal case only on the strength of retracted confession without independent corroboration in necessary particular and Court is under obligation to inquire into all the material points a nd surrounding circumstance to satisfy itself regarding the truthfulness
and voluntariness of the confession but it is not an inflexible rule that the retracted confession cannot be made basis of conviction with independent corroboration rather the rule of corroboration is a rule of abundant caution which is insisted only to exclude any
possibility of doubt qua the guilt of a person. The law is that a retracted confession can be legally taken into consideration against the maker, if the confession is found true and voluntary and can also be used as sole evidence for conviction without any corroboration if the court is satisfied about its voluntary character and truthfulness.
Reliance can also be made on judgment titled as Anwar Khan and another v. The State
reported in 2006 SCMR 1343 wherein it is held as under: --
"The contention of the learned counsel regarding the inadmissibility of confessional statement of Anwar Khan (petitioner) has no substance as nothing has been brought on record to suggest that the confession was the result of coercion, undue influence. The confessional statement of a person, if is found voluntary and confidence inspiring must
not be discarded for mere reason that it was retracted at the trial".
Likewise in a case titled as Murad Al i v. The State reported in 2007 SCMR 146 the
Honorable Supreme Court observed as under: --
"No hard and fast line is to the conduct of a person at a given time, situation and
thereafter depending upon various factors, mental capacity and capability could be
drawn, foreseen or meticulously calculate, which differ and varies from time to time, person to person and remain fluctuating or consistent and firm, therefore, one cannot conclude definitely or assess a man's behavior beforehand nor any definite opinion with regard thereto could be formed. So it could not be safely assumed that since the accused had surrendered in the police station and had produced pistol along with live rounds admitting to have murdered the deceased would not essentially motivate the ac cused to
have had volunteered to make confession of his guilt before the Judicial Magistrate on the same day or on the following day and; as per evidence a couple of days thereafter during the course of investigation of the case he voluntarily had offered to make confession before the Magistrate, hence; the contention so raised on the point by the learned counsel appears to be devoid of substance in view of the evidence that the accused when offered to make confession of his guilt was produced before the Judicial Magistrate. The learned
Judicial Magistrate after his due and necessary satisfaction recorded his confessional
statement.
Admittedly the crime weapon was not recovered by the police but explained properly which in our considered view point is not fa tal to the case of prosecution, In this respect, reliance can be
placed on 2007 SCMR page 146, relevant observation therefrom is as under: --
As regards the motive part of the prosecution story with regard to the old enmity also stands proved through the confession of the accused, which has been found not only to be voluntary but true as well in the given circumstances of the case by both the learned Courts, though retracted; stands corroborated from the circumstantial piece of evidence i.e. production of pi stol in the police station to the Police Officer, recovery of the crime -
empty, positive report of the Fire -arm Expert, medical evidence blood- stained earth and
the last -worn clothes of the deceased which as per Expert reports were found stained with
human blood.
Another important question relating to the quantum of sentence for which criminal
revision petition for enhancement has also been filed against the accused/ appellants, which in our perception is not justified in the circumstances of the case, since the case
was based on circumstantial evidence, mitigating circumstances existed particularly in favour of the lady accused, as such, lesser punishment has rightly been awarded. In this respect reliance can be placed on 2017 SCMR + 880 + 630.
The trial cou rt passed a speaking and well reasoned judgment, which is not open to any
exception, even on reappraisal of the evidence we could not form a different view with
that of the trial court, except to rectify the same to the extent of compensation i.e Rs.2,000,00/ - (Rupees Two Lac) to the legal heirs of the deceased by the accused Zamir
as provided under section 544- A, Cr.P.C. (excluding the accused Rabia.)
With the above rectification in the judgment impugned, appeals and criminal revision
petition filed by th e appellants and the petitioner are otherwise dismissed. Orders accordingly.
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