2018 Y L R 1702
[Balochistan]
Before Jamal Khan Mandokhail and Nazeer Ahemd Langove, JJ
NOOR ZAMAN---Appellant
Versus
The STATE---Respondent
Criminal Appeal No. 110 and Murder Reference No.9 of 2009, decided on 30th August, 2017.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl-i-amd---Appreciation of evidence ---Ocular account corroborated by medical
evidence ---Accused was charged for the murder of father of the complainant by firing--- Ocular
account was furnished by the witnesses including the compl ainant ---Eye -witnesses appeared and
supported the contents of fard- e-bayan and identified the accused in the court ---Said witnesses,
without any exaggeration fully involved the accused as sole culprit with specific role of firing
and committing qatl- i-amd of the deceased ---Medical evidence was in line with the ocular
account ---Eye -witnesses were natural being residents of the same house, where the occurrence
had taken place and they had no deep rooted enmity to falsely implicate the accused ---Nothing
had be en brought on record to show that either the witnesses had made any dishonest
improvement or deviated from their earlier stand recorded before the police ---Circumstances
established that accused being sole culprit was responsible for committing qatl -i-amd of the
deceased, therefore, was liable for normal penalty of death ---Appeal against conviction and
sentence was dismissed in circumstances.
(b) Criminal trial ---
----Interested witness ---Scope ---Testimony of closely related witness ---Reliance---Testimony of
closely related witness could not be discarded merely on the ground of relationship with the
deceased.
(c) Criminal trial ---
----"Motive" and "intent" ---Scope and distinction---Motive is the state of mind of accused, which
can be formed even at the spu r of moment, therefore, absence of motive is of no consequence; it
is an impulse and desire that induces criminal action on the part of the accused ---"Motive" is
distinguished from "intent", which is the design with which the act is done ---Absence of motive,
cannot be helpful in presence of unimpeachable ocular evidence.
(d) Penal Code (XLV of 1860) ---
----S. 302(b) --- Qatl-i-amd--- Sentence, defined ---Quantum of sentence ---Normal sentence in a
murder case was death and the court while awarding the same wa s not under obligation to record
any reason ---While awarding a lesser sentence, court had to record reasons ---Every possible care
and caution had to be adopted--- If the offence was proved against the accused, the court was to
award sentence for that offenc e, even if it was a capital punishment.
Hamid Mahmood and another v. The State 2013 SCMR 1314; Dadullah and another v.
The State 2015 SCMR 856; PLD 2001 SC 475 and PLD 2015 Lah. 512 rel.
(e) Penal Code (XLV of 1860) ---
----S. 302---Qatl -i-amd---Appreciation of evidence ---Sentence, quantum of ---Mitigating
circumstance---Scope--- Accused had contended that he had faced agony of prolonged trial and
remained in a death cell for a long period, which was a mitigating circumstance in his favour ---
Validity ---Prol onged trial or being in death cell for a long period was not a valid ground for
inflicting lesser penalty to accused.
PLD 2007 SC 104 and AIR 1999 SC 3789 rel.
Raja Abdur Rehman for Appellant.
Kamran Murtaza and Tahir Ali Baloch for the Complainant.
Ameer Hamza, A.A.G. for the State.
Date of hearing: 24th April, 2017.
JUDGMENT
NAZEER AHMED LANGOVE, J. ---Instant appeal is directed against the judgment
dated 15th April, 2009 passed by the learned Additional Sessions Judge -IV, Quetta, whereby the
appellant has been convicted under Section 302(b), P.P.C. and sentenced to Death in addition to
payment of compensation under Section 544- A, Cr.P.C. in the sum of Rs. 100,000/ - (Rupees
Once Lac only) payable to the legal heirs of the deceased.
2. Brief facts of t he case are that in pursuance of information conveyed by the complainant
namely Abdul Jabbar, the FIR No. 08/2007 was registered at Police Station Satellite Town, Quetta, wherein he alleged that on the fateful night, he along with his family members were present in the house. In the meantime, they noticed that someone is knocking the door of the house, whereupon their driver namely Rehmatullah opened the door and found complainant's uncle namely Noor Zaman having a pistol in his hand. He asked about Gul Zam an
(Complainant's Father) and entered the room of complainant's father, took him outside the house at street, after extending threats and abuses, fired 3/4 shots, which proved fatal. After committing the crime, the accused fled away from the scene of occur rence. The complainant and driver
shifted his father to the hospital, but he succumbed to injuries on way to Hospital. Background of the incident was stated as a property dispute, hence the registration of instant case. Thereafter,
the accused remained fug itive of law, however finally the police laid hands and arrested him
accordingly.
3. On completion of usual investigation, 'challan' of the case was submitted and trial was
commenced. On 30th June, 2008 the charge was framed against the accused to which he pleaded
not guilty and claimed for trial. The prosecution, in order to substantiate its claim produced eight
witnesses. On examination under Section 342, Cr.P.C., the accused disputed the case of the prosecution and pleaded his innocence with the contenti on that he is innocent, committed no
offence whatsoever, has falsely been involved in the instant case of murder with the background of a property dispute. He did not record his statement on oath as envisaged under Section 340(2), Cr.P.C. nor produced any witness in his defence. The trial Court, after hearing the parties and
evaluating evidence, found the accused guilty. as such, convicted and sentenced him for the period mentioned hereinabove.
4. The judgment passed by the trial Court was assailed, before this court while disposing of
the appeal, the matter was remanded to the trial Court for rewriting of judgment, after recording
statements of witnesses. The operative part of the judgment passed b y this Court on 7th August,
2013 is quoted herein below; -
" The trial court shall call the above witnesses by carrying proceeding under Section 540, Cr.P.C. and after examination of the mentioned persons with a right to cross -examine
them and on hearing th e parties, decide the matter in accordance with law. With above
discussed circumstances, this Appeal is allowed, however the Murder Reference No. 09 of 2012, at this stage is answered in negative. The all observations are tentative in nature and the trial court should pass the judgment after hearing both the sides without being
influenced by the instant judgment".
The judgment was challenged by the appellant before the Hon'ble Supreme Court of
Pakistan, were finally the appeal was allowed and the case was remanded to this Court for decision on merits.
5. The learned counsel for the appellant argued that the judgment impugned passed by the
trial Court is contrary to law, facts and principles of natural justice, hence is liable to be set aside.
He added that the trial Court has totally misread and mis -appreciated the evidence available on
the record and derived conclusion which is based on surmises and conjectures having no legal sanctity in the eyes of law, hence is not sustainable and is liable to be reverse d. He maintained
that the trial Court awarded capital punishment to the accused on solitary statement of complainant, who is highly interested and related witness and his evidence had no corroboration from any other independent source, as such, the judgment impugned passed by the trial Court is not sustainable under the law and is liable to be declared as of no legal effect. He urged that the ocular evidence was not confidence inspiring, nor corroborated by medical evidence rather negated the same, but this important aspect of the matter was also not attended, to which finally
caused miscarriage of justice, he criticized upon the judgment by submitting that the trial court while discussing the evidence failed to consider the fact of no recovery of crime weap on from
the accused. in absence thereof, no conviction should have been recorded. He added that the alleged disclosure of the accused was also treated as a valid piece of evidence inspite of the fact that the same is not followed by any recovery or discove ry of new facts, which ultimately caused
miscarriage of justice. He further added that the judgment impugned is based on non- reading and
misreading of evidence, therefore, is not sustainable under the law and is liable to be set aside.
6. On the other hand, the learned counsel for the complainant strenuously opposed the
appeal by submitting that the judgment impugned passed by the trial Court is based on proper
appreciation of evidence, which does not suffer from any legal infirmity or inherent defect, nor is ridiculous, perverse, shocking or contrary to the evidence available on the record. He maintained that the learned counsel for the appellant failed to point out any specific illegality or irregularity either in the investigation or proceedings before the trial Court or in the judgment impugned suggesting that the same is based on misreading or non- reading of evidence. He stressed upon
the fact that since the accused committed a cold -blooded murder of an empty handed and a
helpless person, who was not som eone else, but his own step brother, as such, deserves no
leniency and is rightly found guilty for normal sentence of death. The learned D.P.G also adopted the arguments of the learned counsel for the complainant.
7. We have heard the learned counsel for t he parties at length and gone through the record
with their assistance, which reflects that the instant case was registered with the history of a fateful incident of murder of Gul Zaman (deceased) with the hands of his own step brother Noor Zaman, who at t he odd hours of night, took his brother outside the house and committed his
murder by making fires, witnessed by the complainant namely Abdul Jabbar and driver Rehmatullah. They appeared before the trial Court and recorded their statements on oath, wherein they without any exaggeration fully involved the accused/appellant as sole culprit with
specific role of making fires and committing Qatl- i-amd of the deceased. Medical evidence
furnished by P W.2 Dr. Ghulam Haider Samejo was in line with the ocular account coupled with the recovery of empty shells of pistol from the place of incident. Admittedly no crime weapon
was recovered from the accused for the simple reason that after committing crime, he remained fugitive of law for about 11 months, as such, recove ry of crime weapon was not possible.
Adverting to the merits of the case, we would like to discuss the evidence in brief. The
prosecution examined:
PW-1 Abdul Jabbar, is the complainant, son of the deceased Gul Zaman and an important
eye-witness of this c ase, appeared before the trial Court and reiterated the contents of
fard-e-Bayan Exh.P/1- A, on the basis whereof, the instant FIR was registered. He
identified the accused present in the Court.
PW-2 Dr. Ghulam Haider Samejo, is the Doctor, who examined the dead body of the
deceased Gul Zaman and observed as follows:
INJURIES
i. Entrance wound lx1 cm on chest mid sternum.
X-ray report No. 7642 dated 12.05.2007 of chest and abdomen shows "no fracture seen"
PROBABLE CAUSE OF DEATH
Injury to vital organ of thor ax cavity, excessive haemorrhage, shock and death, caused by
firearms.
Duration of injury was fresh
PW-3 Muhammad Hussain SI, is a marginal witness of site inspection, securing 3
empties of .30 bore TT Pistol, blood stained earth and blood stained cloths of the deceased
through memos Exh.P/3 -A, P/3 -B, to P/3- C, whereupon he acknowledged his signatures. He
identified the aforesaid articles as Art. P -1 to P -9 respectively.
PW-4 Rehmatullah, is the driver and an important eye -witness of this incident, appea red
before the trial Court and supported the contents of the fard- e-bayan and words deposed by PW -
1 Abdul Jabbar. He identified the accused as sole culprit.
PW-5 Bashir Ahmed, is the 2nd Investigating Officer of this case. During the course
whereof, he se nt blood stained clothes of deceased for examination. He, on receiving report
Exh.P/5- A, submitted the same through Challan.
PW-6 Bilal Ahmed, is also an Investigating Officer of this case. During the course of
investigation, he visited the place of incident, Civil Hospital Quetta and carried out proceedings
under section 174, Cr.P.C. In the meanwhile he was transferred.
PW-7, Attaullah, 3rd In vestigation Officer of this case. He received parcels and report
from FSL and submitted the same through Challan.
PW-8 Ghulam Abbas, is the last Investigating Officer of this case. On completion of
investigation, he sent the accused to Judicial custody and submitted the Challan Exh.P/8- A,
whereupon he identified the signature of SHO.
Occular testimony, if found confidence inspiring cannot be rejected out rightly on the
sole ground of relationship of witness with the deceased, testimony of related eye -witnesses, who
were natural witnesses of murder occurrence would be reliable testimony, apart from that
witnesses related to the deceased would not normally allow real murderer to escape by implicating an innocent, which too brother of the deceased by his nephew, does not appeal to reason. To persuade a Court to disbelieve the eye -witness, it must be shown that they suppressed
true facts or their presence at the place of occurrence was doubtful or they had reasons for false implications and were interested in prosecution and conviction of the accused or the ocular account was in conflict with the Medical or corroboratory evidence and not supported by surrounding circumstances. It may be added here that the statements otherwise inspiring confidence could not be rejected out rightly on the sole ground of relationship. It is a settled principle that integrity of a witness is not indivisible if the truth on a particular point, even then his entire statement cannot be set -aside to be false. Consistency, for the right ness and straight
forwardness of witnesses in their statements would eliminate any chance of doubt as to their veracity on the basis of hypothetical possibility of something else happening at the spot before start of making fires by the accused. Statements of such witnesses and their veracity cannot be
doubted when witnesses are absolutely consistent to all the relevant and minute details of the
occurrence. PWs Abdul Jabbar (Complainant) and Rehmatullah (Driver) were natural witnessed
being residents of the same house, where the occurrence had taken place and they had no deep
rooted enmity to falsely implicate the accused, (uncle of the complainant).
No doubt dishonest improvement or deviation made by eye -witnesses in order to
strengthen the prosecution cas e would lose their credibility and evidentiary value when such
witnesses made improvements by changing their version in order to bring in line their testimony with the prosecution story, if found to be deliberate and dishonest would definitely cause serious doubt on their veracity, but in the instant case, nothing has been brought on record, showing that either the witnesses named above made any dishonest improvement or deviated from their earlier stand recorded before the police, which too without any loss of time, so there is no reasons to
discard their testimony mere on the ground of their relationship with the deceased.
So far as the motive for commission of the offence is concerned, motive is the state of
mind of an accused, which can be formed even at the spur of moment, therefore, even absence of
motive is of no consequence, because motive is impulse and desire that induces a criminal action on the part of the accused. It is distinguished from "intent". which is the design with which the act is done. Therefore, it can safely be concluded that absence of motive is not helpful in presence of unimpeachable ocular evidence.
As a matter of fact, substitution of a perpetrator of crime is very rare phenomenon
particularly in the instant case is out of questi on and not acceptable to a man of prudent mind.
So far as the Quantum of sentence is concerned, we would like to define the word
"sentence" (as per the penal law by Gour) The word sentence is defined in Law Lexicon as the
term is used in criminal law, is the appropriate word to denote the action, the action of the Court be which the trial declaring the consequence to the convict of the fact thus ascertained, therefore, any consequence which flows after conviction can be looked upon as sentence. Consequentl y
disqualification would come within the expression sentence.
The object of punishment is four folded; -
(i) To serve as a deterrent to other persons who may be similarly inclined;
(ii) To be prevented;
(iii) To be reformative;
(iv) To be retributive.
Now, the vital elements to be considered for assessing Quantum of sentence are; ---
(a) Nature of the offence;
(b) Circumstances in which the offence was committed;
(c) Degree of deliberation shown by the offender;
(d) Provocation which the offender had receive d;
(e) Antecedents of the person to be sentenced;
(f) Age and character of the offender.
We are clear in our minds that normal sentence in a murder case is death and the Court
while awarding the same is not under obligation to record any reason, but while awarding a
lesser sentence, it has to record reasons, equally to prove an offence entailing extreme penalty of
death every possible care and caution has to be adopted, in this behalf however when an offence is proved, it has to be met with maximum sentenc e provided therefore, as such, when an offence
is proved against an accused, the Court should never hesitate to award punishment for that
offence, even if it is a capital punishment. In this regard, it may be observed that in the instant
case requirement o f 'Tazir' is fully available, therefore, to our perception, for awarding a death
penalty to the appellant Noor Zaman, the Court was not bound to record any reasons because in
such a case the Court is under legal obligation only if it awards lesser punishme nt. In forming
this view, we are fortified by the judgments titled as Hamid Mahmood and another v. The State, reported in 2013 SCMR Page No. 1314, relevant observations therefrom are reproduced herein below:
"Deterrence is a factor to be taken into consideration, while awarding the sentence
specially, the sentence of death and in this behalf, reference can be made to the judgment
of this court, reported as Khurram Malik and others v. The State and others (PLD 2006 SC 354) wherein it was held that; -
"...It i s also to be noted that justice is not for one but is for all and while examining the
case of convict, the Court owe a duty to the legal heirs/relatives of the convict and also to the society that justice should also be done with them as well, thus the sentence should be such which should serve as deterrent for the like -minded person as observed in the case
of Muhammad Saleem v. The State PLD 2002 SC 558 and State v. Farhan Ali PLD 1995 SC 1."
Likewise in the judgment titled as Dadullah and another v. The State, reported in 2015
SCMR page 856 (relevant at 862), it held as under; -
"Conceptually punishment to an accused is awarded on the concept of retribution, deterrence or reformation. The purpose behind infliction of sentence is twofold Firstly, it would create such atmosphere, which could become a deterrence for the people who ha ve
inclination towards crime and secondly to work as a medium in reforming the offence. Deterrent punishment is not only to maintain balance with gravity of wrong done by a person but also to make an example for others as a preventive measure for reformati on of
the society. Concept of minor punishment in law is to make an attempt reform an individual wrongdoer. However, in such like cases, where the appellants have committed a pre- planned dacoity and killed two persons, no leniency should be shown to the
culprits. Sentence of death would create a deterrence in the society due to which no other
person would dare to commit the offence of murder. If in any proved case lenient view is taken, then peace, tranquility and harmony of society would be jeopardized and
vandalism would prevail in the society. The courts should not hesitate in awarding the
maximum punishment in such like cases where it has been proved beyond any shadow of doubt that the accused was involved in the offence. Deterrence is a factor to be taken into consideration while awarding sentence, specially the sentence of death. Very wide discretion in the matter of sentence has been given to the courts, which must be exercised
judiciously. Death sentence in a murder case is a normal penalty and the Co urts while
diverting towards lesser sentence should have to give detailed reasons. The appellants
have committed the murder of two innocent citizens and also looted the bank in a wanton, cruel and callous manner. Nowadays the crime in the society has reach ed on alarming
situation and the mental propensity towards the commission of the crime with impunity is increasing. Sense of fear in the mind of a criminal before barking upon its commission could only be inculcated when he is certain of its punishment provided by law and it is only then that the purpose and object of punishment could be assiduously achieved. If a Court of law at any stage relaxes its grip, the hardened criminals would take the society on the same page, allowing the habitual recidivist to r un away scot -free or with
punishment not commensurate with the proposition of crime, bringing the administration of criminal justice to ridicule and contempt. Courts could not sacrifice such deterrence and retribution in the name of mercy expediency. Spari ng the accused with death
sentence is causing grave miscarriage of justice and in order to restore its supremacy, sentence of death should be imposed on the culprits where the case has been proved."
We are of the considered view that while dealing with th e question of sentence, approach
of the Court should be dynamic and the Court has to find ways and means to guarantee, complete dispensation of justice to all stake holders of a criminal case, as most of them being unaware of the legal technicalities, flaw s/lacunas left in the investigation and defects in conduct of their
trials, only see the result announced by the Court and form an opinion about prevailing system of
administration of justice.
In this respect, reliance is placed on PLD 2001 SC 475, releva nt observation therefrom is
as under:
It may be observed that the normal sentence for an offence of murder is death sentence. This is to be awarded as a matter of course except where the Court finds some mitigating circumstances which may warrant impositio n of lesser sentence namely imprisonment for
life.
It was further observed that;
"The people are losing faith in the dispensation of criminal justice by the ordinary Criminal Courts for the reason that they either acquit the accused persons on technical grounds or take a lenient view in awarding sentence. It is high time that the Courts should
realize that they owe duty to the legal heirs/relations of the victims and also to the society. Sentences awarded should be such which should act as a deterrent to t he
commission of offences."
While dealing with the quantum of sentence, approach of the Court should always be
dynamic. In this respect, reliance can be placed on PLD 2015 Lah. 512. It may not be irrelevant
to note down here that mitigating means, making something less harmful, pleasant or bad, that
there may be mitigating circumstances, which might help explain appalling behavior or criminal activity of the offender. While in the instant case, no such factor has been brought on record, which may offer eve n a slightest explanation for a terrible behavior of the accused, while making
repeated fires at the deceased, his brother, we see no extenuating circumstances in his favour,
which could, justify our interference with the sentence awarded to him by the tri al Court.
Another ground argued by the learned defence counsel was that the accused faced agony
of prolonged trial and remained in a death cell for a long period, which is a mitigating
circumstance in his favour. But in our perception, the prolonged trial or a person in death cell for
a long period is not a valid ground for inflicting lesser penalty. Reliance can be made on PLD 2007 SC 104, relevant observations therefrom are as under:
"As far as the quantum of sentence is concerned. we see no mitigating c ircumstance. It is
not a case of single injury or the motive remaining shrouded in mystery because it was proved by P. W.9. Therefore, the only plea for mitigation is confinement of the appellant in the death cell for about 6 years. This by itself, in our view, does not constitute a sufficient mitigating circumstance to overturn the normal penalty of death."
Reference can also be made in a reported case AIR 1999 SC 3789. Relevant observation
therefrom are quoted here in below; -
"The High Court has erred in coming to this conclusion both factually as well as
inferentially. First of all these respondents were not in death cell for 3 years nor is there a law which says that a person in death cell for 3 years ipso facto is entitled for
commutation of death sent ence. While it is true that prolonged trial or execution of the
death sentence beyond all reasonable period may be a ground for commuting the death sentence in a given case, it will be highly erroneous to lay down as a principle in law or draw an inference on fact that awarding of death sentence is improper in cases where
accused persons are in custody for 3 years or more, even though the facts of the case otherwise call for a death sentence. If the view taken by the High Court in this case is to be accepted as a correct principle then practically in no murder case death sentence can sentence can be awarded, since in this country normally a murder trial and confirmation of death sentence takes more than 3 years. This Court speaking through a constitution bench in Smt. Triveni Benv. State of Gujrat (1988) 4 SCC 574; (AIR 1989 SC 142: 1989
Cri.LJ 870) has held: "No fixed period of delay could be held to make the sentence of death in executable".
In view of above discussion and wisdom derived from the judgments referred here in
above, we are of the firm view that the accused Noor Zaman being sole culprit is fully responsible for committing Qatl- i-Amd of the deceased Gul Zamman by making fires at him,
therefore, is liable for normal penalty of death. The trial Court passed a well reasoned and speaking judgment, which is based on proper appreciation of evidence, thus is not open to any exception, even on reappraisal of evidence, we could not form a contrary view with that of the trial court.
In view of above menti oned facts and circumstances of the case, appeal filed by the
appellant Noor Zaman is hereby dismissed, the judgment dated 15.4.2006 passed by the
Additional Sessions Judge -IV, Quetta is upheld, resultantly the Murder Reference No.09/2009 is
answered in "A FFIRMATIVE".
The accused Noor Zaman son of Rahim Dad is on bail, he be taken into custody and send
to Central Jail Mach to carry out his sentence.
JK/171/Bal. 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,
let us know.