2018 Y L R 2610
[Balochistan]
Before Naeem Akhtar Afghan and Abdullah Baloch, JJ
SHAFEE MUHAMMAD---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.112 and Murder Reference No. 6 of 2015, decided on 22nd June, 2018.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b), 354, 449, 452 & 34 ---Qatl -i-amd, assault or use of criminal force to woman
with intent to outrage her modesty, house -trespass after preparation for hurt, assault or
wrongful restraint ---Appreciation of evidence---Sentence, reductio n in---Complainant as
prosecution witness had correctly narrated the story as contained in the FIR and nowhere he
was derailed from his previous deposition---Statements of the most important and star witnesses, the daughter and widow of the deceased, were similar with each other ---Said
witnesses had correctly identified accused in the Trial Court and correctly stated the date, time, the place of occurrence and the manner in which the occurrence had taken place ---Said
witnesses being dwellers of the house where occurrence took place, their presence in the
house could not be doubted, rather their presence at the relevant time, was natural ---Other
prosecution witness, the neighbourer of the deceased, had also identified the accused in the court ---All prosecutio n witnesses were reliable, trustworthy and credible ---Identity of
accused, could not be doubted as prior to the incident, accused remained Buzgar of deceased's family ---Defence had cross -examined the witnesses at sufficient length, but had
failed to give a ny dent or damage to their testimony ---Some minor discrepancies in the
evidence of prosecution witnesses, were not substantive enough to create reasonable doubt in the case of prosecution about the involvement and guilt of accused ---Recovery of crime
weapo n i.e. T.T. Pistol, was effected on the pointation of accused---Accused had confessed
his guilt by disclosing the names of absconding accused persons who persuaded him for committing the murder of deceased ---Case of prosecution, had further been strengthen ed by
the confessional statement of accused under S.164, Cr.P.C.---Such statement was recorded without any coercion, pressure, torture or blackmailing ---No reason existed to disagree or
disbelieve such confessional statement ---Plea of 'alibi' taken by accu sed, was not of worth
credence ---Prosecution had succeeded in proving the charge against accused through direct,
circumstantial and medical evidence---No major contradiction or dishonest improvement had been pointed out by the defence ---Accused, throughout the proceedings, had not taken any
specific plea with regard to his false implication, nor he had brought any ill -will or ulterior
motives for his false implication by the witnesses ---Trial Court had discussed and dilated
upon each and every aspect of the case and rightly convicted accused.
Muhammad Amjad v. The State PLD 2003 SC 704 and Hashim Qasim v. The State
2017 SCMR 986 ref.
(b) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -i-amd---Awarding of capital punishment ---Eight accused persons
including the accused had been booked in the crime and except accused, all accused persons
were absconding; their pleas were yet to be brought on record---Accused, his two sons and two other absconding accused persons, being armed with Kalashnikov and T.T. pistol had made indiscriminate firing upon the deceased, but the fact remained that the deceased had only received two bullet injuries and it was not certain that whose bullet hit the deceased---Awarding of capital punishment to accused was unwarranted, in circum stances ---While
upholding the conviction of accused, his sentence of death was converted into rigorous imprisonment for life ---Amount of compensation and remaining sentence of accused were
maintained with benefit of S.382- B, Cr.P.C.
Shah Muhammad Jatoi f or Appellant.
Habib Ullah Gul, Additional P.G. for the State.
Date of hearing: 28th May, 2018.
JUDGMENT
ABDULLAH BALOCH, J. ---This common judgment disposes of Criminal Appeal
No.112 of 2015 filed by the appellant Shafee Muhammad son of Ali Sher, against the
judgement dated 22nd April 2015 (hereinafter referred as, "the impugned judgment") passed by the learned Additional District and Sessions Judge, Kalat (hereinafter referred as, "the trial Court"), whereby the appellant was convicted under Section 302( b), P.P.C. and was
sentenced on capital punishment of death as Tazir and was directed to be hanged by neck till
he is dead and to pay compensation of Rs.200,000/ - (rupees two lacs) to the legal heirs of
deceased Abdul Jabbar as provided under Section 544- A, Cr.P.C. or in default thereof to
further suffer six months S.I. The appellant has also been convicted under Section 354, P.P.C. to suffer two (02) years' R.I. with fine of Rs.10,000/ - or in default thereof to further suffer six
(06) months S.I.; under Se ction 449, P.P.C. to suffer R.I. for ten (10) years with fine of
Rs.10,000/ - or in default thereof to further suffer six (06) months S.I.
The Murder Reference No.06 of 2015 has been forwarded by the trial Court for
confirmation of death sentence of appel lant or otherwise.
2. Facts of the case are that on 5th July 2014, at about 2.30 a.m. the complainant
Muhammad Siddique, lodged FIR No.47 of 2014 at Police Station City Kalat, under Section 302 Q&D Ordinance read with Sections 452, 354, 34 P.P.C., stating therein that on the night of occurrence at about 01.15 a.m. he was sleeping in his house, when woke -up on hearing the
firing shots and he also heard hue and cries towards the house of his brother in law, thus entered into his house and saw that Abdul Jabba r was lying in a pool of blood. On query,
from the wife of deceased namely Bibi Saeed and daughter Bibi Rabia his daughter disclosed that on hearing footfall on the roof and courtyard, they came out to courtyard, where they found Abdul Hafeez son of Shafee Muhammad, Sarfraz Ahmed son of Shafee Muhammad
being armed standing there, while the appellant Shafee Muhammad along with two armed persons was found present at the roof of the house. In the meantime, Abdul Hafeez beat and locked them in kitchen, hence sh e shouted towards her father Abdul Jabbar not to come out
from the room as some armed persons are standing there, but her father came out from the house and all the accused made firing upon his father with Kalashnikov and pistol and committed his murder an d escaped from the place of occurrence.
3. In pursuance of the above FIR, investigation was entrusted to PW -10 Muhammad
Umer, SI/IO, who during investigation visited the site and prepared site sketch; sent the dead
body to hospital; carried out proceeding under Section 174, Cr.P.C. and prepared inquest report of deceased; recorded the statements of witnesses under Section 161, Cr.P.C.; took into possession the empties of pistol and Kalashnikov from the place of occurrence; took into possession the blood sta ined Chaddar of deceased: obtained MLC of deceased; arrested the
appellant; recorded his disclosure memo and on pointation recovered the crime weapon i.e. T.T. pistol; sent the empties along with recovered weapon to FSL for analysis; also recorded the conf essional statement of the appellant under Section 164, Cr.P.C.; on completion of
investigation submitted the challan in the trial Court.
4. The learned trial Court after non -executing of NBWs and initiating proceedings under
Sections 87 and 88 Cr.P.C., has declared absconder to the accused Abdul Karim, Muhammad
Yaqoob, Muhammad Ramzan, Bashir Ahmed, Abdul Qayyum, Abdul Hafeez and Sarfraz
Ahmed.
5. At the trial, the prosecution produced ten (10) witnesses, whereafter; the appellant
was examined under section 342, Cr.P.C. The appellant has also recorded his statement on
oath under Section 340(2), Cr.P.C. and produced DW -1 Saifullah in his defence. On
concluding the trial and after hearing arguments, the trial Court awarded conviction to the
appellant as mentio ned in para -1 above. The appellant has preferred the instant criminal
appeal, whereas the trial Court has forwarded Murder Reference for confirmation or otherwise of the death sentence awarded to the appellant.
6. Learned counsel for the appellant contende d that the prosecution has failed to
substantiate the charge against the appellant beyond any shadow of doubt; that the statements of interested and related witnesses are lacking independent corroboration; that the ocular account of testimony is in conflic t with medical evidence; that the extra -judicial confession
whilst recorded in police custody is not admissible under Articles 38 and 39 of Qanun -e-
Shahadat Order, 1984; that the confessional statement of the appellant is the result of coercion, pressure a nd torture, thus no implicit reliance could be placed upon the same; that
the statements of the prosecution witnesses are not consistent and same are suffering from material contradictions, dishonest improvements and infirmities rendering their testimony doubtful, but the benefit of doubts have not been extended in favour of the appellant; that the defence plea so taken and established by the appellant was discarded from consideration.
7. Learned Additional Prosecutor General while supporting the impugned j udgment
contended that the prosecution through consistent and confidence inspiring evidence has proved the charge against the appellant beyond the shadow of reasonable doubt; that the FIR has been lodged promptly, wherein the appellant along with co -accuse d persons were
nominated, besides during investigation the appellant has confessed his guilt by recording his extra- judicial confession followed by the recovery of crime weapon as well as the
confessional statement under Section 164, Cr.P.C.; that the defe nce has failed to point out any
contradiction, infirmity or dishonest improvement in the prosecution evidence; that there are no mitigating circumstances to award lesser punishment to the appellant and that after proper appraisal of the evidence available on record the trial Court has rightly awarded penalty of death to the appellant through the impugned judgment, which otherwise is not open for interference by this Court.
8. Heard the learned counsel and perused the available record. Perusal of record reve als
that the unnatural death of deceased Abdul Jabbar is not disputed. Even the defence has
admitted the unnatural death of deceased and also the appellant in his oath statement admitted the unnatural death of deceased and his taking participation in the f uneral ceremonies,
however, he pleaded his false implication. Soon after the occurrence, the deceased was shifted to Hospital, where PW -8 Dr. Abdullah Jan, Medical Officer DHQ Kalat after
examining the deceased has confirmed the receipt of bullet injuries by the deceased on his chin and on right thigh. PW -8 has opined the cause of death of deceased as damage to brain
(vital center) and opined that the injuries were caused by fire arm. PW -8 issued MLC Ex.P/8-
A. which confirms the unnatural death of deceased. The prosecution case is also supported by
the blood stained Chaddar of deceased and the FSL report in affirmative.
9. Adverting to ocular testimony produced by the prosecution. The prosecution in order
to substantiate the charge, has produced the evidence of ten witnesses. The complainant of
the case Muhammad Siddique appeared as PW -1. This witness has mostly reiterated the
contents of his fard -e-bayan Ex.P/1- A. According to this witness on the night of occurrence at
about 1.15 a.m. when he was sleeping in his house, woke up on hearing firing shots and on
coming out side of his room, heard hue and cries towards the house of his brother -in-law,
hence he rushed there and found the dead body of deceased Abdul Jabbar lying in the pool of
blood. According to thi s witness on query from the wife of deceased namely Bibi Saeed and
daughter Bibi Rabia, his daughter disclosed that on hearing footfall on the roof and courtyard,
they came out from rooms and in the courtyard they found Abdul Hafeez son of Shafee Muhammad and Sarfraz Ahmed son of Shafee Muhammad being armed standing there, while
the appellant Shafee Muhammad along with two armed persons were found present in roof of the house. In the meantime, Abdul Hafeez beat and locked them in the kitchen, hence she shouted towards her father Abdul Jabbar not to come out from the room as some armed
persons are standing there, but her father came out from the house and all the accused made firing upon him with Kalashnikov and pistol and committed his murder and thereafter decamped from the place of occurrence. This witness has correctly narrated the story as contained in the FIR and nowhere he derailed from his previous deposition. PW -2 is the
recovery witness of two empties of pistol, two empties of Kalashnikov took into possession from inside of the house and 30- empties collected from outside of the house of deceased. He
is also witness of blood stained Chaddar handed over to the I.O.
10. The most important and star witnesses of the prosecution case are PW -3 Bibi Rabia,
who is the daughter of deceased and PW -4 Bibi Saeeda, who is the widow of deceased. The
statements of both the witnesses are similar with each other. Both the witnesses in their statements stated that on hearing footfall on the roof and courtyard, they woke -up and came
out from the rooms and in the courtyard found present in armed condition to the absconding accused Abdul Hafeez and Sarfaraz, while the appellant along with other unknown accused was present on the roof of the house. The accused Abdul Hafeez st arted beating them and
locked them in the kitchen, hence PW -3 shouted upon her father not to come out as some
accused persons are present there in arm condition, but her father came out from the Veranda and all the accused being armed with Kalashnikov and pistol made firing upon her father, due to which he fell down and subsequently succumbed to the injuries. Both the PWs have correctly identified the appellant in the trial Court and further stated that they can also identify the remaining accused persons, if brought before. Both the witnesses have correctly stated the date, time, the place of occurrence and the manner in which the occurrence had taken place. Both the witnesses are dwellers of the said house, thus their presence in the house cannot be doubte d rather their presence at the relevant time was natural.
11. Another important witness of the prosecution is PW -6 Abdul Latif, who is the
neighbour of deceased Abdul Jabbar. According to this witness on the night of occurrence he
along with Hamid Raza was present in his guest room and were watching T.V. when heard
firing shots towards the house of Abdul Jabbar, thus they rushed towards the house of Abdul Jabbar and found the accused Shafee Muhammad, Abdul Hafeez, Sarfraz and others while making firing a nd running towards garden side, then he and Hamid Raza entered in the house
of Abdul Jabbar and found the dead body of deceased in the pool of blood. PW -6 also
identified the appellant in the trial Court.
12. We at our utmost care, caution and by applying judicious minds analyzed the
statements of both the eye -witnesses i.e. PW -3 and PW4 as well as the statement of PW -6
being circumstantial witness and found the same reliable, trust worthy and credible. The mistaken identity of the appellant cannot be doubt ed as prior to the incident, the appellant
remained the Buzgar of deceased's family, thus having acquaintance with the appellant, both
the eye -witnesses have correctly identified the appellant in the trial Court. Besides, both the
PWs will never raise thei r fingers on innocent person leaving the actual and real culprits, who
had committed the brutal murder of their blood relation. The defence has cross -examined the
witnesses at sufficient length, but has failed to give any slightest dent or damage to their
testimony rather from the cross -examination the commission of crime by the appellant has
been confirmed. Although, the learned counsel for the appellant attempted to discredit the
case of prosecution on the basis of some minor discrepancies in the evidence of prosecution
witnesses, but in our opinion, those are not substantive enough to justify or create reasonable doubt in the case of prosecution about the involvement and guilt of the appellant.
13. The case of prosecution has further been strengthened from the disclosure memo of
the appellant recorded by the Investigating Officer in presence of PW -7 Imam Din, who
produced the same as Ex.P/7 -A, perusal of which reflects that the appellant has confessed his
guilt by disclosing the names of absconding accused persons namely Muhammad Ramzan
Baghbani, Muhammad Yaqoob, Abdul Karim and Bashir Ahmed, who persuaded him for
committing the murder of deceased. Besides, the appellant has also shown his willingness to the I.O. (PW -10) to get recovered the crime weapon i. e. T.T. pistol and accordingly the
recovery of T.T. pistol was effected on the pointation of the appellant. Since, the extra -
judicial confession of the appellant Ex.P/7 -A has been followed by the recovery of crime
weapon as Ex.P/10- E and the discovery of new facts as well as revealing the names of
absconding accused persons. thus such disclosure is admissible under Article 40 of the Qanun- e-Shahadat Order, 1984 and the objection of the learned counsel for the defence with
regard to its admissibility being r ecorded in police custody is without any substance, thus
such objection is hereby spurned. In the case titled Muhammad Amjad v. The State PLD 2003 SC 704, the Hon'ble Supreme Court held as under: --
"Further it is noted that as per Article 40, corresponding to Section 27 of the Evidence
Act, when any fact is revealed in consequence of information received from any accused in custody of a police officer, such information whether it amounts to a confession or not as it relates distinctly to the fact thereby di scovered, may be proved.
The information supplied by the appellant under Article 40 ibid relating to incriminating articles is admissible.
14. The case of prosecution has further been strengthened by the confessional statement
of the appellant under Sectio n 164 Cr.P.C. recorded by PW -9 Abdul Hafeez Judicial
Magistrate. The perusal of confessional statement of appellant Ex.P/9 -B reveals that prior to
recording the statement, the learned Judicial Magistrate had fulfilled all the legal
requirements by introduc ing him before the appellant and also brought into his knowledge the
consequences of such confessional statement will be used against him as evidence, but despite such facts the appellant was ready to get recorded his confessional statement and the learned Judicial Magistrate got appended the thumb impressions of the appellant on the said
statement. The contents of such confession have corroborated the statements of star eye -
witness of the case appeared as PW -3 and PW -4 and it appears that the confessional
statement of the appellant and the statements of eye -witnesses are fully corroborating each
other on all material counts. The perusal of confessional statement of the appellant confirms that the same was recorded without any coercion, pressure, torture or blackmailing rather the appellant realized his shamefaced act and due to embarrassment, he immediately agreed to record his confessional statement. Thus, there is absolutely no reason available for us to disagree or disbelieve such confessional statement, which on the face of it appears to be recorded in accordance with law, without any fear or torture. The Hon'ble Apex Court in the case of Hashim Qasim v. The State 2017 SCMR 986, has held that "For accepting a confession, two essential requirements must be fulfilled: first, that the confession was made
voluntarily and was based on true account of facts leading to the crime and, second, the same was proved at the trial." Admittedly, the said two essential requirements have been fulfilled in the case in hand as through the evidence it has not only been established that the same is voluntarily, but also it was proved at the trial.
15. Adverting to the defence plea of the appellant, suffice to observe here that the
appellant has recorded his statement on oath as well as produced a witness in his defence,
whereby he has taken the plea of alibi that on the night of occurrence was present in his house
at Kapoto, which is at the distance of 25/30 KMs from the place of occurrence and on getting
information in the morning he reached to the house of the deceased Abdul Jabbar being his Buzgar and inquired from the womenfolk about the incident, whereafter he has taken participation in funeral ceremonies. According to this witness amount was collected for hiring tracker dog s and he has also given share in it.
16. We have taken into consideration the defence plea of alibi taken by the appellant into
juxtaposition with the prosecution evidence and have come to the conclusion that the plea of alibi is not worth credence for var iety of reasons. Firstly, the FIR was lodged promptly even
on the night of occurrence, wherein the appellant along with his sons was nominated in the FIR, thus no question for his arrival at the house of deceased on the following day or taking participatio n in funeral ceremonies does arises at all. Furthermore, the father of the PW -3 and
the husband of PW -4 was murdered in their presence, thus it does not appeal to the logic that
both the witnesses have falsely implicated the appellant in the crime letting the actual culprits. Thus, the appellant has failed to establish the plea of alibi taken by him in his defence.
17. The reappraisal of entire prosecution evidence establishes the fact that the prosecution
has succeeded in proving the charge against the appellant through direct, circumstantial and medical evidence. No major contradiction or dishonest improvement has been pointed out by the learned defence counsel in the statements of prosecution witnesses. The recovery of empties of Kalashnikov and T.T. pist ol from the place of occurrence coupled with the
volunteer recording of extra -judicial confession and the confessional statement of the
appellant followed by the recovery of crime weapon on the pointation of the appellant have further strengthened the case of prosecution. Throughout the proceedings the appellant has
not taken any specific plea with regard to his false implication nor he has brought any ill -will
or ulterior motives for his false implication by the witnesses and specially against the PW -3
and PW-4, who being natural witnesses directly witnessed the crime. The learned trial Court
has discussed and dilated upon each and every aspect of the case and rightly convicted the
appellant.
18. So far as the quantum of sentence i.e. Capital punishment of death is concerned, we
do not find in agreement ourselves with regard to the same. Suffice to observe here that eight accused persons including the appellant have been booked in the crime and except the appellant, all the accused persons are absconding, he nce their pleas are yet to be brought on
record. Besides, according to the prosecution case the appellant, along with his two sons and two other absconding accused persons being armed with Kalashnikov and T.T. pistol made indiscriminate firing upon the dec eased, but the fact remains that the deceased had only
received two bullet injuries and it is not certain that whose bullet hit to the deceased, thus under these circumstances awarding of capital punishment to the appellant is un- warranted.
19. For the reasons discussed hereinabove, while upholding the conviction of convict -
appellant Shafee Muhammad son of Ali Sher, his sentence of death is converted into R.I. for life. The amount of compensation and the remaining sentences as ordered by trial Court are maintained with benefit of section 382- B, Cr.P.C.
With the above reduction of sentence, Criminal Appeal No.112 of 2015 is dismissed
and Murder Reference No.6 of 2015 is answered in negative.
HBT/59/Bal Sentence reduced.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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