2021 Y L R 1410
[Balochistan]
Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ
MUHAMMAD SHAFIQ ---Appellant
Versus
The STATE---Respondent Criminal Appeal No. 77 and Murder Reference No. 4 of
2019, decided on 3rd January, 2020.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Ocular and medical evidence---
Corroboration --- Sentence, reduction in---Accused was charged for committing murder of the
brother of complainant by firing---Record showed that in the crime report, complainant had
specifically nominated the accused for making firing upon deceased ---First Information
Report was lodged promptly--- Name of son of deceased as witness was mentioned in the
report, that at the time of occurrence he was wit h the deceased ---Said witness further added
that the accused had run away towards road and in the meanwhile a witness also arrived and took the deceased to hospital in a vehicle--- Said witness narrated the whole story with regard
to the occurrence and had correctly stated the date, time, place and manner in which the
occurrence had taken place---Another witness was an eye- witness of the occurrence and
stated the same story which was narrated by son of deceased ---Said witnesses attributed the
role of firing to the accused and gave consistent, natural and straightforward ocular account
of the occurrence ---Defence subjected them to lengthy cross -examination, but their testimony
remained unshaken and un- shattered ---Nothing was in cross -examination to show that t he
accused was falsely implicated in the case--- Presence of the said witnesses on the spot was
proved---Investigating Officer had recorded statement of the said witnesses soon after the
occurrence---Testimony of the eye -witnesses was duly corroborated by t he recovery of
blood- stained clothes of the deceased ---Medical evidence produced by the prosecution
supported and corroborated testimony of the eye -witnesses and no contradiction could be
pointed out by the defence ---Parties were known to each other previo usly and the question of
mistaken identity of the real culprits did not arise and it was hard to believe that both the witnesses and even the complainant would substitute the real culprits with the accused ---No
motive had been set up by the prosecution--- Absence of the motive would not affect the
prosecution case nor would cast any shadow of doubt on the prosecution case ---Both the
prosecution and defence had suppressed the actual facts, leading to the incident ---Possibility
could not be ruled out that some thing must have happened between the parties, which led to
the said incident but had not been brought to surface, even otherwise, it did not appeal to a prudent mind that without any strong motive the accused would take such an extreme step of killing the deceased, when there was no enmity ---Sentence of death was not compatible with
the circumstances of the case, therefore, sentence of imprisonment for life would commensurate with the gravity of offence committed by the accused---Conviction of the
accused u nder S.302(b), P.P.C. was maintained but his sentence of death was altered to
imprisonment for life, in circumstances ---Appeal was dismissed with said modi -fication.
Allah Ditta v. The State PLD 2002 SC 52; Muhammad Riaz and another v. The State
2007 SCM R 1413; Muhammad Sharif v. The State PLD 2009 SCMR 709; Fayyaz alias Fiazi
v. The State 2017 SCMR 204 and Rehmat Khan v. The State 2017 SCMR 2034 rel.
(b) Penal Code (XLV of 1860)---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Accused was char ged for committing
murder of the brother of complainant by firing---Recovery of weapon and crime empty ---
Scope ---Record showed that crime weapon i.e. pistol was recovered from the accused at the
time of his arrest from the house of his daughter ---Investiga ting Officer secured bullet
empties from the place of occurrence---However, the recovered empties had not been sent to
Firearm Expert to ascertain whether the same was fired from the recovered pistol ---Recovery
of pistol was of no help to the prosecution c ase, in circumstances.
(c) Criminal trial ---
----Witness ---Related witness ---Testimony of related witness ---Reliance--- Scope ---Mere
relation of witness with the deceased was no ground to discard his/her testimony, if his
evidence was found independent and truthful, therefore, his testimony without looking for
any other corroborative evidence, would alone be sufficient to establish the charge ---
Evidence of related witness who was not found inimical and were confidence inspiring would hardly need any corroboration.
Aminullah Kakar for Appellant.
Faizullah Khan Kakar for the Complainant.
Habibullah Gul, Additional Prosecutor General ("A.P.G.") for the State.
Date of hearing: 19th June, 2019.
JUDGMENT
ROZI KHAN BARRECH, J. ---The appellant having been involved in case FIR
No.01 of 2018 dated 14.01.2018 registered under section 302, P.P.C. at Levies Thana Killa Saifullah District Killa Saifullah was tried by learned Additional Sessions Judge, Killa Saifullah, ("trial court") and or completion thereof by means of judgment dated 05.04.2019
("impugned judgment"), convicted and sentenced the appellant in the following terms: --
"15….. Consequently the accused Muhammad Shafiq son of Fateh Khan, caste Alikhail, resident of Garra Ragha Alikhail, Killa Saifullah is convicted under section 302(b), P.P.C. and is sentenced to death and to pay fine in the sum of Rs.2,00,000/ -
(Rupees Two Lacs Only) or to suffer six (06) months SI. He shall be hanged by neck till his death. The execution of death sentence shall be subj ected to confirmation by
the Hon'ble High Court. The convict is in judicial custody and be sent to jail to serve
his sentence".
2. Aggrieved from the impugned judgment the appellant has assailed his conviction and
sentence through Criminal Appeal bearing N o. 77 of 2019, while the trial Court forwarded
Murder Reference No.04 of 2019 for confirmation or otherwise of death sentenced inflicted upon the convict/appellant in terms of section 374, Cr.P.C., as both the cases are arising out of one and the same judg ment of the trial Court, therefore same are being disposed of
through this single judgment.
3. The prosecution story as disclosed in the complaint (Ex.P/1 -A) recorded on the
statement of PW -1 Babu son of Abdul Majeed (complainant) is that on 14.01.2018 at 9:00
a.m., his brother namely Gul Shah Khan along with his son Imran were proceeding towards National Highway, in the meanwhile, the accused Muhammad Shafiq son of Fateh Khan, caste Alikhail, made indiscriminating firing upon his brother namely Gul Shah Khan, due to which he received serious injuries. The said Gul Shah Khan was taken to hospital, however, in the way he succumbed to the injuries. Hence crime report.
4. After completion of usual investigation, the challan was prepared and submitted
before the trial Court. The trial Court after observing the codal formalities as provided under
the Code of Criminal Procedure, 1898 framed charge against the appellant to which he did not plead guilty and claimed trial.
5. At the trial, the prosecution has produced nine (09) witnesses. Thereafter the
appellant was examined under section 342, Cr.P.C., however, the appellant neither recorded his statement on oath as envisaged under section 340(2), Cr.P.C., nor produced any witness in
his defense.
6. On conclusion of t he trial and after hearing arguments, the trial Court convicted and
sentenced the appellant as mentioned above in para No.1, whereafter the instant appeal has been filed and reference was sent by the trial Court.
7. Arguments advanced from both the sides have been heard. We have also minutely
gone through the record available on file with the able assistance of learned counsel for the parties. It is an established principle of law that each criminal case has its own peculiar facts and circumstances and the same seldom coincide with each other on salient features. Admittedly it is an unfortunate incident in which brother of the complainant lost his life after sustaining firearm injuries, but to put the facts and circumstances in equilibrium with the touchstone of safe administration of justice, we have scrutinized the whole evidence available on record while weighing the same on judicial parlance. It has been observed by us that the prosecution has led evidence in the shape of ocular account, medical evidence, as
well as investigation besides other attending circumstances.
8. As far as merits of the case are concerned, we have observed that the prosecution
produced PW -2 Kamal Shah, PW- 6 Muhammad Imran, who are eye -witnesses of the
occurrence. The case was regis tered on the complaint of PW -1 Babu on the basis of Fard- e-
Bayan (Ex.P/1- A) who is not an eye -witness of the occurrence, however, according to his
statement the deceased along with his son Imran (PW- 6) went out from their house to Bazar,
when they reached near National Highway the accused/appellant made firing upon his
brother Gul Shah Khan due to which he received injuries while taking him to hospital he
succumbed to the injuries in the way. During cross -examination he replied to the question
that soon aft er the occurrence he had come to his house and taken injured to hospital. In his
report (Ex.P/1- A) he has specifically nominated the accused/ appellant for making a firing
upon deceased. The FIR was lodged promptly without any delay. Name of the PW -6
(Muha mmad Imran) is mentioned in the report (Ex.P/1- A) which was lodged promptly, that
at the time of occurrence he was with the deceased.
9. The most important and star witness is PW -6 (Muhammad Imran) who is son of
deceased. On the day of occurrence he was accompanying the deceased the accused/appellant made firing on him. PW6 further added that the accused run away towards road and in the meanwhile Kamal Shah (PW- 2) also arrived and took the deceased to hospital in a vehicle.
This witness narrated the whole s tory with regard to the occurrence and has correctly stated
the date, time, place and manner in which the occurrence has taken place. Likewise, PW- 2
Kamal Shah is also eye- witness of the occurrence. He stated the same story which was
narrated by PW -6. The above witnesses attributed the role of firing to the accused/appellant
they gave consistent natural and straightforward ocular account of the occurrence. The defence subjected them to lengthy searching cross -examination, but their testimony remained
unshaken and un- shattered. There was absolutely nothing in cross -examination to show that
the accused/appellant was falsely implicated in the case. The presence of the said witnesses on the spot was also proved in the present case. As stated earlier the name of PW-6
(Muhammad Imran) is mentioned in the FIR which was lodged promptly without any delay.
PW-6 (Muhammad Imran) also mentioned the name of PW -2 (Kamal Shah) in his statement
before the court and shown his presence at the place of occurrence, while the investigation officer has recorded statement of the above witnesses soon after the occurrence.
10. The crime weapon i.e. pistol was also recovered from the accused/appellant at the
time of his arrest from the house of his daughter. The investigation officer s ecured bullet
empties from the place of occurrence, however, admittedly the recovered empties from the place of occurrence have not been sent to Firearm Expert to ascertain whether the same was fired from the pistol which has highly been effected from the possession of the accused/appellant, therefore, the recovery of pistol is no help to the prosecution case and the learned trial Court also discarded the same.
11. The testimony of the above eye -witnesses is duly corroborated by the recovery of
bloodstained cloth of the deceased, the medical evidence produced by the prosecution also supported and corroborative testimony of the eye -witnesses and no contradiction at all could
be pointed out by the defence.
12. So far as, the plea of the learned cou nsel for the appellant that only interested
witnesses were produced by the prosecution and the case of prosecution is lacking independent corroboration is concerned, suffice to state here that mere relation of witnesses with the deceased is no ground to di scard their testimonies, if their evidence is found entirely
independent and truthful, therefore, their testimony without looking for any other
corroborative evidence, would alone be sufficient to establish the charge. The evidence of related witnesses who are not found inimical and are confidence inspiring would hardly need
any corroboration. It is also necessary to mention here that PW -1/complainant Babu and PW -
2 Kamal Shah are brothers of deceased while PW- 6 Muhammad Imran is son of the
deceased. The par ties were known to each other previously and the question of mistaken
identity of the real culprits does not arise. It is hard to believe that both the witnesses and even the complainant would substitute the real culprits with the appellant Muhammad Shafiq
who had committed murder of deceased blood relations. Reliance in this regard may be placed on the case of Allah Ditta v. The State PLD 2002 SC 52, wherein it was held as under: -
"... ....It is also to be noted that admittedly prosecution, witnesses Muha mmad Sadie
and two others have no enmity of whatsoever nature against Allah Ditta and they have also no reason to falsely involve him in the commission of murder of their brother Muhammad Sabir. In addition to it, it is also not possible for them that they would
allow real culprit to go scot- free and falsely involve another person for the
commission of the offence. Even otherwise it is well settled by now that substitution of real culprit is a rare phenomena in our system of criminal justice".
13. After rea ppraisal of direct and circumstantial coupled with medical evidence after
minute consideration of all the circumstances, we are of the considered view that the appellant is responsible for the murder of the deceased and has rightly been convicted by the trial Court. The trial Court while adjudicating the matter has imposed the death sentence
upon the appellant, however, while going through the record available on file no motive has been set up by the prosecution. It may be observed that absence of the motive would not
affect the prosecution case nor would cast any shadow of doubt on the prosecution case. Thus, in our considered opinion both the prosecution and defence have suppressed the actual facts, leading to the unfortunate incident. Possibility cannot be ruled out, that something must have happened between the parties, which led to the said incident, but has not been brought to surface, even otherwise, it does not appeal to a prudent mind, that without any strong motive the appellant would take such an e xtreme step of killing the deceased, when
there is no enmity. Thus, in our considered opinion sentence of death is not compatible with the circumstances of the case, therefore, in our opinion, sentence of imprisonment for life will commensurate with the gr avity of offence committed by the appellant. Guidelines in this
regard is sought from the ratio dicidendi laid down by the Hon'ble Supreme Court in the case of Muhammad Riaz and another v. The State 2007 SCMR 1413, wherein it was held as under: -
"No doubt normal penalty for an act of commission of Qatl -i-Amd provided under
law is death, but since life imprisonment also being a legal sentence for such offence must be kept in mind wherever the facts and circumstances warrant mitigation of sentence, beca use no hard and fast rule can be applied in each and every case".
Similar view has taken in the case of Muhammad Sharif v. The State PLD 2009
SCMR 709, wherein it was held as under: -
"It has been seen and observed from the perusal of the various proceedi ngs in relation
to section 302 of P.P.C. in particular its clause (b) that there is a choice and discretion
with the Court to inflict punishment with death or imprisonment for life as Tazir having regard to the facts and circumstances of the case".
Relian ce is also placed in the case of Fayyaz alias Fiazi v. The State 2017 SCMR 204
and Rehmat Khan v. The State 2017 SCMR 2034.
In view of above while maintaining the conviction of the appellant under section
302(b), P.P.C. his sentence of death is altered to imprison -ment for life. Benefit of section
382- B, Cr.P.C., is extended to the appellant. The impugned judgment of the trial Court is
modified accordingly. With the above modification in the sentence of appellant the Criminal Appeal No.77 of 2019 is dismis sed.
The Murder Reference No.04 of 2019 is answered in NEGATIVE.
JK/80/Bal. Sentence altered.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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