2021 Y L R Note 61
[Balochistan (Sibi Bench)]
Before, Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ
GHULAM MUSTAFA alias RAJA BULEDI and others ---Appellants
Versus
The STATE--- Respondent
Criminal Jail Appeals Nos.(s) 14, 15, Criminal Acquittal Appeal No. (s) 160 and Murder
Reference No. (s) 3 of 2019, decided on 19th October, 2020.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Delay of
three hours and five minutes in lodging the FIR ---Scope ---Accused were charged for
committing murder of the brother of the complainant by firing---Motive alleged in the report
was that prior to the incident the accused had threatened the deceased for dire consequences and had also offended the complainant's shop ---Record divulged that the occurrence had
been reported by the complainant after three hours of its happening--- Explanation, in that
regard came on record that after the occurrence he took his brother to the hospital in injured condi tion---Complainant further stated during cross -examination that twenty- five or thirty
minutes were spent in taking the deceased to the hospital from the place of occurrence because no vehicle was available at the time of occurrence---Complainant further st ated
during cross -examination that after going to the hospital, he reached the police station ---
Witness stated during cross -examination that the report was prepared through the petition
writer, which took 10/15 minutes ---Delay in lodging the FIR had plausi bly been explained by
the prosecution, as such, the FIR was lodged promptly wherein the complainant directly charged the accused persons with a specific role of firing upon the deceased---Appeal was dismissed accordingly. [Para. 5 of the judgment]
(b) Pena l Code (XLV of 1860) ---
----Ss. 302(b) & 34--- Qatl-i-amd, common intention---Appreciation of evidence---Ocular
account ---Scope ---Accused were charged for committing murder of the brother of the
complainant by firing--- Being a broad daylight occurrence and complainant already knew the
accused, diminished the possibility of mistaken identity---Both the complainant and eye -
witness had furnished ocular account of the incident ---Complainant while appearing before
the court reiterated the same episode/version of the occurrence as stated forth by him in his initial report/FIR and charged the accused persons for the murder of the deceased ---Eye-
witness had also corroborated the testimony of complainant and charged the accused with firing upon the deceased and that t he co -accused was also armed with a pistol for the
commission of the offence ---Un -shattered statement regarding his presence, shifting of the
dead body of the deceased to the hospital, lodging of the FIR by the complainant on his
report established his presence at the spot ---Eye-witness was neither relative of the deceased
nor inimical towards the accused ---Both the eye -witnesses had been subjected to lengthy
cross -examination by the prosecution but nothing beneficial could be extracted from them ---
Said wit nesses remained stuck with their stance and corroborated each other on material
events of the incident, date, time and place of occurrence and firing made by the accused at
the deceased ---Appeal was dismissed accordingly.
(c) Criminal trial ---
----Evidenc e---Discrepancies in ---Scope ---If the discrepancies were shattering the prosecution
story on salient features then it had substance to intervene on the subject otherwise it had no
impact on the veracity of the prosecution story.
Muhammad Iqbal v. The Sta te PLD 2001 SC 222 rel.
(d) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Qatl -i-amd, common intention--- Appreciation of evidence ---Vicarious
liability ---Scope ---Accused were charged for committing murder of the brother of the
complainant by firing--- Record showed that the eye- witness did not attribute the role of
firing to the co- accused, however, he stated that the co -accused was armed with T.T pistol
and told them not to resist or they would be killed--- Co-accused, however, was armed with
deadly weapon, i.e. firearms, which depicted common intentions and prior concert of mind being a facilitator and abettor of the accused and he remained present at the place of
occurrence till the task, i.e. murder of the deceased was accomplished ---Said role of co -
accused could not be confined to that of facilitator ---Appeal was dismissed accordingly.
Zaigham -ur-Rehman v. The State PLD 2007 SC 93 rel.
(e) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34--- Qatl-i-amd, common intention --- Appreciation of evidence ---
Justification for the presence of witnesses at the spot ---Scope ---Accused were charged for
committing murder of the brother of the complainant by firing---In the present case, the presence of the complainant and eye -witness at the time and place of occurrence could not be
doubted by any stretch of imagination--- Complainant was the brother of the deceased, who
was working with his brother and it was also established on record that eye -witness was
labour with the deceased at the time of occurrence ---Both the sa id witnesses had given
specific reasons for their presence at the place of occurrence and they witnessed the crime being committed by the accused persons ---Appeal was dismissed accordingly.
(f) Criminal trial ---
----Witness --- Interested and related witne ss---Reliance--- Scope --- Term "interested" ---
Connotation--- Testimony of the witness which was trustworthy and inspiring confidence
could not be discarded on the ground of his/her close relationship with the deceased--- Close
relative, if proved to be the natural witness of the occurrence, could not be termed as an
interested witness ---Term "interested" postulated that the person concerned must have some
direct interest in seeing the accused person being convicted somehow or the other either because of animo sity or for some other reason---Mere relationship of witness with the
deceased would not detract from his/her veracity, as he had absolutely no motive of his own
to involve the accused falsely by letting off the real culprits.
Saeed Akhtar and others v. The State 2000 SCMR 383; Amal Sherin and another v.
The State through A.G. PLD 2004 SC 371 and Hasil Khan v. The State 2012 SCMR 1936
rel.
(g) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34--- Qatl-i-amd, common intention---Appreciation of evidence--- Medical
evidence--- Scope ---Accused were charged for committing murder of the brother of the
complainant by firing--- Medical evidence corroborated the ocular account furnished by the
prosecution--- Prosecution produced Medical Officer, who examined the dead body of the
deceased and observed multiple firearm injuries (as many as three in number, i.e. three entrance wounds and three exit wounds) on the chest of the deceased--- Cause of death was
shown excessive bleeding and damage to vital organs i.e. inte rnal chest cavity and the
weapon used was a firearm ---Medical evidence furnished by the prosecution was in line with
the ocular account furnished by the prosecution--- Appeal was dismissed accordingly.
(h) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Recovery
of weapon and crime empties ---Scope ---Accused were charged for committing murder of the
brother of the complainant by firing--- Record showed that the Investigating Officer took six
bullet e mpties of T.T pistol from the place of occurrence into possession through recovery
memo and prepared parcel in the presence of witness on the day of the occurrence ---On the
same night, the accused was apprehended and from his personal search one T.T pistol along
with four live cartridges were recovered which were taken into possession through recovery memo in the presence of witness and prepared another parcel ---Investigating Officer sent the
parcel of six crime empties of T.T. pistol along with parcel of t he T.T. pistol which was
recovered from the accused to Firearms Expert ---After analysis of the same, the Investigating
Officer obtained positive report from Firearms Expert ---Appeal against conviction was
dismissed accordingly. [Para. 12 of the judgment]
(i) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34--- Qatl-i-amd, common intention --- Appreciation of evidence ---Motive
was proved--- Scope ---Accused were charged for committing murder of the brother of the
complainant by firing--- Motive was specifically tak en in the FIR ---Prior to the incident, the
accused extended threats to the complainant party and also offended their shop---
Complainant, when appeared before the court, further clarified the motive that prior to the
occurrence the accused also threatened them and before that the accused also offended their
shop and in that regard, he also filed an application before the police against the accused ---
Said motive was further confirmed by the defence while cross -examining complainant when
put a suggestion that "it was correct that before the said occurrence FIR was lodged against
the accused and in the said case, the accused was acquitted from the charge" ---Circumstances
suggested that the prosecution had proved the motive ---Appeal against conviction was
dismis sed accordingly.
Khadija Saddiqui and another v. Shah Hussain and another PLD 2019 SC 261 rel.
(j) Appeal against acquittal ---
----Interference---Scope ---Acquittal carried with it a double presumption of innocence ---
Acquittal order could be reversed only when found blatantly perverse, resting upon fringes of
impossibility and resulting in miscarriage of justice ---Same could not be set aside merely on
the possibility of a contra view.
Meraj Muhammad Marghzani for Appellant (in Criminal Jail Appeals Nos. (s) 14 and
15 of 2019).
Muhammad Iqbal Marghzani for Appellant (in Criminal Acquittal Appeal
No. (s) 160 of 2019).
Abdul Mateen, D.P.G. for the State.
Date of hearing: 24th September, 2020.
JUDGMENT
ROZI KHAN BARRECH, J. ---The appellant G hulam Mustafa alias Raja Buledi, son
of Chakar Khan in Criminal Jail Appeal No. (S) 14 of 2019 and Muhammad Akber, son of Manik appellant in Criminal Jail Appeal No.(S) 15 of 2019 having been involved in case FIR No. 04/2019 dated 02.01.2019 registered under sections 302 and 34, P.P.C. at Police Station City District Sibi was tried by the learned District and Sessions Judge Sibi ("trial court") and on completion thereof by means of the judgment dated 25.10.2019 ("impugned judgment") passed in Sessions Case No.21/2019 the appellants were convicted and sentenced in the following terms: --
"20 ….. Therefore, accused (1) Ghulam Mustafa alias Raja Buledi son of Chakar Khan, by caste Buledi, Resident of Allahabad Sibi is hereby convicted under section 302(b), P.P. C. as Ta'zir for committing the murder of deceased Sikandar Ali and
sentenced him to death. He be hanged by neck till he is dead and further to pay compensation Rs.200,000/ - (Rupees Two Hundred Thousand Only) to the legal heirs
of deceased Sikandar Ali und er section 544 -A, Cr.P.C in default thereof to suffer
Simple Imprisonment for six (06) months. The sentence of death is subject to confirmation of Hon'ble High Court of Balochistan.
(ii) And accused Muhammad Akbar son of Manik, by caste Buledi, Resident of balan
Shakh Aliabad Buledi Dera Murad Jamali for Life Imprisonment (Rigorous Imprisonment) as well as to pay compensation amount of Rs.100,000/ - (Rupees One
Lac) to the legal heirs of the deceased under section 544- A, Cr.P.C, or in default
whereof to fur ther undergo 03 (three) months (Simple Imprisonment). Benefit of
section 382- B, Cr.P.C. is extended in favour of the present convict."
Aggrieved from the impugned judgment the appellants have assailed their conviction
and sentence through Criminal Jail Appeals bearing Nos. (S) 14 and 15 of 2019 which has been filed through Superintendent Central Jail Mach, while the trial court forwarded Murder Reference No. (S) 03 of 2019 for confirmation or otherwise of death sentence inflicted upon the convict/ appellan t Ghulam Mustafa alias Raja Buledi, son of Chakar Khan in terms of
section 374, Cr.P.C.
Whereas the Criminal Acquittal Appeal No. (S) 160 of 2019 has been filed by the
appellant/complainant Amanat Ali against the acquittal of the co -accused/respondent No.1
Muhammad Usman by the trial court.
Since all the cases are arising out of one and the same judgment of the trial court,
therefore same are being disposed of through this single judgment.
2. The prosecution story as disclosed in the complaint (Ex.P/1 -A) recorded on the
statement of PW -1 Amanat Ali, son of Nazeer Ahmed (complainant) is that on 02.01.2019 he
along with his brother Sikandar Ali and others were present at his shop, i.e. Madina Jewelers situated at Jinnah Road Sibi. M eanwhile at about 6:20 pm four accused persons came there
on two motorcycles and disembarked at his shop. Two of the accused, namely Ghulam
Mustafa alias Raja Buledi and Muhammad Akbar entered into his shop who were also equipped with T.T. pistols. While c hanting slogans in favour of Buledi tribe, the accused
persons made firing upon complainant's brother Sikandar Ali who later on succumbed to his injuries. After the occurrence, the accused persons escaped from the spot. Motive alleged in the report was tha t prior to the incident the accused Ghulam Mustafa had also threatened his
brother for dire consequences and had also offended the complainant's shop. Hence, the crime report.
3. After completion of the usual investigation, the challan was prepared and submitted
before the trial court. The trial court framed charge against the appellants to which they did not plead guilty and claimed trial. During the trial the prosecution produced six witnesses in all. The statements of the appellants/ accused were recorde d under section 342, Cr.P.C.
wherein they rebutted the allegation levelled against them and professed their innocence. The appellants and acquitted accused did not opt to appear as their own witness under section 340(2), Cr.P.C. however the appellants Ghul am Mustafa alias Raja Buledi and Muhammad
Akbar produced Muhammad Iqbal son of Muhammad Ibrahim as a witness in their defense. The acquitted accused Muhammad Usman did not produce any evidence in his defense.
After hearing arguments advanced by the learne d counsel appearing on behalf of both
the parties, the trial court while evaluating the evidence available on record found the version
of the prosecution proved beyond the shadow of reasonable doubt. Resultantly, the trial court
recorded a conviction again st the appellants in the above terms, whereas the co -accused
Muhammad Usman was acquitted of the charge by the trial court.
Arguments advanced from both sides have been heard. We have also minutely gone
through the record available on file with the able a ssistance of learned counsel for the parties.
5. Record divulges that the occurrence took place on 02.01.2019 at 6:00 pm, which has
been reported by the complainant Amanat Ali (PW -1) on the same date at 9:05 pm within
two hours and forty -five minutes after the occurrence. In this regard the explanation came on
record from the prosecution evidence. PW -1 stated in his statement that after the occurrence,
he took his brother to the hospital in injured condition. He further stated during cross -
examination that twenty -five or thirty minutes were spent in taking the deceased to the
hospital from the place of occurrence because no vehicle was available at the time of occurrence. He further stated during cross -examination that after going to the hospital, he
reached the police station at 8:30 p.m. or 8:45 p.m. He stated during cross -examination that
the report (Ex.P/1- A) was prepared through the petition writer, which took 10/15 minutes.
PW-6 Sohbat Khan SI, who conducted investigation of the case stated in his state ment that
when he received information about the occurrence, he reached the civil hospital and the injured succumbed to his injuries near the hospital. At the hospital he received a message from the police station to come to the police station, where -after he reached the police
station, where the complainant was present for registration of the FIR. The investigation officer further stated in his statement that the deceased was a member/representative of the Trade Union and the building of the hospital was a crucial Government building, and he was
of the view that the crowd will vandalize. Thereafter the legal heirs of the deceased came to
the hospital, and he received information to come to the police station from the hospital. He stated during cross -examina tion that due to procession, as the people were coming to the
hospital in the shape of mobs, therefore he reached to hospital at 7:30 p.m. The delay in lodging the FIR has plausibly been explained by the prosecution, as such, the FIR was lodged promptly wherein the complainant directly charged the appellants Ghulam Mustafa and Muhammad Akbar with a specific role of firing upon the deceased. The report of the complainant has been verified by Hameedullah (PW- 2). The promptly lodged FIR is the first
instance w hich not only eliminates the probability and possibility of consultation and
deliberation on the part of the complainant party in charging the accused but also lends support to the statements of the complainant and eye -witness Hameedullah (PW -2)
respective ly.
6. Being a broad daylight occurrence and since the complainant already knew the
accused, diminished the possibility of mistaken identity. Both the complainant/PW -1 Amanat
Ali and PW -2 Hameedullah have furnished an ocular account of the incident. The former
while appearing before the court as PW1 reiterated the same episode/version of the occurrence as stated forth by him in his initial report/FIR and charged the appellants for the murder of the deceased Sikandar Ali.
The eye- witness Hameedullah (PW- 2) has too corroborated the testimony of
PW1/complainant. He disclosed the fact that on 02.01.2019 he was working in the shop, i.e.
Madina Jewelers Jinnah Road Sibi as a worker. On the said date he, Muhammad Iqbal and
owners of the shop, namely Amanat Ali and Sikandar Ali were present at the shop. At 6:20
pm, four accused persons came on two motorcycles and parked their motorcycles at the shop. Two of the accused persons, namely Ghulam Mustafa alias Raja Buledi and Muhammad Akbar, entered the shop. They were e quipped with T.T. pistols. Accused Ghulam Mustafa
alias Raja Buledi made firing upon the deceased Sikandar Ali whereas the co -accused
Muhammad Akbar warned them not to come forward and to refrain from resisting otherwise they will be killed; therefore they stayed back. He further stated that Ghulam Mustafa alias
Raja Buledi made firing upon the deceased Sikandar Ali on his chest, who received injuries and later on succumbed to the injuries. He charged the accused/ appellant Ghulam Mustafa alias Raja Buledi with firing upon the deceased and that the accused Muhammad Akbar was
also armed with a pistol for the commission of the offence. On his un -shattered statement
regarding his presence, shifting of the dead body of the deceased to the hospital, lodging of the FIR by the complainant on his report established his presence at the spot. He is neither
relative of the deceased nor inimical towards the accused.
7. We have noted that both the eye -witnesses have been subjected to lengthy cross -
examination by the prose cution, but nothing beneficial could be extracted from them. They
remained stuck with their stance and corroborated each other on material events of the incident, date, time and place of occurrence and firing made by the accused Ghulam Mustafa alias Raja B uledi at the deceased Sikandar Ali.
8. So far as contention raised by learned counsel for the appellants that there are major
contradictions in the statements of the eye -witnesses, as the complainant assigned the role of
firing to both the accused/appellan ts Ghulam Mustafa alias Raja Buledi and Muhammad
Akbar, however PW -2 Hameedullah the eye- witness only assigned the role of firing to the
accused/appellant Ghulam Mustafa alias Raja Buledi and did not attribute the role of firing to accused Muhammad Akbar i s concerned, it is established law that if the discrepancies are
shattering the prosecution story on salient features then it has substance intervene on the subject otherwise it has no impact on the veracity of the prosecution story. Reliance in this regar d is placed on the case titled Muhammad Iqbal v. The State (PLD 2001 SC 222).
Under such circumstances, when the complainant, the deceased and the eye -
witness/PW -1 Amanat Ali and PW -2 Hameedullah were routine workers, suddenly two
persons came with deadly weapons, i.e. firearms under such circumstances no one bothered
to note that who was firing at whom, but both the above witnesses were firm to that extent that both the accused came armed with T.T. pistols, entered the shop, the deceased received injuries by means of firearms and corroborated each other with regard to date, time and place
of occurrence, as well as the injuries received by the deceased on his chest but no material and unjustifiable discrepancies in their statements could surface. They remai ned consistent
with each other. The learned defense counsel could not shake the confidence of the aforesaid eye-witnesses.
9. PW-2 Hameedullah did not attribute the role of firing to the accused Muhammad
Akbar, however, he stated that the accused/appellant was armed with T.T. pistol and told
them not to resist or they will be killed. Be that as it may, the accused/appellant was armed
with deadly weapon, i.e. firearms, which depicts common intentions and prior concert of
mind, being a facilitator and abettor of the accused Ghulam Mustafa alias Raja Buledi and he
remained present at the place of occurrence till the task, i.e. murder of the deceased was accomplished. In the case titled Zaigham -ur-Rehman v. The State (PLD 2007 SC 93) it was
held by the Hon'ble S upreme Court as under:
"9. We have examined the case of appellant in the light of the discussion made hereinabove qua the provisions enumerated in section 34, P.P.C. It transpired from scrutiny of record that the appellant nourished grudge against decease d having a
strong motive against deceased who substituted him in Haseeb Waqas Agriculture Farm and took over as incharge of the farm. It is worth mentioning that it was with deadly weapons which depicts common intentions and prior concert of mind, being a facilitator and abettor he remained present at the place of occurrence till the task i.e. murder of Faqir Muhammad was accomplished. In such view of the matter his role cannot be confined to that of proverbial Lalkara but it was more than that and he has rightly been convicted and sentenced by the learned High Court to undergo life
imprisonment vide judgment impugned which being well -based does not warrant
interference.."
The presence of the complainant and eye -witness Hameedullah at the time and place
of occurrence cannot be doubted by any stretch of imagination. PW -1/complainant is the
brother of the deceased, who was working with his brother at Madin Jewelers situated at Jinnah Road Sibi and it was also established on record that PW -2 Hameedullah was lab our
with the deceased at the time of occurrence. Both the above witnesses have given specific reasons for their presence at the place of occurrence, and they witnessed the crime being committed by the accused/ appellants.
10. No doubt PW -1/complainant is t he brother of the deceased, and it is now almost a
trend that public is reluctant to appear and depose before the court, especially against the culprits in criminal cases due to fear of enmity etc. It is well- established principle of law that
testimony of the witness which is trustworthy and inspiring confidence cannot be discarded on the ground of his close relationship with the deceased. A close relative, if proved to be the natural witness of the occurrence, cannot be termed as an interested witness. The term
"interested" postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or for some other reason. Thus, the mere relationship of PWs with the decea sed would not detract
from their veracity, as they had absolutely no motive of their own to involve the appellants falsely by letting off the real culprits. Reliance in this regard can be placed on the judgments of the Hon'ble Supreme Court in the case, ti tled Saeed Akhtar and others v. The State (2000
SCMR 383). In the case titled Amal Sherin and another v. The State through A.G. (PLD 2004 SC 371). In the case titled as Hasil Khan v. The State (2012 SCMR 1936) the Hon'ble Supreme Court held as under:
"The ocular account in this case was furnished mainly by PW- 1 Dil Murad
(complainant) and Zreef Khan PW- 2. The former is the brother whereas the latter is
the nephew of the deceased. Though both are relative but mere relationship would not make a witness unwor thy of reliance if his testimony is corroborated by any
independent evidence or circumstance appearing on record. Both the witnesses have
reasonably explained their presence at the spot i.e. the reason of their travel was that they were returning from a ma rriage ceremony and this reason has not been
specifically challenged by defense during cross -examination. Their testimony is
corroborated medical evidence and recovery of T.T pistol. All the eye -witnesses were
subjected to lengthy cross -examination but the ir credibility could not be shaken as
they not only corroborated each other but also remained consistent on all material particulars of the prosecution case."
11. The medical evidence further corroborated the ocular account furnished by the
prosecution for further clarity of the injuries on the person of the deceased Sikandar Ali. The
prosecution produced PW -4 Dr. Shehzad Qadir Mengal, who examined the dead body of the
deceased. The doctor observed multiple firearm injuries (as many as three in number, i.e.
three entrance wounds and three exit wounds) on the chest of the deceased. Cause of death was shown excessive bleeding and damage to vital organs i.e. internal chest cavity and the weapon used was a firearm by the Dr. Shehzad Qadir Mengal (PW- 4). The medi cal evidence
furnished by the prosecution is in line with the ocular account furnished by the prosecution.
12. The investigation officer (I.O.) took six bullet empties of T.T. pistol from the place of
occurrence into possession through recovery memo and pr epared parcel No.1 in the presence
of PW -3 Abdul Jabbar on the day of the occurrence. On the same night, the
accused/appellant Ghulam Mustafa alias Raja Buledi was apprehended, and from his personal search, one T.T. pistol along with four live cartridges w ere recovered which were
taken into possession through recovery memo in the presence of PW -5 Abdul Sattar and
prepared parcel No.4. The investigation officer sent the parcel No.1 of six crime empties of T.T. pistol along with parcel No.4 of the T.T. pistol which was recovered from the accused/
appellant Ghulam Mustafa alias Raja Buledi to firearms expert, and after analysis of the same, the I.O. obtained positive report from firearms expert i.e. Ex.P/6- I.
13. The testimony of the eye -witnesses has duly been corroborated by the recovery of the
blood of the deceased from the place of occurrence, his bloodstained garments and recovery of crime empties of T.T. pistol from the place of occurrence and recovery of crime weapon, i.e. T.T. pistol from the accused/appellant Ghulam Mustafa alias Raja Buledi as well as the positive report of FSL and firearm expert. The said recoveries have been duly proved during the trial through recovery witnesses, and nothing adverse could be achieved despite cross -
examination. Relian ce is placed on the case titled Nasir Iqbal alias Nasra v. The State (2016
SCMR 2152), wherein it is held as under:
"In the above circumstances, we found that the ocular evidence furnished by the eye -
witness to be credit worthy and confidence inspiring and we have not been able to observe any defect or material lacunas in their evidence; their presence at the spot had been established beyond any shadow of doubt; both the eye -witnesses were of course
closely related to the deceased but fact of the matter re mains that their mere
relationship would not render them to be interested or partisan witnesses when the same has been corroborated with the medical evidence as well as the recoveries of crime weapon and the motive has fully been proved as such in our view no
interference is required in conviction of the appellants."
14. As regards the motive of the accused, we would like to discuss the motive at first. In
legal dictionary, motive is defined; "it is an inducement, reason, or wilful desire and purpose
behind the commission of the offence. Whether the purpose was good, like helping someone
omit suicide, or bad, like committing murder, however, it is not the deciding factor in deciding guilt or innocence. In psychology, this is what energizes people to action
determines their choice or behavior, as concerns, desire, emotion or need". In this case in the
First Information Report, the motive was specifically taken. Prior to the incident, the accused
Ghulam Mustafa alias Raja Buledi extended threats to the complain ant party and also
offended their shop. While the complainant/PW -1 when appeared before the court, he further
clarified the motive that prior to the occurrence the accused also threatened them and before that the accused also offended their shop and in thi s regard, he also filed an application
before the police against the accused. The same motive was further confirmed by the learned counsel for the appellant while cross -examining PW -1/ complainant when he made a
suggestion that "it is correct that before t he said occurrence an FIR was lodged against the
accused Ghulam Mustafa alias Raja Buledi". The learned counsel further put up a suggestion to the said witness that "it is correct that in the said case, the accused was acquitted from the charge". Reliance is placed on case titled Khadija Saddiqui and another v. Shah Hussain and another (PLD 2019 SC 261), wherein it has been held:
"The High Court had observed that motive set up by the prosecution had not been proved by it because on the one hand Khadija Siddiqui (PW -6) had maintained that
she had refused to marry respondent No.1 but on the other hand a letter written by her to respondent No.1 shows that she was quite willing and eager to marry him. The High Court had failed to read that portion of the statement of Khadija Siddiqui (PW -
6) wherein she had explained that she was being harassed by respondent No.1 and she wanted to complain against him to her mother and, therefore, an attempt was made by
respondent No.1 to silence her. Khadija Siddiqui (PW -6) had also been suggested by
the defence itself that respondent No.1 had shunned her company but the young lady persisted in continuing her relationship with respondent No.1 which suggestion clearly showed that there was a break in the close friendshi p between that young lady
and respondent No.1 prompting the respondent to make an attempt to get rid of her which provided a plausible motive to respondent No.1 "
In the light of above discussion, the prosecution successfully proved its case against
the accused/appellant Ghulam Mustafa alias Raja Buledi and Muhammad Akbar, through confidence -inspiring ocular account furnished by PW -1/ complainant Amanat Ali, which is
strongly corroborated by the medical evidence, recovery of crime weapon from the appellant
Ghulam Mustafa alias Raja Buledi and positive FSL report and the motive, which lead us to the irresistible conclusion that the trial court has rightly convicted the accused/appellants Ghulam Mustafa alias Raja Buledi and Muhammad Akbar.
15. Another import ant question would be the quantum of sentence awarded to the
appellants. In this regard, we are of the view that the question of quantum of the sentence always requires care and caution on the part of the court as such decision relating to the life of the accused.
16. So far as the quantum of sentence of accused/appellant Ghulam Mustafa alias Raja
Buledi is concerned the appellant had demonstrated extreme barbarity by not only using a
pistol but repeating the shots three times at the deceased and in view of repeated shots on
most vital parts of the body of the deceased and his having abandoned the deceased, we have not been able to find out any element of mitigation.
The trial court while awarding the sentence of life imprisonment to the accused
Muhammad Akber observed that PW -1 Amanat Ali attributed the role of firing to accused
Muhammad Akber on the deceased, but PW -2 did not ascribe the role of firing to the
accused/appellant Muhammad Akber and also relied upon the case titled Asad Mehmood v. Akhlaq Ahmed and another (2010 SCMR 868). The reason recorded by the trial court about
mitigating circumstances in respect of accused/appellant Muhammad Akbar has been found by us to be valid and grounded in the record of the case.
17. With regard to the acquittal of respondent No.1 namely Muhammad Usman in
Criminal Acquittal Appeal bearing No. (S) 160 of 2019 filed by the complainant is concerned, the record transpires that neither he entered the shop of the complainant at the time of occurrence nor was he armed with a deadly weapon. No role whatsoever has been attributed toward him. Another aspect of the matter is that he was not nominated in the FIR nor any description and features of him were given by the complainant/eye -witness in their
statement recorded under sec tions 154 and 161 Cr.P.C. He was arrested later on, and during
identification parade, he was identified by the complainant. The identification was not held before the Magistrate, rather the identification parade was held in the presence of DSP, but the sai d DSP was not produced before the court as a witness. Moreover, the evidence of test
identification is a very week type of evidence, the value of which is easily destroyed if there is any suspicion that the conduct of the investigation agency was not absol utely above board.
Guidance in this regard is sought from the case of Lal Pasand v. The State (PLD 1981 SC 142).
Moreover, it is by now well settled that acquittal carries with it a double presumption
of innocence; it is reversed only when found blatantly perverse, resting upon fringes of impossibility and resulting in miscarriage of justice. It cannot be set aside merely on the possibility of a contra view. Resultantly, the Criminal Acquittal Appeal No. (S) 160 of 2019 filed by the complainant is dismissed.
For the above -stated reasons, the Criminal Jail Appeal bearing No. (S) 14 of 2019
filed by the appellant Ghulam Mustafa alias Raja Buledi, son of Chakar Khan and Criminal Jail Appeal No. (S) 15 of 2019 filed by Muhammad Akbar, son of Manik are dismissed being
devoid of merits. Consequently, the conviction and sentenced recorded by the trial court vide impugned judgment dated 25th October, 2019 in Sessions Case No. 19/2019 is maintained.
The death sentenced awarded to the accused Ghulam Mustafa alias Raja Buledi son of
Chakar Khan is confirmed. The Murder Reference No. (S) 03 of 2019 is answered in the Affirmative.
JK/258/Bal. Appeals 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,
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