2023 Y L R 824
[Balochistan]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
ASFAND YAR---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 332, Murder Reference No. 9 and Civil Miscellaneous Application No.
126 of 2017, decided on 31st March, 2021.
(a) Penal Code (XLV of 1860) ---
----Ss. 302 & 324 ---Qatl -i-amd, attempt to commit qatl- i-amd---Appreciation of evidence ---
Sentence, reduction in ---Medical evidence--- Scope ---Accused was charged for making firing
upon his brothers and mother, due to which his two brothers died, while his mother and one brother sustained firearm injuries ---Motive behind the incident was that the accused
quarrelled and tortured his wife, thus his brothers scolded him, where after the accused had divorced his wife and for such divorce he was holding responsible to the injured persons ---
Medical Officer examined the injured mother and injured brother of accused and after examination issued Medico- Legal Certificates, which confirmed that both the injured
received bullet injuries on their persons ---Prosecution case was also supported by the
Forensic Science Laboratory Reports of blood stained clothes of deceased as well as other blood stained articles and the inquest report of deceased prepared by the Investigating Officer ---Even otherwise, the defence had not disputed the unnatural death of deceased and
injuries received by the injured witnesses, but pleaded his implication ---Circumstances
established that the prosecution had proved its case against the accused, however, while maintaining the conviction, death sentence was converted into imprisonment for life, in circumstances ---Appeal was dismissed with said modification in sentence.
(b) Penal Code (XLV of 1860)---
----Ss. 302 & 324 ---Qatl -i-amd, attempt to commit qatl- i-amd---Appreciation of evidence ---
Sentence, reduction in ---Ocular account ---Scope ---Accused was charged for making firing
upon his brothers and mother, due to which his two brothers died, while his mother and one brother sustained firearm injuries ---Ocular account of the incident had been furnished by
complainant, injured witnesses and dwellers of the house ---Complainant in his court
statement mostly reiterated the contents of fard -e-bayan and confirme d the presence of
accused inside the house, when the occurrence had taken place ---Complainant had brought
on record that after repeated ring bells, the accused opened the main gate of the house and he found injured his mother and three brothers, however, on query his mother disclosed that the accused by means of pistol injured them ---As per assertions of his mother, the complainant
nominated the accused in the promptly lodged FIR ---Prompt lodging of FIR had ruled out the
element of consultation and deliberation ---Even otherwise, it was not acceptable for a
prudent mind that a person might falsely implicate his own brother leaving scot free the real
culprits ---Witness was cross- examined at sufficient length, but complainant remained
consistent in his view ---One of the widows of deceased being dweller of the house where
occurrence had taken place appeared as witness, her presence at the relevant time was natural
and was beyond any shadow of doubt ---Said witness stated that accused made firing upon her
husband, due to which he sat down--- Statement of said witness was fully supported and
corroborated by other widow, who was also the dweller of the said house, where the incident
had taken place---Presence of widow in the house was natural and could not be doubted---Circumstances established that the prosecution had proved its case against the accused ---
However, while maintaining the conviction, death sentence was converted into imprisonment for life ---Appeal was dismissed with said modification in sentence.
(c) Penal Code (XLV of 1860)---
----Ss. 302 & 324 ---Qatl -i-amd, attempt to commit qatl- i-amd---Appreciation of evidence ---
Sentence, reduction in ---Statements of injured witnesses ---Scope ---Accused was charged for
making firing upon his brothers and mother, due to which his two brothers died, while his mother and one brother sustained firearm injuries ---Record showed that both the injured
witnesses had not supported their earlier statements, thus were declared hostile ---According
to one of the injured witnesses, at the relevant time, his sons quarrelled with each other and made firing upon themselves ---Said injured witness showed her ignorance as to who was the
aggressor ---Though, said witness was declared hostile, but still her statement was supporting
the case of prosecution to the extent of dispute, quarrelling and making firing, which
confirmed that the assailant was the accused ---Other injured witness fully disowned his
earlier statement and stated that the same was self -recorded by the police ---Two sons of
injured lady had been murdered and the assailant was her third son, thus after losing her two sons, said witness would certainly not lose her third son and alike was the situation with the other injured, who had lost his two brothers, hence, it was the sole reason that they had disowned their earlier versions and supported the defence version---Prosecution had established the presence of the accused in armed condition in the house as well as proved the presence of natural witnesses in the house ---Injured witnesses did not support each other
being resiled witnesses ---Injured witness admitted in cross -examination that he was injured
and shifted to hospital for treatment, he also admitted that he had pardoned the accused to his extent ---Such admissions of the said injured witness supported the version of the
prosecution--- Circumstances established that the prosecution had proved its case against the
accused, however, while maintaining the conviction, death sentence was con -verted into
imprisonment for life ---Appeal was dismissed with said modification in sentence.
(d) Penal Code (XLV of 1860)---
----Ss. 302 & 324 ---Qatl -i-amd, attempt to commit qatl- i-amd---Appreciation of evidence ---
Sentence, reduction in ---Related and interested witnesses ---Scope ---Accused was charged for
making firing upon his brothers and mother, due to which his two brothers died, while his mother and one brother sustained firearm injuries ---Unnatural violent death of deceased and
causing bullet injuries to injured persons were not disputed by the defence ---Thus, under the
circumstances complainant and dwellers of the house, could not be termed to be interested
witnesses---More particularly, the husbands of said dwellers of the house as well as the brother of complainant were murdered in a brutal manner, thus the presumption of false implication of accused being the member of same family was not acceptable to a prudent
mind ---Beyond imagination that the witnesses might falsely implicate a family member for
the murders of the blood relations ---Accused, throughout the proceedings had not taken any
justifiable explanation with regard to his false implication nor brought any ill -will or ulterior
motives for his false implication by the witnesses and specially against the said dwellers of
the house, who being natural witnesses directly witnessed the crime ---Circumstances
established that the prosecution had proved its case against the accused, however, while maintaining the conviction, death sentence was converted into imprisonment for life ---
Appeal was dismissed with said modification in sentence.
(e) Penal Code (XLV of 1860)---
----Ss. 302 & 324 ---Qatl -i-amd, attempt to commit qatl- i-amd---Appreciation of evidence ---
Sentence, reduction in ---Quantum of sentence ---Scope ---Accused was charged for making
firing upon his brothers and mother, due to which his two brothers died, while his mother and one brother sustained firearm injuries ---In the present case, there existed a family dispute in
between the family members of the said house and also the accused had divorced his wife ---
On the relevant date the quarrel had taken place all of a sudden without the element of pre -
mediation and further two family members of the said house had also lost their lives ---High
Court observed that awarding of capital punishment to the accused was unwarranted, which other increased the sorrow of grieved family, hence, while maintaining the conviction, death
sentence was converted into imprisonment for life ---Appeal was dismissed with said
modification in sentence.
Barrister Zahoor Hassan Jamote for Appellant.
Habibullah Gul, Additional Prosecutor General for the State.
Syed Hazrat Shah for injured/ PW- 4 Shano Begum.
Date of hearing: 17th March, 2021.
JUDGMENT
ABDULLAH BALOCH, J. ---This common judgment disposes of Criminal Appeal
No.332 of 2017, Murder Reference No.09/2017 and Civil Miscellaneous Application No.126/2017 under section 345, Cr.P.C. for accepting the compromise in the main appeal.
Appellant Asfand Yar son of Ghulam Muhammad filed the appeal against the
judgment dated 3rd October 2017 (hereinafter referred as, "the impugned judgment") passed by learned Additional Sessions Judge -I Quetta (hereinafter referred as, "the trial Court"),
whereby he was convicted under section 302(b), P.P.C. and sentenced for Capital punishment
of death on two counts for committing the murder of deceased Sohail Ahmed and Mumtaz
Ahmed. The appellant was directed to be hanged by his neck till he is dead. Besides, the appellant has to pay Rs.500,000/ - each as compensation to the legal heirs of each deceased
and in default thereof to further suffer Six (06) months each. The appellant was further convicted on two counts under section 324, P.P.C. for causing fire arm injuries to PWs
Watan Yar and Shano Begum and sentenced to suffer five (05) years R.I. each with fine of
Rs.20,000/ - each or in default thereof to further suffer three (03) months S.I. each. The
benefit of section 382- B, Cr.P.C. has also been extended in favour of appellant.
The trial Court forwarded the murder reference for confirmation of death sentence of
appellant or otherwise, while the C.M.A. No.126/2017 has been filed by the injured/PW -4
Shano Begum under section 345, Cr.P.C. for accepting the compromise.
2. Facts of the case are that on 3rd November 2014, the complainant Malik Kamran
Ahmed, lodged FIR No.248 of 2014 at Police Station City Quetta, under Sections 302, 324,
P.P.C., with the averments that he is resident of Kasi Killa Quetta and on the night of occurrence at about 12.15 a.m. when he reached near to his house, he observed that his relatives were also going towards his house, while the main gate of house was locked from inside, thus after repeated ring bells, his younger brother Asfand Yar opened the Gate, where he found his elder brother Sohail Ahmed in injured condition in a room, while his younger brothers Mumtaz Ahmed Watan Yar were lying in injured condition in Bath Room, while his mother Shano Begum was also lying in injured condition in the courtyard of house. On query, his mother disclosed that the appellant Asfand Yar made firing with pistol upon them. The motive behind the occurrence was that the appellant quarreled and tortured his wife, thus his brothers scolded him, whereafter the appellant had also divorced his wife and for such
divorce he was holding responsible to the injured persons.
Initially the FIR was lodged under section 324, P.P.C., but on the following day of
occurrence the injured Mumtaz Ahmed was died, while the inured Sohail Ahmed was died on 5th January 2015, thus section 302(b), P.P.C. was inserted in the FIR.
3. The appellant was arrested, who was subjected to investigation and on completion
thereof, he was challaned before the trial Court, which indicated the charge and after denial by the appellant, the prosecution produced eleven (11) witnesses, whereafter the appellant was examined under section 342, Cr.P.C. He also recorded his statement on oath under section 340(2), Cr.P.C. However, did not produce any witness in his defence. On conclusion of trial and after hearing arguments, the trial Court convicted and sentenced the appellant as mentioned above in para -1. 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, while the injured Shano Begum filed application under section 345, Cr.P.C. for acceptance of compromise.
4. Heard the learned counsel and perused the available record. So far as the unnatural
death of deceased Mumtaz Ahmed and Sohail Ahmed as well as receiving fire arm injuries by PW -4 and PW -9 are concerned, the same are un -disputed. Soon after the occurrence both
the deceased were shifted to Sandman Civil Hospital in injured condition, where PW -5 gave
first aid to injured Mumtaz Ahmed, but on the following day he died, whereafter the
postmortem of the deceased Mumtaz Ahmed was conducted. PW -5 issued MLC and
postmortem report, which confirms that the deceased received fire arm injuries on his person and his death was unnatural. Likewise, PW -5 also gave first aid to Sohail Ahmed and
observed fire arm injuries on his person. PW -5 issued MLC as Ex.P/5- A, which confirms the
fire arm injuries on the person of Sohail Ahmed. Whereafter, he was shifted to Karachi for
medical treatment, but on 7th January 2015 he succumbed to his injuries.
5. PW-5 examined the injured PW -4 Shano Begum and PW -9 Wattan Yar and after
examination issued MLC as Ex.P/5 -B & Ex.P/5 -C, which confirm that both the injured
received bullet injuries on their persons. The prosecution case is also supported by the F.S.L.
reports of blood stained clothes of deceased as well as other blood stained articles and the inquest report of deceased Mumtaz Ahmed prepared by the Investigating Officer. Even otherwise, the defence has not disputed the unnatural death of deceased and injuries received by the PWs -4 and 9, but pleaded his implication.
6. Adverting to ocular testimony produced by the prosecution. The prosecution in order
to substantiate the charge has produced the evidence of eleven (11) witnesses, out of which PW-1 Malik Kamran Ahmed, is the complainant of the case, while PW -4 and PW -9 are the
injured witnesses, whereas PW- 2 Bibi Nahida and PW -3 Bibi Afsha being the dwellers of the
sad house as well as the widows of deceased Mumtaz Ahmed and Sohail Ahmed are the direct eye- witnesses of the occurrence. PW -1 in his Court statement mostly reiterated the
contents of fard -e-bayan Ex.P/1- A and confirmed the presence of appellant inside the house,
when the occurrence had taken place. PW- 1 has brought on record that after repeated ring
bells, the appellant opened the main gate of the house and he found injured his mother and
three brothers, however, on query his mother (PW -4) disclosed that the appellant by means
of pistol injured them and as per assertions of his mother, the PW -1 nominated the appellant
in the promptly lodged FIR. The prompt lodging of FIR has ruled out the element of consultation and deliberation. Even otherwise, it is not acceptable for a prudent mind that a person may falsely implicate his own brother leaving scot free to the real culprits. The witness was cross -examined at sufficient length, but PW -1 remained consistent in his view.
7. The most important and the star witnesses of the prosecution is PW -2 Bibi Nahida
and PW -3 Bibi Afsha, who are the dwellers of the said house, where the occurrence had
taken place, thus their presence at the relevant time is natural and is beyond any shadow of doubt. PW -2 Bibi Nahida is the widow of Sohail Ahmed, who brought on record that at the
relevant time her husband Sohail Ahmed was called by his mother to close the door, whereafter her husband heard firing shots from outside, thus he opened the door, where found present the appellant being armed with pistol, who made firing upon her husband, due to which he set down. PW -2 further observed fire arm injury on the chest of her husband and
bleeding, whereafter she called his brother on phone and informed him about the occurrence. PW-2 further brought on record that she came to another room, where in the bathroom of that
room her brothers in laws namely Mumtaz Ahmed and Watan Yar were lying in a pool of blood.
8. The statement of PW- 2 was fully supported and corroborated by PW -3 Bibi Afsha.
who was also the dweller of the said house, where the incident had taken place. Thus, her
presence is also natural and cannot be doubted. This witness has brought on record that on hearing firing shots, she came down from the upper floor and saw the appellant being armed with pistol. The appellant warned her to go upstairs and from upstairs she saw that appellant loading the pistol. In the meantime, she heard hue and cry of PW -2 Bibi Nahida, thus she
again came to ground floor, where PW -2 was shouting that the appellant destroyed her
house. Whereafter, she went to the room of her mother -in-law and found her husband and
brother -in-law in injured condition.
9. So far as the statements of injured witnesses i.e. PW -4 Shano Begum and PW -9
Watan Yar are concerned, suffice to observe here that both the witnesses have not supported
their earlier statements, thus were declared hostile. According to PW -4 at the relevant time,
his sons quarreled with each other and made firing upon themselves. PW -4 made her
ignorance that who was the aggressor. Though, PW -4 was declared hostile, but still her
statement is supporting the case of prosecution to the extent of dispute, quarrelling and
making firing, which confirms that the assailant was the appellant. PW -9 fully disowned his
earlier statement and stated that the same was self -recorded by the police. Be that as it may,
since in the said incident two sons of PW -4 have been murdered and the assailant is her third
son, thus after losing her two sons, the PW -4 would certainly do not want to lose her third
son and alike is the situation with the PW -9, who had lost his two brothers, hence it was the
sole reason that they have disowned their earlier versions and supported the defence version. Even otherwise, in presence of direct evidence of PW- 2 and PW -3 and circumstantial
evidence of PW- 1 supported by the medical evidence as well as the recovery of the
disclosure followed by the crime weapon on the pointation of the appellant, the matching of
collected empties with the recovered crime weapon, only not supporting the prosecution version by the PW -4 and PW -9 is not enough to brush- aside the entire prosecution evidence,
when more particularly the incident had taken within the boundary walls of the house. The
prosecution established the presence of the appellant in armed condition in the house as well
as proved the presence of natural witnesses in the house i.e. PW -2 and PW -3. Whereas, PW -
4 and PW -9 does not supported each other being resiled witnesses. PW -9 failed to reply the
question No.1 and also admitted in cross -examination that he was injured and shifted to
hospital for treatment, he also admitted that he has pardoned the appellant to his extent. All
such admissions of PW -9 support the version of prosecution.
10. It has also been observed that the unnatural violent death of deceased Mumtaz Ahmed
and Sohail Ahmed and causing bullet injuries to PW -4 and PW -9 are also not disputed by the
defence, however, both the parties had not denied the occurrence and not dispute the death of
deceased by means of fire arm, thus under the circumstances PW- 1, PW -2 and PW -3 cannot
termed to be interested witnesses, when more particularly the husbands of PW -2 and PW -3
as well as the brother of PW -1 (complainant) were murdered in a brutal manner, thus the
presumption of false implication of appellant being the member of same family is not acceptable to a prudent mind. It is beyond imagination that the PWs may falsely implicate a family member of their own family for the dual murders of the blood relations. Throughout the proceedings the appellant has not taken any justifiable explanation with regard to his false implication nor brought any ill -will or ulterior motives for his false implication by the
witnesses and specially against the PW- 2 and PW -3, 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.
11. Adverting to the application under section 345, Cr.P.C. for accepting the compromise
filed by the PW -4 Shano Begum, suffice to observe here that she was injured in the said
incident and besides her two sons namely Sohail Ahmed and Mumtaz Ahmed have lost their
lives, while her another son PW -9 Wattan Yar was injured. The Court vide order dated 16th
June 2020, sent the compromise documents to the trial Court for verification. The trial Court
recorded the statement of PW- 4 Shano Begum and forwarded the same to this Court. The
perusal of her statement as CW- 1 reflects that the injured out of her free will and consent has
forgiven the appellant for the sake of Al -Mighty Allah, however, the fact remains that though
the injured Shano Begum is the real mother and the legal heir of deceased Sohail Ahmed and
Mumtaz Ahmed, but the fact remains that both the deceased were married, having wives and children and they are also legal heirs of deceased, who have not compromised with the appellant and even the injured PW -9 Wattan Yar has also not compromised with the
appellant, thus under the circumstances the compromise is effective only to the extent of PW-4 Shano Begum, which is accordingly accepted only to her extent.
12. 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 there existed a family dispute in between the family members of the said house and also the
appellant had divorced his wife, while on the said date the quarrel had taken all of sudden
without the element of pre -mediation and further two family members of the said house have
also lost their lives, thus under these circumstances awarding of capital punishment to the appellant is unwarranted, which other increase the sorrow of grieved family.
13. For the reasons discussed hereinabove, while upholding the conviction of convict -
appellant, his sentence of death is converted into R.I. for life, while the amount of compensation and the sentence in default thereof shall remain intact. The conviction awarded
to the appellant under section 324, P.P.C. for causing injuries to PW -9 is also maintained,
while the conviction and sentence awarded under section 324, P.P.C. for causing injuries to PW-4 are set -aside on the basis of compromise. All the sentences awarded in this case as
well as in the case under section 13 -E of Arms Ordinance, 1965 shall run concurrently with
the benefit of section 382- B, Cr.P.C.
With the above reduction of sentence, the appeal is dismissed and murder reference is
answered in negative.
JK/102/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,
let us know.