MURAD ALI Versus State

RAJA FAYYAZ AHMED, J.--- This criminal petition for leave to appeal has been directed against the judgment, dated 5-6-2006 passed by the learned Division Bench of High Court of Balochistan, Quetta, whereby Criminal Jail Appeal No.1 of 2004 filed by the petitioner against his conviction under section 302(b), P.P.C. sentenced to imprisonment for life vide judgment, dated 21-11-2003 of learned Sessions Judge, Lesbella at Hub, has been dismissed.

2. The precise relevant facts of the case are that at the instance of P.W.1 Mst. Sher Bano, F.I.R. No.68 was registered with Police Station Bela at Hub on 21-12-2002 under section 302/34, P.P.C. It was alleged in the report sent through Murasila to the police station by P.W. Abdul Jaleel that when the complainant at about 6-00 p.m. was present in her house, she was informed by P.W. Allah Bukhsh son of Karim Dad that her brother Sabago was lying in the Parali Naddi (stream). On this information, the complainant reached to the said Naddi, where also the other people had gathered. The complainant found that her deceased brother had sustained injuries on his head, forehead and chest caused by fire-arm. She suspected that Ahmed son of Hashim and his son Murad Ali have murdered his brother Sabago.

The motive behind the occurrence was disclosed to be old enmity.

3. After registration of the case, Abdul Jaleel, S.-I. Police Station Bela (P.W.13) reached to the place of occurrence, prepared site map and inquest report, as well as; secured blood-stained earth and arrested one of the nominated accused namely, Ahmed. His co-accused Murad Ali son of Ahmed on 23-12-2002 surrendered at Police Station Bela, who produced an unlicensed .30 bore T.T. Pistol by disclosing that he had committed the murder of the deceased. The pistol so produced along with the magazine and two live cartridges were taken into possession. Also against the petitioner case under section 13(e) of the Arms Ordinance, 1965 was separately registered as he failed to produce arms licence. He was arrested by P.W.13 in connection with the murder case and under section 13 of the Arm Ordinance. During course of investigation of the case, the said accused offered to record confessional statement. Accordingly, he was produced before the learned Judicial Magistrate Bella on 28-12-2002 who recorded his confessional statement Exh.P.8/A thereafter was sent to judicial lock-up. During inspection of the place of Wardat, crime-empty of T.T. pistol was taken into possession vide memo. Exh.P.2/B and sealed into the parcel. The dead body of deceased Sabago was taken into possession and sent to M.O. R.H.C. Bella for post-mortem examination. He also took into possession the blood-stained clothes of the deceased through memo. Exh.P.5/A and sealed into the parcel. The blood-stained earth, crime-empty of T.T. pistol secured from the place of occurrence and the pistol taken into possession along with live rounds produced by the petitioner were sent to the Chemical Expert and the Fire-arm Expert. As per report Exh.P.13/F the clothes of the deceased and the earth were stained with human blood. The positive report Exh.P.13/K of the Fire-arm Expert was to the effect that the crime-empty on examination was found to have been fired from the said pistol. He also obtained MLR of the deceased Exh.P.9/A issued by Dr. Khalid Baloch M.O. RHC Bella. Co-accused of the petitioner namely Ahmed (father of the convict) was discharged under section 169, Cr.P.C. for want of his involvement in the case. After completion of the investigation, report under section 173, Cr.P.C. was submitted in the Court of learned Sessions Judge, Lasbella at Hub.

4. The accused was indicted in view of the accusation and the incriminating material produced with the report by the learned trial Court to which he did not plead guilty. The prosecution in order to substantiate the accusation produced 13 witnesses namely Mst. Sher Bano complainant (P.W.1), Abdul Rehman (P.W.2), Abdul Qayyum (P.W.3), Abdul Hakeem (P.W.4), Muhammad Hassan (P.W.5) Habibullah (P.W.6), Nisar Ahmed (P.W.7), Muhammad Anwar (P.W.8), Dr. Khalid Baloch (P.W.9), Muhammad Rafiq (P.W.10), Mst. Safia wife of the deceased (declared hostile) (P.W.11), Abdul Raul' Patwari (P.W.12) and Abdul Jalil, S.-I./Investigating Officer (P.W.13).

After close of prosecution evidence, the petitioner/convict was examined by the learned trial Court under section 342, Cr.P.C. in view of the incriminating evidence brought on record at the trial which he denied and disputed. He recorded his statement on oath in disproof of the charge under section 340(2), Cr.P.C. wherein he took the plea of alibi and claimed his innocence. He produced five witnesses in defence namely Muhammad Khan (D.W.1), Somar (D.W.2), Muhammad Hassan (D.W.3), Ismail (D.W.4) and Imam Bukhsh (D.W.5) respectively marked as D.W.1, 2 and 3.

5. After close of the parties evidence, the learned trial Court vide judgment above mentioned found the petitioner guilty under section 302(b), P.P.C. and sentenced to imprisonment for life, as well as; directed to pay compensation of Rs.1,00,000 to the legal heirs of the deceased Sabago, excluding Mst. Safia widow of the deceased as she had compromised with the convict, or in default of payment of amount of the compensation to further undergo S.I. for six months. Benefit of section 382-B, Cr.P.C. was extended in his favour by the learned trial Court.

6. The learned Advocate-on-Record for the petitioner has been heard at some length. The learned counsel mainly contended that the confession of the petitioner in the given circumstances of the case appeared to be not voluntary as the motive pertaining to the old enmity stood already compromised/settled between the parties which finds support from the evidence of P.W. Mst. Safia widow of deceased nor it seemed to be reasonable and convincing that the deceased himself on his own, as a voluntary act had surrendered in the police station along with weapon of alleged offence i.e. .30 bore T.T. Pistol etc. He further submitted that the crime-empty and the pistol was sent to the Forensic Science Laboratory on 30-1-2003 after a considerable delay, therefore, the possibility of manipulation could not be excluded, which therefore; rendered the Fire-arm Expert report as not worthy of any credence. The learned counsel argued that had the petitioner surrendered to the police and produced the pistol on 23-12-2002 there seemed to be no reason on his part to have not volunteered to make confession of the guilt on the same day or on the following but his confession was recorded by the learned Judicial Magistrate on 28-12-2002, hence; the delay in the given circumstances of the case rendered the confession as not voluntary and true, which was also retracted. According to the learned counsel, the prosecution evidence suffers from inherent material lapses and doubts, and not appraised in its true perspective by both the learned Courts.

7. The contentions noted above put forth on behalf of the petitioner have been considered in the light of the record of the case gone through carefully and minutely with the assistance of the learned counsel including the impugned judgment. The prosecution case comprises of motive, medical evidence, recoveries, confession, expert reports. The confession made by the petitioner before Muhammad Anwar Judicial Magistrate (P.W.8) has been believed by both the learned Courts as voluntary and true. The learned Judicial Magistrate was subjected to cross-examination by the defence as to the voluntary character of the same besides other aspects relating thereto. Both the learned Courts have concurrently held that the same was voluntary, on the part of the accused, hence; merely because the same has retracted, his confession could not be discarded. The accused in his confession stated that the deceased had murdered his grandfather. On the day of incident at about 3-00/4-00 p.m., in the evening, he saw deceased Sabago in Bazar and came to the stream at the path which leads to his house and when Sabago entered in the stream he made fire at him from back and when he came opposite to him, repeated fires were made at the deceased on which the deceased fell down and two more shots were fired by him. Thereafter, he went to jungle and after one or two days he came to the police station. The old enmity set up as a motive in the complaint made by Mst. Sher Bano was not described but in the confessional statement, the petitioner has explained about .the same by making clean breast of the offence committed by him.

No lard and fast line as to the conduct of a person at a given time, situation and thereafter depending upon various factors, mental capacity and capability could be drawn, foreseen or meticulously calculated, which differs and varies from time to time, person to person and remain fluctuating or consistent and firm, therefore, one cannot conclude definitely or assess a man's behaviour before hand nor any definite opinion with regard thereto could be formed. So it could not be safely assumed that since the accused had surrendered in the police station and had produced pistol along with live rounds admitting to have murdered the deceased would not essentially motivate the accused to have had volunteered to make confession of his guilt before the Judicial Magistrate on the same day or on the following day and; as per evidence a couple of days thereafter during the course of investigation of the case he voluntarily had offered to make confession before the Magistrate, hence; the contention so raised on the point by the learned counsel appears to be devoid of substance in view of the evidence that the accused when offered to make confession of his guilt was produced before the Judicial Magistrate. The learned Judicial Magistrate after his due and necessary satisfaction recorded his confessional statement.

8. No manipulation tampering or any kind of fabrication with respect to the sealed parcel of crime-empty of T.T. pistol secured from the place of occurrence, sealed parcel of the pistol along with live rounds could be shown or suggested to the concerned P.Ws., therefore, mere delay in dispatching the articles to the Expert was inconsequential and thus in our considered opinion the positive Fire-arm Expert report was correctly believed by both the learned Courts to which no exception could be taken.

9. As regards the motive part of the prosecution story with regard to the old enmity also stands proved through the confession of the accused, which has been found not only to be voluntary but true as well in the given circumstances of the case by both the learned Courts, though retracted; stands corroborated from the circumstantial piece of evidence i.e. production of pistol in the police station to the Police Officer, recovery of the crime-empty, positive report of the Fire-arm Expert, medical evidence blood-stained earth and the last-worn clothes of the deceased which as per Expert reports were found stained with human blood.

According to P.W. Mst. Safia Bibi widow of the deceased (declared hostile, understandably having compromised the offence) deposed that as per mutual understanding she was sent to the house of her son while her deceased husband left for Makran. She having not supported to the prosecution story was not fatal to the prosecution case and the voluntary answer given by the said witness in her cross-examination that dispute relating to the murder of Muhammad Hashim committed by the deceased had ended; would not per se be sufficient to discard the motive part of the prosecution story particularly in view of the confession made by the accused before the learned Magistrate believed as voluntary and true by both the learned Courts.

10. The defence evidence and the prosecution evidence has been appraised in juxtaposition by both the learned Courts, which found the petitioner guilty of the charge to which no exception could be taken. No material part of the evidence appears to have been misread, misconstrued or omitted from consideration nor the impugned judgment could be shown to have suffered from any legal or factual infirmity.

11. Consequently, for the foregoing reasons, this petition being without any substance is dismissed. Leave refused.

M.H./M-154/SC ????????????????????????????????????????????????????????????????????????????????? Petition dismissed.