GHULAM NABI Versus THE STATE

1. AMANULLAH KHAN YASINZAI, J.‑‑ ‑Being aggrieved from the judgment, dated 6th Match, 2662, passed by learned Additional Session Judge‑III, Quetta, Appellant has assailed the same through the instant appeal (Criminal Appeal No.39 of 2002) whereby he has been convicted under section 302(b), P.P.C. to suffer life imprisonment and to pay an amount of Rs.2,10,000 as Diyat to the legal heirs of deceased Mst. Rahima Bibi. The complainant Muhammad Waris has filed Criminal Revision No. 19 of 2002 for enhancement of sentence to death. Thus, this common judgment will dispose of both the matters.

2. In a nutshell, the prosecution case is that, on 9‑8‑2000, on receiving a wireless message that a dead body of a woman has been brought to Civil Hospital, Quetta, P.W.6 Abdul Jabbar rushed to the hospital where he recorded Fard-e‑Biyan (Exh.P.3/A) of complainant P.W.3 Muhammad Siddique, wherein it was alleged that, about five year, back accused Moula Bakhsh and others had murdered his brother Piara Khan at Jaccobabad: who was an Assistant Engineer in the B&R Department. A case was accordingly registered with the (sic) still absconders. It was further stated that he (complainant) alongwith his sister Rahima Bibi had come to Quetta and were staying in the house of his deceased brother, at Faizabad. On 9‑8‑2000 he alongwith his sister was, going to Army Monitoring Cell for submitting an application for the arrest of Moula Bakhsh and others. When they reached Darbar Haq Bahoo near Sariab Road, Quetta appellant Ghulam Nabi, armed with a pistol, started firing at deceased, who received injuries on her abdomen and fell down. Thereafter appellant ran towards Sariab Road. Mst. Rahima Bibi was brought in a private vehicle to Civil Hospital, who succumbed to the injuries on the way. It was further stated that while lodging the report, he was informed that, appellant Ghulam Nabi was apprehended by the police authorities. Accordingly Marasala was sent to the police station for registration of case and investigation was initiated by P.W.6 Abdul Jabbar.

3. The Investigating Officer took into possession the dead body of the deceased, prepared inquest report (Exh.P.6/A) and went to Sariab Road, where constables Abdul Nabi and Muhammad Riaz had apprehended appellant alongwith a pistol. He took into possession the pistol vide memo. Exh.P.4/A. then he went to the place of incident and prepared site inspection report Exh.P.6/B and site plan Exh.P.6/C. He secured four empties from the place of incident vide memo. Exh.P.5/B and took into possession Dopatta of deceased Rahima Bibi from the place of incident. The blood‑stained clothes of deceased were produced before him, which were taken into possession vide memo. Exh.P.5/C. He obtained report of Forensic Science Laboratory (Exh. P.6/D) and got prepared scale site plan Exh.P.6/E. On completion of investigation, he submitted, incomplete challan (Eich.P.6/F): P.W. Abdul Jabbar submitted complete challan after obtaining the report of F.S.L. from Karachi (Exh.P.7/A).

4. For trial, case came up on the file of Additional Sessions Judge‑III, Quetta, who framed charge under section 302, P.P.C. which was denied by the appellant. To prove its case prosecution led evidence of the following witnesses:‑‑

(1) P.W.1 Muhammad Riaz, Head Constable apprehended the appellant alongwith pistol on the day of incident. He deposed that he was performing his duty at Sariab Road, he was informed that a fight took place at Haq Bahoo Darbar near Sariab Road, Quetta and the assailant is coining towards Sariab Road, Quetta. On such information he went towards Tariq Hospital, where he saw appellant running, he was apprehended alongwith a pistol.

(2) P.W.2 Dr. Ghulam Sarwar Hashmi, examined the deceased and issued medical certificate Exh.P.2/A. He found the following injuries on the person of the deceased:‑‑ `

(i) Circular wound of fire‑arm x c.m. epigastria.

(ii) Circular wound of fire‑arm 1/4 x 1/4 c.m. hypochodram right.

(iii) Circular wound 1/4 a 1/4 c.m. right iliac fossa.

(iv) Circular wound of fire‑arm right side of umbilicus 1/4 x 1./4 c. m.

(v) Circular wound of fire‑arm 1/2 x 1/2 c.m on chest on posteriorly on right.

(vi) Circular wound of fire‑arms x c.m. on pubic area.

(vii) Circular wound of fire‑arm hip x c.m.

(3) P.W.3 Muhammad Siddique, is the complainant. He reiterated the contents of the complaint. He deposed that prior to the incident, he came to Quetta and was staying in the house of his deceased brother Piara Khan situated at Faizabad. On the day of incident, he alongwith his sister wanted to submit an application to the Army Monitoring Cell, for the arrest of the murders of his brother. When he reached at Darbar Haq Bahoo, suddenly accused appeared, who was armed with a pistol and started firing at his sister Mst. Rahima Bibi. He further deposed that, she sustained injuries on her abdomen. She was taken to hospital in a private vehicle and on the way, she succumbed to the injuries. He identified his signatures on the Fard‑e‑Biyan Exh.P.3/A. He further stated that while lodging the report in the hospital he was informed that the accused had been apprehended by the police.

(4) P.W.4 Abdul Nabi, Constable deposed that he was performing his duty at Badini Cross and Sariab Road, Quetta, He was informed by a person that, some quarrel had taken place near Tariq Hotel. Thus, he and P.W.1 Muhammad Riaz and Constable Abdul Rahim went to the place of incident and apprehended appellant and brought him to Link Badini Cross and thereafter Shalkot Police Station was informed that appellant has been apprehended with a pistol. In the meanwhile S.H.O. reached and took into possession the pistol vide memo. Exh. P.4/A. He identified his signatures on the memo. and on the sketch of pistol Exh.P.4/C.

(5) P.W.5 Amanullh, Inspector is a marginal witness, in whose presence the S.H.O. took into possession the dead body of deceased vide memo. Exh.P.5/A. He thereafter accompanied the S.H.O. to the place of incident from where four empties were recovered vide memo. Exh.P.5/B. In his presence the blood stained clothes and Dopatta of deceased were also taken into possession vide memos. Exh.P.5/C and Exh.P.5/D respectively.

(6) P.W.6 Abdul Jabbar, Inspector, conducted the investigation of case and after completion of investigation submitted, incomplete challan.

(7) P.W.7 Abdul Jabbar, Sub‑Inspector after receiving F.S.L. report from Karachi submitted complete challan.

5. Appellant was examined under section 342, Cr.P.C. wherein he denied the prosecution case. He did not opt to give statement on oath; in defence produced D.W. Nabi Bakhsh.

6. On the conclusion of trial, learned Additional Sessions Judge‑III, Quetta, vide impugned judgment dated 6th March, 2002, convicted and sentenced the appellant as stated above.

7. Syed Ayaz Zahoor, learned counsel for appellant contended, that conviction is based on the statement of solitary eye‑witness, who is an interested witness, therefore, conviction is bad in the eye of law. Since admittedly there was previous enmity between the parties, therefore, conviction could have not been based on the testimony of a sole interested eye‑witness without any independent corroboration. He pointed out that, even the investigation of the case has been carried dishonestly and it was at the instance of complainant party the police has involved the appellant falsely. He further contended that appellant being a young boy was liable to be tried under the Juvenile Justice System Ordinance, 2000.

8. Mr. M. Zafar, learned counsel for petitioner‑complainant argued that prosecution has proved its case beyond any shadow of doubt and no mitigating circumstances existed for awarding lesser punishment and normal penalty of death should have been awarded to the appellant. He pointed out that, though when appellant was examined under section 342, Cr.P.C. he placed a certificate on record wherein it was mentioned that appellant is 15 years of age. However, he stated that complainant party submitted an application challenging the said certificate and further stated that case cannot be tried under the Juvenile Justice System Ordinance, 2000 as the incident took place, prior to the promulgation of the said Ordinance.

9. Mr. Arshad Mehmood, learned counsel for the State however, opposed the appeal.

10. We have heard the learned counsel for parties and have also perused the record of case.

11. Adverting to the contention of Syed Ayaz Zahoor, learned counsel regarding conviction on the basis of solitary eye‑witness. It may be observed here that, there are a plethora of case‑law on the point that, conviction can be based on the testimony of a solitary witness, if it satisfies the conscience of the Court. Emphasis has been laid down on the quality of evidence and not quantity. We have minutely scrutinized the testimony of P.W.3 Muhammad Siddique who has given the details of the incident. The incident took place at about 9‑00 a.m. i.e. in broad daylight) and admittedly, the parties were known to each other. Witness deposed that when he and deceased reached at Darbar Haq Bahoo, suddenly accused appeared, who was armed with a pistol and started firing at his sister Mst. Rahima Bibi. He further deposed that she sustained injuries on her abdomen and fell down. She was taken to hospital in a private vehicle and on the way she succumbed to the injuries.

12. Syed Ayaz Zahoor, learned counsel attempted to argue that appellant was substituted for the real culprit we are unable to accept the contention of the learned counsel. It nay not be out of place to mention here that substitution is a very rare phenomena. There seems no reason that as to why the complainant would let go the actual culprit scot free and implicate an innocent person. The witness being an eye‑witness of the incident, thus, his presence has not been disputed at the place of incident. He has narrated the facts in a very natural manner. Nothing has been brought on record to cast doubt on his testimony. He was cross examined at length, but he stood firm in his testimony and could not be shaken; nothing favourable could be elicited from his statement, by the defence.

13. Though he is the sole eye‑witness of the incident, yet his testimony is corroborated by the surrounding circumstances. The appellant was apprehended by the police soon after the incident alongwith the pistol, at a very short distance from the place of incident. The learned counsel attempted to argue that the appellant was apprehended from his home and the pistol and empties were foisted upon him. The contention does not appeal to a prudent mind. It may be observed that P.W.1 Muhammad Riaz and P.W.4 Abdul Nabi had no enmity with the appellant to have falsely implicated him, there is even nothing to show that complainant had any relationship with them. It has been established that after firing at the deceased, appellant started running towards Sariab Road and complainant soon after the incident brought the deceased to hospital for treatment. It is quite natural for the complainant to have brought the deceased to hospital, after she received bullet injuries, and there was no occasion for the complainant to have approached the police for false implication of appellant. There is yet another circumstance, connecting the appellant with the commission of offence i.e. at the time of arrest, pistol was taken from his possession and the empties recovered from the place of incident were sent to F.S.L. for examination who opined that the four empties were fired from the pistol taken from the possession of appellant. Additionally, the medical evidence also corroborates the version of the complainant.

14. Thus, in view of the above discussion, the statement of P.W.3 Muhammad Siddique can be safely relied upon being confidence inspiring and corroborated by evidence. Thus, it can be concluded without any hesitation that the appellant has committed the murder of deceased. Thus for the foregoing reasons we are convinced that prosecution has proved its case beyond any shadows of doubt.

15. Reverting to the contention of Mr. Zafar, learned counsel that the sentence awarded to appellant is not adequate and it should be enhanced to death. Syed Ayaz Zahoor, learned counsel contended; that since appellant is a minor, therefore, he should have been tried under the Juvenile Justice System Ordinance, 2000. Suffice it to observe that, provisions of Ordinance XXII of 2000 are not applicable in the instant case, as the incident took place prior to the promulgation of said Ordinance. In this regard reference may be made to case‑law Ejaz Hussain v. The State 2002 SCMR 1455.

16. As regard the contention of Syed Ayaz Zahoor, learned counsel that since appellant was under 18 years of age, therefore, it is a mitigating circumstance for lesser punishment, we are not persuaded to agree with the said contention. It may be observed that mere fact that accused was less than 18 years of age, would not be sufficient to withhold the normal penalty of death under section 302, P.P.C. unless it was specifically established that, there existed some extenuating circumstances for awarding lesser punishment.

17. Coming to the quantum of sentence, it may be observed that the trial Court, has not given any reasons for awarding lesser penalty to appellant. It is a settled principle of law that if there are no mitigating circumstances, then the penalty of death should not be withheld. Mr. M. Zafar learned counsel for the complainant argued with vehemence that the incident was pre‑mediated and the convict‑appellant came to the place of incident with intention to kill the deceased, he fired 4 to 5 shots at the deceased, thus, normal penalty of death should be awarded.

18. It may be pointed that it is the duty of Courts to take into consideration the deteriorating law and order situation and increase in the crime rate which has to be curbed with deterrence. It may not be out of place to refer case‑law Muhammad Sharif v. Muhammad Javed PLD 1976 SC 452, wherein Mr. Justice Muhammad Afzal Cheema as he then was observed as follows:‑‑

19. "It has come to the notice of this Court that in an increasing number of convictions on charge of murder there is a kind of inhibition or hesitancy on the part of the trial Courts in awarding the normal penalty of death. I cannot also avoid an impression that there is often a marked tendency in the High Courts to find a laboured pretext to alter the sentence of death to life imprisonment. No doubt having regard to the sanctity of human life and liberty, the law has taken all conceivable precautions to safeguard it. The Law of Evidence and in particular the Rules of admissibility excluding confessions made before a person in authority, the Rule of placing the onus on the prosecution, conceding to the accused the liberty of a privileged liar, the Court's responsibility to spell out reasonable existence of an unpleaded defence, if warranted by the facts and circumstances of the case and above all the golden rule of giving the benefit of doubt to the accused are measures aimed at the protection of human life against false implication and undeserved punishment. The matter does not end with the finality of judicial proceedings as the Executive has also been invested with the power to meet the failures of legal justice and undo the mischief found to have been done by it. An equally important aspect of this sanctity of human life often lost sight of is that once conviction is finally upheld the deliberate extinction of life is visited with the normal penalty of death which is not confined to the actual killer but is also extended to the other co‑accused sharing the community of intention as the case may be and found to be constructively liable. The principal object behind this obviously is to avoid repetition of violent loss of life by award of deterrent punishment. The exaggerated and distorted F.I.Rs., the reluctance of eye‑witnesses to come forward, the dishonest investigation, the false witnesses and their frequent subordination and above all the lingering trial and appeals all combine to help out the murders of whom only a small fraction is brought to book. Viewed in this background, the marked propensity of the Courts to avoid death penalty at the trial or allow unjustified commutation in appeal follower by frequent remissions of sentences both earned and conferred is bound to take away the stating of deterrence, thus, indirectly contributing to the incidence of heinous crime of which the Courts cannot fully escape the share of responsibility: Once the conviction is recorded under section 302, P.P.C. in a case of premeditated and concerted attack launched with the intention of killing the invocation of section 34 or 149, P.P.C. does not make the slightest difference amongst the various convicts from whom ordinarily the normal penalty of death shall be exacted and no discrimination could justifiably be made on that score in the matter of sentence."

20. Taking into consideration the circumstances of the case in hand possibility cannot be ruled out that appellant committed the offence at the instance of his elders, as record reveals that previous enmity existed between the parties. The appellant came to the place of incident armed with a pistol and fired four shots and kept on firing at the deceased till he was sure that there was no possibility of her survival. The deceased being a lady was done to death in cold‑blood, it was pre‑meditated and he has all intention to kill the deceased, thus, looking at his conduct he deserves no leniency. The case of the appellant falls under section 302(b), P.P.C, as Tazir, no mitigating circumstances exist for awarding lesser punishment. Thus, normal penalty of death is to be awarded. In this regard, we are fortified with the case‑law of Gulzar Ahmed v. The State PLD 2002 SC 42. In view of the above discussion, sentence of life imprisonment awarded to appellant by trial Court, is enhanced to death. He be hanged by the neck till he is dead.

21. Consequently, criminal revision filed by complainant Muhammad Waris is accepted and appeal filed by appellant is dismissed.

22. N.H.Q./189/Q Sentence enhanced.