Muhammad Zahir Versus State
Rozi Khan Barrech, C.J .--- The appellant Muhammad Zahir, son of Allah Dad, allegedly committed the murder of Abdul Wahid son of Abdul Qadir at a hotel situated at Killi Alam Khan Quetta, within the precincts of PS Airport Quetta, at about 6:15 pm on 17.11.2022. For the commission of the said offence, the appellant was booked in case FIR No. 338/2022, registered at the said police station on the same date at 7:50 pm. After a regular trial, the appellant was convicted under section 302(b) P.P.C vide judgment dated 01.11.2023 ('the impugned judgment') passed by learned Additional Sessions Judge-V Quetta ( trial Court ) in Sessions Case No. 25 of 2023 and sentenced to death as Ta zir and also directed to be hanged by the neck till death subject to confirmation by the High Court. The appellant was also directed to pay Rs.400,000/- to the legal heirs of deceased Abdul Wahid as compensation under Section 544-A Cr.P.C and in default thereof, he was directed to further undergo S.I for six months with the benefit of Section 382-B Cr.P.C.
2. Aggrieved from the impugned judgment, the appellant has assailed his conviction and sentence through Criminal Appeal No. 519 of 2023, whereas the trial court has sent Murder Reference No. 13 of 2023 for confirmation or otherwise of the death sentence awarded to the appellant.
Since both the above cases are arising out of one and the same judgment of the trial court, therefore the same are being disposed of through this single judgment.
3. We have heard the learned counsel for the parties and gone through the available record with their valuable assistance.
4. The allegation levelled against the appellant as narrated by the complainant Ghulam Qadir (PW-1) in his report as well as in his statement before the court is that on 17.11.2022 at 6:15 pm, the accused persons namely Muhammad Zahir (appellant), Muhammad Hanif and Muneer Ahmed being equipped with pistol made firing on his brother namely Abdul Wahid, due to which he died. The case was registered on the complaint of Abdul Qadir (PW-1) on the basis of his Fard-e-Bayah (Ex.P/1-A), wherein he has specifically nominated the appellant and attributed a specific role of firing upon his brother (deceased) Abdul Wahid, due to which one bullet hit on the head of the deceased. The alleged occurrence took place on 17.11.2022 at 6:15 pm, and the FIR was lodged on the same date at 7:50 pm promptly without any delay. The complainant narrated the whole story with regard to the occurrence and correctly stated the time, date and manner in which the occurrence had taken place. PW-1 has correctly identified the appellant before the trial court. Likewise, the other two witnesses, namely Jan Muhammad (PW-2) and Hamidullah (PW-4) are also eye-witnesses of the occurrence. They attributed the role of firing to the appellant. They gave a consistent, natural and straightforward ocular account of the occurrence. The defense subjected them to lengthy searching cross-examination, but their testimonies remained unshaken and un-shattered.
5. The above PWs remained consistent on each and every material point inasmuch as they made deposition according to the circumstances that surfaced in this case; therefore, it can safely be concluded that their testimonies are reliable, straightforward, and confidence-inspiring. The above prosecution witnesses were natural witnesses who were residents of the locality and were supposed to be present there. The presence of PW-1 is also established at the spot of the occurrence due to the fact that he lodged the FIR promptly and shifted the deceased to the civil hospital, and his name also reflects in the medical certificate (Ex.P/5-A) wherein it was clearly mentioned that the deceased was brought to the hospital by the complainant/PW-1. The presence of PW-2 and PW-3 is also established on the spot on the basis of their statements under section 161 Cr.P.C which were promptly recorded by the investigation officer.
6. So far as the contention of learned counsel for the appellant that only interested witnesses were produced by the prosecution and the prosecution s case is lacking independent corroboration is concerned, there is no denial of the fact that the above PWs were related to the deceased, but the law in this regard is well settled. A related witness cannot be termed as an interested witness under all circumstances. A related witness can also be a natural witness. If an offence is committed in the presence of family members, they became natural witnesses. In case their evidence is reliable, cogent, and clear, the prosecution s case cannot be doubted. However, a related witness become an interested witness when his evidence is tainted with malice, is indicating a desire to implicate the accused by fabricating and concocting evidence. Nevertheless the learned counsel for the appellant was unable to present any evidence in this regard. The Court is required that the evidence of an eye-witness who is a near relative of the victim should be closely scrutinized. Learned counsel for the appellant could not point out any plausible reason as to why the complainant and PWs have falsely implicated the appellant in the present case and let off the real culprit, who has committed the murder of their relative. Substitution in such like cases is a rare phenomenon.
All the above witnesses gave consistent and straightforward ocular accounts of the occurrence. Despite conducting exhaustive and lengthy cross-examination, nothing was brought on record, that would significantly demonstrate the falsity of the above witnesses account or their presence at the scene of the crime was doubtful and distrustful.
7. It may be observed that medical evidence is in complete harmony with the ocular testimony of the complainant/PW-1 and both the other eye-witnesses, i.e. PW-2 and PW-3. No conflict could be pointed out to create a dent in the prosecution s case. Dr. Aisha Faiz, Police Surgeon, Sandeman Provincial Hospital Quetta (PW-5) produced the medical certificate (Ex.P/5-A) of the deceased, according to which the deceased received one entrance wound on the right side of the skull with fresh bleeding, and the cause of death was damage of the vital organs of the skull, caused by a firearm.
8. The other corroborative piece of evidence with the ocular account is the recovery of blood stained clothes, blood-stained earth and three bullet empties of pistol, which were taken into possession from the place of occurrence by the investigation officer SI Masood Ahmed (PW-6), in the presence of the witnesses, who prepared the parcels and sent the same to the Forensic Science Laboratory and he received reports (Ex.P/6-D and Ex.P/6-E) according to which three empties present in parcel No.2 are of 30 bore pistol and that the suspect blood stained articles were stained with human blood. The said recoveries have been duly proved through recovery witnesses, and nothing adverse could be achieved despite cross-examination by the defense.
9. We have no hesitation in holding that the prosecution has successfully proved its case against the appellant Muhammad Zahir, son of Allah Dad, beyond a reasonable doubt, and the conviction recorded against the appellant is based on a correct appreciation of the evidence, which does not call for any interference.
10. Now, coming to the sentence awarded to the appellant under section 302(b) P.P.C, on assessment of evidence, we also found that the motive has not been alleged by the complainant against the appellant in the FIR and for that the complainant in his statement recorded before the court stated that the said occurrence took place at the spur of the moment due to altercation.
11. It is a well-recognized principle by now that the question of the quantum of the sentence requires utmost attention and thoughtfulness on the part of the Courts. In this regard, we respectfully refer to the case of Mir Muhammad alias Miro v. The State (2009 SCMR 1188) wherein the August Supreme Court has held as under:--
"It will not be out of place to emphasize that in criminal cases, the question of quantum of sentence requires utmost care and caution on the parts of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence."
Moreover, it is not determinable in this case as to what was the real cause of the occurrence and as to what had actually happened immediately before the occurrence, which had resulted in the death of Abdul Wahid (deceased), therefore, in our view, the death sentence awarded to the appellant is quite harsh. As such, while maintaining the conviction under section 302(b), P.P.C., the sentence of death awarded to the appellant is altered to imprisonment for life. The imposition of compensation and punishment in case of default thereof, as ordered by the trial court, shall remain intact.
12. Consequently, with the above modification in the sentence of the appellant, Muhammad Zahir, son of Allah Dad, Criminal Appeal No. 519 of 2023, is hereby dismissed. The Murder Reference No. 13 of 2023 is answered in the NEGATIVE. The death sentence awarded to the appellant is not confirmed.
JK/85/Bal. Sentence reduced.