Razi alias Riaz Versus State
Muhammad Saleem Jessar, J .--- By means of instant Cr. Appeal, the appellant Razi alias Riaz has challenged his conviction and sentences awarded vide impugned judgment dated 10.02.2022 passed by learned Ist Additional Sessions Judge/MCTC, Kandhkot in Sessions Case No. 511 of 2020 arising out of FIR No.78/2020 under Sections 302, 311,148,149 P.P.C , registered at P.S B. Section Kandhkot, whereby he convicted the accused / appellant and sentenced him for committing an offence punishable under section 302 (b) P.P.C and awarded him death penalty subject to confirmation by this Court. The appellant/accused was also sentenced to pay fine of Rs.500,000/- (Rupees five lac only) as compensation for disbursement amongst the LRs of deceased as provided under section 544-A Cr.P.C and in case of default thereof, to suffer R.I. for 06 months more. The accused / appellant was ordered to be hanged by neck till he is dead. However, he was extended benefit of Section 382 (b) Cr.P.C.
2. The trial Court has also sent Confirmation Case / Reference No. D-01 of 2022 for confirmation of death sentence or otherwise.
3. Brief facts of prosecution case, as unfolded in FIR got registered on 01.07.2020, at 1200 hours by complainant Babal Khan, are; that there were friendly terms between complainant party and Muhammad Nawaz Jaffery and others and they used to visit each other. Complainant alleged that on 30.06.2020, he along with his brother Abdul Hameed aged about 28/29 years, cousins Arbab and Gul Hassan went to the house of Muhammad Nawaz where Muhammad Nawaz, Razi alias Riaz and other villagers met with complainant party and after taking dinner they went to sleep. It was further alleged that at about 03:00 am accused namely, Muhammad Nawaz, Razi alias Riyaz Ali, Allah Dino, Akbar, all by caste Jafferi residents of village Nawab Khan Jafferi, taluka Kandhkot and one unknown culprit, all armed with guns, appeared there and shouted at complainant party that Abdul Hameed is KARO , and they have got chance to kill him, hence, he will not be spared today. In the meantime, Abdul Hameed tried to run in order to save himself; however, accused Muhammad Nawaz opened direct fire with his gun at Abdul Hameed which hit him at his chest, accused Razi alias Riyaz also opened direct fire with his gun at Abdul Hameed which also hit him at his chest, whereupon Abdul Hameed fell down while raising cries. It was further alleged that complainant party beseeched before accused on Holy Quran and then all the accused ran away along with their weapons. Thereafter, complainant party noticed that blood was oozing from the injuries of Abdul Hameed and he had succumbed to his injuries. Thereafter, complainant leaving the PWs over dead body, went to PS B-Section, Kandhkot and informed the police. Later, the complainant shifted the dead body and got conducted postmortem examination through police. After postmortem they received dead body of the deceased and after completion of funeral formalities, he (complainant) went to PS and got registered instant FIR in above terms.
4. After completing investigation, the accused were charge sheeted in the Court of concerned Judicial Magistrate who, after completing legal formalities, sent up the R and Ps of the case to the Court of Sessions Judge, Kashmore @ Kandhkot and subsequently the case was transferred to the trial Court for its disposal according to law.
5. A formal Charge was framed against the accused vide Ex.8 to which they pleaded not guilty and claimed trial. Such pleas were recorded vide Ex.8/A and Ex:8/B respectively.
6. The prosecution in order to prove its case, examined in all 10 witnesses vide Ex.9 to Ex.18 respectively, who exhibited various documents. Thereafter, learned ADPP appearing for the State, closed prosecution s side vide Ex.19. The statements of accused were recorded under Section 342 Cr.P.C vide Ex.20 and 21 respectively, in which they claimed themselves to be innocent and pleaded their false implication in the case; however, neither they got examined themselves on oath, nor opted to produce any witness in their defense.
7. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing counsel for the parties, trial Court vide impugned judgment convicted the accused / appellant, as stated above. The appellant has challenged his conviction and sentence by preferring instant criminal appeal.
8. We have heard arguments advanced by learned counsel for the appellant, learned counsel for the complainant as well as learned Additional P.G. appearing for the State and perused the material available on the record.
9. Learned counsel for the appellant submitted that the appellant is innocent and has been involved due to enmity. He further submitted that there are major contradictions in the evidence of prosecution witnesses. According to him, the witnesses are related to the complainant and deceased, thus are interested witnesses, therefore their testimony cannot be relied upon without corroboration of the evidence of independent witnesses. According to him, although accused Ali alias Ali Muhammad has been acquitted but on the basis of same set of evidence, present appellant has been convicted. He further submitted that there is delay of about 9 hours in lodging the FIR. He argued that although on 01.7.2020 the complainant had gone to police station and informed the police that his brother Abdul Hameed has been murdered but neither he got registered the FIR, nor disclosed names of the accused. He further submitted that there is inconsistency between the ocular testimony and the medical evidence. He contended that eye-witness Arbab was not examined before the trial Court, thus there is a presumption as stipulated under Article 129(g) of Qanun-e-Shahadat Order, 1984 that had said witness been examined, he would not have supported the prosecution case. He further argued that two empties were secured from the spot and as per FSL report, one empty matched with the firearm weapon recovered from the possession of accused Ali Mohammad, therefore, it is not ascertainable and confirmed as to whether the remaining one empty was fired from the gun of present appellant or from the gun of absconding accused Muhammad Nawaz which makes the prosecution case doubtful. Lastly, he prayed that by allowing instant appeal, appellant may be acquitted. In support of his contentions, he relied upon the judgments reported in 2006 SCMR 1846 (Lal Khan v. The State), 2012 SCMR 1195 (Ghulam Abbas v. The State), 2008 SCMR 1221 (Ghulam Qadir and 2 others v. The State), 2017 SCMR 986 (Muhammad Qasim and another v. The State), 2009 SCMR 436 (Muhammad Afzal alias Abdullah and others v. The State and others), 2004 MLD 298 (The State through Advocate-General, N.W.F.P Peshawar v. Mohi-Ud-Din), 2007 MLD 1543 (Muhammad Hayat v. The State), 2016 MLD 757 (Muhammad Noor v. Riaz Shah and another) and 2005 MLD 1267 (Nooruddin and another v. The State).
10. Learned Addl. P.G. opposed the appeal on the ground that the appellant has been nominated in the FIR with specific role of causing gunshot injury to the deceased. The eye-witnesses have also deposed to such effect. Besides, medical evidence is also in consonance with the ocular version. According to him, there was no ambiguity of mistaken identity as the parties have admitted their friendly relationship with each other.
11. Mr. Safdar Ali G. Bhutto, learned counsel for the complainant also opposed the appeal and submitted that the PWs have supported the prosecution version. Besides, there is no inconsistency between the medical evidence and ocular testimony. According to him, there is no illegality which may warrant interference by this Court. He, therefore, submitted that appeal merits no consideration, which may be dismissed. In support of his contentions, he placed reliance upon the judgments reported in 2023 SCMR 478 (Nasir Ahmed v. The State) and 2023 SCMR 795 (Imran Mehmood v. The State and another).
12. In the instant case, ocular testimony is consisting of Complainant Babul and P.W. Gul Hassan.
13. Complainant deposed that there were friendly and visiting terms between them and accused Muhammad Nawaz Jafferi and others. On 30.06.2020, he along with Abdul Hameed, Gul Hassan and Arbab went to visit Muhammad Nawaz. After chitchat and dinner they went to sleep in the otaque (outhouse) of Muhammad Nawaz. At about 03:00 am accused Muhammad Nawaz, Riazi alias Riaz, Ali alias Ali Muhammad, Allah Dino, Akbar and Dalel came there and got complainant party woke-up and by declaring Abdul Hameed as KARO accused Muhammad Nawaz Jafferi and Riazi alias Riaz opened direct fire from their respective weapons at Abdul Hameed which hit him on his chest and then accused fled away along with their weapons. Abdul Hameed died instantaneously. The complainant went to Police Station and then police took dead body to Hospital for postmortem. After completing legal formalities by police and after conduct of autopsy, the dead body was handed over to him and after completion of funeral formalities, the complainant got registered FIR on 01.07.2020 at 12:00 pm. He further deposed that on 15.07.2020, his further statement was recorded by police wherein he disclosed the name of unknown accused as Dalel Jafferi.
14. The evidence of PW-2 Gul Hassan, who also claims to have witnessed the incident is on the same line as that of complainant Babul.
15. From perusal of ocular testimony of aforesaid two alleged eye-witnesses, it is evident that their evidence is consistent with each other. They are consistent and unanimous on all material aspects of the incident i.e. place of incident, date and time of incident, number and locations of injuries allegedly sustained by the deceased, names of accused persons, specific role having been assigned to each accused, about the events took place after the commission of alleged offence and so also regarding motive i.e. declaring the deceased as KARO . There seems to be no loopholes and flexibility in their evidence. Even otherwise, it does not appeal to the prudent mind that as to why aforesaid two eye-witnesses, who has blood relation with the deceased, would spare the real culprits and instead shall involve innocent persons, as alleged on behalf of the accused. This seems to be quite illogical and unnatural.
16. The ocular evidence is further corroborated by the medical evidence. The medical evidence and ocular testimony are consistent with each other almost on all relevant aspects i.e. date and time of reaching the hospital by complainant party along with dead body of deceased for the purpose of postmortem, time of starting and finishing the postmortem examination, the time of handing over the dead body after postmortem to the complainant party. As per ocular evidence, in all two shots were at the chest of the deceased i.e. one by present appellant and other by absconding accused Nawaz Jafferi; however, the medical evidence disclosed that there were 6 lacerated wounds sustained by the deceased but in his cross-examination, the Medical Officer has explained this fact by deposing that injuries to the deceased were caused with pellets. In this view of matter, there is no ambiguity regarding there being more than two injuries because besides the injuries as a result of two bullets, the deceased also sustained injuries by pellets. Even the complainant himself in his evidence deposed, We found 06 through and through holes on the chest of Abdul Hameed and blood was oozing and he was expired. Likewise, another eye-witness Gul Hassan in his evidence deposed, We found 02 fire shots and 06 holes through and through on the chest of Abdul Hameed and blood was oozing and he was expired.
17. Even otherwise, if there is unimpeachable, trustworthy and confidence inspiring ocular version in the case then the same shall prevail upon the medical evidence notwithstanding there being any inconsistency between ocular testimony and medical evidence. In this connection, reference may be made to the case of Muhammad Riaz v. Muhammad Zaman and another, reported in PLD 2005 SC 484 , where a Full Bench of Honourable Supreme Court held:
The statement of doctor to the effect that the injuries were the result of single shot, being only an opinion which may or may not be correct and would not be sufficient to discard the direct evidence and suggest the non-presence of eye-witnesses at the spot. The conflict of medical evidence with ocular account in respect of number and nature of injuries, may be relevant, to ascertain the role of an individual accused in the occurrence but this is not a valid ground to disbelieve the eye-witnesses and exclude their evidence from consideration. We may observe that even if it would be assumed that injuries were result of single shot, still in the facts of the present case, it would be difficult to suggest that witnesses were not truthful or the respondents were not responsible for the crime. The eye-witnesses have consistently stated that both the respondents fired at the deceased and according to the medical evidence, the deceased sustained four fire-arm injuries of different sizes on his right thigh, right leg and knee in addition to the incise wounds and abrasions sustained by him on his eyes and face and the ocular account to the extent of sustaining the fire arm and incised wounds by the deceased at the hand of assailants was fully supported by the medical evidence, therefore, the observation of doctor that it was a case of single shot, would not by itself be a valid reason to discard the direct evidence of natural witnesses. Be that as it may, the confusion whether the injuries were the result of two shots or a single shot, would not ipso facto suggest that eye-witnesses have not seen the occurrence or they suppressed by truth.
18. The ocular version is also corroborated by circumstantial evidence. The bloodstained qameez and lungi of deceased Abdul Hameed, so also bloodstained earth secured during course of investigation, were sent to Chemical Examiner whose report reveals that human blood was identified on all these secured materials. The Investigating Officer had also secured 02 empty cartridges from the place of incident which were sent to the FSL and such report has been produced by the prosecution before the trial Court during course of evidence. These reports also corroborate the ocular version of two eye-witnesses. Besides, the evidence of I.Os, mashirs, corpus-bearer etc. also corroborates the ocular account given by the eye-witnesses.
19. So far as plea raised on behalf of the appellant regarding non-recovery of crime weapon from him, suffice it to observe that now it is well settled that recovery is only corroborative piece of evidence and in case there is strong and unimpeachable ocular version in the case, then non-recovery of crime weapon shall not be adverse or injurious to the prosecution case. In this connection, reference can be made to the case of Muhammad Nadeem alias Deemi v. The State, reported in 2011 SCMR 872 , where learned Apex Court has held as under:
Even otherwise the recovery of crime weapon in a criminal case is not at all material. It can only be a piece of supporting evidence, if other evidence goes to prove the case independently, the recovery is not essential at all .
20. The ocular version is also corroborated by the motive. It has been deposed by two eye-witnesses in clear terms that the accused had declared deceased Abdul Hameed as KARO and said that for this reason they shall not spare him and shall commit his murder. Even, if no motive has been disclosed or the motive disclosed has not been proved, it shall not adversely affect the strong and unimpeachable ocular testimony. At the most, it could only affect the awarding of capital punishment. For this view, we are fortified by the judgment pronounced by Honourable Supreme Court in the case of Muhammad Ismail v. The State , reported in 2017 SCMR 713 , wherein it was held that once prosecution sets up a particular motive but fails to prove the same, then ordinarily capital sentence of death is not awarded.
21. As regards the plea raised on behalf of the accused that the prosecution witnesses are related to the complainant and the deceased as such their testimony cannot be relied upon without corroboration of evidence of independent witnesses, it may be observed that in instant case the evidence of eye-witnesses seems to be trustworthy, confidence inspiring and of unimpeachable character, therefore, mere their relationship with the complainant and / or deceased, without any malice having been established on their part, is not a valid ground to discredit their evidence who otherwise appear to be truthful and natural witnesses.
22. In this connection, reference may be made to the case reported as Zulfiqar Ahmed and another v. State (2011 SCMR 492), wherein it was held as under:
".......It is well settled by now that merely on the ground of interse relationship the statement of a witness cannot be brushed aside. The concept of 'interested witness' was discussed elaborately in case titles Iqbal alias Bala v. The State (1994 SCMR 1) and it was held that friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused."
23. In the case of Zakir Khan and others v. State, reported in 1995 SCMR 1793 , Honourable Supreme Court held as under:
However, mere relationship of a prosecution witness to the complainant or other prosecution witness cannot render his evidence unreliable unless it is established that he had motive to implicate the accused falsely in the case.
24. In another case reported as Farooq Khan v. The State (2008 SCMR 917) it was held as under:
11. P.W.8 complainant is real brother of the deceased who is a natural witness but not an interested witness. An interested witness is one, who has motive, falsely implicates an accused or has previous enmity with the person involved. There is a rule that the statement of an interested witness can be taken into consideration for corroboration and mere relationship with the deceased is not "sufficient" to discredit the witness particularly when there is no motive to falsely involve the accused. The principles for accepting the testimony of interested witness are set out in Nazir v. The State PLD 1962 SC 269 and Shehruddin v. Allhaj Rakhio 1989 SCMR 1461.
25. In the case of Talib Hussain v. The State reported in 2009 SCMR 825 , Apex Court held as under:
Close relationship of a prosecution witness with the deceased family does not disqualify him to testify in court and testimony of such witness could not be discarded on the mere ground of relationship unless it is not confidence inspiring .
26. Reference may also be made to the judgments pronounced in the cases reported as Shamsher Ahmed v. State (2022 SCMR 1931), Azhar Hussain v. State (2022 SCMR 1907), Sajid Mahmood v. State (2022 SCMR 1882), Gul Zarin v. Kamaluddin (2022 SCMR 1085) and Mohammad Sadiq v. State (2022 SCMR 690).
27. So far as the stand taken by the accused/appellant that he has been involved due to enmity with the complainant party is concerned, suffice it to say that it is a well settled principle of law that the enmity is double-edged weapon which cuts roots of both sides. In this connection reference may be made to the case of Muhammad Ashraf alias Acchu v. The State , reported in 2019 SCMR 652 , where a Full Bench of Honourable Supreme Court held:
7. The motive is always a double-edged weapon. The complainant Sultan Ahmad (PW9) has admitted murder enmity between the parties and has also given details of the same in his statement recorded before the trial court. No doubt, previous enmity can be a reason for the appellant to commit the alleged crime, but it can equally be a reason for the complainant side to falsely implicate the appellant in this case for previous grouse.
28. As regards certain minor contradictions in the evidence of prosecution witnesses as well as certain discrepancies / defects committed by the investigating agency / police, it may be observed that in a case of unimpeachable and strong ocular version, such contradictions and discrepancies are to be ignored.
29. In the case reported as Mohammad Abideen v. State (2021 PCr.LJ 78) [Gilgit Biltistan] it was held that any irregularity or illegality committed during the investigation does not vitiate trial.
30. In the case reported as Jaffer Ali v. State (1998 SCMR 2669), Honourable Supreme Court, while dealing with this point, held as under:
I may further observe that in criminal cases though the Courts are supposed to follow the well-settled principles of Criminal Jurisprudence, namely, that an accused person is presumed to be innocent, that the, prosecution is to prove a criminal case against an accused person beyond reasonable doubt and in case two views are possible, the view which favours the accused person, should be preferred; and that all benefits of doubts should be extended to the accused, but at the same time, the Courts should also take notice of the changing circumstances of the present days. Even in cases where eye-witnesses are available, they refuse to appear as witnesses in support of the prosecution case; either because of fear or on account of being won over by the accused party. The Court's approach, while appraising the evidence, should be dynamic and not static. It should keep in view all the facts and circumstances of the case and if it is satisfied that factually the person charged with the offence has committed the same, it should record the conviction though there might have been some technical lapses on the part of the Investigating Agency /prosecution, provided the same have not prejudiced the accused in the fair trial. The people are losing faith in the criminal judicial system for the reason that in most of the criminal cases the criminals get away without being punished on technicalities.
31. The upshot of above discussion is; that the prosecution has succeeded in proving its case against appellant Razi alias Riaz. However, from the scrutiny of the material available on record including the evidence of prosecution witnesses, it seems that there are certain mitigating circumstances which warrant reduction of sentence from death penalty to life impressment. Such mitigating circumstances could be summarized in the following manner:- i. Accused Ali Muhammad who was allegedly present at the place of incident at the time of occurrence being armed with a gun has been acquitted whereas on the basis of same set of evidence present appellant has been convicted. ii. The third alleged eye-witness namely, Arbab was not examined before the trial court although he, allegedly being an eye-witness of incident, was an essential and important witness. iii. There are certain minor contradictions in the evidence of prosecution witnesses. iv. There are certain discrepancies/ defects in the investigation of the case, including the fact that after the arrest of acquitted accused Ali Mohammad, a gun was recovered from him and one empty out of two empties secured from the spot, according to FSL report, also matched with the said gun although the alleged eye-witness did not claim that the said accused had fired at the deceased Abdul Hameed from his gun. v. No crime weapon was recovered from the possession or on the pointation of present appellant.
32. It may be observed that, of course, had there been a case of weak, impeachable and untrustworthy ocular testimony, such contradictions, discrepancies and lacunas could surely have weakened the prosecution case and the accused would have been entitled to be extended benefit thereof; however, in view of unimpeachable, strong, trustworthy and confidence inspiring ocular testimony of two eye-witnesses corroborated by medical and circumstantial evidence, such contradictions, discrepancies and lacunas are to be ignored. Even otherwise, any irregularity or illegality committed during the investigation in a case having unimpeachable and trustworthy evidence due to inefficiency of the police/Investigating Agency would not affect the trial. However, at the same time, we are also of the firm view that on account of aforesaid factors, in instant case death sentence is not warranted, rather the sentence of life imprisonment shall meet the ends of justice, therefore we are inclined to reduce the sentence of death penalty to that of life imprisonment. For this view we are fortified by certain judgments delivered by Superior Courts.
33. In the case of Sarwar and another v. The State and others , reported in 2020 SCMR 1250 , a Full Bench of Honourable Supreme Court held as under:
8. Now we take up Criminal Petition No.1143-L of 2015, filed by the complainant. We have observed that there are certain circumstances in this case which persuaded the learned Lahore High Court for altering the sentence of death of Sarwar respondent No.1 to imprisonment for life inasmuch as recovery of .12 bore double barrel gun was not believed by both the learned courts below; motive behind the occurrence could not be proved and single fire shot on the person of deceased is attributed to the petitioner. In these circumstances, the alteration of the sentence of death to imprisonment for life by the learned appellate court is fully justified.
34. In the case of Sajjan v. The State, reported in 2023 YLR 461 [Sindh (Hyderabad Bench)], a Division Bench of this Court held as under:
16. We have no hesitation to hold that the two sentences under section 302(b), P.P.C. are alternative to one another, however, awarding one or the other sentence shall essentially depend upon the facts and circumstances of each case. There may be multiple factors to award the death sentence for the offence of murder and equal number of factors would be there not to award the same but instead a life imprisonment. Therefore, looking to the circumstances of this case, as discussed above, extra degree of care and caution is observed by us while determining the quantum of sentence.
17. For the above stated reasons/ mitigating circumstances maintaining the death sentence would be unwarranted in the peculiar circumstances of this case and life imprisonment would be the appropriate imprisonment.
35. In the case of Muhammad Usman v. The State, reported in 2025 YLR 857[Balochistan], decided by a learned Division Bench of Balochistan High Court it was held:
15. 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 proved by the prosecution against the appellants; we have observed that the motive set up by the prosecution was quite vague as such the motive for the occurrence was not established from the record. The question of what happened immediately prior to the incident, or what prompted the appellant to take away the life of his father, i.e., the deceased Baz Muhammad and mother Mst. Zardana Bibi are the circumstances as mitigating circumstances.
16. 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 occurrence and as to what had actually happened immediately before the occurrence, which had resulted in the death of Baz Muhammad and Mst. Zardana Bibi (both deceased), therefore, in our view, the death sentence awarded to the appellant is quite harsh. It has been held in a number of judgments of the August Supreme Court of Pakistan that if a specific motive has been alleged by the prosecution, then it is the duty of the prosecution to establish the said motive through cogent and confidence-inspiring evidence and non-proof of motive may be considered a mitigating circumstance in favour of the accused.
17. In the light of the above discussion, the conviction of the appellant, namely Muhammad Usman, son of Baz Muhammad, as awarded by the trial court through the abovementioned judgment, is maintained, but the sentence of death awarded to the appellant, namely Muhammad Usman, son of Baz Muhammad (deceased) under section 302(b), P.P.C. is altered to imprisonment for life with direction to pay Rs.500,000/- (rupees five lacs) each to the legal heirs of the deceased in default whereof the appellant shall further undergo six months' S.I.
36. In this connection, reference may also be made to the case of Muhammad Ismail (supra), decided by Honourable Supreme Court.
37. For the foregoing reasons, the conviction and sentence awarded to appellant Razi alias Riaz is maintained with modification to the extent that the sentence of death awarded to the appellant under section 302(b) P.P.C. is reduced to imprisonment for life. However, the sentence of payment of fine as compensation to be paid to the LRs of deceased Abdul Hameed shall remain intact. Consequently, death reference vide Criminal Confirmation Case No. D-01 of 2022 submitted by the trial Court in terms of Section 374 Cr.P.C., is answered in negative.
JK/R-15/Sindh Petition dismissed.