Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: ABDUL HALEEM VS Respondent: The STATE
Court Name: Balochistan High Court Judge(s): Naeem Akhtar Afghan, Muhammad Kamran Khan Mulakhail Title: ABDUL HALEEM vs The STATE Case No.: Criminal Appeal No,127 and Criminal Revision Petition No,13 of 2013 Date of Judgment:2016-01-04 Reported As: 2016 YLR 1418 Result: Appeal allowed
JUDGMENT
JUDGMENT NAEEM AKHTAR AFGHAN, J.--This common judgment disposes of Criminal Appeal No,127 of 2013 and Criminal Revision No,13 of 2013 as common questions of fact and law are involved in both the matteRs, 2. Criminal Appeal No,127 of 2013 has been filed by the appellant (convict Abdul Haleem) against the judgment dated 26th April, 2013 (hereinafter "the impugned judgment") passed by the learned Additional Sessions Judge-III Quetta (hereinafter "the trial Court") whereby the appellant has been convicted and sentenced under section 302(b), P.P.C. To suffer imprisonment for life and to pay fine of Rs,100,000 in terms of section 544-A, Cr.P.C. To the legal heir of deceased Ahmed Ali and in default of payment of fine to further suffer six (6) months S.I, under section 324, P.P.C. To suffer seven (7) years' R.I with fine of Rs,20,000/- as Daman. The appellant has been ordered to be kept in custody till realization of Daman amount. Both the sentences have been ordered to run concurrently with benefit of section 382-B, Cr .P.0 . 3. Criminal Revision No,13/2013 has been filed by the complainant/ PW-1 for enhancement of the sentence of the appellant and to award him death penalty. 4. Facts of the case are that on the basis of Fard-e-Bayan (Ex.P/1-A) of Ali Ahmed son of Shah Mohammad dated 26th August 2005 recorded by IP/SHO Police Station Sariab Muhammad Jamil Kakar in Civil Hospital Quetta, FIR No,192/2005 was registered with Police Station Sariab Quetta at about 6:15 p.m. With regard to the occurrence of 5:25 p.m. Under sections 302, 324 Qisas and Diyat Ordinance r/w section 34, P.P.C., wherein it has been stated by the complainant/ PW-1 that he is residing in Killi Sheikhan with his parents and is tailor by profession; that Abdul Nabi (co- convict/appellant in Criminal Appeal No,268/2014) and Ismail (absconding accused) both sons of
---
## Page 2
Abdul Ali are his brothers-in-law; that for the last two years his two sisters are residing in his house as their husbands (co-convict Abdul Nabi and absconding accused. Ismail) used to assault them; that today, he along with his younger brother Ahmed Ali (deceased) were present in the house; that at about 5:25 p.m, someone knocked the door of the house; that his younger brother Asif went outside; that in the meanwhile, he heard a fire shot; that on hearing the fire shot, he along with his brother Ahmed Ali also came out of the house and saw Abdul Nabi alias Babu, Ismail and Sayedo sons of Haji Abdul Ali and their brother-in-law Abdul Haleem son of Mohammad Karim (the appellant) standing outside the house; that all the four accused were having pistols/revolvers in their hands; that all the four accused suddenly started firing upon him and his brother Ahmed Ali, due to which, his brother Ahmed Ali received a bullet injury in his abdomen and he received two bullet injuries in his right and left arms; that he and his brother became severely injured; that his brother succumbed to the injuries on his way to the hospital; that the accused left their motorcycle No,JKE-6254 at the place of occurrence; that the accused have murdered his brother and have caused him injuries due to matrimonial dispute. 5. In pursuance of above FIR, investigation was started. PW-10 Ghulam Fareed S.I was appointed as Investigating Officer. PW-10/I.0 prepared inquest report of the deceased Ahmed All and requested for postmortem of the deceased. The 1.0. Along with other police officials reached the place of occurrence and inspected the place of occurrence on the pointation of PW-4 Shah Mohammad and prepared site plan as well as site inspection memo. PW-10/I.O. Recovered two empties of 30- bore and a 30-bore pistol from the place of occurrence; that two live cartridges were recovered from the magazine of the said pistol. The I.O. Also took into possession the motorcycle No,JKE-6254 allegedly left by the accused. The statements of the witnesses to the recovery memos and of Shah Mohammad, Asif Ali and Farhana Shah were recorded under section 161, Cr.P.C., whereafter PW- 10/I.0. Returned to the Civil Hospital, where postmortem of the deceased was already conducted. The Police Surgeon handed over the blood stained shirt of the deceased. The dead body was handed over to the legal heirs for burial. The blood stained shirt and Shalwar of the complainant/PW-1 (injured Ali Ahmed) were taken into possession in the Orthopedic Ward of Civil Hospital. According to PW-10/I.0, in the meanwhile he came to know that the co-convict Abdul Nabi and absconding accused Ismail had gone to Police Station Shaal-Kot in injured condition along with Abdul Hakeem (the appellant) and had availed injury reports for getting Medico Legal Certificates ("MLC") and that they had proceeded to Civil Hospital; that upon this information, he reached Civil Hospital, where it revealed that the co-convict Abdul Nabi and absconding accused Ismail had entered their injuries, but they were not available in the premises; that the doctor told him that they have been sent for X-Ray, but they did not return. 6. On 6th September 2.005, PW-10/ 1.0 availed postmortem report of the deceased. On 15th September 2005, blood stained clothes were sent to Forensic Science Laboratory ("FSL"), in respect whereof, report was availed on 24th September 2005, The MLC of PW-1/ Complainant was availed on 14th November 2005. The MLCs of co-convict Abdul Nabi and absconding accused Ismail were availed by PW-10/I.0. On 3rd December 2005. 7. That two crime empties and pistol recovered by PW-10/I.O. On 26th August 2005 from outside the house of the complainant/PW-1 were taken by him personally to FSL Karachi on 20th February 2006 for analysis. 8. The appellant surrendered himself before the trial Court on 12th November 2005 for grant of pre- arrest bail. He was granted ad-interim pre-arrest bail, which was subsequently confirmed by the trial Court vide order dated 15th February 2006. In support of his plea of alibi, during his ad-interim bail, on 7th January 2006, the appellant produced to the PW-10/I.O., the photocopies of Roznamcha report of 9:15 a.m. Of Police Station Baghdadi Karachi dated 26th August 2005 about missing of his CNIC, driving license and Pakistan Qaumi Razakar (PQR) Card, application submitted by him to SHO
---
## Page 3
Police Station Baghdadi Karachi and his affidavit with regard to his accident on 26th August 2005 at 11:00 a.m. In Karachi, which were taken into possession vide recovery memo dated 7th January 2006 (Ex.P/8-A) before the witnesses Munir Ahmed Head Constable and Mohammad Karim Constable. The said documents have been produced at the trial by PW-8 Munir Ahmed as Article P/16, Article P/17 and Article P/18. ' Verification of the documents produced by the appellant was sought from SHO Police Station Baghdadi Karachi by PW-10/I.O. SHO Police Station Baghdadi Karachi deputed Fateh Sher SI of Police Station Baghdadi Karachi for verification from record. After verification, Fateh Sher SI issued a certificate (Ex.P/10-E) dated 20th February 2006 to the effect that the Roznamcha/reports produced by the appellant are bogus and that the same have no entry in the record of Police Station Baghdadi. PW-10/I .0. Recorded 161, Cr.P.C. Statement of Fateh Sher, SI and took the certificate (Ex.P/10-E) on record through recovery memo Ex. P/10-F dated 21st February, 2006. ' On completion of investigation to the extent of the appellant, incomplete Challan was submitted. On 15th May 2006 positive report of the Firearm Expert Karachi was received by PW-10/1.0. In pursuance whereof, supplementary Challan was submitted, whereafter the appellant was put on trial. 9. At the trial, the appellant was read over the charge under sections 302, 324, 34, P.P.C. On 20th September, 2006 to which the appellant did not plead guilty and replied as under:-- "1 do not plead guilty to the charge as I am innocent and was not present at the spot, Wrongly been involved in this case". 10. After framing charge, the prosecution produced ten (10) witnesses whereafter the appellant was examined under section 342, Cr.P.C. The appellant also recorded his statement on oath and produced documents x.D/1 and Mark D-1 to D-20 in his statement. The appellant also produced DW-1 Fazal Shah Bacha, DW-2 Bibi Aasia, DW-3 Dr.,Sheikh Zaheer Hussain Medical Officer Sindh Government Lyari General Hospital Karachi, DW-4 Basharat Hussain ASI with application of the appellant gated 11th November 2004 (Mark D/15) and letter dated 12t11 November 2004 (mark D/16), DW-5 Taj Munir representative of PQR with letter/ application of the appellant dated 26th August 2005 (Ex.DW/2), recruitment form of the appellant (Ex.DW/3) Affidavit of the appellant (Ex.DW/4), particulars of the appellant' (Ex.DW/5), Duty reports of the appellant (Ex.DW/6, 7, 8) etc. 11. After concluding evidence and hearing arguments, the trial Court vide judgment dated 30th December 2008 awarded conviction to the appellant under section 302(b), P.P.C. And sentenced him to suffer imprisonment for life as Tazir, under section 324, P.P.C. To suffer ten years' R.I. And to pay Rs,50,000/- as Daman to the injured/complainant and both the sentences were ordered to run concurrently. The file was kept in dormant till arrest of the absconding accused. 12. The appellant challenged his conviction and sentence by filing Criminal Appeal No,20/2009 before this Court. The complainant/PW-1 also preferred Criminal Revision No,35/2009 for enhancement of the sentence of the appellant. After hearing arguments of learned counsel for the parties, this Court vide judgment dated 22nd December 2011, after setting aside the judgment dated 30th December 2008 of the trial Court remanded the matter to the trial Court for rewriting the judgment in the light of the discussion made in the judgment with opportunity to both the parties to lead evidence if desired. The operative portion of the judgment dated 22nd December, 2011 passed by this Court is reproduced herein below:-- "It may be noted that, while convicting the appellant and awarding him punishment, the trial Court has not applied its mind properly, as is evident from the fact that only on account of Ex.P/10- E, he has discarded all the documentary evidence produced by the appellant in a slipshod manner without entry in Baghdadi Police Station. Needless to mention here that even if the entry made in Baghdadi Police Station is excluded of consideration, certain documentary and oral evidence was produced by the appellant in support of his plea of alibi, but the trial Court has
---
## Page 4
discarded the same without dilating upon the same. Moreover, under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, it is the fundamental right of the appellant to have a fair trial, which speaks as under: "10-A. Right to fair trial.---For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fur trial and due process" ' Thus, on account of above discussed factors, the judgment dated 30th December 2008, passed by the Additional Sessions Judge-Ill, Quetta, in Sessions Case No,I9 of 2006, is not sustainable and is hereby set aside. The matter is remanded to the trial Court with direction for re-writing of the judgment in the light of above discussion with opportunity to both the parties to lead evidence, if they desire so. The trial Court is expected to decide the matter afresh as early as possible. ' The appeal and revision petition are disposed of accordingly. " 13. After remand of the matter to the trial Court the prosecution did not produce any further evidence.. However, the appellant produced DW-6 Tahir Shah representative of CCPO Quetta with official copies of the applications submitted by the appellant dated 18th November 2005, 23rd May 2006 etc. As Ex DW/6-A and Mark DW/21-A to 21-D and DW-7 Rao Mohammad Anwar SI of Police Station Baghdadi Karachi report along with Ex.D/7-A, confirming the Roznamcha Report No,17 dated 26th August, 2005 and arrival of the appellant in Police Station Baghdadi on the said date. 14. After recording the statement of DWs-6 and 7 and hearing arguments of learned counsel for the parties, the trial Court vide impugned judgment has awarded conviction and sentence to the appellant, whereafter, the appellant has filed the instant appeal. The complainant/PW-1 has preferred Criminal Revision No,13/2013 for enhancing the sentence of the appellant to death penalty. 15. Learned Counsel for the appellant stated that the prosecution evidence of interested and related witnesses is lacking independent corroboration in material aspects; that the prosecution evidence is suffering from infirmities; that the prosecution has failed to prove the charge against the appellant beyond any shadow of doubt; that the appellant proved his enmity with IP/SHO Police Station Sariab Muhammad Jamil Kakar, due to which, the appellant was falsely implicated by him in the instant case with the connivance of the complainant party; that the plea of alibi raised at the early stage of investigation and proved at the trial by the appellant through oral as well as documentary evidence has not been properly appreciated by the trial Court; that the conviction and sentence awarded to the appellant by the trial Court is based on misreading and mis-appreciation of the evidence available on record; that there exist sufficient doubt in the case of the prosecution to the extent of the appellant, on basis whereof, the impugned judgment is liable to be set aside. Learned counsel for the appellant prayed for dismissal of criminal revision petitioner for enhancement of sentence of the appellant. 16. Learned Deputy Prosecutor General while opposing the appeal and supporting the criminal revision petition for enhancement of the sentence of the appellant to death penalty stated that the prosecution through consistent and confidence inspiring ocular testimony of eye-witnesses, injured witness, corroborated by MLCs, recovery of crime weapon, crime empties, motorcycle and positive reports of FSL has proved the case against the appellant beyond any shadow of doubt; that the prosecution evidence is not suffering from any infirmity or contradiction to render the same untrustworthy; that the conviction and sentence awarded to the appellant by the trial Court is based on proper appreciation of the evidence available on record; that the plea of alibi has not been proved by the appellant at the trial; that the Roznamcha Report No,17 of Police Station Baghdadi Karachi relied upon by the appellant was proved to be bogus/fabricated. According to learned DPG there are no mitigating circumstances to award lesser sentence of life imprisonment to the appellant.
---
## Page 5
17. While opposing the appeal and pressing criminal revision for enhancement of the sentence of the appellant to award death penalty, learned counsel for the complainant stated that the prosecution has proved the charge against the appellant beyond any shadow of doubt through confidence inspiring testimony of eyewitnesses which is corroborated by the recovery of pistol, crime empties, positive report of the Firearm Expert, recovery of motorcycle as well as MLCs; that the statements of PWs-1, 3, 4 and 5 cannot be discarded due to their relationship with the deceased; that sufficient incriminating evidence is available on record to connect the appellant with the commission of the offence; that the plea of alibi raised by the appellant has not been proved at the trial; that the documents produced by the appellant in support of his plea of alibi have proved to be forged/fabricated; that there are no mitigating circumstances on record to warrant lesser punishment to the appellant. 18. Heard the learned counsel and perused the available record. The application dated 10th November 2004 (Mark D/15) submitted by the appellant to IG Police Balochistan Quetta reveals of a complaint lodged by the appellant against the then SHO Police Station Industrial Area Quetta Mr. Muhammad Jameel Kakar who has written the Fard-e-Bayan Ex.P/1-A dated 26th August 2005 of the complainant/ PW-1 as IP/SHO Police Station Sariab. The letter (Mark D/16) issued by Provincial Police Officer Balochistan Quetta to CCP Quetta reveals that in pursuance of the application submitted by the appellant against the then SHO Police Station Sariab Muhammad Jameel Kakar, directions were issued to Local Police SP to take cognizance and to register a case and investigate the matter. ' It is the plea of the appellant that IP Muhammad Jameel Kakar was SHO Police Station Sariab in jurisdiction whereof the occurrence of the instant case took place; that IP/SHO Muhammad Jameel Kakar of Police Station Sariab was inimical towards him, due to which he with the connivance of the complainant party falsely implicated the appellant in the instant case being relative (brother-in- law) and elder of co-accused. 19. The appellant has also raised special plea of alibi. While raising plea of alibi the appellant has stated on oath that he was residing in Karachi for the last twenty years with his family and two brothers and their families in PIB Colony Karachi; that he deals in fruit and vegetable as Commission Agent; that he also serves as AS! In PQR; Lyari Karachi; that on the day of occurrence he was not present in Quetta and he was at Karachi; that on the morning of 26th August 2005, where while travelling in a Local Bus he lost his CNIC, driving license and PQR card as well as some cash; that he reported the matter to Police Station Baghdadi Karachi on 26th August, 2005 at 9-15 a.m. Vide Roznamcha No,17 (Exh.DW/1); that on the same day at 11-00 a.m. When he was going towards the bus stop, he was hit by a motorcycle while crossing the road due to which he received injuries; that he also reported the accident with Police Station Baghdadi Karachi on 26th August 2005 vide application (Mark-DW/4) along with his affidavit (Mark-D-5) and he went for treatment to Lyari General Hospital, in respect whereof, he produced OPD slip (Mark-D/6) and the receipt (mark-D/7) of the medicines purchased. He also produced the chit issued by the doctor for X-ray as Mark-D-8. The appellant further stated that during his visit of Quetta in the year 2004, he went to PW-4 Shah Muhammad to allow/return her daughters to join the co-convict Abdul Nabi and absconding accused Ismail being their wives, but he asked him not to interfere in the matter; that thereafter he approached the notables of Barreach tribe for settlement between the two families, but they made no attempt; that PW-4 Shah Muhammad was annoyed due to his taking up the matter with the notables. 20. The prosecution case vis-a-vis defense plea of alibi raised by the appellant and his plea of false implication by the complainant party with the connivance of IP/SHO Muhammad Jamil Kakar will be discussed in detail in the preceding paras. 21. The Fard-e-Bayan of the
---
## Page 6
complainant/PW-1 (Ex. P/1-A) dated 26th August 2005 has admittedly been written by Muhammad Jameel Kakar, IP/SHO Police Station Sariab and same also bear his signature. Contents of Fard-e- Bayan Ex.P/1-A reveal that after receiving information of occurrence, Muhammad Jameel Kakar, IP/SHO Police Station Sariab along with the Investigating Officer Ghulam Fareed SI and other police officials reached Civil Hospital where the dead body of deceased Ahmed Ali was lying and the complainant/PW-1 was found present injured. In the Fard-e-Bayan (Ex.P/1-A) the name and the relation of the appellant with co-convict Abdul Nabi and absconding accused Saido and Ismail have been written after cutting and overwriting for which no explanation has been offered by the prosecution throughout the trial. ' In his Fard-e-Bayan (Ex.P/1-A) as well as in his statement recorded at the trial, the complainant/PW-1 has not mentioned about the presence /arrival of PW-4 Shah Muhammad and PW-5 Farhana Shah at the door/on the place of occurrence. In his Fard-e-Bayan (Ex.P/1-A) as well as in his statement recorded at the trial, the PW-1/complainant has not attributed specific injury or fatal shots to the appellant and he has levelled allegation of firing upon all the four nominated accused while standing in the street outside the house of the complainant/PW-1. The site plan (Ex.P/10-B) and the statements of prosecution witnesses do not reveal of any bullet marks on the walls or outer, door of the house. In his Fard-e-Bayan Ex.P/1-A as well as in his statement recorded at the trial, the PW-1/complainant has not mentioned about throwing/dropping of the pistol by the appellant or the other accused on the place of occurrence. Fard-e-Bayan (Ex.P/1-A) is also silent as to how and by whom the deceased or the complainant/ PW-1 were taken to the hospital. In his Fard-e-Bayan Ex.P/1-A as well as in his statement before the court, the complainant/ PW-1 has concealed the injuries/multiple lacerated wounds of co-convict Abdul Nabi and absconding accused Muhammad Ismail which had revealed/confirmed during investigation through MLCs (Ex.P/9-B and Ex.P/9-C) collected by PW-10/I.O. And produced by PW-9 Dr. Ghulam Haider at the trial. 22. PW-3 Muhammad Asif (brother of the deceased and complainant/PW1) while appearing at the trial stated that on knock of the door when he came out, he saw his brothers-in-law (absconding accused Ismail and co-convict Abdul Nabi) along with their brother (absconding accused Saido) and their brother-in-law Abdul Haleem (the appellant) standing with a Honda motorcycle; that on seeing him all the four took out their pistols and revolvers; that absconding accused Ismail made firing upon him but he escaped any injury; that on hearing the fire shots and his hue and cry, his elder brothers i,e, deceased Ahmed Ali and the complainant/PW-1 Ali Ahmed came out; that on their coming out., all the four started firing upon Ali Ahmed and Ahmed Ali; that due to firing of Abdul Haleem (the appellant), Ahmed Ali (deceased) received bullet injury whereas due to firing of co- convict Abdul Nabi and absconding accused Ismail and Saido, All Ahmed (complainant/PW-.1) became severely injured; that as a result of firing, his both elder brothers fell down; that in the meanwhile, his parents and other inmates of the house also came outside and due to scuffle as well as due to danda blows all the four accused received injuries; that in the meanwhile, pistol dropped from the hand of the appellant; that on their hue and cry and due to fear of reaching of the villagers, Abdul Haleem left his pistol, motorcycle and all the four accused fled away. 23. During cross-examination PW-3 stated that his statement was recorded by the police, in the night, but he did not tell the time. During cross-examination PW-3 stated that he was hit with a fire, but there is no medico legal certificate of PW-3 on record to corroborate his version. According to PW-3 when the firing was made for the second time he was present outside the house, but he cannot say as to how many fires were shot. According to his version all the empties were falling outside the house. Despite firing by four accused with pistols and revolvers, only two crime empties have been recovered. PW-3 further stated that due to firearm injuries his brother had fallen on the
---
## Page 7
side of the road and blood was oozing from their bodies. Surprisingly, no blood stains or blood stained earth has been recovered from the road or side of the road outside the house of the complainant/PW-1. 24. PW-4 Shah Muhammad (father of the deceased and complainant/PW-1) has also recorded his statement in line with PW-3 with further addition that during scuffle due to hit by his danda, pistol dropped from the hand of the appellant and same fell on the ground which was subsequently taken into possession by the police with magazine having two live cartridges. PW-5 Farhana Shah (sisters of the deceased and complainant/PW-1) also recorded her statement in line with PW-3 and PW-4. Despite alleged presence at the place of occurrence and despite alleged firing by four accused, it is surprising that PW-3, PW-4 and PW-5 did not receive any firearm injury. The site plan (Ex.P/10-B) does not mention the presence of the alleged eye-witnesses (close relatives of the deceased and complainant/PW-1) nor it mentions about the points/place where the accused were allegedly standing. Though site plan is not a substantive piece of evidence, but it definitely has evidentiary value regarding those matters which are the result of the observation of the Investigating Officer and are not entered therein at the instance of…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.