ALI BAIG, C.J. Through this single consolidated judgment, we intend to dispose-off the above titled Cr. Appeal No. 02/2023 and Cr. Revision No.20/2023 as both are outcome of a single judgment dated 30.05.2023 passed by the learned Sessions Judge, Skardu in Sessions Case No. 25/2021.
2. Through Cr. Appeal No.02/2023 filed under Section 410, Cr.P.C, the appellant/convict namely Shabbir Hussain son of Mehdi has prayed for his acquittal from the charge under section 302, P.P.C., vide FIR No.48/2020 dated 07.07.2020 registered at Police Station City Skardu, by setting aside the impugned judgment dated 30.05.2023 passed by the learned Sessions Judge, Skardu in Sessions Case No. 25/2021, whereby the learned trial Judge has convicted the above named appellant/convict as under: "26. Thus I hold that accused Shabbir Hussain has committed brutal murder (Qatl-e-amd) of Javed with spade. Despite the deceased was at the mercy of accused and he did not repeat the war and he himself informed the PWs, that if they can save the life of deceased they do it.
Moreover, he himself went to Police Station and informed the police regarding occurrence, therefore, while considering his conduct as mitigating circumstances, accused Shabbir Hassan is hereby convicted under section 302(b) P.P.C. and he is sentenced to "LIFE IMPRIONSMENT". He is further directed to pay rupees FIVE LAC (500,000/-) as compensation to the legal heirs of deceased Javed as provided under section 544-A, Cr.P.C. And in case of non-payment of compensation amount it shall be realized as arrears of land revenue. Moreover, in case of default, the convict shall further undergo for a period of 06 months Simple Imprisonment (SI)"
3. Through Criminal Revision No. 20/2023 filed under section 439-A Cr.P.C, the complainant has prayed for enhancement of sentence of the respondent/convict from life imprisonment to death sentence under section 302(a,b) P.P.C.
4. The laconic version of the prosecution is that the complainant namely Fida Ali has submitted a written application before the SHO Police Station City Skardu stating therein that on 07.07.2020 at about 1845 hours, the convict namely Shabbir Hassan has hit the head of the deceased namely Javed with a spade with intention to kill him. Resultantly, the deceased has received grievous injury on his head and the brain of the deceased is also spelt out from skull.
5. On written application of complainant, the Station House Officer of PS City Skardu registered a criminal case vide FIR No. 48/2016 (Exh.PW-10/A) under sections 324, 337-A (v)(vi) P.P.C. against the present appellant/convict. During treatment of the victim namely Javed at PIMS Islamabad, he succumbed to death on 14.07.2020. The Investigating Officer after completion of usual investigation of the case submitted challan under section 173, Cr.P.C in the trial Court against the present appellant/convict to face trial.
6. On receipt of challan under section 173 Cr.P.C, the learned trial Court issued notices to the parties and after procurement of attendance and supplying of requisite documents as required under section 265-C Cr.P.C to the appellant/convict free of cost, framed charge against the appellant/convict for murder of deceased Javed, to which the accused pleaded not guilty and opted to face trial.
7. The prosecution in order to prove its case examined as many as 16 prosecution witnesses and closed its evidence. After closing of evidence by the prosecution, the learned trial Court examined the appellant/convict under section 342 Cr.P.C on 06.09.2022, wherein the appellant/convict professed his innocence, and he opted to record his statement on oath under section 340(2) Cr.P.C and to produce defence witnesses. Accordingly the appellant/convict recorded his statement on oath under section 340(2) Cr.P.C before the trial Court and produced two defence witnesses namely Mst. Maryam Bano and Asif Hussain.
8. On conclusion of trial, the learned trial Court after hearing arguments on behalf of both the parties, convicted the appellant and sentenced him as stated hereinabove, vide impugned judgment dated 30.05.2023.
9. The convict/appellant feeling aggrieved and dissatisfied with the impugned judgment/sentence awarded by the learned trial Court, has filed the instant criminal appeal before this Court for acquittal from the charge under section 302 P.P.C., whereas the complainant has also filed Cr.
Revision Petition No. 20/2023 for enhancement of sentence of the appellant/convict from life imprisonment to death sentence under section 302(a,b) P.P.C. before this Court.
10. The learned counsel for the appellant/convict argued that there is no independent eye-witness of the occurrence and the private PWs are close relatives of the deceased as such their evidence is not reliable and trustworthy and the learned trial Court has given undue weightage to their evidence, as such the impugned judgment is not tenable in the eye of law and liable to be set aside. The learned counsel for the appellant/convict further argued that the learned trial Court while passing the impugned judgment has mainly relied on the statement/evidence of so-called 'eye-witnesses, who have not directly witnessed the occurrence rather their evidence is hearsay, hence the statements of eye-witnesses are highly doubtful and not confidence inspiring. The learned counsel for the appellant/convict further argued that as per Medico Legal report the death of the deceased is not ascertained that the death of the deceased is caused due to blow of spade or not, as such the medical evidence is not in line with prosecution version which creates serious doubts in the case of prosecution. The learned counsel for the appellant/convict further argued that the appellant/convict had recorded his statement on oath under section 340(2) Cr.P.C and also produced reliable defence witness to prove his innocence, but the learned trial Court has totally ignored the statements of DWs, as such the impugned judgment is liable to be set aside.
The learned counsel for the appellant/convict further argued that there are fatal material discrepancies in the statements of PWs, hence their statements are not trustworthy in terms of purification of witnesses as mentioned in Qanun-e-Shahadat Order, as such the same cannot be used against the appellant/convict to record conviction for life imprisonment. The learned counsel for the appellant/convict further contended that the alleged occurrence has taken place in day light, and the prosecution has failed to cite any independent witness to prove the guilt of the appellant/convict. The learned counsel for the appellant/convict further argued that all the witnesses are either interested witnesses or police officials and the prosecution version is not supported with even an iota of independent and trustworthy evidence, hence the impugned judgment is not maintainable and liable to be set aside. The learned counsel for the appellant/convict accordingly prayed for acquittal of the appellant/convict from the case/charge by setting aside the impugned judgment of the learned trial Court. The learned counsel for the appellant/convict has relied up the following case laws to strengthen his arguments:
(i) 2018 MLD 1654
(ii) 1992 SCMR 1983
(iii) 2008 YLR 1725
(iv) 2017 SCMR 206
(v) 2018 YLR 890
(vi) 2003 YLR 1369
(vii) 2004 PCr.LJ 942
(viii) 2009 YLR 621
(ix) 2010 YLR 914
(x) PLJ 1996 SC 831
(xi) 1985 SCMR 1349
(xii) 2015 GBLR 1
11. Conversely, the learned Dy. Advocate General and counsel -for the complainant controverted the arguments advanced by the learned counsel for the appellant/convict by contending that the appellant/convict has rightly been convicted by the trial Court as he is directly nominated in the FIR and the prosecution witnesses have charged the appellant/convict with specific role of hitting the head of the deceased with spade, but the quantum of sentence awarded by trial Court is less, which is required to be enhanced. The learned counsel for the complainant and the learned DAG further submitted that the appellant/convict has committed murder of an innocent person in a brutal manner and the ocular account is fully corroborated by the medical evidence and other circumstantial evidence produced by the prosecution, as such the sentence awarded to the appellant/convict is required to be enhanced. The learned Dy. Advocate General and learned counsel for the complainant further contented that all the PWs are trustworthy and apart from their statements, the above corroborative pieces of evidence also connect the accused/respondents with the commission of offence. The learned Dy. Advocate General and learned counsel for the complainant further contended that the prosecution has proved it's case beyond any shadow of doubt, hence the appellant/convict deserves to award capital punishment, which may be awarded by accepting the criminal revision petition of the complainant. The learned DAG and counsel for the complainant have relied upon the following reported judgments of superior Courts in support of their arguments:
(i) 2001 SCMR 1474
(ii) 2007 SCMR 518
(iii) 2010 SCMR 55 (iv Judgment dated 09.04.2018 passed by the Hon'ble Supreme Appellate Court GB in Cr. Appeal No. 03/2018 in Cr. PLA No. 33/2016
12. We have heard the arguments advanced by the learned counsel for the parties and with their able assistance perused the record of the case minutely.
13. Although no eye-witness has directly witnessed the occurrence. The prosecution's case is mainly based on circumstantial evidence in the shape of extra judicial confession and confession of the appellant/convict at the time of recording/examination of appellant/convict under section 342 Cr.P.C.
14. It is pertinent to mention here that the extra judicial confessions were made by the appellant/convict before PW-2 namely Muhammad Ishaque, PW-4 namely Rehmat Ali and PW-7 namely Muhammad Yousuf. Gist of the depositions of the above named PWs are as under: PW-2 namely Muhammad Ishaque deposes that after about ten minutes, son of the appellant/convict came to him from the plot (place of occurrence) while he was weeping and told him that a boy had come to plot and he has threatened him to beat him if his father did not pay some money and if he stayed in the plot, he will beat him. Thereafter, appellant/convict Shabbir Hassan and along with his son went towards the plot, while he remained sitting at his own place.
After 06/08 minutes, the appellant/convict called him loudly while waving his both hands and also blowing whistles from his mouth, upon this he ran towards the accused/appellant, where the appellant/convict told him that he has hit a person in his plot and told him that if you can save him do it and he further told him that he is going to police station. When he reached in the plot a boy was lying on the ground where he saw a spade stuck in the head of the boy and blood was oozing/coming from the wound, while the handle of spade was in the hand of the appellant/convict when he met him.
PW-4 namely Rehmat Ali deposes that on 07.07.2020 a blasting was taken place in Hargisa area Skardu and smoke was seen in the air, he went there, where PW Yousuf was sitting there and he sitted with him. In the meanwhile, appellant/accused Shabbir Hassan came out from the gate along with a lady and a child was with him. He called him and he went towards him, he told that he has hit a person in the plot as he was misbehaving with his wife. He saw the accused/appellant was carrying a handle of spade in his hand which was slipped out from the spade while spade remained stuck in the skull of the injured/deceased. He further told that if you can save him do it.
When he rushed towards the place of occurrence and found that the deceased was lying on the ground and Muhammad Ishaque (PW-2) removed the spade from the head of the victim and shifted the deceased towards road, meanwhile an ambulance reached there and the deceased was shifted to hospital.
PW-7 namely Muhammad Yousuf states that on 07.07.2020 at about 5.00pm, he saw that accused/appellant Shabbir Hassan and his wife were coming out from their plot along with their minor son near to his house at Kushmara Gond Skardu. Wife of the accused/appellant and their son went towards their house while the accused/appellant called him.
PW Ishaque and Rehmat were ahead of him and they asked the accused/appellant for the purpose of calling him. At that time a handle of spade was in his hand and the accused/appellant told them that an unknown person was assaulting his wife to commit rape with her and pushed her on the ground. Accused/appellant further told them that he has hit the said person with a spade rightly and-asked them to save the life the deceased if possible, thereafter, the accused/appellant went to police station.
15. From perusal of cross-examination of the above named PWs, it reveals that their statements have not been shattered by defence counsel, rather the defence has failed to cross-examine the PWs about their presence at the place of occurrence, meaning thereby the statements of PWs to this extent has gone unchallenged.
16. The above named PWs are natural witnesses and they have faithfully deposed what they have seen and heard from the appellant/Convict at the time of occurrence, thus their statements are reliable and confidence inspiring.
17. Another important aspect of the case is that at the time of recording of statement of appellant/convict by the trial Court under section 342 Cr.P.C, the appellant has confessed his guilt before the trial Court in response to the question No. 18 which is reproduced as under:"
Q. No. 18: Have you anything else to say?
Ans: As the stranger had grabbed my wife with intention to rape her and when I, saw the situation.
I only try to save the modesty of my wife. I had no animosity with the person. I have only acted in self-defence in order to save my wife of becoming a victim of rape."
Bare reading of aforesaid statement of the appellant/convict, it transpires that he appellant/convict has admitted that he has committed murder of the deceased on the pretext of self defence. In this connection it is observed that right of self/private defence can be exercised where reasonable apprehension of danger had arisen from an attempt or threat to life as private defence is a right of protection and not aggression.
18. It is also pertinent to mention here that after committing murder of the deceased, the appellant/convict has surrendered himself before the police and he has informed the police regarding the occurrence. The confession and extra judicial confession of the appellant/convict is corroborated by the following evidence:
(I) Recovery of weapon of offence
(ii) Medical evidence
(iii) Site plan
(iv) Forensic DNA and Serologist analysis report
(v) Lodging of FIR against the deceased by Mst. Maryam wife of the appellant
19. We have minutely gone through the impugned judgment passed by the learned trial Court and the entire evidence has been examined with the assistance of the learned counsel for the parties.
After having gone through the entire record, we are of the view that the prosecution has established its case by producing cogent and concrete evidence against the appellant/convict.
The learned trial Court has rightly convicted and sentenced the appellant/convict after proper appreciation and evaluation of evidence on record and we have examined the evidence but we do not find any illegality or infirmity in the impugned judgment.
20. For what has been discussed above, the impugned judgment passed by the learned trial Court is maintained. However, the deceased was at the mercy of the appellant/convict namely Shabbir Hassan at the time of occurrence, but he has not repeated war/attack and he himself told the above named PWs stating that he has hit the deceased with a spade and if they can save the life of deceased, they do it. These are the mitigating circumstances, therefore, the sentence awarded to the appellant/convict is reduced from life imprisonment to 14 years R.I with a fine of Rs.500,000/- (five lac only) as compensation to be paid to the LRs of the deceased Javed. Whereas Criminal Revision Petition No.20/2023 filed by the complainant for enhancement of sentence is dismissed being bereft of merits. ##TEs##
21. Vide short order of even date, we had announced judgment and these are the detailed reasons of out short order. Certified true copy of the judgment be placed on the file of Criminal Revision Petition No. 20/2023.
22. Record and proceedings of trial Court along with certified true copy of this judgment be sent back forthwith. File