1995 PLP 693 (SCMR)

MUHAMMAD MUNIR KHAN, J.‑‑‑This petition which is directed against the judgment dated 3‑2‑1994 of the High Court of Balochistan, Quetta, arises from the facts that in the occurrence which took place on 20‑8‑1992 at 8‑00 a.m. at a distance of 10‑12 paces from the house of Rindo Khan (P.W. 2 complainant), Mst. Tajal lost life as a result of fire‑arch injuries allegedly caused by Muhammad Akbar (petitioner) and Bakhsh Ali (absconder) accused in the presence of Rindo Khan and Amir Bakhsh P.Ws. he injuries suffered by Mst. Tajal were sufficient to cause death in the ordinary course of events. The F.I.R. (Exh.PB) was lodged after an hour of the occurrence at Police Station Dera Allah Yar by Rindo Khan, brother of the deceased. The Police recovered seven crime empties from the spot. After his arrest, the petitioner got recovered gun Article 1 from his house. The Fire‑arm Expert's Report (Exh.PJ) revealed that the three empties were fired from this gun.

2. The motive allegedly was that five/six years before the occurrence, Bakhsh Ali (absconder/accused) had killed the husband of Mst. Tajal. The matter was settled in accordance with Balochi custom. Thereafter, Bakhsh Ali wanted to marry Mst. Tajal but she was not agreeable. Hence this murder.

3. To prove its case, the prosecution produced six witnesses. Rindo Khan (P.W.2) and Amir Bakhsh (P.W.3) have given the ocular account of the occurrence. They claimed to have seen the petitioner and his co‑accused Bakhsh Ali firing at Mst. Tajal. Bahrain Khan (P.W.5) was attracted to the spot on hearing the fire‑arm report. The aforesaid eye‑witnesses told him that the petitioner and Bakhsh Ali had killed the deceased. The police recovered seven empties from the place of occurrence in the presence of Bahrain Khan (P.W.5). Ghulam Qadir (P.W.4) and Muhammad Panal (P.W.6) have supported the recovery of gun Article 1 from the petitioner.

4. While examined under section 342, Cr.P.C., the petitioner denied all the incriminating circumstances. He raised plea of false implication. No witness in defence was produced. He failed to give evidence on oath in disproof of charge against him.

5. Believing the ocular evidence supported by the circumstance of recovery of the gun, the trial Court convicted the petitioner under section 302/34, the P.P.C. and sentenced him to death and a fine of Rs.20,000 or in default one year's R.I. The High Court of Balochistan, Quetta, has dismissed the appeal of the petitioner and confirmed the death sentence.

6. Learned counsel for the petitioner has argued that the prosecution has failed to prove its case beyond reasonable doubt inasmuch as the eye‑witnesses are closely related to the deceased; the o6ular evidence suffers from discrepancies/contradictions and is in conflict with the medical evidence; Ghulam Oadir (P.W.4) is not the resident of the locality; the recovery of the gun from the petitioner was not witnessed by two respectable persons of the locality, as such the violation of the provisions of section 103, Cr.P.C. has rendered the recovery of the gun as illegal and unreliable; and, since the petitioner had no direct motive to kill the deceased, so the sentence of death was unwarranted.

7. We have considered the submissions made by the learned counsel with care and do not feel pursuaded to agree with him. Rindo Khan (P.W.2) and Amir Bakhsh (P.W.3) although related to the deceased yet had no motive to involve the petitioner falsely in 'the case. They live close to the place of occurrence and have given plausible cause of their attraction to the spot at the time of occurrence. The statements made by them are in consonance with the probabilities and materially fit in with other evidence and circumstances appearing in the case. The powerful engine invented for the discovery of truth, i.e. cross‑examination, has not been able to elicit material contradictions, major discrepancies, dishonest improvements, or any conflict between their statements and the medical evidence. They had heard one fire‑arm report while they were in their house and till reaching the place of occurrence they heard four/five shots. They also saw the petitioner and Bakhsh Ali firing at the deceased which hit her. So, the recovery of seven empties from the place of occurrence corroborates the statements of the eye‑witnesses. Bahram Khan (P.W.5) is an independent witness. He had no relation with the deceased. He reached the spot immediately after the occurrence. Narrating the occurrence, the eye‑witnesses told him that Bukhsh Ali and the petitioner had killed the deceased. The narration of the occurrence by the eye‑witnesses to him was substantially contemporaneous with the murder of the deceased. The eye witnesses had narrated the occurrence to him before they had time to devise or for reflection and deliberation. The narration was made by the eye‑witnesses to him when they were still under the immediate influence of the transaction. So, this is a weighty circumstance which furnishes strong corroboration to the statements of the eye‑witnesses. The statement made by Bahrain Khan (P.W.5) is relevant under Article 19 of the Qanun‑e‑Shahadat, 1984. The recovery of the gun from the petitioner wherefrom three empties out of seven empties recovered from the spot were found to have been fired is yet another circumstance which lends valuable support to the statements of the eye‑witnesses. The objection raised by the learned counsel with regard to the violation of the provisions of section 103, Cr.P.C. by not joining the two respectables of the locality to witness the recovery is devoid of force. In the instant case, neither search warrants were issued by the Magistrate for the search of the house of the petitioner nor the police had searched the house/place of its own. The petitioner himself led the police to his house and pointed the place wherefrom the gun was recovered. Section 103, Cr.P.C. would apply to a case where the police conducts search of the house/place to E recover a thing for which search is to be made and not to a case where anything is to be discovered in consequence of the information given by or on the pointation of the accused. The recovery, to be made on the pointation of the accused is relevant under Article 40 of the Qanun‑e‑Shahadat, 1984. The association of the two respectable inhabitants of the locality is not required in a case where the accused himself leads the police to a particular place and the thing is recovered on his information and/or pointation.

8. We have also considered the question of sentence with utmost care on our part. The petitioner, duly armed, had accompanied Bakhsh Ali (absconder) to the place of occurrence and actively participated by firing shot which hit the deceased. The deceased Mst. Tajal was killed as she was not agreeable to marry the absconder accused. We, therefore, do not see any mitigating circumstance in favour of the petitioner for lesser penalty.

9. Accordingly, leave to appeal is refused. NHQ/M‑2237/S Leave refused.