2005 PLP 417 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, J.‑‑‑-'This petition calls in question the judgment, dated 10th May, 2004 passed by learned High Court of Balochistan, Quetta whereby conviction/sentence of death awarded to petitioner/convict by Sessions Judge, Mekran at Tuibat under section 302(b), P.P.C. by means of judgment dated 25th September, 2003 in case No. 14 of 2003 has been maintained.

2. Precisely stating the facts of the case are that a case vide F.I.R. dated 10th April, 2002 was registered at Police Station Panjgoor on the complaint of P.W. Qaiser Khan who alleged that on the day of incident he and his brother‑ Muhammad Yousuf (deceased) were on their way to Quetta in a truck being driven by him which he stopped near a "Dash" (Tandoor) situated at Gramkhan (Panjgoor) as he wanted to purchase Rooti from the Dash (Tandoor). At that time two boys were already standing there, out of whom one was saying that he is "Badmash" of the area and disclosed, his name as "Asim". He talked in Pushto language with the owner of "Dash" (Tandoor). On this the said Asim told him as to why they are talking in Pushto. He told him that he is "Musafir", therefore, let them go away. On this he took out a pistol and aimed at him. In the meantime, his brother Muhammad Yousuf (deceased) also came there. In the meanwhile Asim opened fire which hit Muhammad Yousuf on the right side of his chest. Thereafter he took him to Punjgoor hospital where Muhammad Yousuf succumbed to the injury: Police was also informed about the incident who recorded his Fard Bayan (Exh.P.5‑A) and registered F.I.R. Accordingly, investigation was carried out during course whereof an empty was taken into possession vide recovery Memo. Exh.P.2/EO from place of incident. On 11th April, 2002 petitioner himself appeared before the police as such he was arrested and a TT pistol being crime‑weapon was recovered from his possession vide Exh.P.3/A on his pointation. Both the incriminating articles i.e. empty and pistol were sent to the Forensic Science Laboratory, Quetta; for report of the Fire‑arms Expert by the Deputy Superintendent of Police vide letter dated 27th May, 2000.

3. It is important to note that examination of the recovered articles noted above could not be conducted because, "Bullet Comparison Microscope' of the laboratory maintained by Crime Branch Balochistan was out of order due to which the D.S.P. Panjgoor was directed to refer these articles to some other laboratory.

4. On the completion of investigation the petitioner was sent up to face trial initially before the Special Judge under the Terrorist Activities Act, 1997, who after having recorded the evidence concluded that petitioner is guilty for the commission of offence under section 302(b), P.P.C. read with section 7(a) of the Anti‑Terrorism Act, 1997 thus awarded him punishment of death with a fine of Rs.1,00,000 or in default to further suffer S.I. for six months, by means of judgment dated 3rd July, 2002. In appeal the judgment passed by Special Judge was set aside by the learned High Court and case was remanded to the Sessions Judge who vide judgment dated 25th September, 2003 found him guilty for the offence charged against him as such he was sentenced to death.

5. Petitioner preferred appeal before the High Court but without any success as the same has been dismissed by means of judgment. dated 10th May, 2003. Hence instant petition for leave to appeal has been filed.

6. I Learned counsel for the petitioner contended as under:‑‑ (i) The prosecution, except the P.W. Qaiser Khan (complainant), has no incriminating evidence against petitioner warranting his conviction, therefore, evidence furnished by this witness without' corroboration was not acceptable legally for warranting conviction. (ii) The ocular and medical evidence suffered from contradiction, thus, was not believable. (iii) Through the incriminating articles were recovered from the possession of the petitioner but in the absence of the report of the Fire‑arms Expert, these were not helpful to the prosecution.

7. We have heard the learned counsel and with his assistance have gone through the statement of P.W. Qaiser Khan who has furnished incriminating, trustworthy and confidence‑inspiring evidence being a natural witness of the incident. He had no 'animosity with the accused and with a zero possibility of substitution the real accused with the petitioner thereby allowing former to go scort‑free being the murderer of his brother who had been done to death within his sight fully involved him. in the commission of offence in his examination‑in‑chief and in cross‑examination defence had not denied his presence at the spot. Inasmuch as it has also been admitted by the defence itself that the injured was taken to the hospital by P.W. Qaiser Khan (complainant) himself. P.W. Qaiser Khan being the star‑witness of prosecution had also identified the accused during the identification parade which was carried out later on by.P.W.6 Muhammad Khan, Tehsildar (Magistrate). His statement has also been corroborated by P.W. Wahid Bukhsh because A before the incident and after it he had seen the accused having a pistol in his hand. Therefore, on the basis of the ocular testimony of P.W. Qaiser Khan which gets corroboration from the identification parade as well as from the statement of P.W. Wahid Bukhsh on material events, prosecution had successfully established guilt against him. Assuming that if the medical evidence is contradictory to ocular evidence it would have no bearing on the, prosecution case. Besides it medical evidence. is always considered as conformatory evidence and if there is contradiction in ocular and medical evidence, former will overweigh to latter.. Muhammad Hanif v. the State PLD 1993 SC

895. It may also be borne in mind that in the criminal case it is not the quantity but quality of evidence which matters. As it has been held in Dildar Hussain v. Muhammad Afzaal PLD 2004 SC 663 and Allah Bakhsh v. Shammi PLD 1980 SC 225. under the circumstances of the case non‑production pf Fire‑arms Expert Report in respect of crime‑empty and pistol dill also have no reflection on the prosecution case because it otherwise stands proved against the petitioner.

8. Learned counsel for the petitioner alternately stated that as only one injury was caused, therefore, the accused deserves lesser punishment. We are afraid the contention so made by hint is not acceptable because the prosecution has established the guilt against the accused without any doubt and it has come on record that the intention of the convict (petitioner) was to commit Qatl‑e‑Amd of the deceased, therefore, he would be entitled for the normal penalty of death and no extra labour is required to be undertaken for the purpose of reducing the g sentence on any pretext. Reliance can be placed on the case reported as Muhammad Sharif v. Muhammad Javed PLD 1976 SC 452, therefore, plea so raised in this behalf is repelled being unsustainable.

10. Thus, for the foregoing reasons we see no merit in instant petition which is accordingly dismissed and leave declined.

11. Before parting with the judgment we consider it appropriate to observe that the Incharge of Forensic Science Laboratory namely D.S.P. Said Abdullah Shah declined to examine incriminating articles for the reason that, "Bullet Comparison Microscope", was out of order and he directed to. D.S.P. Panjgoor for approaching to some other laboratory instead of himself arranging test of recovered articles because it was his responsibility to have made alternate arrangements if, "Bullet Comparison Microscope", was out of order and due to negligence on the part of Laboratory Incharge a strong corroborative evidence has been spoiled. Similarly it is not known that for this reason alone in how many cases such examination was not conducted and if it is so then its ultimate benefit must have gone to the accused persons involved in heinous C crimes. Resultantly in their acquittal as well obviously for sheer departmental negligence for which responsible officers/officials are bound to count for and the Chief Secretary, Inspector‑General of Police, Government of Balochistan and other concerned officers are directed to ensure proper functioning of. "Bullet Comparison Microscope" in future without fail.

12. The D.I.‑G. Crimes shall conduct an enquiry in view of above observations and proceed against delinquents in accordance with law. M.B.A./A‑108/S Petition dismissed.