IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

(1) Criminal Appeal No.D-18 of 2017

(2) Criminal Reference No.D-04 of 2017

(3) Criminal Jail Appeal No.D-19 of 2017

(4) Criminal Appeal No.S-36 of 2017

(5) Criminal Appeal No.S-38 of 2017

Before:

Mr. Justice Khadim Hussain Tunio Mr. Justice Irshad Ali Shah

Appellants : 1).Muhammad Ramzan s/o Allah Rakhio @

Ghulam Qadir by caste Chandio

2).Orangzeb s/o Muhammad Ayoub

3).Abdul Ghaffar @ Bando s/o Allah Rakhio

Through Mr. Irshad Ali Chandio, Advocate

4). Khadim Hussain s/o Wahid Bux Chandio Through Mr.Asif Ali Abdul Razzak Soomro, Advocate

Complainant : Damsaz Ali Chandio through

Mr.Irfan Badar Abbasi, Advocate

The State through Mr.Sharafuddin Kanhar, A.P.G

Date of hearing : 06.11.2018

Date of decision : 24.12.2018

J U D G M E N T

IRSHAD ALI SHAH, J-.The facts in brief leading to the instant judgment are that on 08.05.2014, at about 10.20 a.m, the appellants with others, duly armed with guns and rifle, fired upon and killed Imdad Ali and injured PW Ali Gul with intention to cause his murder, when they with complainant Damsaz Ali and his witnesses were going back to their village, after visiting their land, for that they were reported against by the police.

2. At trial, the appellants did not plead guilty to the charge and the prosecution to prove it, examined PW-01 complainant Damsaz Ali (Exh.07), PW-02 Ali Gul (Exh.09), PW-03 Ghulam Shabir (Exh.10), PW-04 Medical Officer Dr.Niaz Ali (Exh.11), PW-05 Mashir Hubdar Ali, PW-06 ASI Muhammad Siddiq Zardari (Exh.13), PW-07 Tapedar Abdul Majeed Kalhoro (Exh.14), PW-08 ASI Shah Nawaz Khoso (Exh.16) and then closed the side.

3. The appellants during course of their examination u/s 342 Cr.PC denied the prosecution’s allegation, pleaded innocence by stating that the weapons allegedly used in commission of the incident have been foisted upon them. It was specifically stated by appellant Muhammad Ramzan that he has been involved in this case falsely by the complainant party only to settle their dispute with him over the agricultural land. It was stated by appellant Orangzeb that he was working with Pakistan Army and had come to attend marriage ceremony of his brother Shahid Ali when the complainant party involved him in this case and no injury has been caused by him to PW Ali Gul, which is self suffered. It was stated by appellant Khadim Hussain that on the date of incident, he was on his duty as Lineman with “WAPDA” and in support of his plea, he produced “Attendance Register” of his office. It was further stated by him that he has falsely been involved in this case by the complainant party being a cousin of co-accused Muhammad Ramzan. It was stated by appellant Abdul Ghaffar alias Bando that he has been involved in this case falsely by the complainant party as he happened to be brother of co-accused Muhammad Ramzan. None of the appellants examined themselves on oath in disproof of the prosecution allegation against them or anyone else in their defence.

4. On evaluation of evidence so produced by the prosecution, the learned 2^nd Additional Sessions Judge, Dadu, convicted and sentenced the appellants as under;

“Accordingly, accused Muhammad Ramzan is convicted u/s 302 (b) PPC and sentenced to death in terms of Section 265-H(ii) Cr.PC. He shall be hanged by his neck till his dead subject to confirmation of death sentence by the Honourable High Court of Sindh. He is also directed to pay Rs.300,000/- (three Lac) compensation to the legal heirs of deceased in terms of Section 544-A Cr.PC and in failure thereof he shall suffer six (06) months S.I more. Accused Orangzeb, Khadim and Ghaffar have actively participated in commission of offence with common object, however they have not been implicated with causing fire arm injuries to the deceased, for the extenuating reasons, I am of the opinion that alternative sentence of imprisonment for life, a legal sentence u/s 302 (b) PPC shall meet the ends of justice, therefore accused Orangzeb, Khadim and Ghaffar are convicted u/s 302 (b) PPC r/w Section 149 PPC and sentenced to suffer imprisonment for life. Accused Orangzeb, Khadim and Ghaffar are further convicted for the offence u/s 324 PPC r/w 149 PPC and sentenced to suffer R.I for 07 (seven) years and to pay fine of amount Rs.25000/- in default whereof they shall suffer six months S.I more. Accused Orangzeb is further convicted for committing offence u/s 337-F(iii) PPC and sentenced to suffer R.I for three years and to pay Rs.30,000/- as Daman to injured Ali Gul. All the accused have been convicted u/s 265-H(ii) Cr.PC and they shall be entitled for benefit of section 382-B Cr.PC.

5. Surprisingly, the appellant Muhammad Ramzan who allegedly has been attributed the role of committing Qatl-e-Amd of Imdad Ali by causing him fire shot injury, has been convicted and sentenced for an offence punishable u/s 302 (b) PPC (one count), while appellants Orangzeb who allegedly has been attributed role of causing single fire shot injury on leg of PW Ali Gul, has been convicted and sentenced for offence punishable u/s 302 (b), 324, 337-F(iii) r/w Section 149 PPC (three counts), which appears to be significant, such discrepancy could not be lost sight of.

6. Initially, the appellants preferred Jail Appeal No.D-19/2017; however, on engaging learned counsel, appellant Muhammad Ramzan preferred Criminal Appeal No.D-18/2017, appellant Khadim Hussain Criminal Appeal No.S-36/2017 and appellants Orangzeb and Abdul Ghaffar alias Bando Criminal Appeal No.S-38/2017, through their learned counsel.

7. All the above said appeals have been clubbed together with the reference made by learned Trial Court for confirmation of death sentence against appellant Muhammad Ramzan in terms of Section 374 Cr.PC, those are being disposed of by way of this single judgment.

8. Contention of learned counsel for the appellants are that the appellants are innocent and they have been involved in the case falsely by the complainant party only to settle their dispute with them over the landed property; no overt-act in commission of the incident is attributed to appellants Abdul Ghaffar alias Bando and Khadim Hussain and that the evidence produced by the prosecution has been believed by learned trial Court without lawful justification. Lastly they sought acquittal of the appellants. In support they relied upon the cases of Muhammad Nawaz and another Vs. The State and others (PLD 2005 SC-40), 2). Abdul Khaliq Vs. The State (2006 SCMR-1886), 3). Manzoor Hussain and another Vs. The State (2011 SCMR-902), and 4). Haq Nawaz and others Vs. The State and others (2018 SCMR-95).

9. Contentions of learned A.P.G for the State and learned counsel for the complainant are that all the appellants are vicariously liable for commission of the incident and they have rightly been convicted and sentenced by learned trial Court.

10. We have given due consideration to the arguments advanced by learned counsel for the parties and perused the record.

11. The death of Imdad Ali being unnatural and injury to PW/injured Ali Gul is proved by the prosecution through the evidence of medical officer Dr.Niaz Ali. Now the liability of the appellants towards the alleged incident is to be examined.

12. The next question for consideration will be whether the appellants formed an unlawful assembly in prosecution of their common object and committed the offence as alleged. In this behalf it may be stated that in that case, it becomes obligatory upon the prosecution to satisfactorily establish the charge through tangible and sufficient evidence because in absence of ingredients of section 149 PPC, it would never be justified to convict an offender for an ‘offence’ otherwise specifically said to have been committed by other member of alleged unlawful assembly. Reliance in that context may well be placed upon case of Muhammad Altaf & others Vs. The State (2002 SCMR-189) wherein it has been held the Honourable Apex Court that;

“9. In the light of the arguments addressed and in view of the factual aspect of the case it is proper and necessary to first determine whether in the circumstances of this case the prosecution has been able to prove the ingredients of section 149 P.P.C, and its application to the facts of the case. As this section stands, its ingredients have to be established by the prosecution. The liability of each accused involved in a case can only be fixed if the common object of the assembly is first ascertained. In this case the motive which allegedly prompted the accused to launch their attack was a dispute between the deceased Ghulam Murtaza and P.W Asghar Ali on one hand and accused Mujahid Nawaz on the other over the pigeons.----The word ‘knew’ occurring in the second part of section 149 PPC requires that this must be proved by tangible and sufficient evidence and not from conjectures and speculations that the offence was committed in prosecution of the common object of the assembly. It would, therefore, not be sufficient to show that the accused ought to have known or might have known and that they had reason to believe that the common object of the unlawful assembly was to commit murder. In this back ground it is not just and proper to hold that to avenge a trivial and insignificant incident over pigeon, the grand-father, their son and their grandson would form an unlawful assembly with the only object to commit murder. Therefore, in these circumstances section 149 PPC cannot be made applicable and so every accused would be liable to punishment for the act committed by him during the attack”.

13. On ocular premises, it was stated by complainant Damsaz Ali that;

“I am complainant in this case. Deceased Imdad Ali was my brother. Injured Ali Gul is my maternal cousin (marot). The incident took place on 08.05.2014, at 10.20 a.m(morning). Ali Gul, Ghulam Shabir and Muhammad Safar are my witnesses in this case. We were five brothers and amongst them deceased Imdad Ali was second number. There was landed dispute amongst us and accused Ramzan Chandio party. On the day of incident, I and my brother Imdad Ali, uncle Muhammad Safar, cousin Ghulam Shabir and maternal cousin (marot) Ali Gul had gone to our land and were returning and when we reached Kisho Chandio Chowdagi at 10.20 a.m (morning) where we saw six accused persons and we identified them to be (1) Muhammad Ramzan having rifle in his hand, (2) Orangzeb s/o Muhammad Ayoob having DBBL Gun in his hand (3) Abdul Ghaffar @ Bando s/o Allah Rakhio with Gun in his hand, (4) Khadim Hussain s/o Wahid Bux with gun in his hand (5) Oshaque s/o Arz Muhammad with repeater in his hand (6) Muhammad Ayoob s/o Muhammad Ibrahim with gun in his hand, all by caste Chandio, r/o village Kisho Chandio, Taluka Mehar. The accused Muhammad Ayoub asked us as to why we visited the land despite restrained by them and thereafter accused Muhammad Ayoub abetted co-accused not to leave us and commit our murder. In consequence of abetment of accused Muhammad Ayoub, co-accused Muhammad Ramzan made fire from his rifle straight at my brother Imdad Ali with intention to commit his murder which hit on his forehead. Accused Orangzeb and Oshaque made fires from their respective weapons straight at my maternal cousin Ali Gul with intention to commit his murder who received injuries. Thereafter, the accused while abusing, making aerial fires and raising slogans went away. Then we brought Imdad Ali and Ali Gul at Radhan Hospital, we also informed police on the way. Police reached at Radhan Hospital and gave police letter. The doctor conducted postmortem upon deceased Imdad Ali and then handed over the dead body to us. The injured Ali Gul was referred to Larkana for further treatment. After performing funeral rites I got lodged FIR on the same day of incident in the evening time. Police registered my FIR, read over to me and obtained my signature on it. I produce original FIR at Exh.7/A, and say it is same, correct and bears my signature. I also showed the place of vardat to police. I produce original receipt in respect of receiving dead body of Imdad Ali at Exh.7/B and say it is same, correct and bears my signature. Accused Muhammad Ramzan, Orangzeb, Abdul Ghaffar and Khadim produced in the Court are same while accused Oshaque and Muhammad Ayoub are absconders. Note:- The property produced in the Court is in different sealed parcels. The property viz. Clothes of the deceased produced in the Court are same. The Rifle and two Guns produced in the Court are same. Five empties of Rifle produced in sealed parcel which is de-sealed are same’.

14. It was stated by PW/injured Ali Gul that;

“I know complainant Damsaz Ali which is my cousin (Marot). On 08.05.2014, I alongwith complainant Damsaz Ali, PW Safar, Marot Imdad and Shabir were returning from the land and when we reached at Chowdagi, where we saw everyone accused Muhammad Ramzan, Orangzeb, Oshaque, Muhammad Ayoub, Khadim, Ghaffar @ Bandah Ali. Accused Muhammad Ramzan made Rifle fire at Imdad Ali, accused Orangzeb and Oshaque made fires at me. I went unconscious. The complainant got lodged FIR. Police recorded my statement u/s. 161 Cr.PC. The accused present in the Court are same. The accused Oshaque Chandio and Muhammad Ayoub Chandio are absconders. Case property produced in the Court is same”.

15. It was stated by PW Ghulam Shabir that;

“I know the complainant Damsaz Ali who is my cousin. Deceased Imdad Ali was my cousin. There was landed dispute between complainant and accused Ramzan Chandio party. On 08.05.2014, I and deceased Imdad Ali, uncle Safar, Ali Gul and Damsaz Ali were returning from the lands and when at about 10.20 a.m(morning) reached beside Chowdagi where we saw and identified everyone accused (1) Ramzan with rifle, (2) Orangzeb with DBBL Gun, (3) Oshaque with repeater, (4) Khadim with SBBL Gun, (5) Bando @ Ghaffar with SBBL Gun, (6) Ayoub with SBBL Gun all by caste Chandio. The accused abused us and asked us that they had restrained us to visit the land. Accused Ayoub abused us and declared that he and co-accused would not leave us alive. Accused Ramzan made Rifle fire straight at Imdad Ali. Accused Orangzeb made fire which hit Ali Gul, the accused Oshaque made fire which hit Ali Gul and thereafter all the accused made fires. About ten/fifteen fires were made and terror was created, thereafter the accused went away to their village. We saw deceased Imdad Ali had received injury on his forehead, his blood oozing. PW Ali Gul was in injured condition. We took deceased and injured to Radhan Hospital where police reached, completed legal formalities. The injured Ali Gul was referred to Larkana. The deceased was brought at village and was buried. Thereafter, the complainant Damsaz Ali got lodged such FIR. I was examined by the I.O u/s. 161 Cr.PC. The accused present in the Court are same, while accused Oshaque and Ayoub are absconders. Case property produced in the Court is same”.

16. On going through the testimony of the PWs examined by the prosecution as reproduced above, it transpires that appellants Muhammad Ramzan and Orangzeb have been attributed the role of causing fire shot injuries to deceased Imdad Ali and PW/injured Ali Gul respectively, while role attributed to appellants Khadim Hussain and Abdul Ghaffar alias Bando is that of making fires in air obviously with a design to create harassment. No allegation of aerial firing, even otherwise, is attributed to them (appellants Khadim Hussain and Abdul Ghaffar alias Bando) by PW/injured Ali Gul during of his examination, which has made the allegation of the vicarious liability against them (appellants Khadim Hussain and Abdul Ghaffar alias Bando) to be doubtful.

17. In case of Muhammad Altaf and five others Vs. The State (2002 SCMR-189), wherein it is held by the Honourable Court that;

“----Ss.149 & 302---Every member of unlawful assembly to be guilty of offence committed in prosecution of the common object--- Ingredients of S.149, P.P.C have to be established by the prosecution---Liability of each accused involved in a case can only be fixed if the common object of the assembly is first ascertained---Word “knew” occurring in the second part of S.149 P.P.C. requires that this must be proved by tangible and sufficient evidence and not from conjectures and speculations that the offence was committed in prosecution of the common object of the assembly---Not sufficient to show that the accused ought to have known or might have known and that they had reason to believe that the common object of the unlawful assembly was to commit murder”.

18. Appreciating the ocular evidence, it is stated that each and every appellant involved in commission of the incident would be seen/held responsible for his individual act in commission of the alleged incident.

19. The role attributed to appellant Khadim Hussain and Abdul Ghaffar alias Bando is only to the extent of making fires in air seemingly to create harassment, they as such are liable for an offence punishable u/s 337-H(ii) PPC, for this offence they have not been punished by learned trial Court, even otherwise, they have already undergone sufficient punishment for the said offence in shape of agony of self protracted trial.

20. The role attributed to appellant Orangzeb is that he caused fire shot injury to PW/injured Ali Gul with intention to commit his murder which landed on his leg, which too creates reasonable doubt as to act of ‘sharing common intention’, as he preferred to choose leg of the PW/injured Ali Gul. Thus, he is held guilty of his individual act by firing at ‘non-vital part’ of the body of the PW/injured Ali Gul, despite availability of every opportunity hence he would be liable for the punishment to that extent.

21. The role attributed to appellant Muhammad Ramzan is that he by committed Qatl-e-Amd of Imdad Ali by causing him fire shot injury on his forehead with his rifle; he as such is liable to that extent accordingly.

22. For what has been discussed above, appellants Abdul Ghaffar alias Bando and Khadim Hussain are acquitted of the offence, for which they have been charged, tried and convicted by learned trial Court. Appellant Orangzeb is acquitted of the charge for an offence punishable u/s 302 (b) PPC while conviction and sentence recorded against him for an offence punishable u/s 324 PPC and 337-F(iii) PPC is maintained. Appellant Muhammad Ramzan has rightly been found guilty for an offence punishable u/s 302 (b) PPC, for committing Qatl-e-Amd of Imdad Ali by causing him fire shot injury. However, the sentence of death awarded to him calls for its modification for the reason that it was single fire shot injury which proved to be fatal, there was no deep rooted enmity between the parties and the dispute between the parties was over landed property, as such the death sentence awarded to appellant Muhammad Ramzan is modified with rigorous imprisonment for life with compensation of Rs.300,000/- (Three Lacs) payable to legal heirs of the said deceased and in failure whereof, he would undergo simple imprisonment for six months. The benefit of Section 382-B Cr.PC is awarded to appellants Muhammad Ramzan and Orangzeb.

23. In case of Iftikhar Hussain Vs. Israr Bashir and others (PLD 2007 SC-111), it has been held by the Honourable Court at Page No.119 that;

“….The difference of punishment for Qatl-e-Amd as Qisas and Tazir provided under sections 302(a) and 302(b), P.P.C, respectively is that in a case of Qisas, Court has no discretion in the matter of sentence wheras in case of Tazir Court may award either of the sentence provided under section 302(b), P.P.C, and exercise of this direction in the case of sentence of Tazir would depend upon the facts and circumstances of the case. There is no cavil to the proposition that an offender is absolved from sentence of death by way of Qisas if he is minor at the time of occurrence but in a case in which Qisas is not enforceable, the Court in a case of Qatl-e-Amd, keeping in view the circumstances of the case, award the offender the punishment of death or imprisonment for life by way of Tazir. The proposition has also been discussed in Ghulam Murtaza v. State 2004 SCMR-04, Faqirullah v. Khalil-uz-Zaman 1999 SCMR-2203, Muhammad Akram v. State 2003 SCMR-885 and Abdus Salam v. State 2000 SCMR-338”.

24. It has time and again been reiterated by the Honourable Supreme Court that while death sentence is a usual penalty in case of Qatl-e-Amd, life imprisonment being legal punishment may also be considered. In this reference is respectfully made to the case of case of Ghulam Mohiuddin alias Haji Babu and others Vs. The State (2014 SCMR-1034), wherein it has been held by the Honourable Court that;

“---S.302(b)---Qatl-e-amd---Sentence---Death sentence or imprisonment for life---Single mitigating circumstance---Sufficient to award life imprisonment instead of death penalty---Single mitigating circumstance, available in a particular case, would be sufficient to put on guard the Judge not to award the penalty of death but life imprisonment---If a single doubt or ground was available, creating reasonable doubt in the mind of Court/Judge to award either death penalty or life imprisonment, it would be sufficient circumstance to adopt alternative course by awarding life imprisonment instead of death sentence---No clear guideline, in such regard could be laid down because facts and circumstances of one case differed from the other, however, it became the essential obligation of the Judge in awarding one or the other sentence to apply his judicial mind with a deep thought to the facts of a particular case---If the Judge/Judges entertained some doubt, albeit not sufficient for acquittal, judicial caution must be exercised to award the alternative sentence of life imprisonment, lest an innocent person might not be sent to the gallows---Better to respect human life, as far as possible, rather than to put it at end, by assessing the evidence, facts and circumstances of a particular murder case, under which it was committed”.

25. The instant criminal appeals and death reference are disposed of in above terms.

JUDGE

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