IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Crl. Appeal No. D – 25 of 2012

Before;

Mr. Justice Muhammad Iqbal Mahar

Mr. Justice Irshad Ali Shah

Appellants: Fazal Rehman and Munawar Ali,

through Mr. A.R Faruq Pirzada Advocate

Respondent: The State, through Mr. Zulfiqar Ali Jatoi,

Additional Prosecutor General

Date of hearing: 28.02.2019

Date of decision: .03.2019

J U D G M E N T

IRSHAD ALI SHAH, J; The appellants Fazal Rehman and Munawar Ali together with Muhammad Ramzan (now has died) by way of instant Criminal Appeal have impugned judgment dated 24.04.2012 passed by learned Additional Sessions Judge Kandiaro, whereby they have been convicted and sentenced as under;

“According to the prosecution case as per the evidence the present accused persons namely Muhammad Ramzna, 2. Munawar Ali and 3. Fazal Rehman along with deceased accused Qamar Zaman duly armed with deadly weapons used force by an unlawful assembly at the place of incident, therefore, they are convicted and sentenced u/s 148 P.P.C to suffer Rigorous Imprisonment of three years and to pay fine of Rs.50,000/- (Fifty thousand) each to the legal heirs of each of the deceased and in default thereof to suffer S.I for a period of 03 months more. Since the present accused persons namely Muhammad Ramzan, 2. Munawar Ali and 3. Fazal Rehman along with deceased accused Qamar Zaman the accused persons have intentionally committed the murder of both the deceased Sher Abbas and Muhammad Akber in presence of their brother/complainant and his cousin in a broad day light. No mitigating circumstances have been brought on record for lesser punishment as the present accused persons have taken the lives of two innocent persons aged about 20 and 25 years respectively as per their post mortem report. Hence, they must be met with capital punishment. The accused Muhammad Ramzan who is aged about 79 years as per his statement recorded u/s 342 Cr.P.C, looking to his oldest age he is convicted and sentenced u/s 302(b) & 149, 34 .P.C to suffer Rigorous Imprisonment for life and fine of Rs.100,000/- (one lac) to the legal heirs of each both the deceased and in default thereof to suffer S.I for a period of 06 months more. However, he is extended the benefit of section 382(b) Cr.P.C. The accused persons namely Fazal Rehman and Munawar Ali are convicted u/s 302(b) P.P.C & 149, 34 P.P.C and sentenced to death. They shall be hanged by their neck till they are dead, subject to confirmation of death sentence by the Honourable High Court of Sindh under section 374 Cr.P.C. They are further directed to pay Rs.100,000/- (one lac) each to the legal heirs of each both deceased persons namely Sher Abbas and Muhammad Akber by way of payment as envisage under section 544-A Cr.P.C. In case of non-payment they shall further suffer simple imprisonment for 6 months.”

2. The facts in brief necessary for disposal of instant Criminal Appeal are that the appellants Fazal Rehman and Munawar Ali together with Muhammad Ramzan (now has died) with co‑accused Qamar Zaman (died at trial) in furtherance of their common intention committed Qatl-e-Amd of Muhammad Akber and Sher Abbas by causing them fire shot injuries, for that they were booked and reported upon by the police to face trial.

3. At trial, the appellants Fazal Rehman and Munawar Ali together with Muhammad Ramzan (now has died) did not plead guilty to the charge and the prosecution to prove it, examined PW-1 complainant Sakhawat Ali (Exh.36), he produced FIR of the present case; PW-2 Sher Zaman (Exh.37), he produced his 164 Cr.P.C statement; PW-3 mashir Saeed Amir (Ex.38), he produced memo of examination of dead bodies, copy of the danistnama, memo of place of incident and recovery of blood stained earth and empties, memo of recovery of pistol and one empty; PW-4 SIO Nazar Hussain (Ex.39), he produced memo of arrest of accused Qamar Zaman (died during trial), report of Chemical Examiner, receipt regarding handing over the dead bodies of the deceased to the complainant; PW-5 SIO Abdul Hameed (Ex.40); PW-6 Medical Officer Dr. Din Muhammad Khoso (Exh.41), to identify the signature of Dr. Masood Ahmed who conducted postmortem on the dead body of said deceased, he also produced post mortem reports on the dead bodies of the said deceased; PW-7 SIO Ghulam Hussain (Ex.42); PW-8 PC Dhani Bux (Ex.43); PW-9 Tapedar Muhammad Aslam Chan (Ex.44), he produced sketch of vardhat and then closed the side.

4. The appellants Fazal Rehman and Munawar Ali together with Muhammad Ramzan (now has died) during course of their examination u/s 342 Cr.P C denied the prosecution’s allegation by stating that they being innocent have been involved in this case falsely by the complainant party to satisfy their matrimonial dispute with them. It was further stated by appellants Muhammad Ramzan (now has died) and Munawar that they are residing at Bin Qasim Malir Karachi. It was stated by appellant Fazal Rehman that he was Primary School Teacher at Titan at Kandiaro. However, none of them examined himself on oath or any one in their defence in disproof of the prosecution’s allegation.

5. On evaluation of the evidence, so produced by the prosecution, the learned Additional Sessions Judge Kandiaro convicted and sentenced the appellants Fazal Rehman and Munawar Ali together with Muhammad Ramzan (now has died) as detailed above and then made a reference in terms of Section 374 Cr.P.C for confirmation of death sentence awarded to appellants Fazal Rehman and Munawar Ali.

6. The instant appeal on account of death of appellant Muhammad Ramzan was ordered to stand abate while it is being disposed of in respect of appellants Fazal Rehman and Munawar Ali together with the Reference made by learned Additional Sessions Judge Kandiaro for confirmation of their death sentence, by way of single judgment.

7. It is contended by learned counsel for the appellants that the appellants being innocent have been involved in this case falsely by the complainant party in order to satisfy their dispute with them over landed property and / or matrimonial dispute; PW Sher Afzal who was examined by the prosecution before amendment of the charge was declared to be hostile to the prosecution on account of his failure to support the case of the prosecution; the evidence which the prosecution has produced at trial being inconsistent has been believed by learned trial Court without lawful justification; that the PWs were unaware of the fact that at what place their 164 Cr.P.C statements were recorded. By contending so, he sought for acquittal of the appellants. In support of his contention, he mainly relied upon case of Zareed Khan v. Gulsher and another (1972 SCMR 597).

8. Learned Additional PG for the State by supporting the impugned judgment has sought for dismissal of the instant criminal appeal and sought for confirmation of death sentence awarded to appellants Fazal Rehman and Munawar Ali.

9. We have considered the above arguments and perused the record.

10. The unnatural death of deceased Sher Abbas and Muhammad Akber is proved of the postmortem reports which have been brought on record by the prosecution through Dr; Din Muhammad Khoso, even otherwise the unnatural death of the deceased is not denied by the appellants. Now is to be examined the liability of the appellants towards the above said incident.

11. The narration of the incident made by complainant Sakhawat Ali before learned trial Court was to the following effect;

“I am complainant in this case. Deceased namely Sher Abbas Khan and Muhammad Akbar Khan were my brothers. On 03.10.2004 it was 9:30 p.m, I along with my cousin Sher Zaman, Sher Afzal nephew my brother Sher Abbas and Muhammad Akbar we were sitting in our Otaq, my cousin Khan Zaman Khan who is a minor boy, who came at me and disclosed to me that accused Ramzan, Qamar Zaman, Munawar Zaman and Fazal Rehman who are ploughing Tractor on the land upon which our civil litigation is pending in the civil Court. When we all five rushed at the land where we saw, that Qamar Zaman having armed with T.T Pistol, Munawar armed with Repeater, Fazal Rehman armed with T.T Pistol, and Muhammad Ramzan having 7-mm Rifle in his hand, my brother Sher Abbas asked them that why they are ploughing Tractor on the land as there is civil litigation is pending before the civil Court where accused Ramzan threatened us to go away from where otherwise, they are fully equipped and will commit murder where my brother insisted and asked him that this is our land and we will not allow you to plough the Tractor on our land. Meanwhile the son of Ramzan namely Qamar Zaman started abusing to us thereafter first Ramzan straight fire from his 7-mm Rifle at my brother Sher Abbas and who received fire arm injury on his chest. Qamar Zaman (deceased accused) fired at my brother Akbar which fire hit on his left side of his under arms then Munawar fired from his Repeater which fire hit to Sher Abbas on his left side chest under the nipple. Fazul Rehman also fired upon Sher Abbas which hit him on his left side neck and second fire hit to my brother Akber Khan on the left side of rib through and through. Then we fell down on the earth to save our life and the accused person made aerial firing and thereafter they fled away in their house which are situated near the place of incident. I left Sher Zaman and Sher Afzal at the dead bodies and rushed at police station where police at once came at place of incident and prepared mashirnama of dead bodies and then shifted the dead bodies at Kandiaro Hospital for post mortem then police register my FIR. I produce copy of FIR at Ex.36-A, which bears my signature. The police read over the contents of the FIR to me. Thereafter I shown the place of incident to police. Police secured the blood stained mud and some fire arm empties cartridges and shells of 7-mm Rifle, Repeater and T.T Pistol from the place of vardat and prepared the mashirnama. The accused present in the Court are same and one of the accused Qamar-u-Zaman has expired.”

12. The complainant despite cross-examination stood by his version on all material points with regard to the death of the deceased allegedly at the hands of the appellants and co-accused Muhammad Ramzan and Qamar Zaman (who now have died). The evidence of the complainant take support to large extent from the evidence of PW Sher Zaman. What is stated by the complainant and PW Sher Zaman is supported by ancillary evidence, their evidence could not be disbelieved for minor discrepancies which are irrelevant in its character. It is true that PW Sher Afzal before formal amendment of the charge was examined and was declared to be hostile to the prosecution but there could be made no denial to the fact that there is nothing in his evidence which may suggest that the incident has not taken place. His evidence even otherwise is not enough to discredit evidence of complainant and PWs Sher Zaman. In these circumstances, learned trial Court was right to form his opinion that the prosecution has been able to prove its case against the appellants beyond shadow of doubt.

13. However, the sentence of death awarded to the appellants call for its modification for the reason that there was no deep rooted enmity between the parties and the dispute between them was over landed property and/or matrimonial dispute, as such the death sentence awarded to the appellants is modified with rigorous imprisonment for life with compensation of Rs.100,000/- (One Lac) each payable to legal heirs of the said deceased for two counts for committing Qatle-Amd Sher Abbas and Muhammad Akber and in case of their failure to make payment of compensation, they would undergo simple imprisonment for six months. The conviction and sentence so modified would run concurrently with benefit of Section 382-B Cr.P C.

14. 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 whereas 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”.

15. It has time and again been reiterated by the Honourable Apex Court that while death sentence is a usual penalty in case of Qatl-e-Amd, life imprisonment being legal punishment may also be considered.

16. In case of Ghulam Mohiuddin alias Haji Babu & ors Vs. The State (2014 SCMR-1034), it has been held by the Honourable Apex 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”.

17. The instant criminal appeal and death reference are disposed of in above terms.

Judge

ARBROHI