THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.32 of 2017

Criminal Jail Appeal No.79 of 2017

Confirmation Case No.01 of 2017

                Present:         

Mr. Justice Naimatullah Phulpoto

Mr. Justice Mohammad Karim Khan Agha

Appellant:                      Mairaj son of Taj Muhammad through Mr. Umar Farooq Khan, advocate

Respondent:                   The State through Mr. Muhammad Iqbal Awan, Deputy Prosecutor General Sindh

Date of hearing:              13.11.2018

Date of announcement: 20.11.2018

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Mairaj son of Taj Muhammad was tried by learned Additional Sessions Judge-II, Malir Karachi in Sessions Case No.291 of 2013. After full-dressed trial, vide judgment dated 26.01.2017 appellant was convicted under section 302(b), PPC and sentenced to death as Tazir for committing murder of deceased Asif Khan son of Waris Khan. Appellant was also directed to pay Rs.100,000/- as compensation to the legal heirs of deceased as envisaged under section 544-A, Cr.PC and in default to suffer S.I. for one year more. Appellant was also convicted under section 324, PPC and sentenced to 7 years R.I. and to pay fine of Rs.25,000/- and in case of default to suffer S.I. for three months more. Death sentence of the appellant was subject to confirmation by this Court as required under section 374, Cr.PC. Trial court has made Reference to this Court for confirmation of death sentence or otherwise. Appellant was extended benefit of Section 382-B, Cr.PC.

2. The prosecution case, shorn of unnecessary details, may be stated thus, complainant Naimat-ur-Rahman lodged FIR on 05.03.2013 at 1700 hours, alleging therein that he is serving in Port Qasim. On 04.03.2013 at evening time, he was returning from his duty to house. Complainant received phone call of one Rizwan on the way that his nephew, namely, Asif Khan had sustained firearm injuries. Thereafter, complainant went to his brother Waris Khan’s house, where he came to know that Asif Khan has been shifted to Jinnah Hospital. Thereafter, he rushed to Jinnah Hospital, where he met with Rizwan, who disclosed to complainant that Asif Khan and one Kawish along with other boys were playing Luddo in front of Achan Bhai Kiryana Store, where accused Meraj, Siraj and one unknown accomplice came. It is alleged that accused Meraj caused firearm injuries to Asif Khan and Kawish at the instigation of co-accused, Asif Khan succumbed to injuries in hospital, whereas Kawish was admitted in the hospital. FIR of the incident was lodged against the accused on 05.03.2013 at P.S. Sharafi Goth, Malir Karachi under sections 302/324/34, PPC.

3. Investigation officer visited place of incident in presence of mashirs and collected three empties of 30 bore pistol. IO recorded 161, Cr.PC statements of PWs, dispatched bloodstained clothes of deceased to chemical examiner for report. IO failed to arrest accused during investigation, he submitted challan against the accused under section 512, Cr.PC. On 22.06.2013, IO received information from Head Muharrar Arshad of Raiwind City Lahore regarding arrest of accused Mairaj in another case and was confined at Camp Jail Lahore. After necessary permissions, on 11.07.2013, he went to said jail and arrested him in this case and prepared such mashirnama. Accused was brought to P.S. Sharafi Goth and kept such Entry No.16 of 1600 hours. Empties and bloodstained clothes of deceased were sent for chemical report as well as FSL report. Accused was produced before the Magistrate and subsequently he was remanded to judicial custody.

4. Case against co-accused, namely, Siraj proceeded under section 512, Cr.PC. Proceedings under section 87-88 Cr.PC were concluded.

5. Trial court framed charge against the accused Mairaj under the above referred sections at Ex.2. Accused pleaded not guilty and claimed to be tried.

6. At trial, prosecution examined PW-1 complainant Naimat-ur-Rehman at Ex.3, PW-2 Ahsan Khan at Ex.4, PW-3 Rizwan Ali Khan at Ex.5, PW-4 Dr. Dileep Khatri at Ex.07, PW-5 Kawish at Ex.9, PW-6 Muhammad Aslam at Ex.10. Thereafter, prosecution side was closed vide statement at Ex.11.

7. Trial court recorded statement of accused under section 342, Cr.PC at Ex.12, in which accused claimed false implication in this case and denied the prosecution allegations. Accused declined to give statement on oath and did not lead any evidence in defence.

8. Trial court after hearing the learned counsel for the parties and assessment of the evidence available on record, vide judgment dated 26.01.2017 convicted and sentenced the appellant as stated above, hence these appeals. By this single judgment, we intend to decide aforesaid appeals as well as the reference for confirmation of death sentence.

9. Mr. Umar Farooq Khan, learned advocate for appellant, argued that copies of statements and documents were not supplied to the accused seven days before the commencement of trial under the provision of Section 265-C(1), Cr.PC. Omission has vitiated the trial; that there was delay of 23/24 hours in lodging of FIR, for which, no plausible explanation has been furnished by the prosecution. It is further argued that PWs Ahsan Khan and Rizwan Ali are closely related to the deceased and interested. That independent persons who witnessed the incident were not examined by the prosecution; that there was dispute/fight between the proclaimed offender Siraj and deceased two days prior to the incident over the ludo game. It is mainly contended that there was no direct motive to the appellant against the deceased, both were friends, quarrel between them on game. It is further submitted that there is major contradiction in evidence of PWs on number of accused persons. PW-2 Ahsan Khan has stated that there were four accused persons at the time of incident whereas PW-3 Rizwan Ali and PW-5 Kawish have deposed that there were 3 accused persons. Lastly, argued that appellant is aged about 23 years, in case, Court is not convinced for his acquittal, his death sentence may be reduced to the imprisonment for life. In support of his contentions, counsel for the appellant relied upon the following cases:

1. 2014 SCMR 1034 (Ghulam Mohy-ud-Din alias Haji Babu vs. The State)

2. 2017 SCMR 1797 (Allah Wasaya versus The State)

3. 1993 SCMR 1660 (Ansar Ahmad Khan Barki vs. The State and another)

4. 1985 SCMR 423 (Mushtaq Ahmad and others vs. The State)

5. PLD 1970 Karachi 399 (Pir Muhammad Khan & 2 Others Vs. The State)

6. PLD 1964 (WP) Kar. 428 (Daud alias Dadan and another vs. The State)

10. Mr. Muhammad Iqbal Awan, learned Deputy Prosecutor General Sindh argued that copies of the statements were supplied to the accused as required under the law, such receipt is available in the R and Ps at Ex.1. That incident took place on 04.03.2013 at 1720 hours and FIR was lodged on 05.03.2013 at 05:00 p.m. Complainant has explained such delay that after funeral ceremony, he went to the police station and lodged the FIR. Learned D.P.G. further argued that there were three accused persons, appellant Mairaj, his brother Siraj and one unknown person. According to the evidence, learned D.P.G. argued that appellant Mairaj made repeated fires upon the deceased whereas remaining two accused persons were instigating him for commission of offence. Learned D.P.G. argued that PWs closely related to deceased did not intervene for saving their lives as appellant was armed with pistol and he had already fired upon PW Kawish. It is argued that PW Kawish was independent witness, he was also injured, his evidence is corroborated by medical evidence. Learned D.P.G. admitted that there was no motive against appellant in this case. Lastly, prayed for dismissal of appeal. Learned D.P.G. in support of his submissions, relied upon the following cases:

1. 2011 SCMR 872 (Muhammad Nadim vs. The State)

2. 2012 PCr.LJ 768 (Muhammad Asif vs. The State)

3. 2009 SCMR 99 (Ijaz Ahmad vs. The State)

4. 2008 SCMR 917 (Farooq Khan vs. The State)

5. 2007 SCMR 641 (Ashfaq Ahmed vs. The State)

6. 2015 SCMR 856 (Dadullah and another Vs. the State)

11. We have carefully heard the learned counsel for the parties and scanned the evidence available on record.

12. In order to prove unnatural death of deceased Asif, prosecution has examined PW-4 Dr. Dileep Khatri at Ex-7, who deposed that on 04.03.2013 he was posted as Senior Medico Legal Officer at Jinnah Hospital, Karachi. On the same date at 05:55 p.m., one dead body of Asif Khan son of Waris Khan and one injured Kawish son of Shaikh Mehmood were brought to the Hospital. Such information was given to concerned police station. M.O. examined injured Kawish and noted the injuries, “punctured firearm wound 0.5 c.m. right side hypo chondrium of abdomen (entry wound)”. Injured was immediately shifted to operation theater for treatment. He issued medico legal certificate, he produced it at Ex.7/A. Medical Officer started postmortem examination of deceased on 04.03.2013 at 07:45 p.m. and finished at 08:15 p.m. Medical Officer found following injuries on the person of deceased Asif Khan:

Surface wounds and injuries

1) Punctured firearm wound 0.75 c.m. in diameter on left hypo chondrium (entry wound)

2) Punctured firearm wound 0.75 c.m. in diameter on mid umbilicus of abdomen (entry wound)

3) Two Punctured firearm wounds each 1 c.m. x 0.5 c.m. on back of the abdomen (exit wounds)

4) Defuse swelling left occipital region of skull with redness eyes and bleeding from left ear.

Internal Examination

Spleen found ruptured due to path of blood. Abdomen cavity found full of blood. Loops of intestine found ruptured otherwise no internal damages found in head, neck and thorax.

The medical officer, from the external as well as internal examination of the dead body of deceased, was of the opinion that death of deceased occurred due to cardiorespiratory failure due to severer hypo chondrium and hemorrhage shocks resulted from firearm injuries.

13. PW-1 Naimat-ur-Rehman deposed that the incident took place on 04.03.2013 in the evening time. He was returning from his duty at Port Qasim to his house, on the way at Abbot Company, he received phone call of one Rizwan that nephew of the complainant, namely, Asif Khan had sustained firearm injuries, upon such information, he went to his brother Waris Khan’s house at 89, where he came to know that Asif Khan has been shifted to Jinnah Hospital, he rushed to Jinnah Hospital where he met with Rizwan and Raffat, Rizwan disclosed to him that Asif Khan and Kawaish along with other boys were playing Luddo in front of the shop of Achan Bhai, where accused Meraj, Siraj both sons of Taj and one unknown persons came there. Accused Meraj started firing upon them, whereas co-accused asked Meraj not to spare. Complainant was informed that Asif Khan succumbed to his injuries whereas Kawish was under treatment at JPMC. Complainant stated that at about 08:00 p.m. PW Rizwan and Sadiq received dead body of deceased Asif, the same was brought to home. On the next day i.e. 05.03.2018, after completion of funeral ceremony complainant went to police station Sharafi Goth and lodged FIR at 05:00 p.m. He further deposed that he came to know that there was quarrel between Asif and Siraj on 02.03.2013 on the game of Ludo, they exchanged hot words, however, due to intervention of other boys present there, the same was settled at spot. On 04.03.2013 at about 05:20 p.m., this incident occurred. Complainant has deposed that he has come to know that during absconsion, accused Siraj has been killed in an encounter in the area of Mansehra.

14. PW-2 Ahsan Khan deposed that on 04.03.2013 at about 05:00 p.m. his uncle Rizwan was playing ludo besides Khalid General Store and he was watching him. Whereas, his brother Asif Khan was playing ludo with one Kawish besides the shop of Achan Bhai. In the meantime, he heard firing from the shop of Achan Bhai and saw that accused Meraj was firing upon his brother Asif Khan and Kawish whereas accused Siraj and two unknown accused were instigating him for killing. After firing, they ran away. Both the injured were shifted to JPMC in an ambulance and he returned home. He further deposed that at about 10.30 p.m. his uncle Rizwan brought dead body of his brother Asif Khan. As regards to motive, he deposed that two days prior to the incident, there was quarrel between deceased Asif and Siraj.

15. PW-3 Rizwan has deposed that on 02.03.2013 while playing ludo there was quarrel between his nephew Asif and Siraj, the same was settled by the elders at night. On 04.03.2013, at about 05:00 p.m. he was playing ludo with his friends Asif Teeli, Atif and Aamir whereas his nephew Ahsan was watching the game. His nephew Asif Khan was also playing ludo at Achan Bhai shop chabootra with Kawish and two others. He saw accused Mairaj, who fired upon his nephew Asif which hit at his abdomen and his friend Kawish also sustained firearm injury. Accused Siraj and one unknown person were also accompanied with Mairaj, who instigated accused Mairaj to kill Asif and Kawish. Thereafter, they ran away towards fish street. This PW further deposed that mohalla people gathered, both the injured were shifted to JPMC where Asif was declared dead.

16. PW-5 Kawish, deposed that on 04.03.2013 at about 05:00/05:15 p.m. he was playing ludo at the shop of Achan Bhai along with Asif and 2/3 other friends. All of sudden, three accused Meraj, Siraj and one unknown person came there and accused Meraj fired with his pistol which hit him and Asif. Relatives of Asif shifted him and Asif to JPMC in Ambulance, he became unconscious on the way and became conscious in hospital, where his statement was recorded by ASIP Aslam. Asif Khan expired. In his cross-examination, he replied that there was a quarrel between deceased and accused Siraj on 02.03.2013, it was settled by the elders. PW Kawish explained that on the day of incident, there was strike, due to which he could not go to his job. However, he denied suggestion that due to strike he received firearm injury at the hands of persons who were on strike.

17. PW-6 SIP Muhammad Aslam deposed that on 04.03.2013, he was posted at P.S. Sharafi Goth in investigation branch. MLO informed operation branch regarding injuries sustained by Kawish and Asif, however, Asif succumbed to injuries at JMPC. SIP Ramzan of Operation Branch went to JMPC whereas he visited the place of incident and inspected the same in presence of Riffaqat and Rizwan at 2200 hours and recovered three empties of 30 bore, which were sealed by him and prepared such mashirnama at Ex.5/D. On the next day, i.e. 05.03.2013, he received FIR, sealed parcel bloodstained clothes of deceased, mashirnama of inspection of dead body and inquest report for investigation. He recorded 161, Cr.PC statements of complainant Naimat, Raffaqat, Ahsan and Rizwan. He prepared sketch of place of incident at Ex.10/A, recorded 161, Cr.PC statement of SIP Ramzan at P.S. On 12.03.2012 IO recorded 161, Cr.PC statement of Kawish at JPMC. IO stated that accused absconded to Mansehra, despite efforts, he could not arrest accused persons and upon completion of investigation, he submitted challan under section 512, Cr.PC. On 22.06.2013, he received information from Head Muharrar Arshad of Raiwind City Lahore regarding arrest of accused Mairaj in another case and he was confined at Camp Jail Lahore. After necessary permission, on 11.07.2013, he went to said jail and arrested him in this case and prepared such mashirnama at Ex.10/B. Accused was brought to P.S. Sharafi Goth. Empties and bloodstained clothes of deceased were sent for chemical as well as FSL reports. Accused was produced before the Magistrate and he was remanded to judicial custody.

20. After close scrutiny of the evidence, we have come to the conclusion that the prosecution has succeeded in proving the guilt of the appellant beyond any reasonable doubt for the reason that there is credible and cogent evidence of PWs particularly injured Kawish. Evidence of eyewitnesses Rizwan and Ahsan Khan and injured Kawish have been corroborated by the medical evidence. According to the case of prosecution, two days prior to the incident, deceased Asif and co-accused Siraj, brother of present appellant, had played ludo game with each other and some quarrel took place between them. It was settled by the elders at night time but co-accused Siraj had much annoyance. On the day of incident, present appellant came along with co-accused Siraj and fired upon the deceased on 04.03.2013 at 05:00 p.m. PW Kawish tried to intervene but the appellant also fired upon him. As regards to the medical evidence, the Doctor, who had conducted postmortem examination, has mentioned approximate time of injuries and death 30 minutes to 1 hour and time of postmortem examination 07.45 p.m. and completion of postmortem examination. Cause of death was firearm injuries. Said doctor had also examined injured PW Kawish and issued such certificate at Ex.7/A, mentioning the details of injuries sustained by this PW, which coincides with the time of incident as reported by the prosecution witnesses, namely, Rizwan, Ahsan Khan and injured PW Kawish. It is further observed that injured witness was independent, he had no motive to falsely implicate the appellant in this case. We have no reason to disbelieve the ocular evidence, corroborated by medical evidence. There is no legal force in the contention of learned counsel for the appellant that eye witnesses, namely, Riwzan and Ahsan Khan are closely related to the deceased as such they are interested witnesses. Evidence of eye witnesses, namely, Rizwan and Ahsan Khan could not be rejected on the ground of relationship for the reason that they had no motive to falsely implicate the present appellant in the murder of the deceased and causing firearm injuries to PW Kawish. Reference may be made to the law laid down in the case of RAQIB KHAN v. The STATE (2000 SCMR 163). Relevant portion is reproduced as under:-

“11. The contention that a witness who is related to the deceased is an interested witness, has since long been discarded by this Court. It is settled proposition of law by now that interested witness is the one who has an animus for false charge. Mere relationship of a witness to the deceased is not enough of a reason to discard his testimony because such a witness is necessarily not an interested witness in the true sense of the term. This Court has gone to the extent that even evidence of interested witness is always not discarded. Reference may be made to the law laid down by this Court in Niaz v. State (PLD 1960 SC 387) which was reiterated again in Nazir Hussain v. State (PLD 1965 SC 188). In Aslam and another v. The State (1997 SCMR 1284), a Full Bench of this Court had reiterated the law on this score that "in the final analysis, it is neither the relationship of the witnesses with the deceased or that of the P.Ws. inter se nor in the appropriate cases even their being the interested witnesses that provided an ultimate guidance for according credence to their testimony. It is ultimately inherent worth of evidence of a witness that determines his reliability."

21. It is also settled position of law that eye witnesses being relatives of the deceased it would be their endeavor to see that real culprits are punished and they would not like to implicate a wrong and innocent person in the crime so as to allow the real culprit to go unpunished. Moreover, in this case PW Kawish who is injured, his presence is established, has implicated the appellant in this case.

22. Contention of the learned counsel for the appellant that copies of statements of the PWs and documents were not supplied to the accused seven days before the commencement of the trial as provided under Section 265-C(1), Cr.PC, record reflects that the copies of the statements and documents were supplied to the accused, such receipt was obtained and the same is available on record at Ex.1, as such, the contention is devoid of any legal force.

23. As regards to the contention of the defence counsel that there was delay of 23 hours in lodging of FIR and there was possibility of consultation and deliberation. Complainant Niamat-ur-Rehman has deposed that dead body of Asif was received on the day of incident at 08:00 p.m. On the next day, i.e. 05.03.2013, dead body was buried and after burial ceremony, he went to police station at 05:00 p.m. and lodged FIR. So far as delay in lodging of FIR is concerned, no doubt, it was delayed by 23 hours, yet it is seen in the light of the attending circumstances of the case, the delay stands explained. It is an established principle of law and practice that in criminal cases the delay, by itself, in lodging the F.I.R. is not material. The factors to be considered by the Courts are firstly, that such delay stands reasonably explained and secondly, that the prosecution has not derived any undue advantage through the delay involved. The delay in lodging of FIR has been explained in the present case to the effect that complainant party was in the hospital on the day of incident upto 08:00 p.m. Thereafter, dead body was brought in house. Dead body was buried on 05.03.2013. After funeral ceremony, complainant went to the police station and lodged FIR at 05:00 p.m. Delay in lodging of FIR has been fully explained. Coming to the question of what advantage the prosecution has gained from delaying the F.I.R. It is observed that no advantage, at all, was gained by prosecution. Injured PW Kawish has also implicated the appellant and his absconding brother Siraj. Complainant and PW Kawish had no enmity whatsoever for falsely implicating the appellant, and thus nothing was maliciously gained through the delay in lodging of FIR. We have no hesitation to hold that delay by itself in lodging of FIR in the present case was not material. In this regard, we are guided by the principle laid down by the Honourable Supreme Court in the case of MUHAMMAD NAEEM alias Deemi vs. THE STATE (2011 SCMR 872).

24. Learned advocate for the appellant argued that PW-2 Ahsan Khan has stated that there were four accused persons at the time of incident whereas PW-3 Rizwan Ali has stated that there were three accused persons. In our considered view evidence of PW-5 Kawish who was injured is material. He has deposed that there were three accused persons. Moreover, place of incident was in front of shop on the road, several persons gathered at the time of incident, there was possibility of miscalculation of number of accused in the evidence of PWs Ahsan Khan. In fact, it is material that PWs including PW Kawish have categorically deposed that appellant fired upon the deceased. In the circumstances of the case, it was not material contradiction to discard the strong ocular evidence, particularly evidence of injured witness Kawish, corroborated by medical evidence. Non-recovery of pistol would cast no reflection on the prosecution case. Case otherwise stood proved against the appellant. It has been held by the Honourable Supreme Court in the case of Asim Vs. the State (2005 SCMR 417) as under:

“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 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 of 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.”

25. Trial court had rightly appreciated the evidence according to the settled principles of law and held that appellant caused firearm injuries to deceased Asif Khan and caused firearm injury to PW Kawish.

26. As regards to the defence plea, learned counsel for the appellant argued that deceased Asif and injured Kawish had received injuries at the hands of the persons, who were on strike in Karachi city. It may be observed that such defence plea set up in the cross-examination has not been raised by the accused in his statement under section 342, Cr.PC. In order to prove the defence plea, accused was provided legal opportunity to appear as his own witness under section 340(2), Cr.PC but the appellant had failed to avail such opportunity. We, therefore, hold that defence plea is unsupported by any evidence and is belated plea, it was afterthought and rightly that has been disbelieved by the trial court.

27. We have also noticed that after the incident, appellant absconded away and he was arrested in another case at Lahore on 22.06.2013. Appellant got space, became fugitive from the law and pistol could not be recovered from him. Noticeable absconsion for such pretty long period is additional incriminating piece of evidence to connect the appellant in the commission of offence.

28. At the cost of repetition, it is mentioned that ocular evidence has been furnished by PWs Rizwan, Ahsan Khan and injured Kawish. They have furnished graphic details of the occurrence. Evidence of the eyewitnesses is same on material particulars of the case. Despite an embarrassingly lengthy cross-examination, no flaw, discrepancy or material contradiction could be detected that may possibly reflect their credibility. On the contrary, evidence of the eye witnesses have been found straightforward, consistent and confidence inspiring. They have satisfactorily explained their presence at the place of incident. PW-Kawish has suffered firearm injury at the hands of the appellant and narrated incident as under:

“On 04.03.2013 at 05:00/05:05 p.m. I was playing ludo at the shop of Achan Bahi along with Asif and 2/3 other friends, all of sudden three accused Meraj, Siraj and one unknown came there and accused Meraj fired with his pistol, which hit me and Asif, due to which we fell down on earth. The relatives of said Asif shifted me and him to the JMPC in the ambulance, but I went unconscious in the way and regained in the hospital and found one ASIP Aslam who recorded my statement. Subsequently said Asif expired. The accused Meraj present in Court is same.”

29. Appellant had no direct motive against deceased Asif Khan. Evidence reflects that eye witness PW-3 Rizwan Ali Khan had deposed that, “on 02.03.2013 I have heard quarrel between my nephew Asif and Siraj while playing ludo but same was settled by the elders in the night”. PW 2 Ahsan Khan deposed that, “two days prior to this incident there was quarrel between my deceased brother and accused Siraj and due to said anguish”. PW-1 Naimat-ur-Rehman had deposed that, “I came to know that on 02.03.2013 a quarrel between deceased Asif and Siraj on the matter of ludo and they have also exchanged hard words to each other and due to intervention of other boys present there their compromise was also taken place at the spot.”

30. It is crystal clear from evidence that no direct motive was alleged against appellant Mairaj. Therefore, taking it as a mitigating circumstance, we find that it is not the case of death penalty. We are supported in our view by the judgment of the Honourable Supreme Court in the case of ALLAH WASAYA versus The STATE (2017 SCMR 1797). Relevant portion is reproduced as under:-

“6.         But it is not a case of capital punishment to the extent of Allah Wasya (appellant No.1) as Allah Ditta co-accused of the appellants who allegedly was reluctant to give the hand of his sister for Shah Bakhsh brother of the complainant was acquitted by the learned trial court on the basis of compromise. No direct motive was alleged against Allah Wasaya, therefore, taking it as a mitigating circumstance, the sentence of death awarded to Allah Wasaya (appellant No.1) is altered to imprisonment for life on two counts. The amount of compensation and the sentence of imprisonment in default thereof as ordered by the learned courts below is maintained. Conviction and sentence of Allay Wasaya (appellant No.1) under section 324, P.P.C. is maintained. All the sentences awarded to Allah Wasaya (appellant) shall run concurrently and he is also extended the benefit of section 382-B, Code of Criminal Procedure. With this modification in the quantum of sentence, this criminal appeal to the extent of Allah Wasaya (appellant No.1) is partly allowed.

31. Certainly, pain and anguish endured by the deceased’s family cannot be comparatively quantified so as to commensurate with quantum of sentence. It has been held in the case of Ghulam Mohy-ud-Din alias Haji Babu vs. The State (2014 SCMR 1034), “So it is better to respect the human life, as far as possible, rather to put it at end, by assessing the evidence, facts and circumstances of a particular murder case under which it was committed.” Thus alternate penalty of imprisonment for life would meet the ends of justice.

32. In view of absence of direct motive against appellant Mairaj, taking as a mitigating circumstance, the sentence of death awarded to appellant Mairaj is altered to imprisonment for life. The amount of compensation and the sentence of imprisonment in default thereof as ordered by the trial court is maintained with slight modification that in case of default in payment of compensation, appellant shall suffer S.I. for six months instead of one year. Conviction and sentence of appellant Mairaj under section 324, PPC as well as fine are maintained. All the sentences awarded to appellant Mairaj shall run concurrently. Appellant is also extended the benefit of section 382-B, Cr.PC. With this modification in the quantum of sentence, these criminal appeals are partly allowed. Confirmation Reference made by trial court is answered in negative.

J U D G E

J U D G E

Gulsher/PS