IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Criminal Jail Appeal No.D
68 of 2013
Present:
Mr. Justice Muhammad Iqbal
Mahar
Mr. Justice Amjad Ali Sahito
Appellant: Qasim S/o Aftab Ujjan,
through Mr. Nisar Ahmed Bhanbhro, Advocate.
Respondent: The State, through Mr. Abdul
Rehman Kolachi, Deputy
Prosecutor General
Date of hearing: 27.11.2018
Date of decision: 27.11.2018
J U D G M E N T
AMJAD ALI SAHITO, J:- The above-named appellant was tried by learned Additional
Sessions Judge Kandiaro in Sessions Case No.273/2006
St. Vs. Qasim Ujjan and others, for an offence
punishable under Sections 302, 109 and 34 PPC, arising out of Crime No.97/2006 registered
with Police Station Kandiaro and was convicted under
Section 302(b) PPC and sentenced to death,
to be hanged by his neck till he is dead and further directed to pay
Rs.100,000/- (One lac) to the legal heirs of the deceased Muhammad Jurial. In case of nonpayment, to undergo
S.I for 06 months more.
2. The concise facts as depicted in FIR lodged
on 14.08.2006 at 0600 hours by complainant Dost Muhammad at police station Kandiaro, are that he owned hotel which he used to run by
himself, whereas adjacent to his hotel there is also hotel of one Deedar Ujjan. On 01.8.2006, his
brother Muhammad Jurial Ujjan
aged about 40 years, his relative Gul Hassan Ujjan and nephew Shakeel Ahmed
were sitting on benches in the hotel of Deedar, where
he was gossiping with his brother. At about 0900 hours, there came accused Qasim having Iron rod, Papan
alias Papoo with Sotti and
one unknown person with soti his face was open and he
would be recognized if seen again with lathi. Out of
them, accused Qasim Ujjan
abused his brother Muhammad Jurial that as to why he
has complained to the villagers against him for passing behind his house, on
which deceased Muhammad Jurial replied that it is a
fact that they (accused) should not pass from the backside of his house. On such exchanges, the accused Qasim inflicted Iron rod to Muhammad Jurial
which hit him over the left Eye, whereas, the rest of the accused persons
abused the complainant party and then all the accused persons escaped away.
Thereafter, the complainant took his brother Muhammad Jurial
with the help witnesses and brought him at civil hospital after getting such
letter from police station, wherefrom his brother was referred to Nawabshah Hospital, where his brother was under treatment
and ultimately died there, hence leaving the dead body of his brother there, he
went to police station and lodged the FIR.
3. After
completing the investigation, the Investigation Officer filed a report under Section 173 Cr.P.C
before the competent Court of Law. The learned trial Court after observing all
the legal formalities framed charge
against the present appellant and acquitted accused Papan
alias Papoo and Shah Muhammad at Ex.2 to which they
pleaded not guilty and claimed trial.
4. In order
to establish accusation against the appellant, the prosecution examined PW-1 complainant
Dost Muhammad at Ex.6, who produced FIR at Ex.6/A; PW-2 Gul
Hassan at Ex.7; PW-3 Shakeel Ahmed at Ex.8; PW-4 Dr. Zaheeruddin Khokhar at Ex.9, who
produced copy of police letter and referral form and provisional medical
certificate of injured at Ex.9/A to 9/C respectively; PW-5 ASI Allah Dad; PW-6
Dr. Yar Ali Jamali at
Ex.11, who produced lash chakas form and postmortem report of deceased Muhammad Jurial at Ex.11/A & 11/B respectively; PW-7 mashir Perwaiz Ali at
Ex.12, who produced mashirnama of place of incident,
inquest report, mashirnama of arrest, mashirnama of recovery, mashirnama
of handing over clothes of deceased at Ex.12/A to 12/F respectively; PW-8 ASI Muhammad Laiq at Ex.13, who
produced receipt at Ex.13/A; PW-9 Tapedar Ishrat Waseem at Ex.14, who
produced sketch of vardat at Ex.14/A;
PW-10 Inspector Dilawar at Ex.16, who produced
chemical report at Ex.16/A. Thereafter learned DDPP for State closed the side
of prosecution at Ex.17.
5. Statements
of the appellant and acquitted accused Papan alias Papoo and Shah Muhammad were recorded under Section 342 Cr.P.C at Ex.18 to 20, wherein they denied the prosecution
allegations leveled against them and prayed for justice, whereas, the present
appellant further stated that he has been involved in this case due to the previous enmity over the landed property. The
appellant did not examine himself on oath nor led
any evidence in defence.
6. After
full fledge trial, co-accused were acquitted while the appellant was convicted
by the trial Court vide judgment dated 30.08.2013, which has been assailed
before this Court through instant Criminal Jail Appeal.
7. Mr. Nisar Ahmed Bhanbhro, learned
counsel for the appellant argued that the impugned judgment is against the law
and facts of the case; that the appellant is innocent and has falsely been
implicated in this case; that all the witnesses cited in the case being closely
related inter se are chance witnesses; that the complainant is owner of the
hotel and his brother deceased Muhammad Jurial was
present in the hotel of one Deedar Ujjan which is situated adjacent to his hotel and it is not
appealing to the prudent mind; that the medical evidence is in conflict with
the ocular evidence; that the motive in this case has not been proved, even
then the learned trial Court has awarded death sentence to the appellant; that
there is a delay of 14 days in lodgment
of the FIR without any plausible explanation; that there are material contradictions
in the evidence of the prosecution witnesses, which have demolished the whole
prosecution case. He further contended that as per memo of recovery dated
27.8.2006 (Ex.12/E) the present appellant has produced the Iron rod from the
weeds behind the wall, whereas, PW-8 I.O Inspector Dilawar in his evidence has deposed that during his visit
at place of incident, he secured one Iron rod and lathi
from the place of incident, hence, the recovery has not been proved. He lastly
prayed for the acquittal of the present
appellant and further submitted that if the acquittal is not possible under the
mitigating circumstances the sentence of the appellant may be reduced from
death to imprisonment for life.
8. While
rebutting the above contentions, Mr. Abdul Rehman Kolachi, learned DPG for the
State contended that the appellant is named in the FIR with specific role that of
inflicting Iron rod blow on the forehead of the deceased, resultantly he died
after 14 days of the incident; that the ocular evidence is consistent with the
medical as well as circumstantial evidence, however, he admitted that as per
memo of recovery of Iron rod dated 27.8.2006, the recovery of Iron rod was made
in presence of the mashir Pervaiz and Nadeem, but I.O in
his evidence has deposed that he has recovered the Iron rod on 14.8.2006. He
further contended that in these circumstances the learned trial Court has
rightly awarded conviction and sentence to the appellant but he conceded that
there are mitigating circumstances as the recovery of Iron rod and the motive
have not been proved, hence he tendered no objection for awarding lesser
punishment by reducing from death penalty to imprisonment for life.
9. We have
heard the learned counsel for the parties and have perused the record. There
can be no denial of the legally
established principle of law that it is always direct evidence which is
material to decide a fact/charge. On careful perusal of material available on record,
complainant Dost Muhammad in his
evidence deposed that on 01.8.2006, he along with his witnesses were present at hotel
then appellant Qasim having Iron rod, co-accused Papan alias Papoo and Shah
Muhammad having lathies came there and appellant Qasim Ujjan inflicted iron rod on
the head of Muhammad Jurial, thereafter injured
Muhammad Jurial was shifted to Nawabshah
hospital where he remained 14 days as indoor patient and subsequently succumbed
to the injuries and thereafter he lodged FIR at police station Kandiaro. In his cross-examination, he has admitted that
PWs are his close relatives. In order to corroborate the version of the
complainant, the prosecution has examined
eyewitnesses Gul Hassan (PW-2) and Shakeel Ahmed (PW-3), both
have fully supported the version of the complainant in their evidence have
sufficiently explained the date, time and place of occurrence in a clear-cut manner. In addition to this, both the
eyewitnesses have also explained the mode and manner of the occurrence.
Furthermore, in cross-examination PW Gul Hassan
admitted that his statement was recorded by police on 24.8.2006 and he has also
admitted that my statement was
recorded after 24 days of the incident, deceased
had sustained only one injury on the left side of his skull. He has also
admitted that at the place of incident
the villagers were also present in the hotel but no one has acted as witness in
this case. PW-3 Shakeel Ahmed, who is son of the deceased, has admitted that his
statement was recorded under Section 161 Cr.P.C on
24.8.2006. In his cross-examination, he has admitted that complainant Muhammad Jurial owned his hotel in the same village, but they went
to the hotel of Deedar only for taking tea.
10. The
prosecution has also examined P.W-4 Dr. Zaheeruddin Khokhar, Senior RMO Taluka Hospital Kandiaro, who in
his evidence has deposed that on 01.8.2006 he was posted as Senior Medical
Officer at Taluka Hospital Kandiaro,
where at about 12:00 noon, he attended injured Jurial
s/o Morand Khan Ujjan and
on examination he found the following injuries on his person:-
Injury No.1:-
A lacerated wound situated on left frontal region above mid-level of the left eyebrow,
size of the wound is 1.cm x 0.5 cm skin
deep.
Injury No.2:- Contusion
vertically situated on left parietal region, size of the contusion is 3.0 cm x 1. cm.
The injury No.1 was kept reserved for
radiologist opinion and injury No.2 was declared as Shajjah-i-Khaffifah, the probable duration of injuries was about 2
to 3 hours, kind of weapon used hard and blunt substance, and on the same date
i.e. 01.8.2006 the injured was referred to PMCH Nawabshah for admission and better treatment vide yearly
OPD No.23581/2006 where the injured expired after few days. He produces the
copy of the referred letter at Ex.09-B.
Thereafter he issued a provisional
medical certificate of injured, which he produced
at Ex.09-C In his cross-examination, he has admitted that; it is correct that
my opinion was reserved for radiologist report and. It is a fact that I have
not received the radiologist report. Further says that I was in contact with
the radiologist who has informed that the patient has expired. It is a fact
that I cannot say without radiologist report that injury No.1 is severe.
On 01.8.2006 deceased Muhammad Jurial
was referred to PMCH Nawabshah
for further treatment and on 14.8.2006 deceased was died in a private hospital
and thereafter he was referred for postmortem, which was conducted by Dr. Yar Ali, PW-6, who in his evidence deposed that on 14.8.2006 he was posted as
Medico-legal Officer in PMCH Hospital Nawabshah, on the same date he received a dead body of
Muhammad Jurial at 10:00 a.m
through police station A Section Nawabshah for
postmortem and certificate vide letter No.1525 dated 14.8.2006, the dead body
was identified by Shakeel
Ahmed and Muhammad Yasin. He started postmortem at
10:30 a.m and finished the same at 12:35 p.m. On the
external examination, he had found the following injuries:-
1. Healed
abrasion 02 cm x 01 cm at left forehead with scab formation.
2. Old
bruise at right Perito occipital region
bluish black in colour.
Both injuries were anti-mortem in nature.
Internal
examination
1. Head
on deep dissection of skull brain found contused
at right perito occipital region. Intraventricular Haemorrhage
also seen on the right side of the brain.
Thorax. On deep
dissection no any abnormality seen in thorax cavity.
Abdomen:- Healthy
Remarks:-
Deceased
was admitted since 01.8.2006 with a history
of head injury in Neurosurgical ward and was treated conservatively and condition
deteriorating and was expired on 14.8.2006 (at the private medical center). Cause of death:- Cardio respiratory failure as a consequence of head injury and its
complications. After postmortem body was handed over to ASI Muhammad Laiq of police
station A Section Nawabshah. Duration in
between death and injury was about 14 days. Duration in between death and
postmortem was 08 to 12 hours. Thereafter, he issued
post-mortem report of deceased, which he produced
at Ex.11/B, in cross-examination, he has admitted that it is correct to suggest that as per my postmortem report the patient
was admitted on 01.8.2006 and expired on 14.8.2006 but the patient was expired in a private hospital. He has
further admitted that he was not concerned with the treatment of the patient as
he was not a medical officer at that
time, but as per record available with me the deceased was expired in a private
Center, thereafter he was brought for postmortem and police only provided Lash chakas form for postmortem. In his
cross-examination, he has further admitted that I do not find any mistake from doctor side but if there is any mistake
that doctor removed oxygen from the mouth of the patient, therefore, death can
be occurred due to Cardio-respiratory failure. The patient was not operated
when the dead body was brought before him, the injury
was old and healed one.
11. Prosecution
has also examined PW-7 Pervaiz Ali, mashir of the case who has produced the memo of
place of incident, mashinama of recovery
of iron rod as well as the lathi, such memo was
prepared on 27.8.2006 at about 1700 hours, which reveals that appellant Qasim by leading the police party himself produced the Iron
road from the weeds behind the wall. Lastly the prosecution examined PW-10 I.O Inspector Dilawar, who in his evidence deposed that on 14.8.2006, he
was posted as SIO at police station Kandiaro, where
he received the FIR of the instant case and then started investigation, first
he visited the place of incident, which was shown to him by mashirs
Pervaiz Ahmed and Shakeel
from where he secured one Iron rod, one lathi measuring
about 4 feet, as such he prepared mashirnama of place
of vardat and securing Iron rod and lathi in presence of the mashirs Pervaiz Ahmed and Shakeel and
produced such mashirnama in his evidence at Ex.12/A.
In his cross-examination, he has admitted that he has secured Iron rod and lathi on 14.8.2006 at 9:00 or 10:00 a.m.
12. The motive
as set up in this case by prosecution is that deceased Muhammad Jurial was saying to the people that the appellant Qasim Ujjan is passing behind his
house, on which he became annoyed, therefore, due to such grudge has committed
the murder of deceased, whereas the
complainant Dost Muhammad, has not disclosed such motive in his evidence. Furthermore, the complainant and his witnesses
failed to disclose the date, time and
place or to whom the deceased has stated that the appellant is passing behind
his house, no such evidence has been produced by the prosecution to believe the
motive as setup, in this case, hence the motive remained shrouded in mystery. This incident
had taken place in broad day hours at about 0900 hours and police station was
situated at the distance of about 1 or 1 ½ kilometer from the place of
incident, but the complainant has not bothered to lodge the FIR promptly and
the deceased was shifted to PMCH hospital Nawabshah where he was provided medical treatment, but subsequently
he was shifted to a private hospital where he died. In his cross-examination PW-4, Dr. Zaheeruddin
Khokhar has admitted that he had reserved his opinion
for radiologist report as per him which was not received. Furthermore, PW-6 Dr.
Yar Ali who has conducted postmortem of the deceased
Muhammad Jurial in his examination-in-Chief has
opined the cause of death as Cardio-respiratory failure as a consequence of
head injury and its complications, but it is surprising to say that he has not
received the patient treatment file and without such file or reports he has
given such opinion regarding the cause of death as Cardio-respiratory failure.
Apart from above the alleged recovery has not been proved because the
investigating officer in his evidence deposed that he has recovered Irion rod
on 14.8.2006 whereas mashir Pervaiz in his evidence has admitted that on 27.8.2006
while leading the police party the appellant Qasim
produced Iron rod. From the above the prosecution has failed to prove the motive
against the appellant, it is established that only single Iron rod blow was
inflicted to the deceased Muhammad Jurial, whereas,
the appellant has not repeated the same. According to the FIR, the deceased Muhammad Jurial
and appellant Qasim had exchanged harsh words over
the matter of passing behind his house. In this context,
reliance is placed on the case of Muhammad Anwar v. The State (2017
S C M R 630), wherein the Honorable
Supreme Court of Pakistan while maintaining the conviction, reduced the
sentence of death to life imprisonment of the accused, the relevant portion of
the judgment is reproduced as follows:-
4
The case in
hand was a case of a single shot which
was not repeated by the appellant. The alleged recovery of the weapon of offence from the appellants custody had been
ruled out of consideration by the courts below and a co-accused of the
appellant attributed firing at the spot had been acquitted by the trial Court
...
In another case of Haq Nawaz v.
The State (2018 SCMR 21), wherein the Honourable Supreme Court of Pakistan
while maintaining the conviction, reduced the sentence of death to life imprisonment, as the prosecution failed to prove the motive setup in the case, the relevant portion of the judgment is reproduced as under;-
3
.The law is
settled by now that if the prosecution asserts a motive but fails to prove the
same then such failure on the part of the prosecution may react against a
sentence of death passed against a convict on the charge of murder and a
reference in this respect may be made to the cases of Ahmed Nawaz v. The State
(2011 SCMR 593), Iftikhar Mehmood and another v. Qaiser Iftikhar and others (2011 SCMR
1165), Muhammad Mumtaz v. The State and another (2012
SCMR 267), Muhammad Imran @ Asif
v. The State (2013 SCMR 782), Sabir
Hussain alias Sabri v. The State (2013 SCMR 1554), Zeeshan Afzal alias Shani and another v. The State and
another (2013 SCMR 1602), Naveed
alias Needs and others v. The
State and another (2014 SCMR 1464), Muhammad Nadeem Waqas and another v. The
State (2014 SCMR 1658), Muhammad Asif
v. Muhammad Akhtar and others (2016 SCMR 2035) and Qaddan and others
v. The State (2017 SCMR 148)
.
In the case of Sardar Muhammad and another v. Athar
Zahoor and others (2017 SCMR 1668), wherein the
Honourable Supreme Court has been pleased to observe as under:-
5. As far as the
award of death sentence to the appellant by the trial Court and reduction of
the same into imprisonment for life by the High Court is concerned, we have
observed that the ocular version of the incident produced by the prosecution is
consistent and the appellant had failed to shatter and same and the same (sic)
cannot be ignored only for the reason that there is no enmity with appellant.
Even if we ignore the alleged recovery of crime weapon and the empty as the
same were sent together for analysis but we cannot ignore that it was case of single shot without repetition. Motive
as alleged was not proved by the prosecution which reflects that occurrence
might have the result of sudden affair
which fact has been concealed by both the sides. Keeping in view all the above
facts make it clear that the High Court was rightly conscious of quantum of sentence and rightly converted the
same into life.
13. In view of
the above mitigating circumstances have been created in the instant case as the
prosecution has failed to prove the recovery of Iron rod from the appellant as
well as motive as set up in this case,
hence the appeal is partly allowed, the conviction of the appellant Qasim Ujjan under Section 302(b)
PPC, is converted from death sentence into imprisonment for life. The amount of
compensation of Rs.100000/-(one Lac) imposed by the learned trial Court to be
paid to the legal heirs of the deceased is maintained. In case of nonpayment of
compensation, the appellant shall undergo S.I for 06 months more. The benefit
of Section 382-B Cr.P.C is also extended to the appellant. In view of the above
modification, the instant criminal jail appeal is dismissed. The Criminal
Reference No.D-04/2013 is answered in NEGATIVE.
14. The above are
the detailed reasons for our short order
dated 27.11.2018.
Judge
Judge
ARBROHI