Judgment Sheet
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Criminal
Jail Appeal No. D – 112 of 2013
Confirmation
Case No. D – 07 of 2013
Present:
Mr. Justice
Naimatullah Phulpoto
Mr. Justice Zulifqar
Ali Sangi
Date
of hearing: 13.02.2020
Date of announcement: 20.02.2020
Mr. Ghulam
Shabbir Dayo, Advocate for appellants.
Mr.
Rukhsar Ahmed Junejo Advocate for widow of deceased.
Mr.
Zulifqar Ali Jatoi, Additional P.G.
-.-.-.-.-.-.-.-.-.-.
J U D G M E N T
NAIMATULLAH
PHULPOTO, J. Zulifqar
and Mukhtiar Ali appellants were tried by learned Additional Sessions Judge-III
Mirpur Mathelo in Sessions case No. 392/2006 State v. Zulifqar Ali and others for offences under
Sections 302, 337-H(2), 114, 147,148 and 149 PPC registered vide crime
No.77/2006 of Police Station Adilpur, District Ghotki. After regular trial,
vide judgment dated 07.12.2013, Appellants were convicted under Section 302(b)
read with section 149 PPC and sentenced to death as Tazir. Appellants were also
ordered to pay compensation of Rs. 100,000/- (One lac) each to be paid to the
legal heirs of the deceased in terms of Section 544-A, Cr.P.C. In case of the default
thereof, Appellants were further ordered to suffer S.I for six months. Both the
appellants were also convicted under Sections 147,148 read with section 149 PPC
for two years R.I and fine of Rs.2000/- each payable to the legal heirs of
deceased. In case of default thereof, appellants were also ordered to suffer
S.I for one month. Appellants were extended
benefit of Section 382-B, Cr.P.C.
2. Brief facts of the prosecution case as
disclosed in the FIR lodged by complainant Sikandar Ali alias Sher are that one
Suhail Ahmed aged about 22/23 years was his son and was serving in Pakistan
Army at Bahawalpur. On 22.10.2006, he was at his home on leave. Miran Chachar
and others (accused persons) had leveled false allegation of illicit relations
(Karap) upon Muhammad Khan Chachar and others, due to that grudge, Miran
Chachar and others had made firing upon Muhammad Khan Chachar and others with
intention to commit their murder and such case bearing crime No. 66/2006
offence under section 324, 337-H(ii) PPC was registered at Police Station
Adilpur. Miran Chachar and others were annoyed and had declared that they would
cause loss to the complainant party as they were helping to Muhammad Khan and
others. On the day incident i.e 26.10.2006 complainant along with his son
Sohail Ahmed and step brother Badal son of Sabzal and relative Abdul Rasheed
son of Pir Bakhsh Chachar was present in the house. It is alleged that electric
bulbs were on. It was about 8.00 p.m they saw accused persons namely 1.
Zulifqar armed with klashanikov, 2. Akhtiar armed with gun 3. Mukhtiar, 4. Amanat
Ali 5. Shoukat Ali all sons of Miran, 6. Meeran son of Jam and three
unidentified persons with Kalashnikovs came there. Complainant party remained
silent due to fear of weapons. It is alleged that accused Meeran instigated
remaining accused, not to spare complainant party, at his instigation, accused
Zulifqar Ali made direct fire of Kalashnikov upon complainant’s son Sohail Ahmed which hit him
on his left fore-arm, accused Akhtiar made direct fire of gun which hit Sohail
Ahmed on his left side of abdomen. Accused Mukhtiar fired burst from his Kalashnikov
which hit to Sohail Ahmed on left side
of belly and other accused made aerial firing from their respective weapons for
causing harassment. Complainant raised cries then accused while raising slogans
ran away. Thereafter, complainant and P.Ws saw that Sohail Ahmed had sustained fire
arm injuries and died at spot. Complainant leaving P.Ws over the dead body went
to Police Station and lodged FIR.
FIR
was recorded on 26.10.2006 at 2030 hours vide Crime No.77/2006 for offences
under Sections 302, 337-H(2), 114, 148, 149 PPC. After usual investigation,
challan was submitted against the accused U/S 512 Cr.P.C but as they were
arrested in crime No.15/2018 under section 302 PPC and crime No. 124/2018 under
section 399, 402, 324, 353 PPC and were confined at Central Jail Sukkur where
they were formally arrested in this case.
3. Learned trial Court framed charge
against appellants Zulifqar and Mukhtiar at Exh. 7 under the above referred
sections. Both the accused pleaded not guilty and claimed to be tried.
4. In order to substantiate the charge,
prosecution had examined 10 P.Ws, thereafter, prosecution side was closed.
5. Trial Court recorded statements of both
accused U/S 342 Cr.P.C at Exh. 24 and 25. Accused denied the prosecution
allegations. They did not examine themselves on oath and declined to give
statement on oath in disproof of prosecution allegations.
6. Learned trial Court, after hearing
learned counsel for the parties and assessment of the entire evidence, vide
Judgment dated 07.12.2013 convicted and sentenced both appellants to death as
stated above. Trial Court made Reference to this Court for confirmation of
death sentence as required under section 374 Cr.P.C. By this Judgment, we
intend to decide criminal Jail appeal as well as confirmation Reference made by
trial Court.
7. Facts of this case as well as evidence
produced before the trial Court find an elaborate mention in the judgment
passed by trial Court and, therefore, same may not be re-produced here so as to
avoid duplication and unnecessary repetation.
8. Mr.
Ghulam Shabbir Dayo, learned counsel for
appellants submitted that complainant expired before his evidence and FIR has
been produced by the Investigating Officer. He further submitted that according
to the case of prosecution accused Zulfiqar and Mukhtiar fired burst from their
Kalashnikovs but only two empty shells were collected from place of incident;
that mashir has deposed that three empty shells were recovered. He further argued
that it has come on record that accused made aerial firing but such empties
were not found at place of vardat. He further argued that in the sketch of
place of incident, prepared by Mukhtiarkar material particulars/details such a
place of standing of PWs and location of accused is missing so also the place
from where empties were collected. Mr. Dayo submitted that according to eye witnesses,
incident occurred in the courtyard of the house but Investigating Officer has
stated that incident occurred outside of the house. It is also argued that
motive as set up in the FIR has not been established at trial. Mr. Ghulam
Shabbir Dayo, Advocate for appellants/accused after arguing the appeal at some
length submits that death sentence may be converted to imprisonment for life.
In support of his submissions, reliance has been placed upon the case of
Mushtaque Hussain and another vs. The State (2011 SCMR 45).
9. Mr. Zulifqar Ali Jatoi Additional P.G along with
Mr. Rukhsar Ahmed Junejo counsel for widow of deceased conceded to the
contention of learned advocate for appellants/accused and recorded no objection
in case death sentence is converted to imprisonment for life, mainly on the
ground that motive has not been proved by the prosecution. Additional P.G submitted that it has come on
record through evidence of P.W 2 Badal at Exh.11 that accused Zulifqar Ali and
Mukhtiar fired bursts from their Kalashnikovs at the instigation of co-accused
Miran and Appellants had no direct motive for commission of offence. Learned
Additional P.G argued that there are mitigating circumstances in this case,
death sentence may be converted to imprisonment for life. In support of his
submissions, he relied upon the cases reported as Mst. Nazia Anwar v. The State and others (2018
SCMR 911) and Zulfiqar Ali v. Imtiaz and others (2019 SCMR 1315).
10. In the F.I.R motive as set up was
that absconding accused Miran Chachar and others had leveled allegation of
KARAP upon Muhammad Khan Chachar and others. Regarding motive for commission of
the offence, prosecution examined P.W 2 Badal as eye witness of the incident,
he deposed that they saw accused Zulifqar Ali armed with Kalashnikov, Akhtiar
armed with DBBL gun, Mukhtiar, Shoukat, Amanat, Miran and three un-identified
persons duly armed with Kalashnikovs appeared there. On which, deceased Sohail
Ahmed asked them as to why they had entered into their house to which accused Miran
(absconder) instigated to co-accused not to spare them as they were assisting
Muhammad Khan Chachar and others against them. Another eye witness of the
incident Abdul Rasheed PW 2 regarding motive has stated that deceased Sohail
Ahmed asked the accused as to why they had entered in to their house, on which
accused Miran instigated to other accused not to spare them as they have helped
Muhammad Khan Chachar and others against them.
11. Statements of the accused were recorded U/S 342
Cr.P.C in which question regarding motive was not put to the accused for their
explanation/reply but trial Court relied upon the piece of motive against
accused for conviction. Learned trial Court while convicting the appellants has
relied upon the motive for commission of the offence in para No.23 in the
following terms.
“ The murder of
deceased Sohail Ahmed, is the result of previous enmity of ‘Karap’ allegations
against one Khan Muhammad and incident of firing upon Khan Muhammad and said
motive as brought on record by the complainant has not been challenged by the
accused.”
Section
342 Cr.P.C mandates that all incriminating evidence is to be put to the accused
in his statement under that section; and the evidence which has not been
confronted to accused, conviction cannot be based on such evidence but in this
case no question regarding motive has been put to the accused for their
confrontation.
12. Eye-witnesses have deposed
that absconding accused Miran father of Appellants had raised lalkara and exhorted his sons / accused persons
to kill deceased, accused thus they had acted under the influence of their father.
Such facts could also be treated as mitigating circumstances for lesser
sentence as held by Hon’ble Supreme Court in the cases of Nazir Ahmed v. The State (1999 SCMR 396) and Muhammad Imran @ Asif v. The State
(2013 SCMR 782). Relevant portion of the case of Nazir Ahmed
(supra) is reproduced as under:
“2. We have heard the learned counsel for the
parties at some length. The necessary record has also been perused by us. After
arguing his case for some time, Mr. M. Asghar Khan Rokhari, the learned counsel
states that he will not press the appeal, in case, his request for grant of
lesser sentence to the appellant is considered favourably. The learned State
Counsel has opposed the prayer of the learned counsel for the appellant
inasmuch as, according to him, it is a case of premeditated murder pure and
simple. In our considered view, evidence of Ghulam Muhammad P.W.2 and Nazir
Hussain P.W.3 inspires confidence and it had been rightly believed by the Courts
below. Ghulam Muhammad P.W.2 is the uncle of the deceased while Nazir Hussain
P.W.3 belongs to his brotherhood. Despite the above relationship, there is
nothing to discard their testimony. Learned counsel submits that it is a fit
case for the award of lesser sentence to the appellant because according to the
eye-witnesses Ghulam Rasul, father of the appellant had raised Lalkara and
exhorted his son to kill Muhammad Hussain. In this view of the matter, the
appellant appears to have acted under the influence of his father, which can be
treated to be a mitigating circumstance for awarding lesser sentence to the
appellant This being the position, sentence of death awarded to the appellant
is, hereby, converted into imprisonment for life with benefit of section 382-B,
Cr.P.C. With this modification in the sentence the appeal is partly allowed.”
13. Evidence of other
eye-witnesses shows that Appellants had no direct motive against deceased.
Investigation Officer had also failed to examine the persons of the locality,
in order to ascertain about the actual motive for the commission of the
offence. In our considered view, sentence of death awarded to the Appellant
requires consideration by this Court. Complainant and other eye-witnesses have
categorically stated that appellants caused
injuries to the deceased by means of bursts of Kalashnikovs at the instigation
/ influence of their father. Secondly, prosecution has failed to prove the
motive on the part of Appellants for the commission of the offence. Law is settled by now that if prosecution asserts
the motive but fails to prove the same, then such failure on the part of the
prosecution may let against the sentence of death passed by the trial Court.
Reference in this respect may be made to the recent Judgment of Hon’ble Supreme
Court in the case of Mst. Nazia Anwar v. The State and others (2018 SCMR 911). Relevant paragraph is reproduced as under:
“4. I have
particularly attended to the sentence of death passed against the appellant and
have noticed in that context that the motive set up by the prosecution had
remained far from being established. According to the FIR as well as the
statement of the complainant the motive was based upon borrowing of a sum of
Rs. 5,000/- by the appellant from the deceased and on the issue of repayment of
that loan a heated exchange had taken place between the appellant and the
deceased. Mst. Sadiqa Bibi complainant (PW2) was the only witness produced by
the prosecution regarding the alleged motive but in her deposition made before
the trial court the complainant had admitted that the appellant and the
deceased were on very good and friendly terms, no date or time of borrowing of
the relevant amount by the appellant from the deceased had been specified by
the complainant, the complainant was not present when the money had been
borrowed by the appellant from the deceased, no date, time or place of the
altercation taking place between the appellant and the deceased over repayment
of the borrowed amount had been specified by the complainant and admittedly the
complainant was not present when the said altercation had taken place. In these
circumstances it is quite obvious to me that the motive asserted by the
prosecution had remained utterly unproved. 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 Ahmad 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 alias 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 Needu and others v. The State and others (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). After going through the entire record of
the case from cover to cover and after attending to different aspects of this
case I have found that although it is proved beyond doubt that the appellant
was responsible for the murder of the deceased yet the story of the prosecution
has many inherent obscurities ingrained therein. It is intriguing as to why the
appellant would bring her four months old baby-boy to the spot and put the
baby-boy on the floor and then start belabouring the deceased with a dagger in
order to kill her. I have, thus, entertained no manner of doubt that the real
cause of occurrence was something different which had been completely
suppressed by both the parties to the case and that real cause of occurrence
had remained shrouded in mystery. Such circumstances of this case have put me
to caution in the matter of the appellant's sentence and in the peculiar
circumstances of the case I have decided to withhold the sentence of death
passed against the appellant.”
14. At the cost of repetition, it is observed that we
have particularly attended to the sentence of death passed against the
Appellants and have come to the conclusion that motive setup by the prosecution
has not been proved at trial, but it has been proved by cogent evidence that
Appellants had committed murder of the deceased. Ocular evidence has been
corroborated by the medical evidence. In these circumstances, it is quite
obvious to us that the motive asserted by the prosecution had remained utterly
unproved. Moreover, it has come on record that Appellants appear to have acted
under the influence of their father Miran (absconding accused), which can also
be treated to be a mitigating circumstance for awarding lesser sentence to the
appellant as held in the case of Nazir Ahmed v. The State (1999 SCMR 396). As regards to motive, law is
settled by now that if 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. Reliance in
this respect may be made to the case of Mst. Nazia Anwar (supra).
15. Moreover, sentence of death and life imprisonment
are alternative to one another, however, awarding one or the other sentence
shall essentially depend upon the facts and circumstances of each case as held
by Hon’ble Supreme Court of Pakistan in the case of Ghulam Mohyuddin alias Haji
Babu and others v. The State (2014 SCMR 1034). Relevant paragraphs are
reproduced as under :-
20. Albeit, in a chain of case-law the
view held is that normal penalty is death sentence for murder, however, once
the Legislature has provided for awarding alternative sentence of life
imprisonment, it would be difficult to hold that in all the cases of murder,
the death penalty is a normal one and shall ordinarily be awarded. If the
intent of the Legislature was to take away the discretion of the Court, then it
would have omitted from clause (b) of section 302, P.P.C. the alternative
sentence of life imprisonment. In this view of the matter, we have no
hesitation to hold that the two sentences are alternative to one another,
however, awarding one or the other sentence shall essentially depend upon the
facts and circumstances of each case. There may be multiple factors to award
the death sentence for the offence of murder and equal number of factors would
be there not to award the same but instead a life imprisonment. It is a
fundamental principle of Islamic Jurisprudence on criminal law to do justice
with mercy, being the attribute of Allah Almighty but on the earth the same has
been delegated and bestowed upon the Judges, administering justice in criminal
cases, therefore, extra degree of care and caution is required to be observed
by the Judges while determining the quantum of sentence, depending upon the
facts and circumstances of particular case/cases.
21. A 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 No clear guideline, in
this regard can be laid down because facts and circumstances of one case differ
from the other, however, it becomes 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 entertain 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. 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.
Albeit, there are multiple factors and
redeeming circumstances, which may be quoted, where awarding of death penalty
would be unwarranted and instead life imprisonment would be appropriate
sentence but we would avoid to lay down specific guidelines because facts and
circumstances of each case differ from one another and also the redeeming
features, benefiting an accused person in the matter of reduced sentence would
also differ from one another, therefore, we would deal with this matter in any
other appropriate case, where, if proper assistance is given and extensive
research is made.
In any case, if a single doubt or ground is
available, creating reasonable doubt in the mind of Court/Judge to award death
penalty or life imprisonment, it would be sufficient circumstances to adopt alternative
course by awarding life imprisonment instead of death sentence.”
15. In the
present case, there are multiple facts and circumstances which have been quoted
above, as such maintaining death sentence would be unwarranted in this
particular case and life imprisonment would be the appropriate sentence.
16. In the view of above
discussion, this Criminal Jail Appeal No. D-112 of 2013 is dismissed
to the extent of Appellants’ conviction for offence under Section 302(b),
PPC, but the same is partly allowed to the extent of death sentence,
which is reduced to the imprisonment for life. Appellants are
ordered to pay compensation of Rs.100,000/- (One lac) each, to be paid to the
legal heirs of the deceased in terms of Section 544-A Cr.P.C, as directed by
the trial Court. In case of the default thereof, appellants are ordered
suffer S.I for six months while other sentences awarded to the appellants by
the trial Court, shall remain intact. The benefit of Section 382-B Cr.P.C shall
be extended to the appellants. Confirmation Reference No.D-07 of 2013
made by the trial Court for confirmation of death sentence is answered
in the NEGATIVE and death sentence is NOT CONFIRMED.
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J U D G E
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J U D G E
Irfan/PA