Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Jail Appeal No. D – 237 of 2016

Conf. Case No. D – 09 of 2016

 

 

Before :

Mr. Justice Naimatullah Phulpoto

Mr. Justice Zulfiqar Ali Sangi

 

 

Date of hearing        :           28.01.2020.

 

Date of judgment     :           28.01.2020.

 

 

Mr. Muhammad Iqbal Memon, Advocate for appellant / accused.

Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General.

 

 

J U D G M E N T

 

 

NAIMATULLAH PHULPOTO, J. – Abdul Rasool alias Piaro, appellant was tried by learned Additional Sessions Judge-III, Khairpur for offence under Section 302, PPC. After regular trial, vide judgment dated 16th December 2016, appellant was convicted under Section 302(b), PPC as Ta’zir and sentenced to death. Appellant was ordered to pay compensation of Rs.2,00,000/- (Two lac) in terms of Section 544-A, Cr.P.C, to be paid to the legal heirs of the deceased. In case of the default in the payment of compensation, appellant has been ordered to suffer R.I for two years. Trial Court made Reference to this Court for confirmation of death sentence.

2.         Brief facts of the prosecution case as disclosed in the FIR are that present incident occurred on 27.09.2009 at 1100 hours, in the house of the complainant. Complainant is the son of the deceased and brother of the appellant. It is alleged in the FIR that complainant has seven (07) brothers. As regards to motive, the deceased, the father of the appellant, had distributed his land equally to the sons, but appellant namely Abdul Rasool alias Piaro was dissatisfied from such distribution and declared that infertile land has been given to him in his share. It is alleged that on 27.09.2009, complainant along with his brothers Ghulam Abbas, Ghulam Rasool, Abdul Sattar and Sarwar was present in the house at 1100 hours. Muhammad Saleh, father of appellant, aged about 80-85 years, was also present. It is alleged that at 1100 hours, appellant Abdul Rasool alias Piaro appeared there. He was armed with lathi. Appellant challenged to his father that he has been given infertile land to him in share and expressed his annoyance. Thereafter, appellant inflicted lathi blows to his father. Complainant party saw that their father had sustained lathi blows / injuries at his forehead and other parts of the body. Complainant and other eyewitnesses took the injured father to Civil Hospital Khairpur. Due to his critical condition, he was referred by the doctors of Civil Hospital Khairpur to Larkana Hospital for better treatment, where the injured succumbed to the injuries. Complainant took the dead body of his father to home. After completion of the funeral ceremony, he went to the Police Station and lodged an FIR. It was recorded on 02.10.2009 at P.S Ahmedpur, District Khairpur vide Crime No.153/2009 for offence under Section 302, PPC.

3.         After usual investigation, challan was submitted against the accused under Section 302, PPC.

4.         Trial Court framed the charge against the accused at Ex.02. Accused pleaded not guilty and claimed to be tried.

5.         At the trial, prosecution examined ten (10) prosecution witnesses, who produced the relevant documents / reports. Thereafter, prosecution side was closed.

6.         Trial Court recorded the statement of the accused under Section 342, Cr.P.C, at Ex.15. Accused denied the prosecution allegations, however, raised plea that he has been involved in this case falsely as he had dispute with his brothers over the share of the property. Accused did not lead evidence in defence and declined to give statement on oath in disproof of prosecution allegations.

7.         Trial Court, after hearing the learned counsel for the parties and assessment of the evidence available on record, vide judgment dated 16th December 2016, convicted and sentenced the appellant as stated above. Trial Court had made Reference for confirmation of death sentence.

8.         By this single judgment, we intend to decide the aforesaid Criminal Jail Appeal filed by the appellant / accused as well as Reference for confirmation of death sentence made by the trial Court.

9.         Mr. Muhammad Iqbal Memon, advocate for the appellant, whose services were provided to the appellant on State expenses, did not press the compromise application, the same is dismissed as not pressed. After arguing the Appeal at some length, does not press the same on merits. However, he prayed for reduction of death sentence to imprisonment for life mainly on the grounds that motive, as setup by the prosecution in the FIR, has not been established at the trial. Mr. Memon further submits that complainant, who is the brother of the appellant and son of the deceased, in the FIR, has stated that there was dispute between the deceased and the appellant over the distribution / share of the land, but in evidence, details of disputed land were not given. It is further argued that PW-2, who is the eyewitness of the incident, has not deposed about the motive for the commission of the offence. It is also argued that Investigation Officer examined the persons of the locality and all of them showed ignorance about the incident. Lastly, it is argued that statement of the accused was recorded under Section 342, Cr.P.C, by the trial Court and no question regarding motive was put to the appellant for his explanation / reply. Mr. Memon lastly argued that prosecution could not prove the motive and it is the mitigating circumstance. He prayed that death sentence may be converted to the imprisonment for life. In support of his contentions, he has relied upon the case reported as Qaddan and others v. The State (2017 SCMR 148).

10.       Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General conceded to the contentions raised by Mr. Memon, counsel for the appellant that prosecution has not been able to establish the motive at the trial, and recorded no objection for conversion of the death sentence to the imprisonment for life.

11.       We have carefully heard the learned counsel for the parties and scanned the entire evidence.

12.       Learned counsel for the appellant has not pressed the Appeal on merits, but only prayed for reduction of death sentence to the imprisonment for life on the ground that motive has not been established at trial. We firmly believe that it is the basic duty of the prosecution to establish it’s case.

13.       In order to satisfy ourselves, we have perused the evidence. Eyewitnesses are the brothers of the appellant and appellant is the son of the deceased. Eyewitnesses had no motive to falsely involve the appellant in this case. Ocular evidence is corroborated by the medical evidence. Dr. Inayat Ali (PW‑06) has deposed that on 02.10.2009, police referred to him the dead body of deceased Muhammad Saleh. He examined the dead body and found five (05) injuries on the person of the deceased. According to the Medical Officer, all the injuries were caused by hard and blunt substance. Unnatural death of the deceased is not in dispute. Ocular evidence is corroborated by the medical evidence. It was day-time incident. We have no hesitation to hold that prosecution has proved its case against the appellant and plea raised by the appellant in his statement recorded under Section 342, Cr.P.C, appears to be after thought. Trial Court has properly appreciated prosecution evidence and believed it by assigning sound reasons. We, therefore, hold that prosecution had succeeded to prove it’s case against the appellant.

14.       Appeal is not pressed on merits. Now, the question arises about the quantum of sentence. As regards to the submissions made by Mr. Memon that prosecution could not succeed to prove the motive, in our considered view, prosecution has failed to prove the motive for the reasons that in the FIR, motive setup was that appellant was annoyed with his father over the distribution / share of the land. Ghulam Abbas (PW-2) is also the brother of the appellant. He had witnessed the incident and narrated all facts, but he failed to depose a single word about the motive, for the commission of the offence. Abdul Sattar (PW-3) regarding motive has only deposed that there was dispute over the distribution of the land. Investigation Officer conducted the investigation in this case. In the cross-examination, he clearly replied that he examined the local persons, but no one knew about the incident. It was the duty of the Investigation Officer that he should have conducted the investigation in order to ascertain the motive for the commission of the offence, but Investigation Officer failed to interrogate the motive. In the evidence of the eyewitnesses, details of the land and survey numbers have not been mentioned. Complainant has deposed that appellant was annoyed over the distribution of the land with his father, but another eyewitness has deposed that land was given to the appellant in the share, but appellant was protesting that it was infertile in the quality. The statement of the accused was recorded before the trial Court under Section 342, Cr.P.C at Ex.15. No question regarding the motive was put to the accused for his explanation, but it was used against him by trial Court for conviction. It is settled principle of the law that any piece of evidence not put to the accused person at the time of recording his statement under Section 342, Cr.P.C, could not be considered against him and failure on the part of the prosecution to establish the motive may react upon a sentence of death as held in the case of Qaddan and others v. The State (2017 SCMR 148). Relevant portion is reproduced as under:

“3.       We have noticed that before the High Court the only prayer made by the learned counsel for the appellants was that in view of some peculiar circumstances of this case the sentences of death passed against the appellants may be reduced to imprisonment for life and, thus, we have confined our consideration of this case only to the issue of mitigation of the appellants' sentences of death. In this context it has straightaway been noticed by us that according to the FIR as well as the statements of the eye-witnesses made before the trial court the appellants and the other members of the accused party had come armed and had gone into the house of one Ali Sher Brohi quite peacefully and it was the complainant party which had provoked the accused party at the spot which provocation had led to the present occurrence. It is, thus, obvious that but for the intervention and provocation of the complainant party the present occurrence might not have taken place at all. We have further observed that one lady died and three others had received injuries during the occurrence in issue which also indicates that the occurrence in question had developed at the spur of the moment without any premeditation and that different members of the accused party as well as of the complainant party embroiled with each other in a developing occurrence. Apart from that the motive set up by the prosecution had never been put to the present appellants at the time of recording of their statements under section 342, Cr.P.C. The law is settled that a piece of evidence not put to an accused person at the time of recording of his statement under section 342, Cr.P.C. cannot be considered against him. The alleged recovery of the weapons of offence from the appellants during the investigation had been discarded by the High Court. The criminal case in hand had originated in the year 1989 and the appellants have already spent more than 16 years in jail in connection with this case. All these factors available on the record do make out a case for reduction of the appellants' sentences of death to imprisonment for life and particularly the motive part of this case going out of consideration because of its not having been put to the appellants at the time of recording of their statements under section 342, Cr.P.C. brings into operation the settled principle that failure on the part of the prosecution to establish the motive may react upon a sentence of death 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 @ 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) and Muhammad Nadeem Waqas and another v. The State (2014 SCMR 1658). This appeal is, therefore, dismissed to the extent of the convictions and sentences of Qaddan, Rajib and Esso appellants except to the extent of their sentences of death on all the counts of the charge under section 302(b), P.P.C. read with section 149, P.P.C. which sentences of death are reduced to imprisonment for life on each such count of the charge. All the sentences of imprisonment passed against the said appellants shall run concurrently to each other and the benefit under section 382-B, Cr.P.C. shall be extended to them. This appeal is disposed of in these terms.”

15.       Moreover, appellant is son of deceased/one of legal heirs, he has already lost father. Appellant’s family has already suffered a lot.

16.       For the above stated reasons while respectfully relying upon the above cited authority, we have no hesitation to hold that prosecution had proved it’s case against the appellant. This Appeal is, therefore, dismissed to the extent of appellant’s conviction, but the same is partly allowed by reducing the death sentence to imprisonment for life. Appellant shall pay compensation as directed by the trial Court. However, in case of the default, appellant shall suffer S.I for 06 months instead of R.I for two years. Appellant shall be extended benefit of Section 382-B, Cr.P.C. The Reference made by the trial Court for confirmation of the death sentence is answered in the NEGATIVE.

16.       Appeal as well as Confirmation Reference are disposed of in the above terms.

 

 

J U D G E

 

J U D G E

Abdul Basit