IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Jail Appeal No.D-243 of 2019.

Confirmation Case No-D 15 of 2019.

Present:

Mr. JusticeNaimatullahPhulpoto.

Mr. Justice Zulfiqar Ali Sangi.

Appellant: Asif Ahmed through Mr.Dareshani Ali Hyder ‘Ada’ Advocate.

Respondent: The State through,Mr. Zulfiqar Ali Jatoi, Addl.P.G.

Date of hearing: 04.02.2020 and 13.02.2020.

Date of announcement: 27.02.2020.

J U D G M E N T

ZULFIQAR ALI SANGI,J:- Appellant Asif Ahmed S/o Mohammad Ayoob Arain has assailed the judgment dated24.10.2019 passed by learned Additional Sessions Judge, Mirwah, in Sessions Case No.448 of 2017 arising out of FIR No.29/2017 offence under section 302 PPC Police Station, KotLaloo whereby he was convicted U/S 302 (b) PPC andsentenced todeath, he was directed to pay fine of Rs.100,000/-, and in failure thereof, he shall suffer six months S.I more. The appellant was also directed to pay compensation of Rs.500,000/- as provided u/s 544-A Cr.P.C to the legal heirs of the deceased. If the accused, fails to pay the compensation to the heirs, then the same shall be recovered as land revenue arrears as provided under Section 544-A Cr.P.C.

2. Learned trial Court after awarding the death penalty to the appellant has also made a Reference to this Court for confirmation of the death sentence in terms of Section 374 Cr.P.C.

3. Precisely, the prosecution case is that complainant Naeem Ahmed lodged FIR at Police Station, KotLaloo District Khairpur stating therein that Anwar Ahmed S/o Mohammad Suleman aged about 60 years is his cousin and brother-in-law as well and he has two sons namely Babar Ahmed and Nayar Ahmed who are labourer and working at Hyderabad. On 09.05.2017 at 0900 hours complainant along with his brother Imran Ahmed, cousins Naseer Ahmed S/o Mehmood Ahmed and Anwar Ahmed were available in cattle shed of Anwar Ahmed where he told that in the morning there were hot words exchanged with accused Asif Ahmed over landed property and Asif Ahmed issued threats that he will not spare him. In the meanwhile, accused Asif Ahmed son of Mohammad AyoobArain came and on coming he gave hakal to Anwar Ahmed that today he will not spare him, saying so he caused ‘Danda’ blows to deceased Anwar Ali on his head and other parts of body made him injured with intention to cause his death, he raised cries and fell down on ground. It is alleged that above-named persons intervened thereafter accused went away. Due to head injuries, Anwar Ali went unconscious and he succumbed to the injuries and died. The complainant then appeared at Police Station and lodged FIR.

4. Initially, the FIR was registered u/s 324 PPC and after the death of the deceased inserted section 302 PPC, after the usual investigation, the police submitted challanagainst the appellant/accusedbefore the competent Court of law.The learned trial Court completed all legal formalities and framedcharge against the appellantto which hepleaded not guilty and claimed trial, such pleawas obtained from him at Ex.3.

5. In order to prove its case, the prosecution examined as many as09 PWs who produced certain documents so also articles and the same were exhibited properly.Thereafter ADPP for the state closed the side of the prosecution.

6. After completion of prosecution evidence, learned trial court recorded the statement of the appellantin terms of section 342 Cr.P.C at Ex.14, wherein he denied the prosecution case andclaimed hisinnocence, however, neither heexaminedhimself on oath nor led evidence in hisdefense.

7. Thelearned trialCourt after hearing the Counsel for the appellant and learned ADPP for the State, afterconsidering the evidence, passed impugned judgment, which has been assailed through instant appeal. By this single judgment, we intend to decide aforesaid Appeal as well as Confirmation Reference.

8. Learned counsel for the appellant/accused contended that the appellant is innocent and has falsely been involved in this case with malafide intention; that the incident took place on 09-05-2017 at 9-00 am and the same was reported to police on 10-05-2017 after about 27 hours the delay has not been explained by the complainant; that initially the FIR was registered under section 324 PPC and after eight days of the incident injured was died but during the said eight days Investigation Officer failed to record statement under section 161 Cr.P.C of the deceased; that hedied at South City Hospital Karachi and the cause of death was shown as Cardio Pulmonary/ Head Injury and complainant had not deposed the same fact before the trial court; that death of the deceased occurred in the South City hospital Karachi and dead body was brought from Karachi and the post mortem was conducted after delay of about 16 to 17 hours; that motive as setup by the prosecution has not been questioned from the appellant in his statement recorded under section 342 Cr.P.C and the same cannot be used against him; that appellant party made efforts for compromise but could not succeed; Lastly he contended that in view of the above submissions appellant may be acquitted.

9. Conversely, learned Addl.P.G, while controverting the contentions of learned Counsel for the appellant submitted that the prosecution proved its case against the appellant beyond reasonable doubt; that after receiving the fatal injury on head deceased went unconscious for the whole period of eight days, therefore, his statement under section 161 Cr.P.C was not recorded by the Investigation officer; that injured was referred to Karachi for treatment where he succumbed to the injuries in South city Hospital Karachiand dead body was taken from Karachi and on reaching post mortem was conducted in these circumstances delay in conducting the post mortem is not fatal to the case of prosecution; that all the witnesses supported the case of prosecution; that no major contradiction has been pointed out by the defence counsel which could suggest that case against appellant is doubtful; that case of prosecution is supported by oral as well as medical evidence and recovery of lathi used in the commission of offence and other circumstantial evidence; lastly he conceded that the question about the motive has not put to appellant in his statement under section 342 Cr.P.C on this point he stated that death sentence awarded to the appellant may be converted into imprisonment of life and appeal may be dismissed.

10. We have heard learned Counsel for the parties and have examined the record carefully with their able assistance.

11. The prosecution produced the evidence before the trial court in the following categories:-

OCULAR EVIDENCE.

To prove the case the prosecution examined Complainant(Eye witness) namely Naeem Ahmed as PW-1 who deposed that deceased Anwar Ahmed was his cousin and brother-in-law, his sons Babar Ahmed and Nayyar Ahmed are working in Hyderabad in the factory. On 09-05-2017 he alongwith Imran Ahmed, Naseer Ahmed and Anwar Ahmed were available in cattle pond of Anwar Ahmed who disclosed that on the same day in the morning some quarrel happened with Asif Ahmed on the dispute of land on such he threatened that he will not leave him alive. He further deposed that it was about 0900 they saw Asif Ahmed came duly armed with lathi and made hakal to Anwar Ahmed and said he will not spare him and will kill him. Asif Ahmed in presence of said witnesses caused lathi blow on the head of Anwar Ahmed who after crises fell down and went unconscious. Injury on the head was noticed by the witnesses from whom blood was oozing.They took the injured Anwar Ahmed towards ShaheedBenazirabad PMC Hospital and after taking first aid, injured was taken to a private hospital at Hyderabad, after admission tothe hospital in the unconscious condition he came at police station KotLaloo where his FIR was registered.

PW-2 Imran Ahmed who was also the eye witness of the incidence deposed that on09-05-2017 he along with Naeem Ahmed, Naseer Ahmed and Anwar Ahmed were available in the cattle pond of the Anwar Ahmed where he disclosed to them that on the same day in the morning some quarrel happened with Asif Ahmed on land dispute andAsif Ahmed threatened that he will not leave him alive. He further deposed that it was about 0900 hours they saw Asif Ahmed came duly armed with lathi and made hakal to Anwar Ahmed and said that he will not spare him and will kill him by saying so caused lathi blow to Anwar Ahmed on his head who fell down and went unconscious, blood was oozing from the injury. They took the injured for treatment towards ShaheedBenazirabad PMC Hospital and after first aid taken to him to a private hospital of Hyderabad where admitted him in an unconscious condition and then Naeem Ahmed lodged the FIR with police station KotLaloo.

PW-9Naseer Ahmed he was also an eye witness was examined by the prosecution who deposed that on 09-05-2017 he along with Imran, Naeem Ahmed and Anwar Ahmed were standing in the cattle pond where Anwar Ahmed disclosed to them that Asif Ali had exchanged hot words with him and issued threats of direconsequences. In the meantime, the accused Asif Ali came with Danda and directed Anwar Ali that he will not spare him and caused Danda blow to Anwar Ali on his head, Anwar fell down after raising crises. He deposed that blood was oozing from the head injury and went unconscious and accused Asif Ali fled away. They took the injured at Nawabshah Hospital and after getting first aid injured was taken towards Hyderabad thereafter they returned while admitting theinjured in the hospital and FIR was registered, his statement under section 161 Cr.P.C was also recorded by the investigation officer.

All the above eyewitnesses fully supported each other on every aspect of the case they were cross-examined by defence counsel but we could not find any material contradiction which may suggest that case of the prosecution is doubtful.

MEDICAL EVIDENCE.

To prove this aspect of the case prosecution examined Dr. GhausBux as PW-5who deposed that on 18-05-2017 he was posted at RHC FaizGunj as SMO, he received a letter along with dead body from Police Station KotLaloo for conducting postmortem of a dead body and the same was identified by Meer Muhammad and Babar Ahmed. He deposed that during the postmortem he noted from external examination one lacerated wound of size 5cm stitched wound present parital region of the skull, muscle deep, skull bone was fractured and caused by the hard and blunt substance. He further deposed that as per history the injury was caused on 09-05-2017 and was admitted in various hospitals finally on 17-05-2017 he was admitted to South City Hospital Karachi and in that hospital death occurred. Death information certificate issued by attending Doctor Imran Ahmed RMO shows Death was caused by the cardiopulmonary arrest-head injury. According to the C.T scan, there is a fracture of paratil bones bilaterally. From the internal examination, he found a lacerated brain and membrane. From the external and internal examination doctor was of the opinion that the death occurred due to cardiopulmonary arrest, that is caused by head injury, this head injury was sufficient to cause death in the ordinary course of life and injury was antemortem in nature. The doctor exhibited certain documents in support of his evidence and was cross-examined by the defence counsel but his evidence was not shattered. Form scrutiny of the evidence of Doctor we are of the view that death of the deceased Anwar Ahmed was caused due to injury received by him his head by the hard and blunt substance.

RECOVERIES.

To prove this piece of evidence, the prosecution examined Investigation Officer HazoorBux as PW-6, who deposed that on 10-05-2017 he was posted as investigation officer at police station KotLaloo and received FIR at 0700 hours and then contacted complainant Naeem Ahmed who disclosed that he along with witnesses is present at cattle pond. He went there and secured blood in a plastic box and sealed the same in presence of witnesses and prepared the mashirnama. He also recorded the statements under section 161 Cr.P.C of the witnesses at cattle pond. He deposed that on 11-05-2017 complainant produced clothes of the deceased which he sealed and prepared the mashirnama. He deposed that on 18-05-2017 dead body of deceased was brought in ambulance at police station which he examined and noted the injuries and prepared mashirnamahe handed over the dead body to the legal heirs of the deceased and obtained receipt from them thereafter he was transferred to District Ghotki, he handed over the documents toSHO Abdul RehmanMashori.

PW-7 Abdul RehmanMashori was examined who deposed that on 09-05-2017 he was posted as SHO police station Kotlaloo where Naeem Ahmed appeared and disclosed the facts of cognizable offence on such he lodged the FIR of the complainant. He handed over the FIR for the investigation to SIO HazoorBux. On 18-05-2017 after adding section 302 he received the FIR and papers for further investigation from SIP HazoorBux. He further deposed that on 24-05-2017 he received information that accusedAsif was standing near George Mori, on such he along with his subordinate staff reached pointed place and saw accused available there and arrested him, he called private witnesses NasirArain and Mir Muhammad Lashari, in their presence mashirnama was prepared, during interrogation accused he confessed about the offence and was ready to handover one Danda/Lathi which he had used in the commission of offence. The accused voluntarily led police party and took-out one lathi from a juwar crop and admitted that it was the same lathi with which he had used at the time of the offence, said lathi was took-out in possession in presence of private mashirs and was sealed at the spot such mashirnama was prepared. He further deposed that after completing formalities and permission from SSP for sending the property to the chemical examiner he submitted the challan against the appellant before the competent court of law.

PW-3 MashirNasir Ahmed was examined by the prosecution who fully supported the recoveries effected from the place of wardat and the accused. He deposed that on 10-05-2017 in the morning at about 0700 hours ASI HazaroKhand and other police officials came at the place of wardat, secured blood-stained earth of Anwar Ahmed and put in a plastic box and sealed in cloth and prepared such mashirnama which he and othermashir Mir Muhammad Lashari signed. On 11-05-2017 complainant brought the clothes of deceased before the investigation officer which were taken in the possession and were sealed, mashirnama was prepared and was signed by him and co-mashir. He further deposed that on 18-05-2017 investigation officer inspected the dead body and noted the injury in his presence and presence of co-mashir Mir Muhammad and prepared such mashirnama. On 24-05-2017 accused was arrested in his presence and presence of Co-mashir Mir Muhammad from George Mori by SIP Abdul Rehman who prepared the mashirnama which they both signed and on the same day police recovered Lathi on the pointation of accused which he confessed that he used at the time of commission of offence and the same was sealed and mashirnama was prepared in their presence.

All the above witnesses were cross-examined by the defence counsel but we could not see any material contradiction which makes the recovery as doubtful. We believe that the prosecution proved the recovery of lathi from the appellant and bloodstained earth from the place of wardat.

MOTIVE.

In order to establish the motive, the prosecution examined three witnesses namely Naeem Ahmed, Imran Ahmed and Naseer Ahmed who deposed that on the day of incident deceased Anwar Ahmed disclosed them that in the morning Asif Ahmed issued threats of murder on the dispute of land. All the three witnesses were not the eyewitnesses of the said threats and the prosecution not produced any eye witness of the said incident. The place of said incident and the time where the accused issued threats to the deceased also not established from the evidence. Even the prosecution failed to establish that which was the land on which dispute was arisen in between the accused and deceased and where the land was located. There is no evidence which suggests that there was any dispute between the accused and the appellant on land but only witnesses deposed that the deceased informed them that the accused issued threats on the dispute of land which is not sufficient to prove the motive as asserted by the prosecution. The complainant stated in his cross-examination that he does not know how much distance is in-between the place of incident and place where hot words were exchanged between deceased and accused. He during cross-examination stated that the deceased had not informed them that how many peoples were available when hot words were exchanged in between deceased and accused. PW-2 in his cross-examination stated that he does not know if there were hot words exchanged between the deceased and accused. PW-9 Naseer Ahmed stated during the cross-examination that the deceased had not informed him about the place where hot words were exchanged between deceased and accused, in these circumstances; we are of the view that prosecution has failed to establish motive against the appellant.

12. We have examined the entire evidence minutely and found that the incident was of the day time, all the prosecution witnesses and appellant belongs to the same community and are residing in the same village where the incident took place. Complainant Naeem Ahmed admitted during cross-examination that the accused, as well as deceased, was residing in the same village. No enmity was suggested against the witnesses for false implication. No motive was brought on record by the defence against the witnesses to deposed against the appellant.

13. On our reassessment of entire evidenceproduced by the prosecution as discussed above, oral as well as medical including postmortem and the recovery of weapon (Lathi) used in the commission of the offence from the appellant, we are of the firm view that the prosecution has proved the case against the appellant beyond a reasonable doubt for committing murder of deceased Anwar Ahmed Arain and the trial court had rightly convicted and sentenced the appellant.

14. Now the question before us is as to whether the trial court was justified in awarding the sentence of death to the appellant or it was a case of an alternative sentence of imprisonment for life in absence of proof of motive and the same was not put to the appellant in his statement under section 342 Cr.P.C.

15. Normal penalty is a 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 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. 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.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 put it at end, by assessing the evidence, facts and circumstances of a particular murder case, under which it was committed as has been held by Honourable Supreme Court of Pakistan in case ofGHULAM MOHY-UD-DIN alias HAJI BABU and others V. The STATE (2014 S C M R 1034).

16. We have observed that the motive set up by the prosecution was quite vague and admittedly no independent evidence worth names of the persons in whose presence appellant issued the threats to the deceased and which was the land in dispute, to whom the disputed land belongs and what was actual dispute on the land in support of the asserted motive.It is well-settled principle of law 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 and another v. The State (2011 SCMR 593), IftikharMehmood and another v. QaiserIftikhar and others (2011 SCMR 1165), Muhammad Mumtazand another v.The State and another (2012 SCMR 267), Muhammad Imran alias Asif v.The State (2013 SCMR 782), SabirHussain alias Sabri v.The State (2013 SCMR 1554), ZeeshanAfzal 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 NadeemWaqas 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).The investigation officer also failed to collect such evidence about the asserted motive not only this but the motive was not put to the appellant at the time of recording his statement under section 342 Cr.P.C, therefore, the same cannot be used against the appellant. For all these reasons we have decided to exercise caution in the matter of the appellant's sentence of death and have felt persuaded to reduce the said sentence of death to imprisonment for life. This appealis, therefore, dismissed and the conviction of the appellant on the charge under section 302(b), P.P.C. is maintained but his sentenceof death is reduced to imprisonment for life. All fines and compensation, as ordered by the trial court in terms of section 544-A Cr. P.C are maintained; in default of payment of fine and compensation, the sentence awarded by the trial court is also maintained. The appellant is entitled to the benefit of section 382-B Cr.P.C. In the circumstances the confirmation case No: D-15 of 2019 made by the trial court is answered in negative.

16. In view of the above, Criminal Jail Appeal No.D-243/2019 along with Confirmation Case No. D-15/2019 are disposed of in the above terms.

JUDGE

JUDGE