IN THE HIGH COURT OF
SINDH BENCH AT SUKKUR.
Criminal Jail Appeal No.D-34 of 2017
Conf. Case No.02 of 2017
Criminal Acquittal Appeal No.D-65 of 2017
Present:
Mr. Justice NaimatullahPhulpoto.
Mr.
Justice Zulfiqar Ali Sangi.
Appellants/accused : Muhammad
Azam, Muhammad Nadeem and Muhammad Saleem all sons of Muhammad Hashim, through
Mr. Nisar Ahmed Bhanbhro, Advocate in Cr. Jail Appeal No.D-34 of 2017
Appellant/complainant Muhammad Siddique son of Khan Muhammad through Mr. GhulamMurtazaKorai, Advocate
in Cr. Acquittal Appeal No.D-65 of 2017
The State. Through
Syed Sardar Ali Shah, DPG
Date of Hearing : 12.02.2020
Date of Announcement: 03.03.2020
J U D G M E N T
ZULFIQAR ALI SANGI, J.- Appellants/accused Muhammad Azam, Muhammad Nadeem and Muhammad
Saleem all sons of Muhammad Hashim were tried by learned Judge Anti-Terrorism,
Ghotki in Special Case No.85/2015. New No.17/2017, arising out of Crime
No.224/2015 registered at PS Daharki, District Ghotki for offences under Sections
302, 449, 337-H(2), 120-B, 148, 149 PPC & 7 ATA 1997. Learned trial Court
vide judgment dated; 10.03.2017 convicted the appellants/accused for offence
u/s 148 PPC, accused were convicted and sentenced to suffer R.I for three years
and to pay fine of Rs.1000/- and in case of default in payment of fine, they
shall suffer S.I for 15 days more. They were further convicted u/s 302 (b) PPC
r/w section 149 PPC and sentenced to death on two counts. The accused Muhammad
Azam, Muhammad Saleem and Muhammad Nadeem shall be hanged by neck till they are
dead subject to the confirmation of this court and so also to pay compensation
of Rs.100,000/- each which shall be paid to the LRs of the deceased and in case
of default in payment of compensation/fine shall be recovered as arrears of
land revenue. They were also convicted U/S 449 PPC, r/w section 149 PPC, and
sentenced to suffer R.I for ten years. They were also convicted U/S 337-H(ii)
PPC, r/w section 149 PPC, and sentenced to suffer S.I for three months. They were
also convicted U/S 24 of Sindh Arms Act, 2013, and sentenced to suffer S.I for
ten years and to pay fine of Rs.5000/- each and in case of default in payment
of fine, they were ordered to suffer S.I for two months more. For committing
offence of terrorism, appellants/accused were also convicted U/S 7(1)(a) ATA,
1997 and sentenced to death on two counts. The accused Muhammad Azam, Muhammad
Saleem and Muhammad Nadeem shall be hanged by neck till they are dead, subject
to the confirmation by this court and so also to pay compensation of
Rs.100,000/- each which shall be paid to the L.Rs of the deceased and in case
of default in payment of compensation/fine shall be recovered as arrears of
land revenue; however, they were extended the benefit of Section 382-B Cr.P.C.
2. The facts leading to the case are that on 22.09.2015, the
complainant Muhammad Siddique lodged the FIR at Police Station Daharki, wherein
he stated that namely Mst. Rukhsana w/o late Muhammad Aslam was his daughter
and Muhammad Uzair aged about 24/25 years was his son. The complainant’s
son-in-law MuhammadAslam was murdered in year 2011,hence he and his sons were
residing with Mst. Rukhsana at her house for looking-after. The brothers of
late Muhammad Aslam namely Muhammad Nadeem and Muhammad Azam used to issue
threat of murder to the complainant’s daughter Mst. Rukhsana over the property
of late Muhammad Aslam. On 20.09.2015, the complainant along with his sons
namely Muhammad Suhail, Shakeel Ahmed came at the house of her daughter in
evening time and after taking night meals with Muhammad Uzair, daughter Mst.
Rukhsana along with her children went to sleep at her house. The electric bulbs
were lightening and on next day viz. 21.09.2015, it was about 5.30 a.m, they wake
up on hearing noise of people whereupon, complainant party came out from their
rooms and on the light of bulbs they saw and identified the persons to be
Muhammad Azam, Muhammad Nadeem armed with pistols and daggers and Muhammad
Saleem armed with pistol and three unknown persons armed with pistols with open
faces were standing at courtyard of the house. The accused persons asked the
complainant party to remain keep quiet and they will murder the sister in law
namely Mst. Rukhsana. The complainant party remained silent due to fear of weapons
and meanwhile unknown accused overpowered upon the complainant party by show of
pistols. Thereafter, accused Muhammad Nadeem and Muhammad Saleem caught hold
and tied the arms of Mst. Rukhsana and accused Muhammad Azam caused blow of
dagger to Mst. Rukhsana at abdomen, who fell down on the ground then accused
Muhammad Azam cut her neck, whereupon, complainant’s son Muhammad Uzair
resisted with the accused persons, on which accused Muhammad Azam and Muhammad
Saleem caught hold and tied his arms and accused Muhammad Nadeem caused blow of
dagger to Muhammad Uzair at his chest who fell down on the ground and then
accused Muhammad Nadeem cut his neck.
All the accused persons made aerial firing in order to create terror and panic
fled away by closing the gate from outer side. Complainant noticed the injured
who succumbed to their injuries and scenario was also noticed by children of
Mst. Rukhsana, who were also shocked by such brutal murder. Thereafter,
complainant party raised cries, which attracted neighbour, who on arrival opened
the outer gate. Complainant shifted bodies through Ambulance and meanwhile
neighbor also conveyed such information to police, who also reached at Taluka
Hospital Daharki. Post-mortem of both the dead bodies were got conducted through
police and thereafter, complainant took the same for funeral prayers and on
next day, the complainant came at police station, where he lodged the FIR to
the above effect.
3. Brief facts of the special case Nos.18, 19 and 20/2017 bearing
FIR crimes No.235 to 237/2015 under Section 24 Sindh Arms Act, 2013 of police
station Daharki are that during interrogation from arrested accused persons
namely Muhammad Azam, Muhammad Nadeem and Muhammad Saleem, they became ready to
produce the crime weapons and they led the police party towards their house and
produced TT pistols of 30 bore and daggers to the police for which they had no
valid license, therefore such FIRs were lodged separately to the above effect.
4. The combined charge was framed by learned Anti-Terrorism Court,
Sukkur on 10.12.2015, against accused Muhammad Azam, Muhammad Nadeem, Muhammad
Saleem, and Muhammad Younis to which they pleaded not guilty and claimed to be
tried. Charge at Ex.05 and pleas recorded at Ex.05/A to 05/D.
5. In support of their case, the prosecution examined in all nine
witnesses. Thereafter, the prosecution side was closed vide statement Ex.19.
6. The statements of accused under Section 342 CrPC were recorded
at Ex.20 to 23, in which they claimed false implication in this case and denied
the prosecution allegations.
7. The learned trial Court after hearing the learned counsel for
parties and assessment of evidence vide judgment dated 10.03.2017, convicted
and sentenced the appellants/accused as stated above.
8. Since the Cr. Jail Appeal No.D-34 of 2017 along with Confirmation
Case No.02 of 2017 and Cr. Acquittal Appeal No.D-65 of 2017, against conviction
and sentence, arise out of same crime/incident and require the same
appreciation of evidence, therefore, this single judgment shall dispose of the
same.
9. Learned counsel for the appellants/accused in Cr. Jail Appeal
No.D-34 of 2017 has contended that the trial court has not appreciated the
evidence according to law; that there are major contradictions in the evidence
of prosecution witnesses and the same were not considered by the trial court;
that it was admitted by the prosecution witnesses that the children of Mst.
Rukhsana were available at the time of incident but they were not examined by
the investigation officer nor were produced before the trial court and the
appellants are uncles of the children they were the important witnesses to
identify appellants and deposed before the court; that the prosecution
witnesses are related and interested witnesses having strong motive to depose
against the appellants; that FIR was
registered with delay of about 23 hours whereas the distance to police station
was only half kilo meter; that prosecution also not established the motive as
setup in the FIR; that no question about the motive was put to appellants
during their statement under section 342 Cr.P.C; that Tapedar was also not
examined during the trial and sketch was exhibited by the investigation
officer; that ASI Hakim Ali Bhayo reached at place of incident within two hours
and prepared some documents at the place of incident the names of appellants
does not transpire in the said documents; that recording of statements under
section 161 Cr.P.C is contradictory; that no confessional statement of
appellants were recorded though they were produced before the Magistrate for
the same purpose; Recovery of weapons
were made from the house which was lying vacant and the recovery was joint
recovery; that recovered weapons and empties were sent to ballistics expert
with the delay and the said delay had not been explained; that the prosecution
was duty bound to prove the case against the appellant beyond reasonable doubt
but prosecution failed to prove the case; He prayed that in view of the above
submissions appellants may be acquitted; lastly, he submitted
that if the court came to the conclusion that prosecution proved the case
against the appellant then he prayed that the sentence of death may be reduced
in to the imprisonment of life on the ground that the prosecution has not
proved the motive against the appellant and investigation officer failed to
collect the evidence of motive; that no question about the motive was put to
appellants during their statement under section 342 Cr.P.C. He relied upon the
cases of KhalidJaved and another V. The
State (2003 SCMR 1419), Ali Bux and
others V. The State (2018 SCMR 354),Nadeem alias Kala V.The State and others(2018
SCMR 153), Muhammad Mansha V.The State (2018 SCMR 772) andAsadRehmat V.The
State and others(2019 SCMR 1156).
10. Learned counsel for appellant/complainant in Cr. Acquittal Appeal
No.D-65 of 2017 after hearing the evidence does not press the Cr. Acquittal
Appeal. He further submitted that prosecution established the case against the
appellants beyond reasonable doubt; that all the prosecution witnesses fully
supported the case of prosecution; that ocular evidence was corroborated with
the medical evidence; that witnesses were natural witnesses; that appellants brutally
committed the offence; that recovery of the weapon used in the offence was
effected from the appellants; that no major contradiction in the evidence is
pointed out by the defence counsel; that motive is established by the
prosecution during the trial; lastly he prayed that the appeal of the appellants
may be dismissed and death sentence awarded to them by the trial court may be
confirmed.
11. Learned DPG for State has contended that prosecution proved the
case against the appellants beyond reasonable doubt by producing ocular so also
medical and circumstantial evidence; that recovery of weapons was effected from
the appellants; that positive FSL report was exhibited in the evidence; that
motive has been admitted by the appellants in their statements under section
342 Cr.P.C; that the appellants committed the murder of two innocent peoples
and they are not liable for any leniency. Lastly, he prayed that the appeal of
the appellants may be dismissed and the sentence of death may be confirmed.
12. We have heard the learned counsel for the appellants/accused in
Cr. Jail Appeal No.D-34 of 2017, learned counsel for appellant/complainant in
Cr. Acquittal Appeal No.D-65 of 2017 and also learned DPG for State and also
perused the material available on the record.Since the Acquittal Appeal has not been pressed by the counsel for
complainant the same is hereby dismissed as not pressed.
13. We scan the entire evidence produced by the prosecution before
the trial court minutely. The Main PW’s gave evidence as under:-
14.
PW-1, Mohammad Siddique was examined before trial Court who has fully supported
the case. He deposed that on 21.09.2015 at about 5:30 a.m. he along with other
witnesses woke-up on the noice of persons and saw 06 persons available at the
Courtyard of house to whom they identified as Mohammad Azam and Mohammad Nadeem
armed with pistols and knife while Mohammad Saleem was armed with Pistol and
three were unknown persons they also armed with pistols whose faces were
opened. He fully supported the role played by appellants in the commission of the
offence. He was cross-examined by learned Defence Counsel but his evidence is
not shattered.
15. PW
Mohammad Suhail was also examined before the trial Court that he along with
others were sleeping in the house of Rukhsana and on 21.09.2015 at about 5:30
a.m. they heard noise of persons on such they woke-up and saw on the light of
bulbs that accused persons Mohammad Azam armed with pistol and knife, Mohammad
Nadeem armed with pistol and knife and Mohammad Saleem armed with pistol and
knife all sons of Mohammad HashimBuriro along with three unidentified their
faces were opened. He also fully supported the role played by accused persons
and deposed that accused Muhammad Nadeem and Muhammad Saleem tied the arms of
his sister Mst. Rukhsana with piece of Ajrak and accused Muhammad Azam caused
knife blows to her on her stomach who after receiving knife blows were fallen
down on the ground then accused Muhammad Azam cut the neck of his sister with
knife to which his brother Muhammad Uzair resisted on his resistance accused Muhammad
Azam Muhammad Saleem tied Muhammad Uzair with piece of Ajrak and accusedNadeem
caused knife blows to Muhammad Uzair on his chest and cut his neck with knife.
All the accused persons also fired in the air to create terror and due to fear
their lives, witnesses remained silent. He further deposed that dead bodies
were taken in Ambulance to the hospital where police conducted necessary
proceedings viz. postmortem etc. and then handed over the dead body to them
after that his father registered FIR on 22.09.2015. He further deposed that on
23.09.2015 Inspector Niaz Ahmed Farooqi came to their house where he recorded
his statement. He deposed that on 30.09.2015 he along with his father Mohammad
Siddique and brother Shakeel Ahmed went to Police Station, Daharki where
Inspector Niaz Ahmed Farooqi in their presence interrogated Mohammad Azam,
Mohammad Saleem and Mohammad Nadeem asserted their guilt and were ready to
handover Pistol and knife which they concealed in Siddique Colony and he was
cross-examined but we found no major contradictions in the depositions.
16. PW-3
Shakeel Ahmed was also examined and he fully supported the case of the prosecution.
He deposed that on 20.09.2015 he along with his brother Suhail and father
Mohammad Siddique were available in the house of his sister Rukhsana after
eating night meals went to sleep in the house when on 21.09.2015 at about 5:30
p.m, they heard noise of some persons on such they woke-up and saw on the light
of electric bulbs accused Mohammad Azam armed with pistol and knife Mohammad
Saleem armed with pistol and knife both sons of Mohammad HashimBuriro and three
were unidentified whose faces were opened. They pointed out their weapons upon
them and asked to keep mum. He further deposed that within their sight accused
Mohammad Nadeem and Saleem tied the hands of Rukhsana with piece of Ajrak and
then Mohammad Azam caused knife injury to Mst. Rukhsana and she fell down then
accused Mohammad Azam cut the neck of his sister with knife, his brother Mohammad
Uzair resisted the accused and due to his resistance accused Mohammad Saleem
and Mohammad Azam tied arms of Mohammad Uzair with piece of Ajrak and then
accused Mohammad Nadeem caused knife blows to his brother Mohammad Uzair on his
chest and also cut the neck of Mohammad Uzair with knife. He further deposed
that all the accused then fired in the air to create terror they took dead
bodies to the hospital where police came and completed some formalities about
the postmortem etc. and then dead bodies were handed over to them thereafter
his father lodged FIR on 22.09.2015. He deposed that on 23.9.2015 I.O. Niaz
Ahmed Farooqi came to their house and recorded statements of witnesses. He
further deposed that on 30.09.2015 he along with his brother Mohammad Suhail
and father went to Police Station where I.O. Niaz Ahmed Farooqi interrogated
accused in their presence accused Mohammad Azam, Mohammad Saleem and Mohammad
Nadeem accepted their guilt and during their interrogation, they were ready to
handover their weapons used in the commission of the offence. This witness was
also cross-examined at some length but we could not find any major
contradiction.
17. PW-04
Hakim Ali was examined, he deposed that on the day of the incident at about
0800 hours he inspected both the deceased Mohammad Uzair and Mst. Rukhsana they
were lying in the civil hospital Daharki in presence of mashirs Ali Raza and
GhulamMurtaza. He firstly inspected the dead body of Mst. Rukhsana and Mohammad
Uzair after inspection he prepared such memo of inspection. He further deposed
that he took photographs of dead bodies, prepared danishnama in presence of
said mashirs. Thereafter at about 1200 hours he received last worn clothes of
both deceased and also prepared such mashirnama in presence of said mashirs. He
deposed that on 22.09.2015 complainant Mohammad Siddique came at Police Station
and disclosed the facts of cognizable offence then he lodged FIR No.224/2015
and on the same day, he inspected the place of incident on pointation of the complainant
and secured blood stained earth from the place of incident of both the deceased
and sealed the same separately. He also secured a piece of Ajrak and 05 empties
of 30 bore and sealed separately and prepared such mashirnama in presence of
mashirsGhulam Mustafa and Ali Raza thereafter he handed over the case papers to
Inspector NiazFarooqi for further investigation. He was cross-examined but the evidence
was not shattered by the defence Counsel.
18. PW-05
Ali Raza was examined who deposed that after hearing the murders he went to the
hospital where police already available and in his presence and presence of
Ghulam Mustafa ASI Hakim Ali inspected both the dead bodies, prepared such
mashirnama so also danishnama which they signed. He further deposed that ASI
took the photograph of both the deceased and also prepared mashirnama.
19. PW-6
Dr. Zaibu-u-Nisa was examined, she in her deposition stated that on 21.09.2015
she was posted as Incharge Maternity Home, Daharki on the said date she
received the dead body of deceased Mst. Rukhsana through Police letter for
conducting her postmortem. She started postmortem at 8:45 a.m and completed the
same at 9:45 a.m, and on internal examination, she foundthe following injuries
on the body of Mst. Rukhsana:-
Injury No: 1. An
incised wound 9 cm x 4 cm in-front of neck, both carotid arteries, oesophagus
and tranches cut.
Injury No: 2. An
incised wound 11 cm x 3 cm front left to right side of abdomen on left cavity
deep cutting the intestines.
20. PW-7
Manzoor Ahmed was examined who deposed that on 27.09.2015 he was posted as HC
at Police Station, Daharki, he was accompanied with SIP Mohammad
BachalQazi& other police personnel and during patrolling in the area they
received spy information that nominated accused Mohammad Hashim in aforesaid
crime are standing and when they reached Mangria Petrol Pump saw three persons
were standing who on seeing them trying to run but Police party arrested them.
On inquiry apprehended accused disclosed their names as Mohammad Azam, Mohammad
Nadeem, and Mohammad Saleem. SIP made him mashir they took their search of
accused and recovered cash of different denominations. He further deposed that
SIP also prepared mashirnama.
21. PW-8
Dr. Kailash Kumar was examined and while fully supporting the case of
prosecution deposed that on 21.09.2015 he was posted as Medical Officer Taluka
Hospital, Daharki on said date he received the dead body of deceased Muhammad
Uzair through Police letter for conducting his postmortem. He started postmortem
at 8:45 am, and completed the same at 9:45 am and on examination, he found the
following injuries on the body of deceased Muhammad Uzair:-
Injury No: 1. Incised
wound 9 cm x 2cm neck cavity deep extending from front of neck to right side of
neck. Right carotid artery vein muscle oesophagus tranches cut.
Injury No: 2. Incised
wound 4 cm x 1 ½ cm x muscle deep over epigastrium.
Injury No: 3. Abrasion
5 cm x ½ over right side of neck below injury No.1.
22. PW-9
Inspector Niaz Ahmed Farooqi was examined he deposed that on 23.09.2015 he was
posted as I/c Sub-Divisional police officerUbauro for investigation of
Anti-Terrorism cases and he received case papers of Crime No.224/2015 u/s 302
PPC. After receiving the papers he went to the place of incident where
complainant met him who disclosed him that witnesses are not available and he
will produce them at Police Station, thereafter he produced them at Police
Station where he recorded their statements u/s 161 Cr.P.C. Thereafter, he
received postmortem, mashirnamas, etc. On 30.09.2015 he recorded statement u/s
161 Cr.P.Cof the arrested accused and interrogated them in presence of
complainant and two PWs. The accused during interrogation admitted their guilt
and stated that their brother was murdered who left the property and deceased
Mst. Rukhsana as not giving the share of the property hence they committed her
murder. Thereafter accused were ready to produce the crime weapons and took out
the pistol and one knife which were wrapped in the plastic bag. Accused Azam
disclosed that he has committed the murder with knife and at that time he had
pistol in his hand. Accused Nadeem also disclosed that the knife is the same
with whom he committed the murder of Uzair and the pistol is the same which was
at that time was in his hand. Accused Saleem disclosed that the pistol is the same
which at in my hand at the time of the offence. He sealed the weapons and then
prepared the mashirnama of recovery in the presence of mashirs Ali Raza and
Ghulam Mustafa. He verified the mashirnama to be the same and correct. He
further deposed that on the same day he recorded the further statement of
complainant and witnesses Shakeel and Suhail Ahmed wherein they disclosed that
during interrogation in their presence the accused had accepted their guilt and
further stated that arms and ammunition were provided to them by accused
Younis. He further deposed that he produced the complainant and witnesses as
well as accused before SSP Ghotki where the accused also admitted their guilt.
The SSP ordered to produce them before the Court for recording their confession
and on 02.10.2015 he produced accused Azam and Nadeem before Civil Judge
Daharkiand Magistrate ordered to produce them on next day then on 03.10.2015 he
produced the accused before magistrate but refused to record the confessional
statements of accused and remanded them to jail and on 16.10.2015 the
investigation of the case was transferred to Inspector Abdul SattarPhul. He was
cross-examined but his evidence was not shattered by the defence Counsel.
23. On our reassessment of the evidence the important
part of which we have discussed above, we find that the prosecution has proved
its case against the appellants for the offences charged beyond a reasonable
doubt, the eyewitnesses fully supported the case of prosecution who are the
natural witnesses, the evidence of witnesses is fully supported by medical
evidence, recovery of weapons viz pistols and daggers from the appellants which
they have used in the commission of offence, the recovered empties from the
place of incident matched with the pistols recovered from the possession of
appellants, the identification of appellants at the place of incident by the
witnesses was fully established as the appellants and the witnesses were very
close relatives to each other and knows each other very well and as such the
prosecution has proved its case beyond a reasonable doubt against the
appellants through trustworthy, reliable, cogent, oral as well as supportive
evidence.
24. 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).
25. On the assessment of evidence we also found
that the motive has not been proved by the prosecution against the appellants,we have observed that the motive set up by the prosecution
was quite vague and admittedly no independent witness was brought by
prosecution even not a single word deposed by the complainant before the trial
court during his evidencein support of the asserted motive though it was
mentioned in the FIR. PWsnamely Muhammad Suhail and Shakeel Ahmed though
deposed about the threats issued by the appellants to their sisterMst. Rukhsanabut
they failed to give details of the property or the date and time of the threats
issued by the appellants to their sister. The investigation officer also
failedto collect evidence about the asserted motive nor he deposed a single
word during the trial.It is settled 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 as has been discussed by the Honourable Supreme Court of
Pakistan in cases of Ahmad Nawaz and another v. The State (2011 SCMR 593),
IftikharMehmood and another v. QaiserIftikhar and others (2011 SCMR 1165),
Muhammad Mumtaz and 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).
26. We have also
carefully examined the statements under section 342 Cr.P.C of all the
appellants and found that no question about the asserted motive was put to
them.It is a well-settled principle of law that a
piece of evidence or a circumstance is not put to an accused person at the time
of recording their statements under Section 342 Cr.P.C. the same could not be
considered against them as has been held by Honourable Supreme Court Of
Pakistan in cases Imtiaz @ Tajv. The
State and others(2018 SCMR 344),Qadan and others v. The State (2017 SCMR 148)
and Mst: Anwar Begum v. AkhtarHussain alias Kaka and 2 others (2017 SCMR 1710).
27. 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 appellants on the
charge under section 302(b), P.P.C so also under section 7(1)(a) ATA, 1997, aremaintained
but this appeal is partly allowed to the extent of the appellant's sentenceof
death which is reduced to imprisonment for life on two counts. Compensation, as
ordered by the trial court in terms of section 544-A Cr. P.C is maintained; in
default of payment of compensation, the sentence awarded by the trial court is
also maintained. All other sentences awarded by the trial court for offences
under section 148 PPC, S. 449 PPC R/W S. 149 PPC, 337-H(ii) PPC R/W S. 149 PPC
and U/S 24 Sindh Arms Act, 2013 are maintained. Appellantsare entitled to the
benefit of section 382-B Cr.P.C, and all the sentencesare ordered to run
concurrently. The confirmation case No: D-
02 of 2017 made by the trial court against the appellants is answered in
negative.
28. The confirmation reference No. 02 of 2017,
made by the trial court and the Crl. Jail Appeal No. D- 34 of 2017 and Cr.
Acquittal Appeal No. D-65 of 2017 filed by the appellants aredisposed of in the
above terms.
J U D G E
J U D G E