IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Crl. Jail Appeal No.D-75 of 2019

a/w Crl. Conf.No.D-05 of 2019 &

Crl. Jail. Appeal No.S-76 of 2019

Present:

Mr. JusticeNaimatullahPhulpoto.

Mr. Justice Zulfiqar Ali Sangi.

Appellants: Ghulam Hyder through Mr. Shoaib Niaz Khaskheli, Advocate.

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

Date of hearing: 04.02.2020 and 11-02-2020.

Date ofAnnouncement: 19.02.2020

J U D G M E N T

ZULFIQAR ALI SANGI,J:- AppellantGhulamHyderS/o Ramz Ali Khaskhelihasassailed the judgment dated16.05.2019and 17-05-2019 passedbylearnedAdditional Sessions Judge, Mirwahin Sessions Case No.807of 2010 arising out of FIR No.94/2010 offence under sections 302, 109 PPC Police Station, FaizGunj,Whereby he wasconvicted U/S 302 (b) PPCandsentenced todeath as Ta’zir for causing Qatl-e-Amd of deceased Mst. Ajeebansubject to confirmation of this court and ordered to pay fine for Rs.100,000/- and in failure thereof, he shall suffersix months S.I more. He was also directed to pay the compensation of Rs.10,00,000/- as provided u/s 544-A Cr.P.C to the legal heirs of deceased and same amount shall be distributed proportionally among 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.Learned trial Court after awarding the death penalty to the appellant has also made a Reference to this Court for its confirmation in terms of Section 374 Cr.P.C. Appellant was also convicted for period of 03 years R.I and fine of Rs. 3000/-in case of failure of payment of fine to suffer S.I for 03 months and benefit of S.382-B Cr.P.C was also extended to him in the Session Case No. 751 of 2011 registered under section 13 DAO vide crime No. 97 of 2010, which was offshoot of the main case.

2. Precisely, the prosecution case is that complainant Sikandar Ali lodged FIR at Police Station, FaizGunjDistrict Khairpur stating therein that he peasant by profession and cultivates land. Accused GhulamHyderhad demanded the hand of his sister Mst. Ajeeban to marry her on which he replied that after consultation he would reply to him. It is further alleged that a water pump is installed in the land of Jeal Shah near his house which they used for drinking water. On the day of incident i.e. On 18.09.2010 at 7:00 a.m. complainant along with his brother Shahbaz Dino, maternal cousin ZamirHussainwas present infront the door of house of complainant Sikandar Ali situated in dehMitho Khan Chang, TalukaFaizGunj when deceased went for taking water from the hand Pump available near to the land, on the way while she was returning the accused GhulamHyderchallenged her that she had refused to marry him, as such she wouldn’t be spared. She raised cries, on her cries on which PWs challenged the accused but he intentionally murderedMst. Ajeeban, sister of the complainant by causing herfire shot injuries with 12 bore country-made pistol, which she received on the backside of neck and fell down. The complainant party eye witnesses due to fear did not go near to the accused then the accused ran away. Mst. Ajeeban succumbed. Thereafter, the complainant appeared at Police Station where he lodged FIR bearing crime No:94 of 2010 U/S 302,109 PPC.

3. During investigation, on 20.09.2010 at 1700 hours at link road leading from Hussain Shah to Lakha Road near Village NoohRajper accused GhulamHyder was arrested in case/crime No.94/2010 offence u/s 302, 109 PPC of Police Station, FaizGunj in respect of murder of deceased Ajeeban. Police recovered one unlicensed country-made pistol in working condition and four live cartridges and cash of Rs.20/- (two notes of Rs.10/-) from his possession in presence of witnesses and prepared mashirnama. Thereafter, he was brought along with recovered weapon to Police Station, Where separate FIR u/s 13(d).A.O was lodged against the accused on behalf of State.

4. After the usual investigation, the police submitted challanagainst the appellant/accusedbefore the competent Court of law under above referred sections. The learned trial Court after completingall the legal formalities framedcharge against the appellant/accusedat Ex.2 to which hepleaded not guilty and claimed trial, such pleawas obtained from him at Ex.3.

5. To prove its case, the prosecution examined PW-1SIP Shoukat Ali at Ex.5 who produced FIR at Ex.6, memo of arrest and recovery at Ex.7. PW-2WMO Dr. TajanBurdiwas examined at Ex.8 who produced letter at Ex.9, postmortem report at Ex.10, delivery receipt of cloths of deceased at Ex.11. PW-3complainant Sikandar Ali was examined at Ex.14.PW-4Shahbazwas examined at Ex.15. PW-5Badal was examined at Ex.17 who produced a memo of inspecting dead body at Ex.17-A, memo of inspecting the place of incident at Ex.17-B, memo of securing clothes at Ex.17-C. PW-6Tapadar examined at Ex.18 who produced sketch at Ex.18-A. PW-7 SIO GhulamHussainSamtio was examined at Ex.19. PW-8 PC Gulsher was examined at Ex.20. Thereafter, learned ADPP for the State, closed the side of prosecution evidence at Ex.21.

6. Learned trial court recorded the statement of the appellantin terms of section 342 Cr.P.C at Ex.23, wherein he denied the prosecution case andclaimed hisinnocence, however, neither heexaminedhimself on oath nor led evidence in hisdefense.

7. ThetrialCourt after hearing the Counsel for the appellants learned ADPP for the State and considering the evidence, passed impugned judgment, which has been assailed through instant appeals.

8. Learned counsel for the appellant after arguing the appeal at some length did not press the instant appeals on merit but has prayed for a reduction in sentence from death to imprisonment for life on the ground that prosecution has failed to establish motive. Further contended that appellant is sole supporter member of a large family having four daughters and one son, for which he is the breadwinner.

10. Conversely, learned Additional Prosecutor Generalconceded to the submission of counsel for the appellant for conversion of death sentence to imprisonment for life.

11. We have heard learned Counsel for the parties and have examined the record carefully with their able assistance. Though the appeals of the appellant are not pressed by the counsel on merits, we being the custodian of the rights of everyone assessed the evidence to reach on right conclusion.

12. PW Sikandar Ali theComplainant and theEye Witness of the incident was examined before the trial court, he deposed that on 18-09-2010 he, Zamir and Shahbaz Dino were present outside of their house, his sister Mst. Ajeeban had gone to hand-pump for taking water on her return when she reached link road leading from Pacca Chang towards Lakha road then accused GhulamHyder came and asked Mst. Ajeeban that she had refused to contract marriage with him, he would not spare her on saying so he with the intention to commit murder, directly fired from Desi pistol upon Mst. Ajeebanwhich hit her on the backside and she fell down, she was struggling for her life, but she succumbed to her injuries. This witness was cross-examined by counsel for the appellant but his evidence was not shattered.

13. PWShahbaz(Eye witness) deposed that on 18-09-2010, he complainant Sikandar Ali and Muharram were present outside of their house. His sister Mst. Ajeeban as per routine had gone to take water from hand-pump on returning when she crossed link road leading from Pacca Chang to lakha road, then accused GhulamHyder came and asked Mst. Ajeeban that she had refused to marry him he will not spare on saying so he directly fired from Desi Pistol upon her which hit her on the backside of her neck, she fallen down and was died. This witness also fully supported the case of the prosecution and was cross-examined at some length by defense counsel but he could not succeed in getting contradictions.

14. MashirBadaldeposed that on 18-09-2010 he and co-mashirGhulamAsghar were present in the hospital, where SIP GhulamHussainSamtio inspected the dead body of Mst. Ajeeban and prepared mashirnama which they both signed. He further deposed that they saw a fire shot wound on the backside of the neck of the deceased Mst. Ajeeban and blood were oozing from her wound. He deposed that on the same day investigation officer visited place of incident in his presence and secured bloodstain earth and one empty of the cartridge of 12 bore of white color sealed the sameseparately. He further deposed that on the same day at the evening time investigation officer collected the bloodstain cloths of deceased in his presence and sealed the same. He further deposed that after two days of date 18-09-2010 he and GhulamHyder were called by SIP Shoukat Lund to witness the arrest and recovery proceedings of accused and in their presence accused was arrested and Desi pistol was recovered from his possession which he used in the commission of offence and such mashirnama was prepared. This witness was also cross-examined but his evidence was not shattered.

15. The record reflects that prosecution examined SIP Shoukat Ali was the author of the FIR and witness of the arrest of the appellant and recovery of Desi Pistol from his possession which the appellant used in the commission of offence. He fully supported the case and was cross-examined at length but his defense counsel was failed to point out any major contradiction in his evidence.

16. Doctor TajaBurdi W.M.O deposed that deceased died her unnatural death by means of firearm injuries; she exhibited the post mortem report of the deceased.

17. P.C Gulsher deposed that on 18-09-2010 he was posted as PC at Police Station FaizGunj on the same day SIP Ghulam Husain Samtio had handed over the dead body of deceased Mst. Ajeeban for conducting post mortem to which he conducted the post mortem from RHC FaizGunj and then handed over the same to Sikandar Ali and took such receipt. He further deposed that last worn clothes were handed over to him by WMO in sealed parcel the same were handed over by him to SIO who prepared the mashirnama of recovery of cloths of deceased.

18. TapedarAbdul Wahab was examined who produced the sketch of place of wardat papered by him;he also deposed that the place of wardatwas shown to him by the mashirBadal.

19. The most important witness was the Investigation Officer who conducted the investigation of the case anddeposed that on 18-09-2010 he was posted as SIO at police station FaizGunj, he received the FIR No. 94/2010 for further investigation. He inspected the dead body of Mst. Ajeeban at the hospital in presence of mashirs and prepared such a memo, he noticed one fire shot injury on the backside of the neck of the deceased; he also prepared Danishnama of the dead body and handed over the same to M.O for post mortem. He deposed that on the same day he proceeded toward the place of wardat along with complainant and mashirs and visited the same in their presence and recovered bloodstain earth and one empty cartridge of 12 bore of white color which he sealed separately in presence of mashirs on the same day he also received last worn bloodstain clothes of deceased. He deposed that he recorded the statements under section 161 Cr.P.C. of the witnesses of the main case on the same day. He further deposed that on 20-09-2010 he received FIR of 13 (d) AO along with accused and recovered Desi Pistol, four live cartridge and 200 rupees recovered from the possession of accused for investigation; he recorded statements under section 161 Cr.P.C. of the witnesses. He deposed that during investigation he sent the case property viz. blood stained earth and blood-stained clothes of the deceased to chemical examiner Rohri for the report, while recovered Pistol and cartridgeswere sent to FSL, Larkana for expert opinion/report of ballistic expert and after completing the formalities he submitted the challan. This witness was cross-examined at length but we do not find any material contradiction in his evidence.

20. The evidence of all the eyewitnesses is fully corroborated by the medical evidence. Recovery of Desi Pistol used in the commission of offence and single empty of cartridge recovered from the place of wardat is also established from the evidence of mashirBadal and Investigation OfficerGhulamHussain, who fully supported the case of the prosecution. All witnesses were cross-examined at length by the defense counsel, but could not succeed in getting any material contradiction/infirmities in prosecution evidence.

21. The case against the appellant was proved by the prosecution by producing ocular evidence corroborated by medical evidence and other supportive evidence; he was fully implicated by all the eyewitnesses that he fired directly upon the deceased Mst. Ajeeban in their presence such fact was further proved from the evidence of mashir and investigation officer who collected the said empty from the place of incident, furthermore, the injuries upon the deceased were certified by the doctor who was also examined before the trial court and supported the case of prosecution, in presence of overwhelming evidence we have no hesitation to say that the prosecution proved the case against the appellant.

22. Since the appeal had not been pressed on merits on the ground that his conviction of death may be reduced to life imprisonment on the above all mitigating circumstances, therefore, the question to be considered by us now is as to whether there are any mitigating circumstances available on the record warranting reduction of the sentences of death passed against the appellant to imprisonment for life or not. In this context, we have observed that the motive set up by the prosecution was quite vague and admittedly no independent evidence worth names of the personsin whose presence appellant demanded the hand of Mst. Ajeeban for marriage in support of the asserted motive. It has also come in the evidence that the appellant was already married having four daughters and one son. 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 aremaintained; 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-05 of 2019 made by the trial court is answered in negative.

23. In connected offshoot case under section 13(d) Arms Ordinance, appellant GhulamHyder has been convicted by the trial Court under section 13(d) Arms ordinance for three years R.I and pay fine of Rs.3000/-,in case of default to pay fine amount to suffer S.I for three (03) months more. Appellant was extended benefit of Section 382-B Cr.P.C. During pendency of appeal Jail Roll was called. It appears that according to Jail Roll dated 11.02.2020, appellant has served substantive sentence excluding remission as 09 years, 04 months and 21 days. Appeal in the main case so for the sentence is concerned has not been pressed on merit and death sentence has been reduced into imprisonment for life as stated above. So for the merits of this appeal are concerned, this appeal has also not been pressed on merit but for our satisfaction, we have scanned the evidence brought on record. It appears that both the prosecution witnesses have fully supported the case of prosecution and categorically stated that 12 bore country made pistol was recovered from the possession of accused and it was used in the commission of offence in the main case crime No.94/2010, offence U/S 302, 109 PPC of Police Station FaizGunj. Both the witnesses namely Shoukat Ali and Badal were cross examined at length but nothing favorable to the accused came on record. We have no reason to disbelieve the evidence of prosecution witnesses. It is settled law that evidence of police officials is good as of private persons; therefore, conviction and sentence recorded in the offshoot case are maintained.

24. In view of the above, Criminal Jail Appeal No.D-75/2019 along with Confirmation Case No. D-05/2019 and Criminal Jail Appeal No.S-76/2019 are disposed of in the above terms.

JUDGE

JUDGE