Crl. Jail Appeal No.D- 15 of 2004.



                                                                                Mr. Justice Naimatullah Phulpoto,

                                                            Mr. Justice Abdul Mobeen Lakho.


Appellant:                 Mehboob Ali son of Ghulam Mustafa Buriro.

Through Mr. Ali Nawaz Ghanghro Advocate.


The State:                  Through Syed Sardar Ali Shah Rizvi, Deputy Prosecutor                                General.


Crl. Rev. Application No.D-06 of 2004.


Applicant:                 Altaf Ali son of Allah Dino bycasteBuriro.

                                    Through Mr. Shabbir Ali Bozdar advocate.


Respondent.             Through Mr. Ali Nawaz Ghanghro, advocate.


The State:                  Through Syed Sardar Ali Shah Rizvi, Deputy Prosecutor                                General.            


Date of hearing:    03-09-2019


Date of decision:   08-10-2019





Abdul MobeenLakho, J; The appellant Mehboob Ali Buriro through the instant Crl. Jail Appeal has impugned judgment dated 06-01-2004 passed by learned 1st Additional Sessions Judge Ghotki whereby he has been convicted U/S 302 (b) P.P.C and sentenced to imprisonment for life and fine of Rs. 50,000/-, to be paid to the legal heirs of deceased, in default whereof to suffer SI for six months more. Appellant has been extended benefit of section 382 (b) Cr.P.C. Against impugned judgment applicant/complainant Altaf Ali has filed the Cr. Revision Application No. D-06 of 2004 for enhancement of sentence from life imprisonment to death sentence.


2.                     Briefly the facts of the case are that on 08-04-1998 Altaf Ali Buriro reported the matter with police by stating that about six months back his brother Fateh Muhammad aged about 39 years contracted second marriage with the daughter of Haji Bhooral and due to such marriage, Ghulam Mustafa and Mehboob (appellant) were annoyed and issued threats. On the day of incident, in morning hours, complainant, his brother Fateh Muhammad, nephew Attaullah and relative Ali Anwar left their houses for offering Eid prayer. When they reached near the house of Ali Anwar at 7-30 am,  it is alleged that accused Mehboob Ali armed with TT pistol and Ghulam Mustafa having brick-bat came there. They challenged Fateh Muhammad (now deceased) that he would not be spared. Accused Mehboob Ali fired from his TT pistol at Fateh Muhammad, which hit him at the right side of chest and he fell down. Accused Ghulam Mustafa caused brick-bat blow to the complainant on his head. Complainant party raised cries, which attracted co-villagers. Then, complainant saw that his brother Fateh Muhammad had sustained fire shot injury at right side of his nipple and died at the spot. Complainant went to Police Station Daharki and lodged FIR against both accused. Police recorded FIR on 8.4.1998 at 0830 hours under sections 302, 337-A(i), 34 PPC. After usual investigation, challan was submitted against both accused U/S 302, 34 PPC.


3.                     At trial the appellant did not plead guilty to the charge and claimed trial. Prosecution to prove its case, has examined the complainant Altaf Ali as PW/1 at Exh. 7,he produced FIR as Exh. 7/ A, PW/2 Ali Anwar as Exh. 12, he produced his 164 Cr.P.C. statement atExh.12/ A, PW/3Attaullah at Exh. 13,he produced his 164 Cr. P.C statement atExh. 13/ A, PW/-4 Tapedar Muhammad Usman at Exh. 14, he produced the sketch of the scene of occurrence at Exh. 14/ A,  PW/5 Dr. Parmanand examined at Ex. 15,he produced Postmortem Report of deceased Fateh Muhammad at Exh. 15/ A,letter of the I/O for postmortem at Exh.15/B, and Medical Certificate of injured Altaf Ali atExh. 15/C, PW/6 Manzoor Ahmed at Exh. 16,he produced receipt of dead body at Exh. 16/ A, PW/7Abdul Hafeez at Exh. 17,he produced memo of injuries at Exh. 17/ A, memo of place of incident and inspection of deadbody at Exh.17/B, inquest report of deceased atExh.17/C, memo of arrest and recovery atExh.17/D, memo of arrest and recovery of weapon at Exh 17/E, PW/8 Gul Muhammad at Exh. 18,he produced memo of house search of accused at Exh. 18/A, Ballistic expert report at Exe.18/B, and Chemical Report at Exh. 18/C. PW-09 Tapedar Muhammad Usman was examined at Exh.19 he produced sketch at Exh.19-A. The prosecution closed the side by filing statement atExh.20.


4.                     The statement of accused was recorded under section 342 Cr. P.C at Exh. 21, he denied the allegation leveled against him and pleaded his innocence. In defense he took the plea that due to enmity he had falsely been implicated in this case,  he was prepared to be examined on oath as provided u/ s 340(2) Cr. P.C and produced statement u/s 265- F(5) Cr.P.C at Exh.21/A, list of defense witnesses as Ex. 21/B.The statement of accused Ghulam Mustafa at Exh. 22,he also denied the allegation and pleaded his innocence. In defense he taken plea that due to enmity he had been roped in this case. He was prepared to be examined on oath as provided u/ s 340(2) Cr.P. C, he produced statement u/s 265-F (5) Cr.P. C at Exh. 22/A, true copy of F.I.R. Crime No.53/91 at Exh. 22/B, attested copy of promotion at Exh. 22/ C, photo copy of allotment of Railway Quarter No. 285-D at Exh.22/D, copyof possession of Railway Quarter No. 285-A at Exh. 22/E, attested copy of student identity card of Mehboob Ali, slip of examination of Sindh Board of Technical Education Sukkur, certificate of his admission in first year Mechanical Technology 1997-98, Leaving Certificate of Mehmood Ali son of Ghulam Mustafa, issued by Principal of Government Poly Technic Institute for boys, School Leaving Certificate of Rubina son of Ghulam Mustafa signed by Principal Government Girls Higher Secondary School Barrage Colony Sukkur, True copy of Suit No. 39/ 1999, True copy of application u/s 7 & 10 of Guardian & Ward Act No.01/ 1995, Photocopy of application sent to Sindh Police, District Ghotki at Mirpur Mathelo, request for registration of Case at  PS Daharki for the looting, destruction of house and stoppage of cultivation of Agricultural land dated 15-05-2001,photocopy for constitution Board of Nekmard for Faisla between applicant and complainant, list of defense witnesses namely Gulab son of Muhammad Waryal and Gul Muhammad son of Beero. DW Gulab was examined at Exh. 23, DW Gul Muhammad alias Ghulam Muhammad as Exh. 25, his counsel closed the side of defence vide statement dated 30-03-2002.


5.                      Appellant Ghulam Mustafa expired during trial and proceedings after hearing counsel for the parties were abated against him vide order dated 28.12.2002.


6.                     On conclusion of the trial, learned trial Court convicted and sentenced the appellants as stated above.


7.                     Mr. Ali Nawaz Ghanghro counsel for appellant Mehboob Ali argued that private persons of the locality were attracted at the time of incident but they were not examined during investigation as well as at trial; that   empty was not sealed at spot as per mashirnama; that appellant has been acquitted in a case U/S 13(e) Arms Ordinance and acquittal of appellant was challenged but acquittal appeal filed by State was dismissed; that fire was not repeated; that appellant was student at the time of incident and his career has been ruined.  Mr. Ghanghro lastly argued that sentence which he has already undergone by appellant would meet the ends of justice. Mr. Ghanghro submitted that appellant had no intention to commit murder, fire was not repeated, as such criminal revision application for enhancement of sentence has no merit.

8.                     Mr. Shabbir Ali Bozdar Advocate for complainant argued that incident occurred on the Eid day at 7.30 am and it was reported at 8.30 am within one hour; that ocular evidence was corroborated by medical evidence; that widow lady was aunt of appellant who had contracted second marriage with deceased, which caused much annoyance to the appellant and he committed murder. It is submitted by counsel for complainant that motive has been established at trial. It is also argued that mere relationship of P.Ws with deceased is no ground to reject their testimony. He prayed for enhancement of sentence. Lastly argued that trial Court was supposed to award death penalty to the appellant but without specifying the mitigating circumstances lesser sentence has been awarded to the appellant Mehboob Ali. In support of the submissions learned counsel for complainant relied upon the cases  of  Moazam Shah v. Mohsan Shah and another ( PLD 2001 Supreme Court 458 ),  Inam Ali v. The State ( 2011 P.Cr.L.J 1398), Noor Muhammad v. The State (2005 SCMR 1958) Ali Bux and others v. The State ( 2018 SCMR 354), Afzal-ur-Rehman v. The State (2003 SCMR 355) and Nadeem Ramzan v. The State (2018 SCMR 149).


9.                     Syed Sardar Ali Shah D.P.G in Crl. Jail Appeal No.D-15 of 2004 argued that FIR was promptly lodged, it was day time incident, that empty was recovered from place of vardat, that expert opinion is in positive, that trial Court had rightly convicted the appellant U/S 302 PPC to the imprisonment for life. Learned DPG submits that motive has not been established by prosecution at trial. DPG does not support the criminal revision application for enhancement of the sentence mainly on the ground that motive has not been established at trial. In support of his contention he placed his reliance upon the case of Mazhar Abbass alias Baddi v. The State (2017 SCMR 1884)


10.                  We have carefully heard leaned counsel for the parties and perused evidence available on record.


11.                   To prove the unnatural death of deceased Fateh Muhammad, prosecution has examined Dr. Permanand (PW-05), he has deposed that on 08.04.1998, he was posted as senior Medical Officer at Taluka Hospital Daharki. On that date, at about 1015 a.m, he received the dead body of Fateh Muhammad son of Allah Dino Buriro through HC Manzoor Ahmed of Police Station Daharki for conducting postmortem examination and report. The dead body was identified by Altaf Ali and Attaullah. Medical Officer started the postmortem examination at 10.30 a.m and finished the same at about 11.30 a.m on the same date. The dead body was of a male muslim adult with average built. On external examination of dead body, he found following injuries:-   

Injury No.1.    One lacerated punctured wound measuring 1 cm into diameter into cavity deep over anterior aspect of right chest anteriorly between nipple and sternum with inverted margins. (wound of entrance)

Injury No.2.    Lacerated punctured wound 1.5 cm in diameter into cavity deep over lateral aspect of left lower chest, with inverted margins. Injury was through and through.( Wound of exit)


                        Medical Officer on internal examination of the dead body found that Thorax was damaged on both sides. Fifth rib of right side fractured anteriorly and 10th rib of left side was also fractured laterally. Fifth cartilage damaged on right side and 10th cartilage was damaged on left side. Plurae damaged on both sides. Middle portion of right lung and lower portion of left lung damaged containing blood. Pericardium damaged. Right atrium and both ventricals also damaged containing blood. Great vessels damaged.  From the external as well as internal examination of the dead body of deceased Fateh Muhammad, Medical Officer was of the opinion that death of deceased Fateh Muhammad was caused due to shock and hemorrhage associated with cardio respiratory failure resulting from anti mortem injury No.1 caused by discharge from fire arm. The probable time elapsed between injuries and death a few minutes and between death and postmortem about two to four hours. Thereafter, he issued postmortem report which he produced at Ex.15/A. Unnatural death of deceased has not been disputed by defense counsel, we have no hesitation to hold that Fateh Muhammad died due to injuries, as mentioned by Medical Officer.


12.                    Now, the question arises that who had committed murder of the deceased? In order to prove it, prosecution has mainly relied upon the evidence of following witnesses.

                        Complainant Altaf Ali has clearly deposed that on the day of eid on 8.4.1998, he along with his brother Fateh Muhammad (now deceased), nephew Attaullah and relative Ali Anwar were going to Eid Gah for offering Eid prayer, when reached in a common street at 7.30 a.m, accused Ghulam Mustafa (now dead) and Mehboob Ali appeared there. Accused Mehboob Ali fired upon the deceased from his pistol and Ghulam Mustafa gave brick bat blow at the head of deceased and deceased died at spot. Complainant went to Police Station Daharki and lodged report. As regards to the motive, complainant has deposed that six months prior to present incident, his brother deceased Fateh Muhammad had married a widow with the consent of her parents but accused were annoyed over such marriage.

                        Attaullah (PW-3) has also narrated the same story and stated that on 8.4.1998, he along with his father Fateh Muhammad and paternal uncle,  complainant Altaf Ali, his relative Ali Anwar left home at 7.30 a.m for offering eid prayer when reached in the street at 7.30 a.m where appellant armed with pistol appeared with his father who was carrying a piece of brick. He has further deposed that appellant fired upon deceased Fateh Muhammad who received fire arm injury at his chest and accused Ghulam Mustafa caused brick blow at the head of complainant Altaf Ahmed, subsequently Faiz Muhammad expired.

                        Ali Anwar (PW-2) has also narrated the same story and supported the case of prosecution while stating that present incident occurred on the day of eid in the street and fire was made upon the deceased by the appellant and accused Ghulam Mustafa caused brick blow to the complainant at his head.


13.                   Evidence of the eye witnesses is fully corroborated by medical evidence. It was day time incident which occurred on the day of eid at 7.30 a.m and reported to Police station within one hour. Eye witnesses were cross examined at length by the defense counsel but no defect in the prosecution case came on record. As regards to the submission of learned advocate for appellant that there are some contradictions in the evidence of prosecution witnesses. It may be observed that no major contraction has been pointed out by the defense counsel.  Minor contradiction / omission in the evidence of prosecution witnesses was natural phenomena. No importance can be attacked to such minor contradictions. We are of the view that prosecution has succeeded to prove its case against the appellant Mehboob Ali but prosecution has failed to prove the motive at trial. It is alleged in the FIR that there was dispute in between accused and complainant party  over the matrimonial affairs but in the evidence complainant Altaf Ali has deposed that appellant  committed murder of deceased because six months prior to the incident, deceased had contracted second marriage with widow with the consent of her parents but accused were annoyed.  Attaullah (PW-3) on the point of motive has deposed that six months prior to the incident, his father deceased Fateh Muhammad had contracted second marriage with daughter of Haji Bhooral khan on which accused were annoyed.  3rd eye witness Ali Anwar has deposed that six months prior to the incident deceased Fateh Muhammad had married with daughter of Haji Bhooral on which accused Ghulam Muhammad was annoyed and had declared that deceased would not be spared. We are unable to understand as to why accused remained calm for six months and lived amicably in village for 06 months. It is also a matter of deep concern that after six months under what circumstances appellant attacked upon the deceased. I.O had also failed to record statement of the said widow, to prove the motive. Investigation Officer had also failed to interrogate / investigate whether deceased had contracted second marriage. There is nothing on record what was relationship in between widow and accused persons. All these questions have not been answered by the prosecution at trial. From the evidence available on record, it is established beyond shadow of doubt that appellant had committed said murder but what immediately preceded the occurrence on eid day remained shrouded in mystery ? why only one fire was made upon the deceased. All these aspects taken together cumulatively make out a case which justified the trial Court for awarding the imprisonment for life. Even otherwise, imprisonment for life is an alternative sentence as held by Hon’ble Supreme Court in the case of Ghulam Mohyiddin alias Baboo v. The State (2014 SCMR 1034).


“ 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”.


14.                   In the view of our discussion, we hold that prosecution has succeeded in proving its case. Learned trial Court rightly appreciated evidence, convicted appellant U/S 302(b) PPC and sentenced to imprisonment for life and for the sound reasons disbelieved the defense theory. Criminal Jail Appeal No. D-15 of 2004 is dismissed. Appellant Mehboob Ali is present on bail. He is taken into custody and remanded to Jail to serve out remaining sentence. However, appellant would be entitled for the benefit of Section 382-B Cr.P.C.

15.                   As a natural corollary, Criminal Revision Application No.D-06 of 2004 for enhancement of the sentence stands dismissed.