Judgment Sheet
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Criminal
Jail Appeal No. D – 59 of 2015
Confirmation Case No. D –07
of 2015
Present.
Mr. Justice
Naimatullah Phulpoto &
Mr.
Justice Khadim Hussain Tunio.
Date
of hearing: 05.11.2019
Date of announcement:
14.11.2019
Mr. Rukhsar
Ahmed Junejo Advocate for the appellant.
Haji
Shamusddin Rajper, Advocate for complainant.
Mr. Zulifqar Ali Jatoi, Additional Prosecutor
General.
J U D G M E N T
NAIMATULLAH
PHULPOTO, J. Appellant
Sikandar Ali along with accused Sanam Shah and Hazoor Bux (since acquitted) was
tried by learned Judge Anti-Terrorism Court Khairpur Mir’s in special case No.
116/2008, arising out of Crime No. 03/2008 of Police Station Ahmedpur, District
Khairpur Mir’s under sections 365-A, 302, 34 PPC and 7 (e) of Anti-Terrorism
Act, 1997. After regular trial vide Judgment dated 30.06.2015, appellant was
convicted for offence under section 364-A PPC and sentenced to death. Accused was
directed to pay compensation of Rs.250,000/- (Rupees Two Lac Fifty thousand) to
be paid to the legal heirs of deceased as required U/S 544-A Cr.P.C, in case of
default thereof, accused was directed to suffer R.I for six months. Appellant /
accused was also convicted under section 7 (e) of ATA, 1997 and sentenced to
death and to pay fine of Rs. 50,000/- (Fifty thousand) in case of default thereof,
appellant / accused was directed to suffer R.I for six months more. All the
sentences were ordered to run concurrently. Appellant was extended benefit of
Section 382-B Cr.P.C. Trial Court has made reference to this Court for
confirmation of death sentence as provided U/S 374 Cr.P.C.
2. Brief facts of the prosecution case as
disclosed in the FIR are that on 14.02.2008 at 1500 hours complainant Bishar
Ahmed lodged FIR at Police station Ahmedpur, Khairpur Mir’s alleging therein
that his son namely Aafaque Ahmed alias Umair aged about 07 years (now
deceased) was studying in class 2 in Al-ahad Public School Wada Machyoon. On the
day of incident (09.02.2008) at 08.3.0 a.m his abovenamed son had gone to
attend school but did not return back in the evening. Complainant made search
for his son but without any clue. It is
further stated that on 14.02.2008 P.Ws Hidayat Ali Mangi and Abdul Rauf Lohar
met complainant and informed him that on 09.02.2008 at 2.00 p.m, when they were
going for their work, they saw accused Sikandar Ali along with two unidentified
persons, who were taking away, the son of complainant namely Aafaque Ahmed
alias Umair on the motorcycle. Thereafter, complainant went to Police station
and lodged FIR against the accused persons. During investigation accused
Sikandar Ali was arrested and led the
police to the Bhaithak where he had burried the dead body of minor boy. It was
recovered by the police in presence of the mashirs Abdul Rauf and Nisar Ahmed
Shaikh. After usual investigation, challan was submitted against the accused
under sections 365-A, 302, 34 PPC read with section 7 Anti-Terrorism Act, 1997.
Accused Sanam Shah and Hazoor Bakhsh were shown absconders who were
subsequently arrested and faced trial.
3. Learned trial Court framed charge
against appellant Sikandar Ali, Sanam Shah and Hazoor Bakhsh at Exh. 3. All the
accused pleaded not guilty and claimed to be tried.
4. In order to substantiate the charge,
prosecution had examined 10 P.Ws, thereafter, prosecution side was closed.
5. Trial Court recorded statements of the
accused U/S 342 Cr.P.C at Exh. 18 to 20. All accused denied the prosecution
allegations. They did not examine themselves on oath and declined to give
statement on oath in disproof of prosecution allegations, except accused Hazoor
Bux who produced his defense witness namely Papan Kalhoro at Exh.21. Thereafter,
learned defense counsel did not examine another DW, defense side was closed at
Exh.22.
6. Learned trial Court, after hearing
learned counsel for the parties and assessment of the entire evidence, vide
Judgment dated 30.06.2015 acquitted co-accused Sanam Shah and Hazoor Bakhsh. However,
appellant Sikandar Ali was sentenced to death as stated above. Trial Court made
Reference to this Court for confirmation of death sentence as required under
section 374 Cr.P.C. By this common Judgment, we intend to decide criminal Jail
appeal as well as confirmation Reference.
7. Facts of this case as well as evidence
produced before the trial Court find an elaborate mention in the judgment
passed by trial Court and, therefore, same may not be re-produced here so as to
avoid duplication and unnecessary repetation.
8. Mr.
Rukhsar Ahmed Junejo Advocate for appellant after
arguing the appeal at some length did not press the same on merits and prayed
for reduction of the sentence of death to imprisonment for life, on the ground
that appellant was minor at the time of incident. Learned defense counsel has
referred to the age of the accused, shown in his statement under section 342
Cr.P.C as 21 years. Mr. Junejo further argued that plea of juvenility was not
raised by other advocate during trial. Lastly, it is submitted that prosecution
has failed to prove the motive at trial.
9. Mr.
Zulifqar Ali Jatoi Additional P.G along with Haji Shamsuddin Rajper counsel for
complainant conceded to the contention of learned advocate for appellant /
accused and recorded no objection in case death sentence is converted to
imprisonment for life, mainly on the ground that appellant was below 18 years
at the time of incident and prosecution could not establish motive at trial.
10. As regards to the un-natural death of deceased,
prosecution has examined Dr. Dur
Muhammad Medical Officer before trial Court who deposed that on 14.2.2008 at
5.20 p.m dead body of one boy Umair Bishar alias Afaq aged 07 years was brought to hospital through PC
Rafique Ahmed for conducting post
mortem. Medical Officer conducted post mortem examination as soon as he
received dead body and finished it at 6.30 p.m. On external appearance of dead
body Medical Officer found two injuries on the person of deceased boy. From the
external as well as internal examination of deceased Medical Officer was of the
opinion that death of deceased Umair Bishar
was caused by Asphyxia and paralysis of respiratory muscles from the
fracture of cervical spinal cervical spinal verterbrae.
Trial
Court has rightly held that deceased died his unnatural death as described by
Medical Officer.
Complainant in his evidence has stated that
when appellant Sikandar Ali was arrested, he went to Police station where
accused Sikandar Ali admitted that he
had kidnapped minor boy for ransom and prepared to lead police to the place of
recovery, where he had buried the dead body. It has come on record that
Investigation Officer took the accused to the abandoned Bhaithak on 14.2.2008 where
accused pointed out the place of burial of boy in presence of mashirs namely
Abdul Rauf and Nisar Ahmed Shaikh and on his pointation, dead body was
recovered from abandoned Bhaithak and mashirnama of recovery of dead body was
prepared in presence of mashirs namely Abdul Rauf and Nisar Ahmed. PWs Hidayat Ali and Abdul Rauf
were standing at Jhando Bus Stop on 09.02.2008 they had seen deceased boy in
the company of appellant and others on the motorcycle . P.Ws had narrated this
fact to complainant who lodged FIR on 14.02.2008 at Police station Ahmedpur
under sections 365-A PPC and 7 Anti-Terrorism Act, 1997. P.Ws Hidayat Ali and Abdul Rauf have given
sufficient explanation that they were present at Bus Stop at the relevant time.
They had no motive to falsely implicate the appellant Siakndar Ali. Moreover,
these witnesses were not related to the deceased. Despite lengthy cross
examination, nothing favourable to accused came on record.
11. We are conscious of the facts that conduct of
the accused to lead Investigation Officer and mashirs to the abandoned place
where he buried the dead body of minor boy had played an important part in
determining the guilt of the accused, and is a corroborative piece of evidence.
The conduct of the accused clearly shows that he was concerned in the crime as
held by Honourable apex Court in the case of Riaz Hussain v. The State (2001
SCMR 177). Now the question of quantum of sentence requires consideration. It
may be mentioned here that counsel for the appellant did not press the appeal
on merit and prayed for reduction of the sentence of the appellant from death
to imprisonment for life only on the ground that appellant was below 18 years
at the time of incident. Additional Prosecutor General along with counsel for
complainant have conceded to the contention raised by learned counsel for
appellant and after calculation of the age shown in the statement of the
accused opined that appellant was below 18 years at the time of incident. Our
close scrutiny of evidence reflects that appellant in his statement recorded
U/S 342 Cr.P.C has mentioned his age as 21 years whereas present incident took
place on 09.02.2008 it means that his age was below 18 years. No doubt such
plea was not raised before trial Court. Additional P.G along with counsel for
complainant has conceded that appellant was below 18 years age at the time of
incident. In the above circumstances, proper course for this Court is to decide
the case on merits while keeping in view the contentions of Mr. Junejo
that appellant was below 18 years at the time of commission of offence. In the
case of Muhammad Akram and others v. Muhammad Mushtaq Ahmed and others
(2006 SCMR 1496), Hon'ble Supreme Court has observed that High
Court awarded lesser sentence to the accused for the reasons that at the time
of recording of his statement under Section 342, Cr.P.C., his age was 20/21
years, which came to be about 17/18 years at the time of occurrence and lesser
penalty awarded by the trial Court was found proper and justified in the facts
and circumstances of the case. Relevant paragraph of the judgment is reproduced
as under:
“7. We have heard the learned counsel for the
petitioners in both petitions and the learned State Counsel. The trial Court as
well as the High Court after due appreciation of the prosecution evidence,
believed the presence and statements of the complainant Muhammad Akram P.W.10
and Mushtaq Ahmed P.W.11 as natural witnesses. Both of them were proved to be
going towards the coach stand in order to see Abdul Sattar and others in jail
who were involved in the murder case of Ghulam Muhammad, father of the
convict-respondent Mushtaq Ahmed. The case was reported with the police
promptly. The medical evidence also supported the ocular version of the case.
The occurrence took place inside the shop of Ghulam Rasool and the
eye-witnesses were standing on the other side of the road as per site plan
(Exh.P.A.). The High Court rightly observed that it was not possible for the
eye-witnesses from that distance to say with exactitude as to which of the
respondents had fired a fatal shot at the deceased. The High Court awarded
lesser sentence to Kashmir respondent for the reason that at the time of
recording of his statement under section 342, Cr. P. C. his age was 20/21 years
which came to be about 17/18 years at the time of occurrence. The discretion
exercised by the High Court in awarding lesser penalty to the respondents was
proper and justified in the facts and circumstances of the case, albeit the
offence against them stood proved by the prosecution beyond any reasonable
doubt. The impugned judgment does not suffer from any legal infirmity so as to
warrant interference by this Court. These are not fit cases for grant of leave
to appeal.”
12. We
would have ordinarily remanded the matter back to the trial Court to hold a
proper inquiry in the matter and to determine the question of the convict's age
afresh but since some other material is available on record which offers a
valid ground to sustain a sentence of imprisonment for life and not to award
the normal penalty of death to Sikandar Ali convict in case his conviction is
maintained. Therefore, in order to avoid further delay, we have decided to
dispose of the matter on its present record. Reliance is placed upon the case
of Muhammad Aslam and others v.
The State and another (PLD 2009 Supreme Court 777).
13. Moreover,
motive as setup by the prosecution in the FIR of kidnapping a minor boy for
ransom has also not been established at
trial. Law is settled by now that if
prosecution asserts the motive but fails to prove the same, then such failure
on the part of the prosecution may let against the sentence of death passed by
the trial Court and reference in this respect may be made to the recent
Judgment of Hon’ble Supreme Court in the case of Mst. Nazia Anwar v. The
State and others (2018
SCMR 911). Relevant paragraph
is reproduced as under:
“4. I have particularly attended to the
sentence of death passed against the appellant and have noticed in that context
that the motive set up by the prosecution had remained far from being
established. According to the FIR as well as the statement of the complainant
the motive was based upon borrowing of a sum of Rs. 5,000/- by the appellant
from the deceased and on the issue of repayment of that loan a heated exchange
had taken place between the appellant and the deceased. Mst. Sadiqa Bibi
complainant (PW2) was the only witness produced by the prosecution regarding
the alleged motive but in her deposition made before the trial court the
complainant had admitted that the appellant and the deceased were on very good
and friendly terms, no date or time of borrowing of the relevant amount by the
appellant from the deceased had been specified by the complainant, the
complainant was not present when the money had been borrowed by the appellant
from the deceased, no date, time or place of the altercation taking place
between the appellant and the deceased over repayment of the borrowed amount
had been specified by the complainant and admittedly the complainant was not
present when the said altercation had taken place. In these circumstances it is
quite obvious to me that the motive asserted by the prosecution had remained
utterly unproved. The law is settled by now 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 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 alias 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), Muhammad Nadeem
Waqas 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). After going through the entire record of the case from cover to
cover and after attending to different aspects of this case I have found that
although it is proved beyond doubt that the appellant was responsible for the
murder of the deceased yet the story of the prosecution has many inherent
obscurities ingrained therein. It is intriguing as to why the appellant would
bring her four months old baby-boy to the spot and put the baby-boy on the
floor and then start belabouring the deceased with a dagger in order to kill
her. I have, thus, entertained no manner of doubt that the real cause of
occurrence was something different which had been completely suppressed by both
the parties to the case and that real cause of occurrence had remained shrouded
in mystery. Such circumstances of this case have put me to caution in the
matter of the appellant's sentence and in the peculiar circumstances of the
case I have decided to withhold the sentence of death passed against the
appellant.”
14. For what has been discussed above, this
appeal is dismissed to the extent of appellant’s conviction, but the
same is partly allowed to the extent of his death sentence, which is reduced
to the imprisonment for life. So far compensation is concerned, the same
shall remain intact. In case of default to pay the compensation trial Court has
ordered that appellant would suffer R.I for six months which is modified to six
months S.I instead of six months R.I. The benefit under Section 382-B, Cr.P.C
shall be extended to the appellant .Reference made by the trial Court
for confirmation of death sentence is answered in negative.
15. The appeal and confirmation Reference are
disposed of in the above terms.
J U D G E
Irfan/PA
J U D G E