IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA.

Crl. Jail Appeal No. D –72 of 2019

Crl.Conf.Case No.39 of 2019.

Before:

Mr. Justice Irshad Ali Shah.

Mr. Justice Arbab Ali Hakro.

Appellant: Amanullah s/o Muhammad Siddique Chingini Through Mr.Habibullah Ghouri, Advocate.

The State: Through Mr. Ali Anwar Kandhro, Addl.P.G.

Date of hearing: 19-04-2023.

Date of decision: 19-04-2023.

JUDGMENT

IRSHAD ALI SHAH, J; It is the case of prosecution that the appellant with one more culprit in furtherance of their common intention, committed murder of Dildar by causing him fire shot injury and then went away by making aerial firing to create harassment, for that the present case was registered. At trial, the appellant denied the charge and the prosecution to prove it, examined in all eight witnesses and then closed its side. The appellant in his statement recorded U/S.342 Cr.PC denied the prosecution’s allegation by pleading innocence by stating that when he and his son were busy in cleaning the “Masjid” of their village, there came the complainant party, they fired at him which hit to Dildar who died; then they went away by taking with them his belongings; he did not examine any one in his defence or himself on oath. On conclusion of trial, he was convicted under Section 302(b) PPC and sentenced to death to be hanged by neck till his death and was also directed to pay compensation of rupees Five Lacs to legal heirs of the deceased and in default whereof to undergo simple imprisonment for six months, by learned 1^st Additional Sessions Judge/MCTC, Qamber, vide judgment dated 02.11.2019, which he has impugned before this Court by preferring the instant criminal appeal from jail. A reference is also made by learned trial Court for confirmation of death sentence.

2. It is contended by learned counsel for the appellant that he being innocent has been involved in this case falsely by the complainant party in order to grab a plot adjacent to the “Masjid” of village and evidence of the witnesses being doubtful in its character has been believed by learned trial Court without assigning cogent reasons; indeed the appellant has been substituted with the real culprit by the complainant party; therefore, he is entitled to be acquitted by extending him benefit of doubt or alternatively, the sentence of death awarded to him to be altered with imprisonment for life.

3. None has come forward to advance arguments on behalf of the complainant. However, learned Addl.P.G for the State by supporting the impugned judgment has sought for dismissal of the instant criminal jail appeal by contending that the prosecution has been able to prove its case against the appellant beyond shadow of doubt.

4. Heard arguments and perused the record.

5. It was stated by complainant Ghulam Farooq that on the date of incident, when he, PWs Manthar and Imdad Ali were sitting at Kiryana shop of his son Dildar, there came the appellant and absconding accused Zubair; they abused Dildar by saying that as to why he has stored drain water in the street. By stating so, they dragged him towards the “Masjid”, there he was fired at by the appellant, who by sustaining such fire on his chest, fell down on the ground and died; the appellant and the absconding accused then made their escape good by making fires in air, on raising of hakals by them; he then reported the incident with police. The evidence of the complainant takes support from the evidence of PWs Manthar Hussain and Imdad Ali on all material points. They have stood by their version despite lengthy cross examination; they could not be disbelieved only for the reason that they are related inter-se. Indeed, they were having no reason to have involved the appellant in this case falsely by substituting him with the real culprit of the incident. On arrest from the appellant, as per Investigating officer ASI Nazimuddin was secured incriminating gun/repeater, it was licensed one; the same on forensic examination was found matched with two empties secured from the place of incident; such recovery could not be disbelieved only for the reason that it was subjected to forensic examination with delay of about 19 days. In these circumstances, the learned trial Court was right to conclude that the prosecution has been able to prove its case against the appellant beyond shadow of doubt.

6. Apparently, there was no enmity between the parties and the incident has taken place on storage of drain water in street of village allegedly by the deceased. By considering these factors as mitigating circumstances, the sentence of death awarded to the appellant is modified with rigorous imprisonment for life with fine of Rs.100,000/-(One Lac) payable to the legal heirs of the deceased as compensation and in default whereof, the appellant would undergo simple imprisonment for three months, with benefit of Section 382-B Cr.PC.

7. In case of Ghulam Mohiuddin alias Haji Babu &ors Vs. The State (2014 SCMR-1034), it has been observed by the Apex Court that;

“---S.302(b)---Qatl-e-amd---Sentence---Death sentence or imprisonment for life---Single mitigating circumstance---Sufficient to award life imprisonment instead of death penalty---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---If a single doubt or ground was available, creating reasonable doubt in the mind of Court/Judge to award either death penalty or life imprisonment, it would be sufficient circumstance to adopt alternative course by awarding life imprisonment instead of death sentence---No clear guideline, in such regard could be laid down because facts and circumstances of one case differed from the other, however, it became 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 entertained 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---Better to respect human life, as far as possible, rather than to put it at end, by assessing the evidence, facts and circumstances of a particular murder case, under which it was committed”.

8. In view of above, the reference for confirmation of death sentence is answered in negative, while the instant criminal jail appeal subject to above modification is dismissed.

JUDGE