IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Criminal Revision Application No.D-01 of 2023

Applicant:                                        Muhammad Hayat s/o Muhammad Mithal by caste Mangrio

Respondent No.1to 4:                       Nadeem and others through Mr. Qurban Ali Malano, advocate.

The State:                                         Through Syed Sardar Ali Shah, Add.P.G

Date of hearing:                               07.12.2023.

Date of decision:                              07.12.2023.

O R D E R

Zulfiqar Ali Sangi, J:    Through this Cr. Revision Application, the Applicant has assailed Judgment dated 11.10.2022 (impugned herein) passed by learned Additional Session Judge-1 (MCTC), Sukkur, in Session case No. 119 of 2019, Re: The State vs. Nadeem Jagirani and others whereby the respondents were convicted and sentenced for Imprisonment of Life including other sentences. From perusal of memo of Revision Application it reflects that instant Revision application is maintained mainly on the grounds that the prosecution proved its case against the respondents beyond a reasonable doubt; that all the prosecution witnesses fully supported the case as alleged in the FIR; that medical evidence is in full support with the ocular evidence; that the recoveries from the place of wardat has also been supported and proved by the prosecution; that respondent Shah Baig confessed his guilt and one KK was recovered on his pointation; that recovery of KK was also effected from the accused Nadeem; that the FSL reports are positive; that the evidence of DWs was not helpful for the respondents and when the trial court came into the conclusion that the prosecution has proved the case then only a sentence of death was to be awarded.

2. It is observed that respondents have also filed appeals against their conviction and sentence bearing Cr. Jail Appeal No. S- 82, 84, 85, and 87 of 2022 and the same are pending for decision by a Single Bench. This Revision Application was fixed for today’s hearing on the urgent application filed by the counsel for the applicant and today he is called absent even intimation has not been received. Learned counsel for the respondents contended that due to pendency of this revision application, appeal of the respondents against their conviction is not being heard and decided. He further contended that this is not a case of capital punishment as motive as setup by the prosecution has not been proven. He lastly, contended that he will argue the merits of the case at the time of hearing of the appeals before a single bench. Learned Add.P.G has supported the impugned judgment and contended that trial court after discussing on motive in para No. 25 of the judgment rightly not awarded the death sentence and prayed for dismissal of instant revision application.

3. We have heard learned Counsel for respondents and learned Add.P.G as well and perused the record with their able assistance. From the perusal of impugned Judgment which too is verified from the evidence produced by the prosecution, we found that the trial court has committed no illegality or any infirmity. For reference para No.25 of the impugned judgment is re-produced as under:-

“25. The lenient view is taken while not awarding a normal punishment of a death to accused; due to mitigating circumstances. In this regard it is observed that the motive set up by the prosecution i.e. old blood shed dispute against accused was weak as no specific evidence was brought on record in support of the said motive. It is settled law that if the prosecution asserts a motive but fail 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. In the present case prosecution has not succeeded to prove fully the motive against them hence, such failure to prove motive would constitute a mitigating circumstances for reducing the sentence of a death to ‘imprisonment for life’. Reliance is placed upon the case law reported in 2007 P.Cr.L.J [Lahore] 491 (Re-Hassan Ali and another versus The State and others) and an unreported Judgment dated: 06-10-2020 in Criminal Appeal No. D-53 of 2016 Re: Ghulam Rasool Versus The State passed by the Hon’ble High Court of Sindh Circuit Court, Hyderabad. Nonetheless, imprisonment for life is a legal sentence provided under the law. Reference can be made to the case of Khalid Naseer versus The State Criminal Petition Nos. 534 and 512 of 2019, decided by Honourable Supreme Court of Pakistan on 17.09.2020.”

4. We have specifically attended to the sentence passed against the respondents and have noticed in that context that the motive set up by the prosecution had not been established by it. It is a well-settled principle of law that a criminal case is to be decided based on the totality of impressions gathered from the circumstances of the case and not on the narrow ground of cross-examination or otherwise of a witness on a particular fact stated by him. A similar view had been expressed by the Supreme Court of Pakistan in the case of State vs. Rab Nawaz and another (PLD 1974 SC 87), wherein Supreme Court has observed that a criminal case is to be decided based on the totality of circumstances and not based on a single element. We have noticed the motive setup by the prosecution was blood shed enmity in between Jageerani and Mangrio tribe. No any FIR was produced by the complainant party nor were even the particulars in respect of previous murders brought on record by the prosecution witnesses during the trial, even the investigating officer of the case had failed to collect any material in support of the asserted motive. The report under section 173 Cr.P.C is also silent in respect of the motive. The motive was not put to the accused persons while recording their statement under section 342 Cr.P.C. The motive asserted by the prosecution had, thus, remained far from being proved. The Supreme Court of Pakistan in many cases held 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 in the cases of capital charge and a reference in this respect may be made to the cases of Ahmad Nawaz vs. The State (2011 SCMR 593), Iftikhar Mehmood and another vs. Qaiser Iftikhar and others (2011 SCMR 1165), Muhammad Mumtaz vs. The State and another (2012 SCMR 267), Muhammad Imran alias Asif vs. The State (2013 SCMR 782), Sabir Hussain alias Sabri vs. The State (2013 SCMR 1554), Zeeshan Afzal alias Shani and another vs. The State and another (2013 SCMR 1602), Naveed alias Needu and others vs. The State and others (2014 SCMR 1464), Muhammad Nadeem Waqas and another vs. The State (2014 SCMR 1658), Muhammad Asif vs. Muhammad Akhtar and others (2016 SCMR 2035) and Qaddan and others vs. The State (2017 SCMR 148).

5.       In view of the above circumstances, no illegality or infirmity has been seen in the impugned Judgment in respect of the sentence awarded to the respondents. Resultantly, instant Revision Application is dismissed. As regards to the conviction of the respondents, their appeals are pending adjudication by a Single Bench. The office is directed to fix above mentioned appeals filed by the respondents challenging their conviction before a Single Bench on 17-02-2023 after issuing the notice to complainant.

6. The Criminal Revision Application No.D-01 of 2023 is disposed of as above.

Judge

Judge

Ihsan/PA.