IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Crl. Jail
Appeal No.D-48 of 2020
Confirmation of case No.D-02/2021.
Present:
Mr. Justice Yousuf Ali Sayeed,J
Mr.
Justice Zulfiqar Ali Sangi,J.
Appellant: Shah Muhammad
son of Ali Nawaz Morio ,through, MrAchar Khan Gabole, Advocate.
Respondent: The
State through, Aftab Ahmed Shar, Add.P.G alongwith Faiz Muhammad (Eye-witness).
Date of hearing: 17.10.2023
J
U D G M E N T
ZULFIQAR
ALI SANGI,
J:- Through
captioned appeal, the appellant, has assailed the judgment dated 23.12.2020 passed by learned Additional Sessions
Judge-I (MCTC), Khairpur in Sessions Case No.373 of 2007 arising
out of Crime No.111/2007 Offence under Sections 302, 34 PPC registered at Police
Station, Sobhodero, District Khairpur whereby the appellant Shah Muhammad was
convicted and sentenced for “Death
Penalty” for committing the murder of deceased Sher Muhammad. He was also
directed to pay fine of Rs.1,00,000/- to the legal heirs of deceased u/s 544-A
Cr.P.C, and in case of default in payment of fine, accused was ordered to
further serve S.I, for six months. The accused Qurban Ali was also convicted
for certain terms of imprisonment mentioned in the judgment. Accused Qurban Ali preferred an appeal
against his conviction but since he served out all the sentences and was released
from the jail, his counsel has not pressed his appeal and the same was
dismissed as not press by order dated: 17-10-2023. The appeal of the appellant
Shah Muhammad and the confirmation reference sent by the trial court are remaining
to be decided.
2. Precisely,
the facts of prosecution case are that on 04.08.2007 at 2300 hours complainant
Gul Muhammad lodged FIR stating therein that, his sister, namely, Mst. Darya
Khatoon, aged about 35/36 years was married with Sher Muhammad and from the
said wedlock she has no issue. He also possessed Agricultural land and his nephew
Shah Muhammad and Qurban Ali always used to say that he had no issue therefore,
his land should be given to them, to which Sher Muhammad refused; upon which
they became annoyed and threatened to kill him. On the night of incident,
complainant after finishing his work alongwith his brother Faiz Muhammad and
“Masat” Noor Muhammad were available in their house. It was about 07:00 p.m.,
complainant party heard cries from the house of Mst. Darya Khatoon and Sher
Muhammad, they rushed there and saw that accused Shah Muhammad was armed with
pistol while accused Qurban Ali was armed with gun were available inside the
house. The accused Shah Muhammad fired upon his uncle Sher Muhammad and Qurban
Ali fired upon his aunt with intention to cause their murder and said them that
they are not handing over the land to them then to die and now they become the
owners of the land. Complainant tried to catch both accused but both aimed
their weapons, due to fear of life they did not go near to them. Accused then
fled away from the scene. Complainant observed that his sister’s husband Sher
Muhammad received injuries on right side below the armpit and right side of
stomach while Mst. Darya Khatoon received fire shot injuries on her buttock,
chest and blood was oozing from wounds. Injured were shifted to Gambat Hospital
for first aid but Sher Muhammad succumbed to his injuries while Mst. Darya
Khatoon was referred for treatment to Sukkur Hospital. Thereafter complainant
appeared at Police Station and lodged the FIR.
3. After
usual investigation, the police submitted challan against the appellant and
Qurban Ali before the competent Court of law. After completing the legal
formalities, the charge against the accused persons was framed to which they
denied and claimed for trial.
4. To
prove its case, the prosecution examined PW-1 Medical Officer Dr.Manzoor Ali
Memon, PW-2 ASI Ali Akber who produced copy of FIR, PW-3 WHC Zulfiqar Ali who
produced receipt, PW-5. RasoolBux Joyo, who produced original sketch of the
place of wardat, PW-6 Gul Muhammad, PW-7 (Injured) Mst. Darya Khatoon, PW-8
Dr.JameelaIllahiSahito who produced a police letter, provisional medical
certificate of injured and X-ray films and other documents, PW-9 SIO Abdul
Sami, who produced memo of inspection of dead body, danishnama report, memo of
recovery of last worn cloths of deceased, memo of inspection of place of
wardat, memo of inspection of injured, PW-11 Sahib Dino, PW-12 Amir
BuxKhaskheli, who produced memo of arrest and recovery, PW-13 Faiz Muhammad and
PW-14 Ali Sher Bambhro. Thereafter, learned ADDP closed the prosecution side.
5. After
completion of prosecution evidence, learned trial court recorded statement of
the appellant/accused in terms of section 342 Cr.P.C wherein they denied the
prosecution case and claimed their innocence, however neither they examined
themselves on oath nor led evidence in their defence.
6. The
learned trial Court after hearing the Counsel for the appellant, learned
prosecutor for the State and considering the evidence, passed the impugned
judgment, which has been assailed through captioned appeal.
7. Learned
counsel for the appellant at the very outset submitted that under the
instructions of his client he does not press the appeal, however seeks
reduction of the sentence from death to imprisonment for life on the ground
that the motive asserted by the prosecution has not been proved by the
prosecution. The appellant was arrested on 13-08-2007 and till date he is in
custody while co-accused Qurban Ali who was awarded sentence of life
imprisonment has been released from the jail after he serve out the sentence. The
appellant is first offender having no criminal record. Learned Additional
Prosecutor General for the state after going through the evidence of
prosecution witnesses and the proposal made by the counsel for the appellant
has conceded and raise no objection for the reduction in sentence from death to
life.
8. We
have heard learned Counsel for the parties and have examined the record
carefully with their able assistance.
9. The
accused Qurban Ali has already not pressed his appeal and only remains the
appeal of appellant Shah Muhammad also not press the appeal in respect of his
conviction but seeks reduction in sentence on the ground that the asserted
motive has not been proved by the prosecution. On reappraisal of the evidence
produced by the prosecution it appears that three eye-witnesses including the
injured witness who received the injuries during the incident have fully
supported the case of prosecution on each aspect, date and time of the
incident, venue and the manner in which incident took place.The incident was of
daytime and the accused is known to the witnesses being theirnear relative,
therefore, there is no chance of mistake in identification. The evidence of the
eye-witnesses is further supported by medical evidence produced by the two doctors
one conducted the postmortem of deceased and the other provided treatment to
the injured lady, the wife of the deceased. Circumstantial evidence is also
supporting the prosecution evidence which includes the recovery of blood stain
from the place of incident Vis the house of deceased and the injured. Under
these circumstances the trial court had rightly arrived at the conclusion that
the prosecution has proved the case against the appellant and the appellant was
rightly convicted.
10. After the conclusion that the
appellant was rightly convicted by the trial court, the only issue remains is what
sentence was/is to be awarded to the appellant. The normal penalty is a 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 cases of murder, the death penalty should be applied. 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. being the alternative
sentence of life imprisonment. As such the court must carefully exercise its
discretion in determining whether to award the death sentence or life
imprisonment based on the particular facts and circumstances of each case. A
single mitigating circumstance, available in a particular case, would be
sufficient for not awarding the penalty of death but life imprisonment if the
Judge/Judges entertain 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. So it
is better to respect the human life, as far as possible, rather than putting it
at an end, by assessing the evidence, facts and circumstances of a particular
murder case, under which it was committed as has been held by Supreme Court of
Pakistan in the case of GhullamMohy-UD-Din alias Haji Babu and
others vs. The State (2014 S C M R 1034). Here in the present case the
motive setup by the prosecution in FIR was that the appellant wants to embezzle
the land belonging to the deceased as the deceased was issueless. None of the
witness gave description of the land and its location. It is alleged by the
prosecution witnesses that before the murder, the appellant and Qurban Ali were
issuing the threats to the deceased as well as his wife to handover the land
but none from the witnesses deposed a single word as to when such threats were
issued and even the injured lady who received the threats had not disclosed the
same. It is observed that after the FIR, investigation officer also not
investigated the motive setup in the FIR nor report under section 173 Cr.P.C
disclosed any clue about the motive. The investigation officer also has not
deposed a single word in respect of the motive asserted in FIR. The motive was
also not put to the appellant at the time of recording his statement under
section 342 Cr.P.C and in absence of it the same cannot be used against him for
awarding capital punishment. It is also settled 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 lead to the alternate sentence of life imprisonment
being awarded. In this respect reliance is placed on the cases of Ahmad
Nawaz and another v. The State (2011 SCMR 593), IftikharMehmood and another v.
QaiserIftikhar and others (2011 SCMR 1165), Muhammad Mumtaz and another 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).
11. Thus,
based on the particulars facts and circumstances of this case and by relying on
the above-cited precedents and the evidence of the prosecution witnesses as
discussed above, the Cr. Jail appeal filed by the appellant Shah Muhammad Morio
is dismissed to the extent of the appellant's conviction for the offence
under section 302(b), P.P.C, but the same is partly allowed to the extent of
his sentence of death which is reduced to imprisonment for life. The order
passed by the trial court regarding payment of compensation by the appellant to
the legal heirs of the deceased as well as the order in respect of imprisonment
in default of payment of compensation is, however, maintained. The benefit
under section 382-B, Cr.P.C. shall be extended to the appellant. In view of the
above the confirmation reference made by the trial court is answered in Negative.
J U D G E
J U D G E
Ihsan/PA.