THE HIGH COURT OF SINDH AT
KARACHI
Criminal
Appeal No.108 of 2017
Present:
Mr. Justice Naimatullah Phulpoto
Mr. Justice Mohammad Karim Khan Agha
Appellants:
Shakir
Muhammad alias Shakeel son of Manzoor
Ahmed and Safeena alias Sakina
wife of Shakir Muhammad alias Shakeel
Respondent:
The State through Mr. Muhammad Iqbal Awan, Deputy Prosecutor
General Sindh
Date of hearing:
22.11.2018
Date of announcement: 22.11.2018
JUDGMENT
NAIMATULLAH
PHULPOTO, J.-
Shakir Muhammad alias Shakeel son
of Manzoor Ahmed and Safeena
alias Sakina wife of Shakir
Muhammad alias Shakeel
were tried by learned Additional District
and Sessions Judge-VIII, Karachi East in Sessions Case No.716 of 2013. After
full-dressed trial, vide judgment dated 04.2016 appellants were convicted as
under:
(i)
Under section 364-A, PPC, both the
accused were awarded death penalty.
(ii)
Under Section 377, PPC, accused Shakir Muhammad alias Shakeel is
punished with imprisonment for life and he shall also be liable to fine of
Rs.50,000/-, in case of default, in payment of fine amount, he shall further
suffer S.I. for six months.
(iii)
Under sections 302(B)/34, PPC read
with Section 544-A of Cr.PC both the accused were
punished with death penalty as Tazir, having regard
to the facts and circumstances of the case. They were further directed to pay
Rs.100,000/- jointly, as compensation to the legal
heirs of the deceased boy Muhammad Yousuf or in
default thereof, further suffer S.I. for six months under Section 544-A, Cr.PC.
(iv)
was
convicted under section 302(b), PPC and sentenced to death as Tazir for committing murder of deceased Asif
Khan son of Waris Khan. Appellant was also directed
to pay Rs.100,000/- as compensation to the legal heirs of deceased as envisaged
under section 544-A, Cr.PC and in default to suffer
S.I. for one year more. Appellant was also convicted under section 324, PPC and
sentenced to 7 years R.I. and to pay fine of Rs.25,000/-
and in case of default to suffer S.I. for three months more. Death sentence of
the appellant was subject to confirmation by this Court as required under
section 374, Cr.PC. Trial court has made Reference to
this Court for confirmation of death sentence or otherwise. Appellant was
extended benefit of Section 382-B, Cr.PC.
2.
The prosecution
case, shorn of unnecessary details, may be stated thus, complainant Naimat-ur-Rahman lodged FIR on 05.03.2013 at 1700 hours,
alleging therein that he is serving in Port Qasim. On
04.03.2013 at evening time, he was returning from his duty to house.
Complainant received phone call of one Rizwan on the
way that his nephew, namely, Asif Khan had sustained
firearm injuries. Thereafter, complainant went to his brother Waris Khans house, where he came to know that Asif Khan has been shifted to Jinnah Hospital. Thereafter, he
rushed to Jinnah Hospital, where he met with Rizwan,
who disclosed to complainant that Asif Khan and one Kawish along with other boys were playing Luddo in front of Achan Bhai Kiryana Store, where accused
Meraj, Siraj and one
unknown accomplice came. It is alleged that accused Meraj
caused firearm injuries to Asif Khan and Kawish at the instigation of co-accused, Asif Khan succumbed to injuries in hospital, whereas Kawish was admitted in the hospital. FIR of the incident
was lodged against the accused on 04.03.2013 at P.S. Sharafi
Goth, Malir Karachi under sections 302/324/34, PPC.
3.
Investigation was
entrusted to SIP Ramzan. IO inspected place of incident in presence of mashirs Riffaqat and Rizwan at 2200 hours and recovered three empties of 30
bore, which were sealed by him and prepared such mashirnama
at Ex.5/D. On the next day, i.e. 05.03.2013, he received FIR, sealed parcel
bloodstained clothes of deceased, mashirnama of
inspection of dead body and inquest report for investigation. He recorded 161, Cr.PC statements of complaint Niyamat,
Riffaqat, Ahsan and Rizwan. He prepared sketch of place of incident, recorded
161, Cr.PC statement of SIP Ramzan
at P.S. On 12.03.2012 he recorded 161, Cr.PC
statement of Kawish at JPMC. Since accused were
shifted to Mansehra, despite efforts he could not
arrest accused persons and upon completion of investigation he submitted charge
sheet under section 512, Cr.PC. On 22.06.2013, he
received information from Head Muharrar Arshad of Raiwind City Lahore
regarding arrest of accused Mairaj in another case
and was confined at Camp Jail Lahore. After necessary permissions, on
11.07.2013, he went to said jail and arrested him in this case and prepared
such mashirnama. Accused was brought to P.S. Sharafi Goth and kept such Entry No.16 of 1600 hours.
Empties and bloodstained clothes of deceased were sent for chemical report as
well as FSL report. Accused was produced before the Magistrate and subsequently
he was remanded to judicial custody. In cross-examination, he admitted that PW Rizwan and Ahsan were relatives
of deceased; Rizwan did not show him as eyewitness of
incident during his statement under section 161 Cr.PC;
mashirnama of arrest of accused did not bear the
signatures of jail authority; he had not recovered crime weapon from accused,
voluntarily said that during interrogation accused stated that after the
incident he thrown the same somewhere.
4.
After usual
investigation, the IO submitted charge
sheet under section 512, Cr.PC as the accused shifted
to Mansehra and despite efforts he could not arrest
accused persons. On 22.06.2013, IO received information from Head Muharrar Arshad of Raiwind City Lahore regarding arrest of accused Mairaj in another case and was confined at Camp Jail
Lahore. On 11.07.2013, accused was arrested in this case. Case against
co-accused, namely, Siraj was proceeded
under section 512, Cr.PC. Proceedings under section
87-88 Cr.PC were concluded.
5.
Trial court framed charge against the
accused Mairaj under the above referred sections at
Ex.2. Accused pleaded not guilty and claimed to be tried.
6.
At trial, prosecution examined PW-1 complainant Naimat-ur-Rehman
at Ex.3, PW-2 Ahsan Khan at Ex.4, PW-3 Rizwan Ali Khan at Ex.5, PW-4 Dr. Dileep
Khatri at Ex.07, PW-5 Kawish
at Ex.9, PW-6 Muhammad Aslam at Ex.10. Thereafter, prosecution side was closed vide statement
at Ex.11.
7.
Trial court
recorded statement
of accused under section 342, Cr.PC at Ex.12, in
which accused claimed false implication in this case and denied the prosecution
allegations. Accused declined to give statement on oath and did not lead any
evidence in defence.
8.
Trial court after hearing the learned counsel for the parties and
assessment of the evidence available on record, vide judgment dated 26.01.2017
convicted and sentenced the appellant as stated above, hence these appeals. By
this single judgment, we intend to decide aforesaid appeals as well as the
reference for confirmation of death sentence.
9.
Mr. Umar Farooq Khan, appearing on behalf of
the appellant, argued that evidence
10.
Mr. Muhammad Iqbal Awan,
learned D.P.G. argued that
.
11.
We have carefully
heard the learned counsel for the parties and scanned the evidence available on
record.
12.
In order to prove
unnatural death of deceased Asif, prosecution has
examined PW-4 Dr. Dileep Khatri
at Ex-7, who deposed that on 04.03.2013 he was posted as Senior Medico Legal Officer
at Jinnah Hospital, Karachi. On the same date at 05:55 p.m., one dead body of Asif Khan son of Waris Khan and
one injured Kawish son of Shaikh
Mehmood were brought to the Hospital with history of
firing at Sharafi Goth, Muhammad Nagar, the same was
informed to Sharafi Goth police station via police
control. He examined injured Kawish and noted the
injuries, punctured firearm wound 0.5 c.m. right side hypo chondrium of
abdomen (entry wound). Injured was immediately shifted to operation
theater for treatment. He issued medico legal certification No.1732/2013, he
produced the same at Ex.7/A.
13.
Regarding deceased Asif Khan MLO issued medico legal certificate No.1733/2013
and produced the same at Ex.7/B. MLO deposed that after completion of 174 Cr.PC proceedings, he conducted postmortem examination of
deceased Asif Khan and noted the following injuries:
Surface wounds and injuries
1)
Punctured firearm wound 0.75 c.m. in diameter on left hypo chondrium
(entry wound)
2)
Punctured firearm wound 0.75 c.m. in diameter on mid umbilicus of abdomen (entry wound)
3)
Two Punctured firearm wounds each 1 c.m. x 0.5 c.m. on back of the
abdomen (exit wounds)
4)
Defuse swelling left occipital
region of skull with redness eyes and bleeding from left ear.
Internal
Examination
Spleen
found ruptured due to path of blood. Abdomen cavity found full of blood. Loops
of intestine found ruptured otherwise no internal damages found in head, neck
and thorax.
The
medical officer, from the external as well as internal examination of the dead
body of deceased, was of the opinion that occurred cause of death due to cardio
respiratory failure due to severer hypo chondrium and
hemorrhage shocks resulted from projected firearm injuries. This witness was
not cross-examined, though chance was given to the defence
counsel.
14.
PW-1 Naimat-ur-Rehman deposed that the incident taken place on
04.03.2013 in the evening time, he
was returning from his duty at Port Qasim to his
house, in the way at Abbot Company he received phone call of one Rizwan that nephew of the complainant, namely, Asif Khan sustained firearm injuries, upon such
information, he went to his brother Waris Khans
house at 89, where he came to know that Asif Khan has
been shifted to Jinnah Hospital, he rushed to Jinnah Hospital where he met with
Rizwan and Raffat, Rizwan disclosed to him that Asif
Khan and Kawaish along with other boys were playing Luddo in front of the shop of Achan
Bhai, where accused Meraj, Siraj both sons of Taj and their
one unknown companion came there and accused Meraj
started firing upon them, whereas his companions asked Meraj
not to leave. Rizwan disclosed that he can identify
this third person accompanied with Meraj and Siraj. He was informed that Asif
Khan succumbed to his injuries whereas Kawish was
under treatment at JPMC. At about 08:00 p.m. Rizwan
and Sadiq received dead body of deceased Asif, the
same was brought to home. On the next day i.e. 05.03.2018, after completion of
funeral ceremony I went to police station Sharafi
Goth and lodged FIR. He further deposed that he came to know that there was
quarrel between Asif and Siraj
on 02.03.2013 on the matter of Ludo, they exchanged
hot words, however, due to intervention of other boys present there, the same was compromised at spot. On 04.03.2013 at about
05:20 evening time, this incident occurred. He deposed that he came to know
that during absconsion, accused Siraj
was died in an encounter in the area of Mansehra. In
his cross-examination, he admitted that he was not available at the place of
incident but PW Rizwan informed him about the
incident. Injured Kawish was not their relative. He
admitted that in the contents of FIR nothing was mentioned about any quarrel
taken place on 02.03.2013 between deceased Asif and Siraj and compromise.
15.
PW-2 Ahsan Khan deposed that on 02.03.2013 his uncle Rizwan was playing ludo besides
Khalid General Store and he was watching him whereas his brother Asif Khan was playing ludo with
one Kawish besides the shop of Achan
Bhai. In the meantime, he heard the voice of firing
from the shop of Achan Bhai
and saw that accused Meraj was firing upon his
brother Asif Khan and Kawish
whereas accused Siraj and two unknown accused were
instigating him for murder, however, after firing they run away. Both the
injured were shifted to JPMC in an ambulance and he returned to home. He
further deposed that at about 10.30 p.m. his uncle Rizwan
brought dead body of his brother Asif Khan. He
deposed that two days prior to the incident there was quarrel between deceased Asif and Siraj. In his
cross-examination he deposed that he heard voice of 3/4 fires. The quarrel
between deceased Asif and accused Siraj
was settled by mohalla people prior to the incident.
16.
PW-3 Rizwan has deposed that on 02.03.2013 while playing ludo there was quarrel between his nephew Asif and Siraj, the same was
settled by the elders in the night. On 04.03.2013 at about 05:00 p.m. he was
playing ludo with his friends Asif
Teeli, Atif and Aamir whereas his nephew Ahsan
was watching the game. His nephew Asif Khan was also
playing ludo at Achan Bhai shop chabootra along with Kawish and two others. He saw accused Mairaj,
who fired upon his nephew Asif Asif
which hit his abdomen and his friend Kawish also
sustained firearm injuries. Accused Siraj and one
unknown persons were also accompanied with Mairaj,
who instigated accused Mairaj to kill Asif and Kawish, thereafter, they
ran away towards fish street, mohalla people
gathered, both the injured were shifted to JPMC where Asif
was declared dead. In cross-examination, he replied that time of playing of ludo and report regarding previous quarrel between deceased
and accused and settlement of the same prior to incident were not mentioned in
his 161 Cr.PC statement.
17.
PW-5 Kawish, who was injured in the incident, deposed that on
04.03.2013 at about 05:00/05:15 p.m. he was playing ludo
at the shop of Achan Bhai
along with Asif and 2/3 other friends, all of sudden
three accused Meraj, Siran
and one unknown person came there and accused Meraj
fired with his pistol which hit him and Asif due to
which we fell down on earth. Relatives of Asif
shifted me and him to the JPMC in Ambulance, he became
unconscious in the way and became conscious in hospital, where his statement
was recorded by ASIP Aslam. Subsequently, said Asif Khan expired. In his cross-examination, he admitted
that prior to incident there was quarrel between deceased and accused Meraj on 02.03.2013, which was settled by the elders, the
reason of firing was not stated in his 161, Cr.PC
statement. He further admitted that Siraj, brother of
accused Meraj and deceased Asif
were his friends. He admitted that on the day of incident, there was strike due
to which he could not go to his job, however, it is
incorrect to suggest that due to strike he received firearm injury by the
strikers.
18.
PW-6 SIP Muhammad Aslam deposed that on 04.03.2013, he was posted at P.S. Sharafi Goth in investigation branch. MLO informed
operation branch regarding injuries sustained by Kawish
and Asif, however, Asif
succumbed to injuries at JMPC. SIP Ramzan of
Operation Branch went to JMPC whereas he visited the place of incident and
inspected the same in presence of Riffaqat and Rizwan at 2200 hours and recovered three empties of 30
bore, which were sealed by him and prepared such mashirnama
at Ex.5/D. On the next day, i.e. 05.03.2013, he received FIR, sealed parcel
bloodstained clothes of deceased, mashirnama of
inspection of dead body and inquest report for investigation. He recorded 161, Cr.PC statements of complaint Niyamat,
Riffaqat, Ahsan and Rizwan. He prepared sketch of place of incident, recorded
161, Cr.PC statement of SIP Ramzan
at P.S. On 12.03.2012 he recorded 161, Cr.PC
statement of Kawish at JPMC. Since accused were
shifted to Mansehra, despite efforts he could not
arrest accused persons and upon completion of investigation he submitted charge
sheet under section 512, Cr.PC. On 22.06.2013, he
received information from Head Muharrar Arshad of Raiwind City Lahore
regarding arrest of accused Mairaj in another case
and was confined at Camp Jail Lahore. After necessary permissions, on
11.07.2013, he went to said jail and arrested him in this case and prepared
such mashirnama. Accused was brought to P.S. Sharafi Goth and kept such Entry No.16 of 1600 hours.
Empties and bloodstained clothes of deceased were sent for chemical report as
well as FSL report. Accused was produced before the Magistrate and subsequently
he was remanded to judicial custody. In cross-examination, he admitted that PW Rizwan and Ahsan were relatives
of deceased; Rizwan did not show him as eyewitness of
incident during his statement under section 161 Cr.PC;
mashirnama of arrest of accused did not bear the
signatures of jail authority; he had not recovered crime weapon from accused,
voluntarily said that during interrogation accused stated that after the
incident he thrown the same somewhere.
20.
After close
scrutiny of the evidence, we have come to the conclusion that the prosecution
has succeeded in proving the guilt of the appellant beyond any reasonable doubt
for the reason that there is credible and cogent evidence of PWs particularly
injured Kawish. Evidence of eyewitnesses Rizwan and Ahsan Khan and injured
Kawish has been corroborated
by the medical evidence and recovery of 3 empties from the place of incident.
According to the case of prosecution, two days prior to the incident, deceased Asif and co-accused Siraj,
brother of present appellant, had played ludo game
with each other and some dispute arose between them and it was settled by the
elders in the night but co-accused Siraj had grudge,
on the day of incident present appellant came along with co-accused Siraj and fired upon the deceased on 04.03.2013 at 05:00
p.m. PW Kawish tried to intervene but the appellant
also fired upon him. As regards to the medical evidence, the Doctor, who had
conducted postmortem examination, has mentioned approximate time of injuries
and death 30 minutes to 1 hour and time of postmortem examination 07.45 p.m.
and completion of postmortem examination. Said doctor had also examined injured
PW Kawish and issued such certificate at Ex.7/A,
mentioning the details of injuries sustained by this PW, which coincides with
the time of incident as reported by the prosecution witnesses, namely, Rizwan, Ahsan Khan and injured PW
Kawish. It is further observed that injured witness
was independent, he had no motive to falsely implicate
the appellant in this case. We have no reason to disbelieve the ocular
evidence, corroborated by medical evidence. There is no legal force in the
contention of learned counsel for the appellant that eye witnesses, namely, Riwzan and Ahsan Khan are closely
related to the deceased as such they are interested witnesses. Evidence of eye
witnesses, namely, Rizwan and Ahsan
Khan could not be rejected on the ground of relationship for the reason that
they had no motive to falsely implicate the present appellant in the murder of
the deceased and causing firearm injuries to PW Kawish.
Reference may be made to the law laid down in the case of RAQIB KHAN v. The STATE (2000 SCMR 163). Relevant portion is reproduced
as under:-
11. The contention that a witness who is related
to the deceased is an interested witness, has since long been discarded by this
Court. It is settled proposition of law by now that interested witness is the
one who has an animus for false charge. Mere relationship of a witness to the
deceased is not enough of a reason to discard his testimony because such a
witness is necessarily not an interested witness in the true sense of the term.
This Court has gone to the extent that even evidence of interested witness is
always not discarded. Reference may be made to the law laid down by this Court
in Niaz v. State (PLD 1960 SC 387) which was
reiterated again in Nazir Hussain v. State (PLD 1965
SC 188). In Aslam and another v.
The State (1997 SCMR 1284), a Full Bench of this Court had reiterated the law
on this score that "in the final analysis, it is neither the relationship
of the witnesses with the deceased or that of the P.Ws. inter se nor in the
appropriate cases even their being the interested witnesses that provided an
ultimate guidance for according credence to their testimony. It is ultimately
inherent worth of evidence of a witness that determines his reliability."
21.
It is also settled
position of law that eye witnesses being relatives of the deceased it would be
their endeavor to see that real culprits are punished and they would not like
to implicate a wrong and innocent person in the crime so as to allow the real
culprit to go unpunished. Moreover, in this case PW Kawish
who is injured, his presence is established, has implicated the appellant in
this case.
22.
As regards to the main contention of
the defence counsel that there was delay of 23 hours
in lodging of FIR and there was possibility of consultation and deliberation. Complainant
Niamat-ur-Rehman has deposed that dead body of Asif was received on the day of incident at 08:00 p.m. On the
next day, i.e. 05.03.2013, dead body was buried and after burial ceremony, he
went to police station at 05:00 p.m. and lodged FIR.
23.
So far as delay in lodging of FIR is
concerned, no doubt, it was delayed by 23 hours, yet it is seen in the light of
the attending circumstances of the case, the delay stands explained. It is an
established principle of law and
practice that in criminal cases the delay, by itself, in lodging the F.I.R.
is not material. The factors
to be considered by the Courts are firstly, that such delay stands reasonably
explained and secondly, that the prosecution has not derived any undue
advantage through the delay involved. The delay in lodging of FIR has been
explained in the present case to the effect that complainant party was in the
hospital on the day of incident upto 08:00 p.m. Thereafter,
dead body was brought in house. Dead body was buried on 05.03.2013. After funeral ceremony, complainant
went to the police station and lodged FIR at 05:00 p.m.
24.
Coming to the
question of what advantage the prosecution has gained from delaying the F.I.R. It
is observed that no advantage, at all, was gained by prosecution. Complainant party
has not involved accused falsely in this case. Injured PW Kawish
has also implicated the appellant and his absconding brother Siraj. Complainant and PW Kawish
had no enmity whatsoever for falsely implicating the appellant, and thus
nothing was maliciously gained through the delay in lodging of FIR. We have no
hesitation to hold that delay by itself in lodging of FIR in the present case
was not material. In this regard, we are guided by the principle laid down by
the Honourable Supreme Court in the case of MUHAMMAD
NAEEM alias Deemi vs. THE STATE (2011 SCMR 872).
25.
Trial court has rightly appreciated
the evidence according to the settled principles of law and awarded death
sentence to the appellant. Appellant caused firearm injuries to the deceased at
head, neck and thorax, the vital parts of the body and firearm injury to PW Kawish, then non-repetition of said act is hardly of any
consequence in the matter of determining the quantum of punishment that deserve
by the appellant as held by the Honourable Supreme
Court in the case of Syed Hamid Mukhtar Shah vs.
Muhammad Azam and 2 others (2005 SCMR 427).
26.
As regards to the defence
plea, learned counsel for the appellant argued that deceased Asif and injured Kawish had
received injuries at the hands of the protestors in the strike in Karachi city.
It may be observed that such defence plea set up in
the cross-examination has not been raised by the accused in his statement under
section 342, Cr.PC. In order to prove the defence plea, accused was provided legal opportunity to
appear as his own witness under section 340(2), Cr.PC
but the appellant had failed to avail such opportunity. We, therefore, hold
that defence plea is unsupported by any evidence and
is belated plea, it was afterthought and rightly that has been disbelieved by
the trial court.
27.
We have also noticed that after the
incident, appellant absconded away and he was arrested in another case at
Lahore on 22.06.2013. On the other hand, appellant got space,
became fugitive from the law and pistol could not be recovered from. Noticeable
absconsion for such pretty long period is additional
incriminating piece of evidence to connect the appellant in the commission of
offence.
Ocular Account
28.
Ocular evidence has been furnished by
PWs Rizwan, Ahsan Khan and
injured Kawish. They have furnished graphic details
of the occurrence. Evidence of the eyewitnesses is same on material particulars
of the case. Despite an embarrassingly lengthy cross-examination, no flaw,
discrepancy or material contradiction could be detected that may possibly
reflect their credibility. On the contrary, evidence of the eye witnesses have been found straightforward, consistent and confidence
inspiring. They have satisfactorily explained their presence at the place of
incident. PW-Kawish has suffered firearm injury at
the hands of the appellant and narrated incident as under:
On 04.03.2013 at 05:00/05:05 p.m. I was playing ludo at the shop of Achan Bahi along with Asif and 2/3
other friends, all of sudden three accused Meraj, Siraj and one unknown came there and accused Meraj fired with his pistol, which hit me and Asif, due to which we fell down on earth. The relatives of
said Asif shifted me and him to the JMPC in the
ambulance, but I went unconscious in the way and regained in the hospital and
found one ASIP Aslam who recorded my statement.
Subsequently said Asif expired. The accused Meraj present in Court is same.
Motive
29.
Appellant had no direct motive
against deceased Asif Khan. Evidence reflects that
eye witness PW-3 Rizwan Ali Khan had deposed that,
on 02.03.2013 I have heard quarrel between my nephew Asif
and Siraj while playing ludo
but same was settled by the elders in the night. PW 2 Ahsan
Khan deposed that, two days prior to this incident there was quarrel between my
deceased brother and accused Siraj and due to said
anguish . PW-1 Naimat-ur-Rehman had deposed that, I
came to know that on 02.03.2013 a quarrel between deceased Asif
and Siraj on the matter of ludo
and they have also exchanged hard words to each other and due to intervention
of other boys present there their compromise was also taken place at the spot.
30.
It is crystal clear from evidence that
no direct motive was alleged against appellant Mairaj.
Therefore, taking it as a mitigating circumstance, we find that it is not the
case of death penalty. We are supported in our view by the judgment of the Honourable Supreme Court in the case of ALLAH WASAYA versus
The STATE (2017 SCMR 1797). Relevant portion is reproduced as under:-
6. But
it is not a case of capital punishment to the extent of Allah Wasya (appellant No.1) as Allah Ditta
co-accused of the appellants who allegedly was reluctant to give the hand of
his sister for Shah Bakhsh brother of the complainant
was acquitted by the learned trial court on the basis of compromise. No direct
motive was alleged against Allah Wasaya, therefore, taking it as a mitigating circumstance, the
sentence of death awarded to Allah Wasaya (appellant
No.1) is altered to imprisonment for life on two counts. The amount of
compensation and the sentence of imprisonment in default thereof as ordered by
the learned courts below is maintained. Conviction and
sentence of Allay Wasaya (appellant No.1) under
section 324, P.P.C. is maintained. All the sentences awarded to Allah Wasaya (appellant) shall run concurrently and he is also
extended the benefit of section 382-B, Code of Criminal Procedure. With this
modification in the quantum of sentence, this criminal appeal to the extent of
Allah Wasaya (appellant No.1) is partly allowed.
31.
Certainly, pain and anguish endured by the deceaseds
family cannot be comparatively quantified so as to commensurate with quantum of
sentence. It has been held in the case of Ghulam Mohy-ud-Din alias Haji Babu vs. The State (2014 SCMR 1034), So it is better to respect
the human life, as far as possible, rather to put it at end, by assessing the
evidence, facts and circumstances of a particular murder case under which it
was committed. Thus alternate penalty of imprisonment for life
would meet the ends of justice.
32.
In view of absence of direct motive
against appellant Mairaj, taking as a mitigating
circumstance, the sentence of death awarded to appellant Mairaj is altered to imprisonment for life. The amount of
compensation and the sentence of imprisonment in default thereof as ordered by
the trial court is maintained with slight modification
that in case of default in payment of compensation, appellant shall suffer S.I.
for six months instead of one year. Conviction and sentence of appellant Mairaj under section 324, PPC as well as fine are
maintained. All the sentences awarded to appellant Mairaj
shall run concurrently. Appellant is also extended the benefit of section
382-B, Cr.PC. With this modification in the quantum
of sentence, these criminal appeals are partly
allowed. Confirmation Reference made by the
trial court is answered in negative.
J U D G E
J U D G E
Gulsher/PS