IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Crl. Appeal No. D – 18 of 2012

 

                        Before;

                                    Mr. Justice Muhammad Iqbal Mahar

                                    Mr. Justice Irshad Ali Shah

 

Appellant:           Jinsar, through Mr. Rukshar Ahmed M.Junejo Advocate

 

Respondent:            The State, through Syed Sardar Ali Shah,

                                    Deputy Prosecutor General

 

Date of hearing:     05.03.2019

Date of decision:    14.03.2019

 

 

J U D G M E N T

 

IRSHAD ALI SHAH, J; The appellant by preferring instant Criminal Jail Appeal has impugned judgment dated 21.03.2012, passed by learned Additional Sessions Judge Kandiaro, whereby he for an offence punishable u/s 302(b) PPC for having committed Qatl-e-amd of Liaquat Ali by causing him fire shot injuries, has been convicted and sentenced to death and shall be hanged by his neck till he is died with fine of Rs.100,000/- payable to the legal heirs of the said deceased as compensation and in case of his failure to make payment of fine to undergo simple imprisonment for six months.

 

2.                The facts in brief necessary for disposal of Criminal Appeal are that the appellant with rest of the culprits in prosecution of their object committed Qatl-e-amd of Liaquat Ali by causing him fire shot injuries for that he was booked and reported upon by the police to face trial for the above said offence.

3.                At trial, the appellant did not plead guilty  to  the  charge and the prosecution to prove it, examined PW-1 complainant Ali Hassan (Ex.27.); PW-2 Shoukat Ali Bhatt (Ex.28); PW-3 Medical officer Dr. Nisar Ahmed Abbasi (Ex.29); PW-4 Khamiso Khan (Ex.29); PW-5 Tapedar Mumtaz Ali (Ex.32); PW-6 SIO/Inspector Qurban Ali Pathan (Ex.33); PW-7 Mashir PC Muhammad Aslam (Ex.34), he produced memo of arrest and recovery of unlicensed pistol from the appellant and then closed the side.

4.                The appellant in his statement recorded u/s 342 Cr.P C denied the prosecution’s allegation by pleading innocence, he did not examine anyone in his defence or himself on oath in disproof of the prosecution allegation.

5.                On evaluation of the evidence, so produced by the prosecution, the learned trial Judge awarded death penalty to the appellant with fine / compensation as is detailed above and then has made a Reference to this Court for confirmation of death sentence in terms of Section 374 Cr.P.C.

 

6.                It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the complainant party in order to satisfy their dispute with him over matrimonial affairs; there is no motive of the incident; the deceased has committed suicide; the complainant and his witnesses being interested have been believed by learned trial Court without lawful justification; there is no independent witness to the incident; the appellant at the time of incident was juvenile offender and he ought not to have been tried or awarded death penalty by a regular Court. By contending so, he sought for acquittal of the appellant as according to him co-accused Arbab Ali, Muharam Ali, Wazir, Mst. Ameeran and Mazhar Ali have already been acquitted by this Court in earlier round of litigation. In support his contention, he relied upon the case of Sultan Ahmed vs. Additional Sessions Judge-I and others (PLD 2004 SC 758).

7.                It is contended by learned DPG for the State that the appellant is neither innocent nor is involved in this case falsely by the complainant party, he has committed the brutal murder of deceased during marriage ceremony only to satisfy his grudge with him (deceased) as he was intending to marry Mst. Ameeran who was going to be wife of the deceased; he after commission of incident preferred to go in absconsion for about four years and he has never taken plea of being juvenile before learned trial Court; same he as such could not take before this Court only to save him from legal consequences and co‑accused who have already been acquitted by this Court were having a different role as their names were not appearing in FIR of the incident. By contending so, he sought for dismissal of instant Criminal Jail Appeal and confirmation of death sentence to the appellant. In support of his contention, he has relied upon cases of Wahid vs. The State (PLD 2002 SC 62) and Noor Muhammad vs. The State ( 2005 SCMR 1958).  

 

8.                We have considered the above arguments and perused the record.

9.                The unnatural death of deceased Liaquat Ali is proved of evidence of Medical Officer Dr. Nisar Ahmed. Now is to be examined the liability of the appellant towards the above said incident.

10.              At the very outset, it would appropriate to mention here that the names of co-accused Arbab Ali, Muharam Ali, Wazir, Mst. Ameeran and Mazhar Ali are not mentioned in FIR, those were disclosed subsequently by complainant Ali Hassan by making further statement, on the basis of allegation of hatching conspiracy leading to murder of deceased Liaquat Ali. In that context, they were acquitted of the offence by this Court on 14.03.2007                        (Cr. Appeal No.S-177/2005).

11.              In order to prove its case, the prosecution examined complainant, it was materially stated by him that;

“deceased Liaquat Ali was my son, he was aged about 14/15 years at the time of incident. There was exchange marriage with me and one Qaisar, the daughter of Qaisar was proposed for my son Liaquat Ali and I gave my daughter to the son of Qaisar. On 08.9.2003 at about 1030 a.m there was gathering of marriage ceremony of my son I and my other relatives were available there meanwhile accused Jinsar came in the marriage ceremony for giving congratulations to my son Liaquat as soon as he meet with my son and took him in his hand and suddenly took out pistol from fold of his Shalwar and fired at left side of chest of my son. My son fell-down, the accused threatened us that if anybody will come near to him he will also commit his murder. My son on the spot has expired. I leaving my relatives at the dead body of my son rushed to the police station and lodged the FIR.”

12.              The complainant has been supported by PW Shoukat Ali, on all material points, they could not be disbelieved only for the reason that they are related inter se, being father and son. It is true that no independent witness to the incident has been examined by the prosecution but for this reason the complainant and PW Shoukat Ali could not be disbelieved. They indeed are appearing to be the natural witness to the incident. It is the quality of the evidence which is to be taken into consideration.

 

13.              In case of Allah Bux Vs. Shammi and others (PLD 1980 SC-225), it has been held by Honourable Apex Court that;

“Conviction, even in murder cases, held, can be based on testimony of a single witness if Court satisfied as to witness being reliable-Emphasis, held further, laid on quality of evidence and not on its quantity”.

 

14.              By making a suggestion to the complainant and his witness that the deceased has committed suicide an attempt was putin to create impression that the appellant being innocent has been involved in this case falsely. No innocent person could be involved falsely in the case like the present one. If the appellant was innocent then he ought not to have preferred to go in absconsion for a noticeable period spreading over four years, such absconsion reflect adversely on his plea of innocence.

15.              If for the sake of arguments, it is believed that the appellant at the time of incident was juvenile then question arises as to who prevented him from taking such plea before learned trial Court. Taking such plea by the appellant before this Court at the time of hearing of his appeal by making reference to his age which he has disclosed before learned trial Court during the course of his examination under section 342 Cr.P.C after closure of the side by the prosecution, is appearing to be an attempt on his part to save him from legal consequences.

16.              In case of Rehmatullah alias Raja vs. Home Secretary Punjab and others (2004 SCMR 1861), it has been held by Honourable Apex Court that;

“----Ss. 7 & 12---Constitution of Pakistan (1973), Arts.45 & 185(3)-- Juvenile offender---Commuting death sentence into life imprisonment-- Pre-requisites---Determination of age of accused---Death sentence awarded to accused was confirmed by High Court and Supreme Court-- Plea raised by accused was that as he was child at the time of commission of offence, therefore, in view of Notification dated 13-12-2001, the sentence of death be commuted to imprisonment for life ---Validity-- Notification dated 13-12-2001 was couched in a simple and plain language and being free from any ambiguity there was no scope for its scholarly interpretation---Prior to commutation of death sentence to imprisonment for life, Provincial Governments under the Notification dated 13-12-2001 would ensure, that the age as recorded by the Trial Court entitled the condemned prisoners to such commutation---No such age was ever recorded by the Trial Court, hence the accused was not entitled to any commutation---Question of age was never agitated before the Trial Court, appellate Court as well as Supreme Court---Too late in the day to raise such a plea as at the time of occurrence, date of birth of the accused was shown as 8-3-1976 which was never challenged and thus there was no occasion for the Trial Court to get the ossification test conducted---Nothing had come on record showing that the age as recorded by the Trial Court entitled the accused to such commutation which was mandatory pre-requisite before any benefit was claimed-- Judgment of High Court being free from any infirmity or illegality and well based did not warrant interference---Leave to appeal was refused.”

17.              In case of FAISAL MEHMOOD / LAL KHAN vs THE STATE (2010 Cr. LJ 8), it has been held by Hon’ble Apex Court that;

“Section 302. Minority would be no ground for withholding normal sentence of death under Section 302 PPC when convicted no stage of trial pleaded his minority or did he led or produce any evidence to indicate that he was less than 17 years of age at the time of occurrence.”

 

18.              It is wrong to say that there is no motive of the incident. The appellant indeed was having grudge against the deceased on account of his marriage with Mst. Ameeran. If for the sake of the arguments, it is believed that there is no motive of the incident even then it is not enough to take lenient view against him.

19.              In case of ZULFIQAR ALI vs THE STATE (2008 SCMR 796), it has been held by Hon’ble Apex Court that;

“Inadequacy or weakness of the alleged motive or failure to prove the motive is immaterial if accused is found guilty of causing the murder of the deceased and he does not deserve any leniency.”

20.              In the said circumstances, learned trial Court was right to award death penalty to the appellant which was normal penalty for an offence punishable u/s 302(b) PPC, which is not calling for any interference by this Court.

21.              The case relied upon by learned counsel for the appellant is on distinguishable facts and circumstances. In that case accused taken plea to be Juvenile Offender at very preliminary stage of trial by making such application. In the instant matter no such plea is taken by the appellant at the trial.

22.              Consequent upon above discussion, the death penalty awarded to the appellant by learned trial Court on its Reference is confirmed while the instant Criminal Jail Appeal fails and it is dismissed accordingly.

 

 

          Judge

Judge

 

 

ARBROHI