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 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