IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Crl. Jail Appeal No.D- 63 of 2009

 

                        Before;

                        Mr. Justice Muhammad Iqbal Mahar

                        Mr. Justice Irshad Ali Shah

 

Appellants:     Ghulam Hyder alias Kesto S/o Muhammad Hayat Mirbahar

Khair Muhammad S/o Piyaro Dharejo, through M/s Zulfiqar Ali Sangi and Imdad Ali Malik Advocates

 

Complainant: Muhammad Sulleman, through

Mr. A.R Faruq Pirzada, Advocate

 

Respondent:   The State, through Mr. Zulfiqar Ali Jatoi,

                        Additional Prosecutor General

 

Date of hearing:     29.01.2019

Date of decision:    29.01.2019

 

 

J U D G M E N T

 

IRSHAD ALI SHAH, J-. The facts in brief necessary for disposal of instant appeal and reference are that the appellants with rest of the culprits allegedly during course of robbery/dacoity committed murder of Shah Bux, Shamsuddin and Gul Muhammad by causing them fire shot injuries, for that they were booked and reported upon by the police to face trial.

2.                At trial, the appellants and co-accused (Muhammad Nawaz, Allahditto and Niaz Muhammad) did not plead guilty  to  the  charge and the prosecution to prove it, examined PW-1 complainant Muhammad Sulleman (Exh.10), he produced FIR of the present case, PW-2 Karim Bux (Exh.11), he produced his 164 Cr.P.C statement, PW-3 Medical Officer Dr. Lutufullah (Exh.13), he produced postmortem report on the dead bodies of the said deceased, PW-4 mashir Bahadur (Exh.14), he produced memo of place of incident, danistnamas, memo of arrest of accused Muhammad Nawaz, memo of arrest of accused Ghulam Hyder alias Kesto, memo of recovery of wrist watch, memo of arrest of accused Niaz Muhammad and Allahditto, PW-5 SIO/Inspector Mushtaque Ahmed Khoso at (Ex.15), he produced memo of arrest and recovery of TT Pistol from accused Muhammad Nawaz, memo of arrest and recovery of pistol from accused Ghulam Hyder alias Kesto, application for conducting identification parade of accused Muhammad Nawaz and recording 164 Cr.P.C statements of P.Ws. Application for conducting identification parade of recovered robbed viz. wrist watches and identification parade in respect of accused Niaz Muhammad and Allahditto, PW-6 Miss. Samina Mangi, Civil Judge & Judicial Magistrate (Ex.17), she produced memo of identification parade of accused Niaz Muhammad, memo of identification parade of accused Muhammad Nawaz and wrist watch, PW-7 SIO/SIP Rahim Bux and then closed the side.

3.                The appellants and co-accused of the culprits (Muhammad Nawaz, Allahditto and Niaz Muhammad) during course of their examination u/s 342 Cr.PC denied the prosecution’s allegation by pleading innocence. They did not examine themselves on oath or any one in their defence in disproof of the prosecution’s allegation.

4.                On the basis of evidence, so produced by the prosecution, the learned 2nd Additional Sessions Judge/STA Judge Sukkur, acquitted co-accused Muhammad Nawaz, Allahditto and Niaz Muhammad while convicted and sentenced the appellants as under;

 

“(i)     Under section 395 PPC. Both the accused shall suffer imprisonment for ten years and fine of Rs.5000/- each. IN default of payment of fine, they shall suffer S.I for three months.

(ii)     Under section 396 PPC. Both the accused are sentenced to death thrice on commission of murder of three persons namely Shah Bux, Shamsuddin and Gul Muhammad, during the course of dacoity. They be hanged by neck thrice till they are dead. They shall pay fine of Rs.5000/- each. In default of payment of fine, they shall suffer S.I for three months.”

 

 

 

5.                Appellants impugned the conviction and sentence recorded against them by way of preferring the instant appeal while the learned trial Judge made a reference u/s 374 Cr.P.C for confirmation of death sentence so awarded to the appellants. Both were clipped together and are now being disposed of through single judgment.

 

6.                It is contended by learned counsel for the appellants that the appellants being innocent have been involved in this case falsely by the complainant party, on account of previous enmity, that there is delay of about one day in lodgment of FIR, the identity of the appellants at night time that too under the head light of tractor is a weak piece of evidence, the evidence which the prosecution has produced before learned trial court being inconsistent and untrustworthy has been believed by learned trial Court without lawful justification, the appellants have nothing to do with the recovery of robbed wrist watches and the very incident. By contending so, they sought for acquittal of the appellants.

7.                Learned Additional PG for the State by supporting impugned judgment sought for dismissal of instant appeal while learned counsel for the complainant recorded no objection to acquittal of the appellants that they on private faisla have been found to be innocent. The offence is not compoundable one; as such the raising of no objection to the acquittal of the appellants by learned counsel for the complainant is hardly having a legal force.

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

9.                Neither the name nor the descriptions of appellant Khair Muhammad are appearing in the FIR of the incident. Appellant Khair Muhammad has been joined in trial on application of complainant Muhammad Sulleman which he moved before learned 3rd Additional Sessions Judge Sukkur on 18.12.1999 when he was brought before that Court in custody for hearing of his case, stating therein that he is the person who was involved in the above said incident. Order passed by learned 3rd. Additional Sessions Judge Sukkur on application of complainant reads as under;

“accused Khair Muhammad is produced in custody. Complainant identified him to be same”.

 

10.              The application which complainant Muhammad Sulleman filed before learned 3rd Additional Sessions Judge Sukkur was with delay of about three years to the incident, which allegedly took place on 21.11.1996. No formal identification parade of the appellant Khair Muhammad was conducted by police through complainant or his witnesses before a Magistrate having jurisdiction, in accordance with the requirement of law. Learned 3rd Additional Sessions Judge Sukkur who passed the above said order on the application of complainant Muhammad Sulleman has not been examined by the prosecution at trial. In that situation, the involvement of the appellant Khair Muhammad in the alleged incident is appearing to be doubtful. Consequently, the conviction and sentence recorded against him by learned trial Court are set aside and he is acquitted of the offence for which he was charged. He is in jail he shall be released forthwith in the present case.

11.              So far case of appellant Ghulam Hyder alias Kesto is concerned. His name is appearing in FIR of the incident. It was stated by complainant Muhammad Sulleman and PW Karim Bux during course of their examination at trial that on the night of incident they, the deceased Shah Bux, Shamsuddin and Gul Muhammad and PW Ghulam Mustafa when were going through their tractor trolley, they were robbed at and during course of robbery/dacoity they were fired at by appellant Ghulam Hyder alias Kesto and others, resultantly Shah Bux, Shamsuddin and Gul Muhammad after sustaining fire shot injuries died and then accused fled away and then they reported the incident to police. It was further stated by them that appellant Ghulam Hyder alias Kesto was arrested by the police on the next date of report. By stating so, they have fully involved appellant Ghulam Hyder alias Kesto in commission of the incident and their evidence is supported to large extent by rest of the witnesses who were examined by the prosecution at trial. By considering such evidence, learned trial Court has rightly convicted and sentenced the appellant Ghulam Hyder alias Kesto finding him to be guilty for the above said offence.

12.              Consequent upon above discussion the punishment awarded to appellant Ghulam Hyder alias Kesto for offence under section 395 PPC is maintained. However, the sentence of death awarded to appellant Ghulam Hyder alias Kesto for an offence punishable u/s 396 PPC being harsh is modified to imprisonment for life with fine of Rs.5000/-, and in case of his failure to make payment of fine, he would undergo S.I for three months simply for the reason that no specific injury to any of the deceased has been attributed to him. Both the sentences to run concurrently with benefit of Section 382-B Cr.P.C.       

13.              In case of Ghulam Mohiuddin alias Haji Babu and others Vs. The State (2014 SCMR-1034), it has been held by the Honourable Court that;

“---S.302(b)---Qatl-e-amd---Sentence---Death sentence or imprisonment for life---Single mitigating circumstance---Sufficient  to award life imprisonment instead of death penalty---Single mitigating circumstance, available in a particular case, would be sufficient to put on guard the Judge not to award the penalty of death but life imprisonment---If a single doubt or ground was available, creating reasonable doubt in the mind of Court/Judge to award either death penalty or life imprisonment, it would be sufficient circumstance to adopt alternative course by awarding life imprisonment instead of death sentence---No clear guideline, in such regard could be laid down because facts and circumstances of one case differed from the other, however, it became the essential obligation of the Judge in awarding one or the other sentence to apply his judicial mind with a deep thought to the facts of a particular case---If the Judge/Judges entertained 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---Better to respect human life, as far as possible, rather than to put it at end, by assessing the evidence, facts and circumstances of a particular murder case, under which it was committed”.

         

 

14.              The instant criminal appeals and death reference are disposed of in above terms.

 

          Judge

Judge

 

ARBROHI