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