IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Crl. Appeal No. D – 71 of 2014.

Before;

Mr. Justice Muhammad Iqbal Mahar

Mr. Justice Irshad Ali Shah

Appellant: Pir Bux son of Muhammad Hassan Buriro,

through Haji Shamsuddin Rajper Advocate

Respondent: The State, through Mr. Aftab Ahmed Shar,

Additional Prosecutor General

Date of hearing: 09-05-2019.

Date of decision: 09-05-2019.

J U D G M E N T

IRSHAD ALI SHAH, J; The appellant by way of instant Criminal Appeal has impugned judgment dated 30-10-2014 passed by learned Additional Sessions Judge Moro, whereby he has been convicted and sentenced as under;

“Accused is found guilty of committing Qatal-e-amd of lady Mst. Shabana as such he is convicted and sentenced to death under section 302 (b) PPC. He shall be hanged by neck till he is dead, subject to confirmation by Hon’ble High Court.”

2. The facts in brief necessary for disposal of instant Criminal Appeal are that the appellant with rest of the culprits in furtherance of their common intention allegedly committed Qatl-e-amd of Mst. Shabana by causing her fire shot injuries, for that he was booked and reported upon by the police to face trial.

3. At trial, the appellant did not plead guilty to the charge and the prosecution to prove it examined PW/1 complainant Zahid at (Ex.09), he produced copy of daily diary of PS Sadhuja, PW/2 Waheed Ali at (Ex.10), PW/3 Gulzar Ali at (Ex.11), PW/4 mashir Muhammad Idrees at (Ex. 12), he produced mashirnama of dead body, Danistnama, mashirnama of place of wardhat, PW/5 SIP Zulfiquar Ali at (Ex. 13), he produced FIR, PW/6 HC Haji Khan at (Ex. 14), he produced mashirnama of arrest and recovery of accused Pir Bux , mashirnama of arrest and personal search of accused Maakan and Ghulam Muhammad, PW/7 ASI Ghulam Qasim Mashori, PW/8 Medical Officer Mst. Rehana, she produced lash chakas form, post mortem report of deceased Mst. Shabana, PW/9 Tapedar Shah Nawaz, he produced police letter and site plan, thereafter learned DDPP for the State closed the side of prosecution vide statement at Ex. 18.

4. The appellant in his statement recorded u/s 342 Cr.P.C denied the prosecutions’ allegation by stating that he being innocent has been involved in this case falsely by the complainant party on account of enmity, he did not examine anyone in his defence or himself on oath in disproof of the prosecution allegation against him.

5. On conclusion of the trial, learned trial Court convicted and sentenced the appellant as stated above and then made a reference with this court for confirmation of death sentence as is prescribed by Section 374 Cr.P.C.

6. The instant appeal and the reference made by learned trial Court for confirmation of death sentence to the appellant now are being disposed of by this Court, by way of single judgment.

7. Learned counsel for the appellant after arguing the matter at length was fair enough to say that he would not press the disposal of instant appeal on merit, if the death sentence awarded to the appellant is modified into imprisonment for life by taking into consideration the mitigating circumstance of the case.

8. Learned Additional PG for the State by supporting the impugned judgment has sought for confirmation of death sentence to the appellant. By contending that no mitigating circumstances available which may justify modifying the death sentence into imprisonment for life.

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

10. There is no denial to the fact that Mst. Shabana has died of unnatural death. The appellant is named in FIR with specific allegation that he committed death of Mst. Shabana by causing her fire shot injury. It was stated by complainant Zahid and PWs Waheed Ali and Gulzar Ali that on receiving complaint of mistreatment from Mst. Shabana allegedly at the hands of appellant, they went at the house of Mst. Shabana, there came the appellant and he committed death of Mst. Shabana by causing her fire shot injury and then went away. The complainant and his witnesses have stood by their version on all material points despite lengthy cross examination and they have rightly been believed by learned trial Court. On arrest from appellant has been secured the country made pistol, which he allegedly used in commission of incident. In these circumstances, learned trial Court was right to conclude that the prosecution has been able to prove its case against appellant beyond shadow of doubt.

11. However, the sentence of death awarded to the appellant is calling for modification for the reason that there was no deep rooted enmity between the parties and the dispute between them was over matrimonial affairs, as such the death sentence awarded to the appellant is modified with rigorous imprisonment of life with compensation of Rs.100,000/-(One Lac) payable to legal heirs of deceased Mst. Shabana and in case of failure to make payment of compensation, the appellant would undergo simple imprisonment for six months. Needless to state that the conviction and sentence so is modified would run concurrently with benefit of Section 382-B Cr.P. C.

12. In case of Iftikhar Hussain Vs. Israr Bashir and others (PLD 2007 SC-111), it has been held by the Honourable Court at Page No.119 that;

“….The difference of punishment for Qatl-e-Amd as Qisas and Tazir provided under sections 302(a) and 302(b), P.P.C, respectively is that in a case of Qisas, Court has no discretion in the matter of sentence whereas in case of Tazir Court may award either of the sentence provided under section 302(b), P.P.C, and exercise of this direction in the case of sentence of Tazir would depend upon the facts and circumstances of the case. There is no cavil to the proposition that an offender is absolved from sentence of death by way of Qisas if he is minor at the time of occurrence but in a case in which Qisas is not enforceable, the Court in a case of Qatl-e-Amd, keeping in view the circumstances of the case, award the offender the punishment of death or imprisonment for life by way of Tazir. The proposition has also been discussed in Ghulam Murtaza v. State 2004 SCMR-04, Faqirullah v. Khalil-uz-Zaman 1999 SCMR-2203, Muhammad Akram v. State 2003 SCMR-885 and Abdus Salam v. State 2000 SCMR-338”.

13. It has time and again been reiterated by the Honourable Apex Court that while death sentence is a usual penalty in case of Qatl-e-Amd, life imprisonment being legal punishment may also be considered.

14. In case of Ghulam Mohiuddin alias Haji Babu & ors Vs. The State (2014 SCMR-1034), it has been held by the Honourable Apex 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”.

15. The instant criminal appeal and death reference are disposed of in above terms.

Judge

Nasim/P.A