IN THE HIGH COURT OF
SINDH, SINDH BENCH AT SUKKUR.
Criminal Jail Appeal No. D-20 of 2015
( MuhammadBux Vs. The State)
Constitution Petition No.D-782 of 2015.
(GhulamFarooqVs. P.O of Anti-Terrorism Court
NaushehroFeroze and others)
Before:-
Mr. Justice Muhammad IqbalMahar
Mr.
Justice Irshad Ali Shah
Appellant : Muhammad Bux son of
Muhammad Hashim,
Through Mr. SajjadHussainKolachi,
Advocate
Respondents. : GhulamFarooq s/o Ghulam Muhammad, Channa
: Through Mr. Zulfiquar Ali Sangi,
advocate.
State :
Through Mr. Aftab Ahmed Shar, A.P.G
Date of
hearing : 15-05-2019.
Date of decision : 15-05-2019.
J U D G M E N T
IRSHAD ALI SHAH, J.- It is the case of the
prosecution that appellant Muhammad Bux with rest of two culprits committed
Qatl-e-amd of GhulamNabi by causing him fire shot injuries for that he was
booked and reported upon.
2. At trial,
the appellant did not plead guilty to the charge and prosecution to prove it
examined PW/1 complainant GhulamFarooq
at (Ex. 6), he produced copy of FIR, PW/2 GhulamMurtaza at (Ex. 7), PW/3
Zulfiquar Ali at (Ex.8), PW/4 Muhammad Akram at (Ex. 9), he produced memo of
inspection of dead body of deceased Ghulam Nabi, Danistnama, memo of securing
clothes of deceased, memo of securing bloodstained mud, memo of arrest of
accused, memo of recovery of SBBL gun, PW/5 ASI Abdul MajidDehraj at (Ex. 10),
he produced attested copy of last chakas form of deceased Ghulam Nabi, receipt
of dead body, PW/6 PC Mumtaz Ali, PW/7 Tapedar Naeem-ul-Haq at (Ex. 12), he
produced sketch of wardhat, PW/8 Dr. Ghulam Rasool Solangi at (Ex. 13), he
produced original last chakas form of deceased Ghulam Nabi, post mortem
examination report, PW/9 Inspector Ghulam Hussain at (Ex. 14), he produced copy
of FIR No. 123/2014, entry No. 7, Forensic Science Report and chemical report.
Thereafter learned DDPP for the State closed the prosecution side at Ex. 15.
3. The
appellant in his statement recorded under section 342 Cr.P.C at (Ex. 16) denied
the prosecution allegation by pleading innocence, by stating that he has been
involved in this case falsely by the complainant party as he was not going to
sell his land to them on cheap price. The appellant did not examine any one in
his defence, but examined himself of oath in disproof of the prosecution
allegation.
4. It has
inter-alia been stated by the appellant in his statement on oath that he has
been involved in this case by the complainant in order to usurp his property.
The deceased might have been killed by some unknown person, as he was also
having enmity with his maternal uncles. The weapon is foisted upon him at the
instance of complainant party and he could not examine anyone in his defence
due to pressure of the complainant.
5. Consequent
upon the trial, learned Judge Anti-Terrorism Court Naushehro Feroze vide his
judgment dated 02-03-2015 convicted and sentenced the appellant as under;
“Present
accused namely Muhammad BuxKolachi is convicted for the offence punishable u/s
302 (b), 34 PPC r/w Sections 6/7 (a) anti-Terrorism Act and sentenced him to
R.I for life. He is also convicted for the offence punishable u/s 23 (i)(a)
Sindh Arms Act 2013, and sentenced to R.I for seven years and to pay Rs.
10,000/-, in default to suffur S.I for three months more.”
6. The
appellant being aggrieved of the conviction so awarded to him by learned trial
Court preferred the instant appeal for his acquittal while the complainant by
way of preferring a constitutional petition has sought for enhancement of the
conviction awarded to the appellant from “imprisonment for life to death”.
7. Both, the
appeal filed by the appellant and the constitutional petition filed by the
complainant now are being disposed of by this Court through single judgment.
8. It is
contended by learned counsel of the appellant that the appellant being innocent
has been involved in this case fasely by the complainant party on account of
his dispute with him over sell of landed property; there is delay of one day in
lodgment of FIR; the crime weapon has been foisted upon the appellant on 7th
day of his arrest and it has been subjected to chemical examination on 10th
day of its recovery and there is no independent witness to the incident.
By contending so he sought for acquittal of the appellant.
9. It is
contended by learned counsel for complainant that the appellant has committed
the brutal murder of the deceased, he as such is liable to be awarded to death
penalty, which would meet the ends of justice.
10. Learned
A.P.G for the State by supporting the impugned judgment has sought for
dismissal of Appeal and constitutional petition by contending that the
appellant has adequately been punished by learned trial Court.
11. We have considered the above arguments
and perused the record.
12. The death of
the deceased is proved by the prosecution through evidence of medical officer
Dr. Ghulam Rasool, which even otherwise is not disputed by the appellant. It is
established principle of law that medical evidence neither pin-points the
accused nor establishes the identity of the accused but is supportive piece of
evidence only to the extent of specification of seat of injuries, the weapon
used, duration between injuries and death and the cause of death etc. Once, the
un-natural
death of the deceased is proved, then only question which remains to be
answered would be the guilt or innocence of the accused reported
upon. Since, in instant case the un-natural death of the deceased has remained
undisputed, therefore is to be examined the liability of the appellant/accused
towards the incident.
13. It isinter-alia
stated by the complainant and his witness Ghulam Murtaza and Zulfiquar Ali that
on 04-11-2014 when they and the deceased were standing in graveyard of their
village Bhanbo Khan Kolachi, there at about 11-30 am they found coming three
culprits, one was armed with Kalashnikov, other was armed with mouser while
third was armed with SBBL gun, he was identified by them to be appellant who
fired directly at Ghulam Nabi to satisfy his grudge, on account of refusal made
by Ghulam Nabi to do some office work for him in Revenue department, the fire
so made by the appellant on the face of Ghulam Nabi and then accused went away,
Ghulam Nabi was taken to Tharoo Shah Hospital in injured condition therefrom was
referred to Naushehro Feroze Hospital, where he died. They have stood by their
version on all material point with regard to the death of the deceased
allegedly at the hands of the appellant though were subjected to cross
examination. On arrest from the appellant as per SIO/Inspector GhulamHussain
has been secured the incriminating gun, which on forensic examination has been
found to be matched with the empties secured from the place of incident. In
that situation,we would be very hard to make a conclusion that the appellant
has been involved in this case falsely by the complainant party on account of
their dispute with them over landed property.
14. No
doubt, FIR of the incident has been lodged with delay of one day, but there
could be no denial to the fact that the priority with the complainant party was to save
life of Ghulam Nabi, who admittedly after sustaining fire shot injuries was
found to be alive and was taken by the complainant party from one Hospital to
other with a view to save his life, which caused delay in lodgment of FIR, same
being natural could not be treated to be fatal to the case of the prosecution.
15. The conclusion which could be
drawn of the above circumstances, would be that the prosecution has been able
to prove its case against the applicant beyond shadow of doubt and he on the
basis of such evidence has rightly been convicted and sentenced by learned
trial Court.
16. So far modification of conviction
from imprisonment of life to death is concerned, it is not called for mainly for the reason that there was no
deep rooted enmity between the parties and the dispute between them allegedly was
over sell of the landed property and/or performance of official work.
17. In
case of IftikharHussain Vs. IsrarBashir 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 GhulamMurtaza 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”.
18. 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, which we think has rightly been considered in the present case.
19. In case of GhulamMohiuddin alias Haji Babu & ors Vs. The State (2014
SCMR-1034), it has been held by the HonourableApex Court that;
“---S.302(b)---Qatl-e-amd---Sentence---Death sentence or imprisonment for life---Single mitigatingcircumstance---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”.
20. In view of above, the instant
criminal appeal and constitutional petition are disposed of in above terms.
Judge
Judge
Nasim/P.A