IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Crl.J. Appeal No. D– 74 of 2014.
Before;
Mr. Justice Muhammad Iqbal Mahar
Mr.
Justice Irshad Ali Shah
Appellant: Yaseen son of Dur Muhammad Chandio,
through Syed Ali Aamir Shah, Advocate
Respondent: The State,
through Mr. Abdul Rehman Kolachi,
Deputy
Prosecutor General
Date of hearing: 28-05-2019.
Date of decision: 28-05-2019.
J U D G M E N T
IRSHAD ALI SHAH, J; The appellant by way of instant Criminal Appeal has impugned
judgment dated 17-11-2014 passed by learned Additional Sessions Judge Moro,
whereby the appellant for an offence punishable u/s 302(b) PPC has been
convicted and sentenced as under;
“Hence accused is found guilty of
committing Qatal-e-amad of deceased Ashique Hussain son of Ghulam Murtaza by
caste Chandio as such accused Yaseen son of Dur Muhammad is convicted and
sentenced to death u/s 302(b) PPC. The accused shall be hanged by neck till he
is dead subject to confirmation of his death sentence by Honourable High Court
of Sindh. The accused is present in Court, produced by jail authorities
District Jail Naushehro Feroze, he is informed that he may file his appeal
within 07 days of judgment.”
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 not only committed
Qatl-e-amd of Ashiq Hussain, but fired at complainant Haji Allah Bux and his
witnesses with intention to commit their murder and then went away by making
aerial firing to create harassment, for that the present case was registered
and on due investigation, the appellant was reported upon by the police before
the Court having jurisdiction to face the 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 Haji Allah Bux at (Ex.07), he produced the
FIR, PW/2 Liaquat Ali at (Ex.08), PW/3 Ghulam Rasool at (Ex. 09), PW/4 Shah
Nawaz at (Ex. 10), PW/5 mashir Manzoor Hussain at (Ex. 11), he produced the
mashirnama of dead body at Ex. 11/A, the Danistanama, mashirnama of place of
wardhat, mashirnama of arrest of accused Yaseen, mashirnama of recovery of
pistol. PW/6 ASI Muhammad Youasif Arain at (Ex. 12), he produced receipt of
handing over of dead body to complainant Haji Allah Bux, PW/7 Dr. Manzoor
Hussain Depar of RHC Mithinai at (Ex. 13), he produced lash chakas form, post
mortem report, PW/8 Tapedar Imran Ali at (Ex. 14), he produced site plant, PW/9
SIP/Investigation Officer Ahtisham-ul-Haq Jamali at Ex.(15), he produced
chemical examiner’s report and forensic laboratory report, thereafter learned
DDPP for the State closed the side of prosecution vide statement at Ex. 16.
4. The
appellant in his statement recorded u/s 342 Cr.P.C denied the prosecutions’
allegation by stating that he is married with the daughter of complainant and
complainant has involved him in this case on account of family dispute and
pistol has been foisted upon him by the police at the instance of complainant.
However, the appellant neither examined himself on oath nor anyone in his
defence.
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 awarded to the appellant as per requirement of section 374
Cr.P.C.
6. The
instant appeal preferred by the appellant 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 considerable length was
fair enough to say that he would not press the disposal of instant appeal on
merits, if the death sentence awarded to the appellant is modified into
imprisonment for life as the appellant according to him being young man is a
first offender and certain mitigating circumstances are also available which
are justifying modification of death sentence into life.
8. Learned
Deputy PG for the State was fair enough to concede the suggestion made by
learned counsel for the appellant. 9. We
have considered the above arguments and perused the record.
10. There
is no denial to the fact that Ashiq Hussain has died of unnatural death, which
is proved by evidence of medical officer Dr. Manzoor Hussain. The appellant is
named in FIR with specific allegation that he committed Qatl-e-amad of Ashiq
Hussian by causing him fire shot injury in order to satisfy matrimonial dispute.
It has inter-alia stated by complainant Haji Allah Bux and PWs Liaquat Ali,
Ghulam Rasool and Shah Nawaz that on the night of incident, they found the appellant
with three unknown culprits committing death of the deceased by causing him
fire shot injuries with his pistol and then went away by making fires at them
with intention to commit their murder. No fire shot, however, hit either to the
complainant or to his witnesses. The complainant and his witnesses have stood
by their version on all material points despite lengthy cross examination. In
that context, they (complainant and his witnesses) have rightly been believed
by learned trial Court. On arrest from appellant has been secured the pistol,
which he allegedly used in commission of incident and it has been found matched
with the empties secured from the placed of incident by SIO/SIP Ahtisham-ul-Haq.
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, which is awarded to the appellant is calling for its modification
for the reason that there was no deep rooted enmity between the parties, motive
is appearing to be weak, the appellant is appearing to be young and first
offender, 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 Ashiq Hussain and in case of his failure to
make payment of compensation, the appellant would undergo simple imprisonment
for six months, 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
Judge
Nasim/P.A