IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

Crl. Jail Appeal No.D-157 of 2019

Crl. Appeal No.D-156 of 2019

Crl. Jail Appeal No.S-161 of 2019

a/w

Confirmation Case No.D-08/2019.

 

 

For the hearing of the main case.

 

 

                     

Present:

                Mr. JusticeNaimatullahPhulpoto.

                Mr. Justice Zulfiqar Ali Sangi.

 

 

 

Appellants:                              Sikandar Ali, Hyder Ali and Oshaque through Mr.Habib-u-RehmanShaikh, Advocate.

 

 

Respondent:                            The State through, Syed Sardar Ali Shah, D.P.G.

 

 

Date of hearing:             15.01.2020 .        

Date of decision:             15.01.2020

 

J U D G M E N T

 

 

ZULFIQAR ALI SANGI,J:-             AppellantsHyder Ali, Sikandar Ali and Oshauqe Ali son of Abdul Karim, haveassailed the judgment dated08.08.2019 passedbylearnedAdditional Sessions Judge, Mirwahin Sessions Case No.382of 2015 arising out of FIR No.111/2014 offence under sections 302, 504, 34PPC Police Station, Faiz Gun whereby accused Sikandar Ali son of Abdul Karim was convicted for offence u/s302(b) PPC andsentenced todeath as Ta’zir for causing Qatl-e-Amd of deceased Mohammad Ayoob, and sentenced him to fine of Rs.100,000/- subject to confirmation from this Court and in failure to pay fine he shall suffer six-month S.I, while accused Oshaque Ali and Hyder Ali were convicted for the same offence for imprisonment of Life (R.I) and fine of Rs.100,000/- each. In case default thereof they shall suffer six months S.I. more. Al three accused also imposed compensation of Rs.10,00,000/- (Rupees Ten Lacs) as provided under Section 544-A Cr.PC to the legal heirs of deceased persons.

 

2.                   Precisely, prosecution case is that complainant lodged FIR at Police Station, FaizGunj stating that on 28.07.2014 he along with his brother Muhammad Ayoob, Muhammad Haneef and cousin Abdul Hameed boarded on two motorcycles went to Pacca Chang Town to purchase things for Eid after such they on return when reached the Banana Garden of deceased Mohammad Ayoob at 6.00 PM: meanwhile, accused each Sikandar Ali having Pistol, Himat Ali, Oshaq Ali and Hyder Ali armed with lathies emerged from Banana garden. Accused Sikandar Ali accosted the brother of complainant namely Muhammad Ayoob and said that he had abused him and his guest, he will not spare him and kill him, due to fear complainant party get down from motorcycles, other accused persons remained to abuseby saying so accused Sikandar Ali fired four shots of pistol upon Muhammad Ayoob who fallen down. Complainant party raised crises on such many peoples gathered there, on seeing them accused person ran away in Banana Garden. Muhammad Ayoob received injuries on the chest from right side, below the shoulder, middle of chest, hand and left arm passed through and through, the arm was broken, blood was oozing from him, Injured Muhammad Ayoob was taken by the complainant party to the hospital but on the way, he died. Post mortem was conducted and on seeing the deadbody his parents were passing through fits whole night, complainant remained with his parents for their care and in the morning after funeral rites, he went police station where police registered the FIR.

3.                   After the usual investigation, the police submitted challanagainst the appellants& others.Accused Himat Ali not appeared nor was arrested by the police therefore he was shown as an absconder.

 

4.                   The learned trial Court completed all legal formalities and framedcharge against the appellants/accusedat Ex.6 to which theypleaded not guilty and claimed trial, such pleaswere obtained from them.

 

5.                   To prove its case, the prosecution examined PW-1/ complainant Abdul Fattah at Ex.12 who produced FIR at Ex.12-A. PW-02Abdul Hameedwas examined at Ex.13. PW Mohammad Haneef Chang was examined at Ex.14.SIP GhulamRasoolSharwas examined at Ex.15 who produced a memo of dead body, Danishnama, memo of clothes at Ex.15-A to 15-C. PW Khan Mohammad was examined at Ex.16 who produced a memo of site inspection, memo of the arrest of accused Hyder Ali, memo of recovery at Ex.16-A to 16-C. PW Dr. GhulamShabirShar at Ex.17, who produced the letter of police and postmortem at Ex.17-A&B. PW PC Gulsher at Ex.18 who produced the letter of a postmortem at Ex.18-A. PW Imtiaz Ali Tapadar at Ex.19 who produced the letter of SHO and his report at Ex.19-A and 19-B then mashir of the case Mohammad Yousif at Ex.20 who produced inquest report, memo of clothes at Ex.20-A and 20-B. Then learned ADPP filed statement along with chemical examiner and FSL report at Ex.21, 21/A, and 21-B and then learned State counsel closed the side of prosecution at Ex.22.

 

6.                   After completion of prosecution evidence, learned trial court recorded statements of the appellants/accusedin terms of section 342 Cr.P.C at Ex.23 to25, wherein they denied the prosecution case andclaimed their innocence, however, neither they examinedthemselves on oath nor led evidence in theirdefense.

 

7.                   Thelearned trialCourt after hearing the Counsel for the appellants learned DDPP for the State and considering the evidence, passed impugned judgment, which has been assailed through instant appeals.

8.                 Learned counsel for the appellant/accused contended that the appellants are innocent and have falsely been involved in this case with malafide intention; that the impugned judgment is against the facts of case and law;that there are major contradiction in the evidence of witnesses which creates serious doubt in the prosecution case but trial court ignored the same in violation of settled principles of law; that no active role was assigned against appellants Hyder Ali and Oshaque Ali nor direct motive is against them; that no evidence of sharing common intention of the appellantsHyder Ali and Oshaque Ali was produced by the prosecution, therefore, he prays that these appellants may be acquitted.So far the appeals of appellant Sikandar Ali. Learned counsel for the appellant in the face of overwhelming evidence against appellantand under the instructions of his client/appellant has not pressed the instant appeals on merit but has requested for a reduction in sentence on the ground that the prosecution not established/ proved motive against the appellant.

9.                 Conversely, learned D.P.G, while controverting the contentions of learned Counsel for the parties submitted that this was pre-planned murder; prosecution established the case against the appellant,Sikandar Ali, beyond reasonable doubt; He further submitted that prosecution has failed to prove motive and case of accused Sikandar Ali merits conversion from the death sentence to imprisonment for life. So far the role of other appellants Oshaque Ali and Hyder Ali were mere presence at the scene of occurrence, the motive is also not assigned against them, they did not actively participate in the incident and recorded no objection in case these two accused are acquitted of the charge. He placed reliance on the case reported in Ramachandran and others V. State of Kerala  (2012 SCMR 1156).

10.     We have heard the arguments of learned counsel for the parties and perused the material available on record with their able assistance and have considered the relevant law.

 

11.     The record reflect that the jail appeal No: 157 of 2019 was filed only by the appellant Sikandar Ali, whereas the appeal No:156of 2019 was filed on behalf of all three appellants including the appellant Sikandar Ali and confirmation reference was made by the trial court since all the appeals and confirmation case arising from the same judgment, therefore, these are being decided in this common judgment.

 

12.     Complainant namely Abdul Fattah (Eye witness)deposed that on 28-7-2014, he along with his brother Muhammad Ayoob, Muhammad Haneef and his cousin Abdul Hameed went toPacca Chang city on the motorcycles and whilereturning when they reached near the land of Muhammad Ayoob having Banana Garden, saw Sikandar Ali armed with pistol, Oshaq Ali, Hydar Ali and Himat Ali armed with Lathiesemerged from Banana Garden and issued challenges to them to which complainant party alighted from bike and accused Sikandar Ali asked the brother of complainant Muhammad Ayoob that he and his brother Abdul Fattah (Complainant) had abused his guest and he would not spare Muhammad Ayoob. Accused Sikandar Ali then fired four shots upon his brother Muhammad Ayoob to commit murder who after receiving the firearm injuries fell, they made crises on such other peoples came there and accused persons escaped to the same Banana Garden. Complainant took the injured towards the hospital but he died on the way to Hospital. He was cross-examined at length but his evidence was not shattered by the defence counsel.

 

13.     PW-2 Abdul Hameed(Eye witness) deposed that he was an eye witness of the present case. Deceased Muhammad Ayoob was his cousin and the complainant is also his cousin. On 28-07-2014 he along with his cousin namely Abdul Fattah and Muhammad Haneef on two bikes went to Pacca Chang town for purchasing articles for Eid. After purchasing the articles when they returning to their village and reached near the Banana Garden of Muhammad Ayoob on Katcha road at about 1800 hours. At once they saw accused persons namely Sikandar Ali armed with a pistol, Himat Ali. Oshaq Ali and Hydar Ali armed with Lathies came out from Banana Garden, accused Sikandar Ali abused Muhammad Ayoob by raising hakal and stated that he had abused him and his guest and he will kill him.  Due to fear of weapons, they alighted from bikes. All four accused persons abused them. Accused Sikandar Ali made four fire shots upon deceased Muhammad Ayoob to kill him. Muhammad Ayoob fell after crying.He further deposed that on crises and fire shots other villagers came there and on seeing them all accused persons went away in the Banana Garden. They saw Muhammad Ayoob received injuries on the right side of the chest below the shoulder, at the upper part of the belly, left arm and left hand, blood was oozing and arm was broken. They took injured towards the hospital but on the way, Muhammad Ayoob died. He was also cross-examined at length but we do not find any material contradiction which creates doubt in the prosecution case.

14.     PW-3 namely Muhammad Hanif(Eye witness) was examined by the prosecution who deposed that he is an eye witness of the incident,Complainant and deceased were his brothers on 28-07-2014 he along with his brother Muhammad Ayoob, Abdul Fattah and cousin Abdul Hameed went to Pacca Chang town on two bikes. After Eid shopping when they returned back to their village and reached near to the Banana Garden of Muhammad Ayoob at about 1800 hours, at once they saw Sikandar Ali armed with pistol, Himat Ali, Oshaq Ali and Hydar Ali armed with lathies came out from Banana Garden, accused Sikandar raised hakal that they will not spare them as they abused his guests, other accused also abused, due to fear of weapons they alighted from bikes. Accused Sikandar made four straight fires in his presence upon his brother Muhammad Ayoobto commit his murder who fallen down while crying, on crises and fire shots other villagers also came there to whom seen coming they went away in the Banana Garden. He further deposed that his brother received firearm injuries on the right shoulder, chest, belly, and on arm, such was through and through and arm was broken and was bleeding. Injured was taken towards hospital but on the way, he died. This witness was also cross-examined at length by the defence counsel but could not succededin getting any major contradiction.

 

15.     The important witness of the prosecution was PW-4 the Investigation officerwho was examined and he deposed that on 28-07-2014 he was present at police station FaizGunj where ASI GhulamRasoolShar handed over the FIR No:111/2014 lodged by complainant Abdul Fattah, he visited the place of wardat along with complainant and secured the blood in plastic shopper, he also secured four empties of TT pistol and prepared the mashirnama in presence of mashir namely Muhammad Yousuf and Muhammad Haneef. He recorded the statements under section 161 Cr.P.C of the witnesses and arrested the appellant Hyder Ali and during investigation recovered lathi on the pointation of appellant Hydar Ali. He was also cross-examined at length but no material contradiction was pointed out by the defence counsel.

16.     Mashirnamely Muhammad Yousuf was examined as PW-9 who deposed that on 28-07-2014 in the evening he came to about the murder of Muhammad Ayoob, he went to the hospital where police also arrived, police examined the dead body in his presence and in presence of complainant and co-mashir Ali Bux and note four firearm injuries on the body of deceased such memo was prepared in his presence and signed the same. He deposed that after the postmortem doctor handedover the sealed clothes of deceased to the P.C Gulsher who handed over the same to ASI GhulamRasool. He deposed that the place of wardat was inspected in his presence and investigation officer collected four empties of pistol and blood belongs to deceased Muhammad Ayoob. He further deposed that police arrested accused Hydar Ali in his presence and such mashirnama were prepared which he signed. He was also cross-examined at length but we do not find any material contradiction in his evidence.

17.     The Doctor namely GhulamShabirRajpur was examined who conducted the postmortem of the deceased Muhammad Ayooband found the following injuries on the person of deceased:-

(1).       Wound of entry lacerated wound of perforted type, muscle deep of size about 8*8 cm circular in shape margins are inverted, present on lateral part of left forearm about two inches above the writs joint.

 

(2).       Wound of exit of injury No:1, lacerated wound of perforated type of size 3cm*1.5cm muscle deep margins are evarted, continues with injury No:1 present on left forearm medial surface about four inches below the left elbow joint.

 

(3).       Wound of entry lacerated wound of perforated type of size about 8*8cm into the chest cavity deep, circular in shape margins are inverted, present on right side of chest below two inches to right clevical.

 

(4).       Wound of exit injury No:2, lacerated wound of perforated type of size 2cm*2cm muscle deep margins are averted, present on outer border of right scapulae in continuity of injury No:3.

 

(5).       Wound of entry lacerated wound of perforated type, of size about 8*8cm into the chest cavity deep, circular in shape margins are inverted, present on upper part of sternum.

 

(6).       Wound of exit of injury No:3, lacerated wound of perforated type of size 2cm*2cm margins are averted, present on back of chest between two scapulae.

 

(7).       Wound of entry lacerated wound of perforated type, of size about 1cm*1cm abdomen cavity deep, circular in shape margins are inverted, present three inches about the umbilicus.

 

(8).       Wound of exit of injury No: 4 lacerated wound of perforated type of size 3cm*3cmcircular in shape, margins are averted, present on back of abdomen in lumber region in continuity of injury No:4.   

 

18.     The evidence of all the eyewitnesses is fully corroborated by the medical evidence. Recovery of four empties from the place of wardatis also established from the evidence of mashir Muhammad Yousif and Investigation Officer Khan Muhammad, who fully supported the case of the prosecution. All witnesses were cross-examined at length by the defence counsel, but could not succeded in getting any material contradiction.

 

 

19.     The case against the appellant Sikandar Ali was proved by the prosecution by producing oral as well medical and other supportive evidence, he was fully implicated by all the eyewitnesses that he fired four shots upon the deceased Muhammad Ayoob in their presence such fact was further proved from the evidence of mashir and investigation office who collected the said four empties from the place of incident, furthermore the injuries upon the deceased were certified by the doctor who was also examined before the trial court and supported the case of prosecution, in presence of overwhelming evidence we have no hesitation to say that the prosecution proved the case against the appellant Sikandar Ali.

 

20.     Turning to the case of appellants Hyder Ali and Oshaque Ali all the eyewitnesses examined before the trial court had not leveled any allegation against the appellants but only deposed to the extent of their presence at the spot at the time when appellant Sikandar Ali fired shots upon the deceased Muhammad Ayoob. They did not participate in the occurrence nor caused any injury to anyone. No evidence was produced by the prosecution that the appellants Hydar Ali and Oshaq Ali shared their common intention with the main accused Sikandar Ali for murdering deceased Muhammad Ayoob. No direct motive was alleged against these appellants by the prosecution. In light of these, all things we are of the view that the prosecution failed to prove the case against the appellants Hydar Ali and Oshaque Ali.

 

21.     Since the appeal of the appellant Sikandar Ali had not been pressed on merits on the ground that his conviction of death may be reduced to life imprisonmenton the above all mitigating circumstances, therefore, the question to be considered by us now is as to whether there are any mitigating circumstances available on the record warranting reduction of the sentences of death passed against the appellant to imprisonment for life or not. In this context, we have observed that the motive set up by the prosecution was quite vague and admittedly no independent evidence worth names of those guests against them complainant and his brother (deceased) used language nor the date and time of such incident was brought by prosecution even none from those guest was examined by the complainant before the trial court in support of the asserted motive. It is settled law that if the prosecution asserts a motive but fails to prove the same then such failure on the part of the prosecution may react against a sentence of death passed against a convict on the charge of murder and a reference in this respect may be made to the cases of Ahmad Nawaz v. The State (2011 SCMR 593), IftikharMehmood and another v. QaiserIftikhar and others (2011 SCMR 1165), Muhammad Mumtaz v.The State and another (2012 SCMR 267), Muhammad Imran alias Asif v.The State (2013 SCMR 782), SabirHussain alias Sabri v.The State (2013 SCMR 1554), ZeeshanAfzal alias Shani and another v.The State and another (2013 SCMR 1602), Naveed alias Needu and others v.The State and others (2014 SCMR 1464), Muhammad NadeemWaqas and another v.The State (2014 SCMR 1658), Muhammad Asif v. Muhammad Akhtar and others (2016 SCMR 2035) and Qaddan and others v.The State (2017 SCMR 148).For all these reasons we have decided to exercise caution in the matter of the appellant's sentence of death and have felt persuaded to reduce the said sentence of death to imprisonment for life. This appeal to the extent of appellant Sikandar Ali is, therefore, dismissed and the conviction of the appellant on the charge under section 302(b), P.P.C. is maintained but this appeal is partly allowed to the extent of the appellant's sentenceof death which is reduced to imprisonment for life. Compensation, as ordered by the trial court in terms of section 544-A Cr. P.C is maintained,in default of payment of compensation the sentence awarded by the trial court is also maintained. Appellant Sikandar Ali is entitled to the benefit of section 382-B Cr.P.C.. The confirmation case No:D-08 of 2019 made by the trial court for appellant Sikandar Ali is answered in negative.Appeal ofthe appellants Hydar Ali and Oshaque Ali is allowed and both the appellants are acquitted from the charges. They are in jail they shall be released forthwith if not required in any other custody case.

21.     All the above appeals and confirmation cases are disposedof in the above terms.

22.     These are our reasons forthe short order dated: 15-01-2020.

 

 

                                                                                             JUDGE

                                                                          JUDGE