IN
THE HIGH COURT OF SINDH BENCH AT SUKKUR
Crl. Jail Appeal No.D-261 of 2019.
Conf. Case No.D-19 of 2019.
Present:
Mr.
Justice NaimatullahPhulpoto.
Mr.
Justice Zulfiqar Ali Sangi.
Appellant: Rajib through M.Azhar
and Allah Bux Gabole, Advocates.
Complainant: Through, Mr.
Ubedulah K. Ghoto Advocate.
The
State, Respondent: Through Mr. Zulfiqar
Ali Jatoi,Addl.P.G.
Date of hearing: 18.02.2020 .
Date of announcement: 17.03.2020.
J U D G M E N
T
ZULFIQAR ALI SANGI,J:- AppellantRajib S/o Photo Mangriohasassailed
the judgment dated02.11.2019
passedbylearnedIst
Additional Sessions Judge/MCTC, Ghotkiin Sessions
Case No.90of 2009 arising out of FIR No.01/2009 offence
under sections 302, 404, 337-H(ii), 147, 148,149, PPC, registered at Police Station, KhanpurMaharwhereby
he wasconvicted for offence u/s302(b) PPC r/w section 34 PPC as Tazirandsentenced
todeath. Appellant was directed to pay compensation of Rs.500,000/-, to the
legal heirs of deceased as provided u/s 544-A Cr.P.C. In case of default, the
payment of compensation shall be recovered from him as arrears ofland revenue.
While accused namely Photo, Anwar, Meenhon alias Nadar and Mandhal were
acquitted.
2. Learned trial Court after
awarding the death penalty to the appellant has also made a Reference to this
Court for its confirmation in terms of Section 374 Cr.P.C.The appeal and
Reference are now being disposed of by this Court through this single Judgment.
3. Precisely, the prosecution
case is that complainant Muhammad IshaqueMaharlodged FIR on 08.01.2009 at about
1530 hours at Police Station KhanpurMahar stating that Allah Wadhayo S/o Gul Muhammad
Mahar aged about 28 years was his cousin. On 07.01.2009 he along with his
cousin Muhakum Din, Muhammad Hussain, and Allah Wadhayo was available at the Otaq
of ShamsuddinMangrio, it is alleged that accused Roshan and Rajib came and
asked his cousin Allah Wadhayo that there is some outstanding amount of Allah
Wadhayo against them and they intended togive him said amount and they want to
purchase another motorcyclefrom him and his cousin showed willingness went
inside the house brought motorcycle along with documents. The accused Roshan said
Allah Wadhayo that amount was available at village Bhagsar so he may accompany
them to receive outstanding so also the sale consideration amount of another
motorcycle from the village. Allah Wadhayo accompanied by both accused, boarded
on a motorcycle he asked complainant Muhammad Ishaque to accompany them then Muhakum
Din and Muhammad Hussain boarded on another motorcycle and proceededtowards
Bhagsar, motorcycle of Allah Wadhayo was ahead from them.At about 2:00 p.m,
when they reached near the link road of village Bhagsar near abandoned land of
KhairuddinMangrio, they saw accused Photo armed with a gun, Anwar armed with K.Kov,
Meenhon, Mandhal armed with pistols and two unknown persons having guns in
their hands. Accused RoshanMangrio stopped the motorcycle and accused Roshan
and Rajib took out pistols from their fold of Shalwars and all the accused
pointed their weapons upon complainant party by saying that Allah Wadhayo
demanded money from them and put them in trouble, therefore, today he would be
murdered, saying so accused Rajib made a straight fire upon Allah Wadhayo with the
intention to kill him which fire hit to him on his left temple and fell down on
the ground by raising cry while rest of the accused resorted to aerial firing
for causing harassment to the complainant party. The complainant and PWs due to
fear of weapons did not go near to them and all accused fled away from the
scene of occurrence. Complainant party then went over Allah Wadhayo who
sustained firearm injury on his left side of the head at temple region, the injury
was through and through and blood was oozing and was dead. Complainant with the
help of Police brought dead body at Taluka Hospital Ghotki where a postmortem
was conducted. After the postmortem and funeral ceremonies,the complainant
appeared at Police Station where he lodged FIR. The motive behind this incident
was the dispute over money transactions between accused and deceased over sale
and purchase of a motorcycle.
4. After the usual
investigation, challanwas submitted against the accused under sections 302,
147,148,149,404,337-H-2, P.P.C.
5. The learned trial Court framedcharge
against the accusedpersons to which theypleaded not guilty and claimed trial.
6. In order to prove its case, the
prosecution examined in all 09 PWs who also produced relevant documents in
support of their evidence before the trial court. Thereafter, learned State
counsel closed the prosecution side.
7. After completion of
prosecution evidence, learned trial court recorded statements of the appellantin
terms of section 342 Cr.P.C, wherein hedenied the prosecution case andclaimed hisinnocence.
However,hedid not opt to examinehimself on oath but intended to lead evidence
in theirdefense. Accused examined DW-1 Muhammad Bachal, DW-2 Kabir Ahmed, DW-3 QadirBux,
and DW-4 Muhammad Arbelo. Appellant claimed false implication on account of previous
dispute over landed property. Thereafter, advocate for accused closed the side
of accused vide hisstatement dated 11.10.2019.
8. Thelearned trialCourt after
hearing the Counsel for the appellant learned DDPP for the State and considering
the evidence, passed impugned judgment, which has been assailed through instant
appeal.
9. Learned counsel for the appellant/accused
contended that the appellant is innocent and has falsely been involved in this
case; that the impugned judgment is against the facts of case and law;that
there are major contradictions 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;Mr. Gabol contended that accused produced enquiry report in his
statement under section 342 Cr.P.C, but the trial Court did not discuss in the
Judgment; that incident took place on 07.01.2009 at 2.00 pm and it was reported
to the police on 08.01.2009 at 3.30 pm, with the delay of 25 hours, whereas, distance
between Police station and place of incident was about 15/16 kilometers; that
said delay in lodging of the FIR has not been explained; that police had
reached at the place of incident within two hours as deposed by complainant but
FIR was not lodged; that all the male members of appellant Rajib have been
involved by complainant in this case; that no independent person has been cited/examined
by the prosecution; that the complainant is cousin of the deceased and other
eye witnesses are also cousins of the deceased and are interested; that the father
of deceased had not lodged FIR; that the owner of Otaq had also not been cited
as witness; that the eye witnesses and complainant were not residents of the
place where incident occurred; that 3rd Eye witness MuhamamdHussain
died before his evidence; that the eye witnesses were chance witnesses and
their evidence cannot be relied upon; that theycould not explain their presence
in the Otaq at the time of incident; that after six daysof the lodging of the
FIR, 161 Cr.P.C statement of PW Muhkamuddin was recorded; that in the FIR as
well as in the evidence of eye witnesses it is mentioned that Rs.300,000/- were
outstanding against accused Roshan and not against appellant. The main
contention of the learned counsel is that the motive has not been established
at trial but motive, as alleged in the prosecution case, is shrouded in the
mystery. As regards the purchase of the motorcycle, which is mentioned in the
FIR no receipt/agreement has been produced by the prosecution to substantiate
it. No agreement has been produced before the trial Court. Appellant does not
have any show-room; that in case eyewitnesses would have been present at the
time of the incident, they would have made efforts to rescue the deceased as he
was real cousin to the complainant; that doctor has given the same time of
death as mentioned in the FIR. Blackening and charring was there. The distance
was 2/3 feet. After 11 days of the incident accused Rajib was arrested. On
26.1.2009 accused Rajib led police and produced pistol used by him in the
commission of the offence. Empty and pistol were sent to the Ballistic Expert
on 15.04.2009. A positive report was
received. Empties were collected by the I.O on the second day and according to
defence counsel, it was doubtful.Mr. M.S Azher Advocate in support of the
contention of Mr. Gabolargued that prosecution has failed to prove its case
against the appellant and both the counsel for the appellant prayed that appeal
may be allowed and the appellant may be acquitted.
10. Mr. Zulfiqar Ali Jatoi Additional P.Gsubmits
that prosecution has proved the case against the appellant beyond a reasonable
doubt; that all the witnesses supported the case of the prosecution and their
testimony is supported by the medical evidence so also recovery from appellant;
that no major contradictions in the evidence were pointed out by the defence
counsel; However he conceded that the prosecution hadnot proved the motive at the
trial. He further submitted that the investigation report has been submitted by
the appellant in his statement recorded U/S 342 Cr.P.Cin which accused Meenho
has been declared as innocent but not the appellant. He contended that no doubt
D.Ws namely Muhammad Bachal and Kabeer Ahmed have been examined but they have
not stated a single word about the appellant. Additional P.G lastly argued that
prosecution has established its case against the appellant but since motive has
not been established, therefore he prayed that death sentence may be converted
into imprisonment for life.
11. Mr. UbedullahGhoto, Advocate forcomplainantwhile
adopting the arguments of learned Additional P.G further contended that though
the motive has not been proved by the prosecution this is a case of
confirmation and not the case of a reduction of death sentence into imprisonment
for life and he prayed that appeal of the appellant may be dismissed and death
sentence awarded by the trial court may be confirmed.
12. We
have heard learned Counsel for the parties and have examined the record
carefully with their able assistance.
13. On
our assessment of evidence, we found that the prosecution established the case
against the appellant Rajib by producing trustworthy, reliable and confidence-inspiring
evidence. The main PWs gave their evidence as under:-
14. The Complainant PW-6Muhammad IshaqueEye witness of the incident deposed
that there was a dispute between his cousin Allah Wadhayo and accused Roshan on
the sale purchase of the motorcycle. He further deposed that on 07-01-2009 he
along with Muhakumdin, Muhammad Hussain and AllahWadhayo were available in the
Otak of ShamsuddinMahar, where accused Roshan and Rajib came and both said
Allah Wadhayo to give them another motorcycle on which Allah Wadhayo handed
over them motorcycle and accused Roshan asked him that money is available at
their house then they proceeded along with Allah Wadhayo towards their houses
and Allah Wadhayo asked them (complainant party) to come and give him company
on such they also proceeded on another motorcycle. He deposed that when they
reached at link road leading towards village Bhagsar at about 2.00 pm they saw
that from bushes accused Photo armed with a gun, Anwar armed with KK, Meenhon,
and Mandhal were armed with pistols, whereas, two unidentified armed with guns came
out. He further deposed that accused Roshan stopped the motorcycle and took the
pistol from the fold of his shalwar and then all accused pointed out their
weapons and asked that Allah Wadhayo had annoyed them over the matter of money
transaction, so they will kill him, then accused Rajib fired upon Allah Wadhayo
from his pistol which hit him at his left temple, who fell down and other
accused fired in the air for causing harassment to the complainant party, all
the accused then went away after taking documents of motorcycle from the pocket
of deceased Allah Wadhayo. He deposed that after leaving the witness over the dead
body he went to the police station and then took the dead body towards the hospital
for postmortem and after postmortem dead body was buried and then on the next
day he went to the police station and lodged the FIR. He further deposed that
on the same day police had visited the place of incident wherefrom recovered blood-stained
earth and three empty shells of 30 bore pistol and same were sealed separately.
He deposed on 10.01.2009, on information he along with Ali Gul, Kamaluddin, and
other police officials went to the showroom and recovered motorcycle bearing
registration No.SKM-7930 which was sellout by accused Roshanas the police
recovered the same and prepared the mashirnama. This witness was cross-examined
at length but we do not find any material contradiction.
15. Eye witness PW-7Muhakumdindeposed that
there was a dispute on sale and purchase over a motorcycle in between accused
Roshan and deceased Allah Wadhayo. On 07.01.2009 he along with Muhammad
Ishaque, Muhammad Hussain and Allah Wadhayo were available at the Oataq of
ShamusdinMahar, where accused Roshan and Rajib came there and said Allah
Wadhayo that they want to purchase one another motorcycle from him. Thereafter,
Allah Wadhayo went to his house and came with motorcycle and documents and both
the accused said to Allah Wadhayo that his previous money so also the amount of
motorcycles were lying at their village near Bhagsar and told him to accompany
them towards their village then Allah Wadhayo requested him and Muhammad
Ishaque and Muhammad Hussain to accompany with him and they all proceeded on
motorcycles when they reached link road Bhagsar near the land of
KhairdinMangrio at 02.00 pm, they saw accused Photo Mangrio armed with a gun,
Anwar Mangrio with K.K, Meenhon, Mandhal armed with pistols, Nadir armed with a
gun and another accused who was unidentified armed with a gun came out from bushes.
He further deposed that accused Roshan and Rajib tookout pistols from their
fold of Shalwar and pointed the same upon them and directed them not to come
near to them as they want to kill Allah Wadhayo who was teasing them over the
money transaction of motorcycles and in their presence accused Rajib fired from
his pistol upon Allah Wadhayo which hit him on his left temple and fell down on
the ground, whereas, other accused fired in the air for causing harassment and
took the documents of motorcycles from the pocket of Allah Wadhayo. Leaving
them upon dead body complainant went to the police station and returned with
police who shifted the dead body to the Taluka Hospital Ghokti and after burial
the same at night time complainant on the next day lodged the FIR. He was an eye
witness of the incident and fully supported the version of the complainant, he
was cross-examined at length but his evidence was not shattered.
16. MashirPW-8Kamaluddin deposed that on
07.01.2009 police hadinspected dead body at the place of incident and prepared
such mashirnama so also inquest report in his presence and co-mashir was Ali
Gul. He further deposed that on 08.01.2009 police visited the place of incident
and secured blood stained earth and three empties shells of 30 bore pistol and
sealed the same separately in their presence and mashirnama was prepared. He
deposed that on 10.01.2009 police secured one C.D 70 Honda motorcycle from one
showroom situated in MirpurMathelo in their presence and mashirnama was
prepared. He deposed that on 19.01.2009, police had arrested accused Rajib and
Roshan from village GahiMangrio and prepared such mashirnama in their presence.
This witness was also cross-examined at length but we do not find any material
contradiction.
17. Another MashirZahoor
Ahmed PW-9 deposed that on 26.01.2009, he was posted as P.C, in investigation
branch at P.S KhanpurMahar, on the same day, during interrogation, accused Rajib
confessed his guilt, before Inspector Abdul GhaffarNiazi and voluntarily agreed
to produce the pistol, which he has used in the commission of the crime and was
concealed by him, in the land of KhairddinMangrio. He deposed that they
proceeded towards pointed place along with accused under Roznamcha entry No. 09,
wherefrom accused produced one pistol which was sealed by Investigation Officer
at the spot and prepared such mashirnama in his presence and co-mashirwas Shabir
Ahmed. Accused disclosed about the said pistol being unlicensed and further
disclosed that the same was used in the murder of the deceased Allah Wadhayo.
Police returned to the police station and lodged a separate FIR on behalf of the
State. This witness was crossed examined at length but his evidence was not
shattered.
18. The prosecution
also examined PWAsif Hakeem who deposed that he was working with Dr.
MoulaBuxWasu and is well conversant with the handwriting and signature of the
said doctor. He further deposed that as per postmortem dated 07-01-2009 the
deceased Allah Wadhayo received following injuries:-
1-A One circular lacerated fire-arm wound
size 01 cm in diameter x through and through just close to left temporal area
with blackening and charring. (wound of entry).
1-B Communicating injury of 1-A size 02 cm in
diameter x through and through just below left ear (wound of exit).
19. PWJamaluddin
was examined who was the Tapedar and produced sketch of the place of wardat, the
prosecution also examined PWMukhtiar Ahmed who was posted as SHO at PS KhanpurMahar
and registered the FIR of the complainant. PW Muhammad Jeealwas examined who
was posted as PC and went at the place of incident wherefrom he took the dead
body of deceased Allah Wadhayo for postmortem after the postmortem handed over
the same toGahno under proper receipt. PW ASI Ali Muhammad was examined who was
well conversant with the handwriting and signature of Inspector Abdul
GhaffarNiazi (Investigation Officer), He produced mashirnama of the dead body,
Danishnama, Mashirnama of the place of wardat, Mashirnama of the arrest of
accused Roshan and mashirnama of arrest and recovery of accused Rajib and
stated that all the mashirnamaswere signed by Inspector Abdul GhaffarNiazi.
20. On our assessment of the evidence the important
part of which we have discussed above, we find that the prosecution has proved
its case against the appellant for the offences charged beyond a reasonable
doubt, the eyewitnesses fully supported the case of prosecution who were the
natural witnesses, the evidence of witnesses is fully supported by medical
evidence, recovery of weaponviz pistolfrom the appellant which he has used in
the commission of offence, the recovered empties from the place of incident
matched with the pistols recovered from the possession of appellant, and as
such the prosecution has proved its case beyond a reasonable doubt against the
appellant through trustworthy, reliable, cogent, oral as well as supportive
evidence.
21. We also found that the motive has not been
proved by the prosecution against the appellant;we have observed that the motive set up by the prosecution was quite
vague. Complainant Muhammad Ishaque has deposed about the motive that there was
a dispute between the deceased Allah Wadhayo and accused Roshan on money
transactions over one motorcycle and Rs. 300000/- which owed by the accused
Roshanand PW Muhakumdindeposed the same motive but they failed to give details
of the motorcycle and the amount that when it was handed over to accused Roshan
or when deceased Allah Wadhayo demanded the same from the accused Roshan and in
whose presence. The investigation officer also failed to collect evidence about
the asserted motive. The important aspect of the case is that the motive was
not attributed against the present appellant but it was alleged against the
accused Roshan who is still absconder.Learned Addl: PG has admitted that
prosecution has failed to prove the motive at trial. Co-accused Photo, Anwar,
Meenhon and Mandhal who were present at the spot had been acquitted by the
trail court.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 as has been discussed by the Honourable Supreme Court of Pakistan in cases
of Ahmad Nawaz and another v. The State (2011 SCMR 593), IftikharMehmood and
another v. QaiserIftikhar and others (2011 SCMR 1165), Muhammad Mumtaz and
another 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).
22. The learned trial court had not appreciated
the evidence with regard to the motive according to the settled principle of
law. On care-full scrutiny of the evidence, we foundno word in the evidence against
the appellant about the motive but it was alleged against the co-accused Roshan
who is still absconder.
23. For the above stated 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 appealis, therefore, dismissed and the conviction
of the appellant on the charge under section 302(b) r/w section 34, P.P.C ismaintained
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. The Appellant is entitled to the benefit of section 382-B Cr.P.C,
and all the sentences are ordered to run concurrently. The confirmation reference No: D- 19 of 2019
made by the trial court against the appellant is answered in negative.
24. The confirmation Reference
No. 19 of 2019, made by the trial court and the Crl. Jail Appeal No. D- 261 of
2019 are disposed of in the above terms.
JUDGE
JUDGE