Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Jail Appeal No. D – 85 of 2019

Conf. Case No. D – 06 of 2019

Cr. Jail Appeal No. S – 89 of 2019

Before :

Mr. Justice Naimatullah Phulpoto

Mr. Justice Zulfiqar Ali Sangi

Date of hearing : 10.03.2020.

Date of announcement : 18.03.2020.

Mr. Ghulam Murtaza Korai, Advocate for appellants.

Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General.

J U D G M E N T

NAIMATULLAH PHULPOTO, J. – Appellants Hyder alias Ali Hyder and Raja, both sons of Mir Hassan, by caste Gadani, were tried by learned 1^st Additional Sessions Judge / Model Criminal Trial Court, Sukkur in Sessions Case No.94/2002 (State V/S Mir Hassan and others) for offences under Sections 302, 324, 337-F(iii), 114, 337-H(2), 452, 35, 148, 149, PPC. After regular trial, vide judgment dated 27.05.2019, appellants were convicted and sentenced as under:

Accused Hyder @ Ali Hyder s/o Mir Hassan Gadani.

i. He is convicted u/s 302 (b) PPC and is awarded Death Sentence as Ta’zir, while exercising the powers conferred by section 265-H(2) Cr.P.C. He be hanged by neck till he is dead. Accused is further directed to pay fine of Rs.1,00,000/- (one lac), as compensation, to the legal heirs of the deceased, as provided u/s 544-A Cr.P.C read with the dictum laid down by Honourable Supreme Court of Pakistan in a case reported as 1995 SCMR 1976. In default thereof, he shall suffer simple imprisonment for three months.

ii. He is further convicted U/S 452 r/w section 114, 149 PPC and sentenced for seven years and fine of Rs.10,000/- (ten thousand), in default thereof, he shall suffer simple imprisonment for fifteen days.

Accused Raja s/o Mir Hassan Gadani.

i. He is convicted u/s 324 r/w section 114, 149 PPC and sentenced for (10) ten years R.I and with fine of Rs.1,00,000/- in default thereof, he shall suffer simple imprisonment for fifteen days.

All the sentences were ordered to run concurrently. Appellants were extended benefit of Section 382-B, Cr.P.C. Trial Court has made Reference to this Court for confirmation of death sentence awarded to appellant Hyder alias Ali Hyder in terms of Section 374, Cr.P.C.

2. Brief facts of the prosecution case as reflected in the impugned judgment are as under:

“Brief facts of the prosecution case are that complainant Gul Muhammad lodged F.I.R on 16.09.2001 alleging therein that he has two sons Asghar Ali aged 20/22 years and Muhammad Ali aged about 7 years residing with him in a Railway Quarters, Newpind, Sukkur. Prior to the incident, Hyder Ali Gadani approached him to vacate the quarter, but he refused. On the day of incident at about 8:00 a.m complainant, his brother Haji Lal Bux, maternal cousin Din Muhammad, his son Asghar Ali and his wife Lal Khatoon were present in the Quarter when Hyder Gadani having revolver, Raja, Akbar and Arif alias Haroon armed with pistols, Mir Hassan empty handed entered in the quarter of the complainant. Hyder Gadani enquired whether they are vacating the quarter or not? Complainant refused. On which Mir Hassan instigated others; on the instigation Hyder made fire with revolver which hit to Asghar Ali on the left side of abdomen. Raja made fire with pistol which hit to complainant on the right thigh; while Arif alias Haroon made fire with pistol which hit to Din Muhammad on left arm. Akbar made fires in the air. Thereafter, all the accused went by making firing in the air. Asghar succumbed to injuries and died at the spot. Complainant then went at PS where he lodged such F.I.R within 40 minutes of the incident.”

FIR was lodged vide Crime No.70/2001 at P.S B-Section, Sukkur for offences under Sections 148, 149, 302, 324, 114, 337-H(2), PPC and 13(d), Arms Ordinance, 1965.

3. After usual investigation, challan was submitted against the accused. Accused Mir Hassan expired during the trial and proceedings were abated against him vide order dated 16.10.2012. Accused Muhammad Arif alias Haroon and Ali Akbar were proclaimed offenders and proceedings under Sections 87 & 88, Cr.P.C were concluded against them.

4. Trail Court framed the charge against the appellants at Ex.06. Both appellants pleaded not guilty and claimed to be tried.

5. At the trial, prosecution examined eight (08) prosecution witnesses. Thereafter, prosecution side was closed.

6. Statements of accused were recorded under Section 342, Cr.P.C, in which accused claimed false implication in this case and denied the prosecution allegations.

7. Trial Court, after hearing the learned counsel for the parties and assessment of the evidence, vide judgment dated 27.05.2019, convicted and sentenced appellant Hyder alias Ali Hyder to death and appellant Raja to ten (10) years R.I, as stated above. Trial Court made Reference to this Court for confirmation of death sentence awarded to appellant Hyder alias Ali Hyder.

8. By this single judgment, we intend to decide Criminal Jail Appeal No. D-85/2019 filed by appellant Hyder alias Ali Hyder and Criminal Jail Appeal No. S-89/2019 filed by appellant Raja, as well as Confirmation Reference made by the trial Court.

9. The facts of this case as well as evidence find an elaborate mention in the judgment of the trial Court and, therefore, same may not be reproduced here so as to avoid duplication and unnecessary repetition.

10. Mr. Ghulam Murtaza Korai, learned advocate for the appellants, whose services were provided to them on State expenses, after arguing the Appeals at some length, did not press the same on merits. Mr. Korai submitted that prosecution has failed to prove the motive at the trial; that appellant Hyder alias Ali Hyder had not repeated the fire; that both appellants are brothers; that there are mitigating circumstances in the case for converting death sentence of appellant Hyder alias Ali Hyder to imprisonment for life. As regards to appellant Raja, Mr. Korai submitted that he has been sentenced to ten (10) years R.I for offences under Sections 324, 452, PPC and he would not press his Appeal on merits as appellant Raja has already undergone major portion of his sentence. In support of his contentions, he has relied upon the case reported as Imtiaz alias Taji and another v. The State and others (2020 SCMR 287).

11. Mr. Zulfiqar Ali Jatoi, learned Additional P.G argued that prosecution has proved it’s case against the appellants, but conceded for conversion of death sentence awarded to appellant Hyder alias Ali Hyder to imprisonment for life, on the ground that prosecution has failed to prove the motive and fire was also not repeated by the appellant.

12. We have carefully heard the learned counsel for the parties and perused the evidence minutely.

13. As regards to the unnatural death of deceased Asghar Ali is concerned, Medical Officer from the external as well as internal examination of the dead body of the deceased came to the conclusion that death of deceased had occurred due to shock and hemorrhage, consequent upon injury No.1 and it was sufficient to cause death in the ordinary course of nature, and injury No.1 was caused by discharge from firearm. On the same date viz. 16.09.2001, same Medical Officer (Dr. Iqbal Ahmed Siddiqui) had examined injured Gul Muhammad and found one injury on his person. Another injured Din Muhammad was also examined by him and he found three injuries on his person. Injury sustained by injured Gul Muhammad was caused by discharge from firearm and injured Din Muhammad had also received injuries by means of firearm. Learned advocate for the appellants did not dispute nature of the injuries and weapons used so also the unnatural death of the deceased. As such, we agree with the finding of the trial Court.

PW-1 (Gul Muhammad) is the complainant of the case. He deposed that in the year 2001, accused Ali Hyder, who is his relative, came to him and asked to vacate the quarter situated in New Pind and deliver its vacant possession to him. Complainant replied that he resides in that quarter. It was not possible for him to vacate it. It is stated that accused Ali Hyder became annoyed. On 16.09.2001 at 08:00 a.m., complainant along with his cousin Din Muhammad, wife Lal Khatoon and sons Asghar Ali (now deceased) aged about 22 years and Muhammad Ali aged about 07/08 years were present in the quarter. Appellant Ali Hyder armed with revolver, appellant Raja armed with pistol, accused Akbar and Arif armed with pistol and accused Mir Hassan empty handed came there. It is stated that appellant Ali Hyder once again asked the complainant to vacate the quarter. On his refusal, appellant Ali Hyder fired upon the complainant to kill him but it hit to deceased Asghar Ali at his abdomen and he fell down. Appellant Raja fired from his pistol upon the complainant which hit him at his right thigh. Accused Arif fired from pistol which hit to PW Din Muhammad. PW-6 (Din Muhammad) was also the injured eyewitness. He has also deposed that on the day of incident, he along with his cousin Lal Bux was present in the house of complainant Gul Muhammad where his wife Mst. Lal Khatoon and their sons Asghar Ali (now deceased) and Muhammad Ali were present. It was 08:00 a.m. Suddenly, accused Mir Hassan empty handed, Ali Hyder armed with revolver, Raja armed with pistol, Akbar armed with pistol and Arif alias Haroon armed with pistol entered into the house of the complainant. Accused Mir Hassan asked complainant Gul Muhammad to vacate the quarter. On his refusal, accused Ali Hyder fired from his revolver which hit to Asghar Ali, accused Raja fired from his pistol which hit to complainant at his thigh and accused Arif alias Haroon fired from his pistol which hit PW Din Muhammad at his forearm.

14. We have carefully examined the prosecution evidence and have come to the conclusion that prosecution has proved it’s case beyond doubt that appellant Hyder alias Ali Hyder was responsible for the murder of the deceased Asghar Ali and appellant Raja had caused injury to the injured Gul Muhammad, but motive as setup by the prosecution in the FIR has not been established at trial. Complainant has deposed that appellant Ali Hyder fired at him to kill, but fire hit to his deceased son Asghar Ali. It clearly shows that deceased Asghar Ali was not main target of appellant Ali Hyder. In the FIR regarding motive, it is mentioned that appellant Ali Hyder wanted to occupy the railway quarter in the possession of the complainant, but no document / allotment order with regard to the quarter has been produced in the evidence. We have, thus, entertained no manner of doubt that real cause of occurrence was something different which had been completely suppressed at the trial and real cause of occurrence had remained shrouded in mystery. Moreover, the appellant did not repeat the fire to the deceased though he had full opportunity. It will not be out of place to emphasize that in criminal cases, the question of quantum of sentence requires utmost care and caution on the part of the Courts. As real cause of occurrence had remained shrouded in mystery. Such circumstances of case have put us to caution in the matter of appellant Hyder’s sentence.

15. For the above stated reasons, we are of the considered view that in the given situation, there are mitigating circumstances for awarding lesser penalty to appellant Hyder alias Ali Hyder. While relying upon the case of Mst. Nazia Anwar v. The State and others (2018 SCMR 911), we have decided to withhold the sentence of death passed against appellant Hyder alias Ali Hyder.

16. For what has been discussed above, Criminal Jail Appeal No. D‑85/2019 is dismissed to the extent of appellant Hyder alias Ali Hyder’s conviction, but the same is partly allowed to the extent of his death sentence for offence punishable under Section 302 (b), PPC, which is reduced to the imprisonment for life whereas, other sentences are maintained. Criminal Jail Appeal No. S-89/2019 is dismissed; conviction and sentence awarded to appellant Raja are maintained. The benefit under Section 382-B, Cr.P.C shall be extended to the appellants. Reference made by the trial Court for confirmation of death sentence awarded to appellant Hyder alias Ali Hyder is answered in NEGATIVE.

17. With the above modification in the sentence, the Appeals and Confirmation Reference are disposed of.

J U D G E

Abdul Basit