Judgment Sheet
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Criminal
Jail Appeal No. D – 97 of 2016
Criminal
Jail Appeal No. D- 96 of 2016
Confirmation
Case No. D – 06 of 2016
Present.
Mr. Justice
Naimatullah Phulpoto &
Mr.
Justice Abdul Mubeen Lakho.
Date
of hearing: 05.09.2019
Date of announcement:
26.09.2019
Mr. Imdad
Ali Malik Advocate for the appellants.
Syed Sadar Ali Shah, Deputy Prosecutor
General.
J U D G M E N T
NAIMATULLAH
PHULPOTO, J. Appellants
Wali Muhammad and Muhammad Ramzan were tried by learned 2nd
Additional Sessions Judge Khairpur for offences under Sections 302, 147, 148
PPC. After regular trial vide Judgment dated 07.05.2016, appellants were
convicted under section 302 (b) PPC and sentenced to death. Trial Court has
made reference to this Court for confirmation of death sentence as provided U/S
374 Cr.P.C.
2. Brief facts of the prosecution case as
disclosed in the FIR are that complainant Noor Muhammad cultivates the land.
Before this incident, nephew of complainant namely Muhammad Ismaeel had married
to Mst. Mithan against the wishes of her parents. It is alleged that accused
Basheer Ahmed and others were annoyed with Muhammad Ismaeel over such un-ceremonial
marriage. On the day of incident viz. 21.2.2011 at 1400 hours complainant along
with his brother Ghulam Nabi aged 32 years and his son Ali Gul, nephew Abdul
Qadir went to Drib Mehar Shah with some work. At about 2.00 pm, when they
reached near Drib Mehar Shah Union Council, it is alleged that accused Muhammad
Ramzan son of Bagh Ali, Ilyas son of Abdul Ghani, Wali Muhammad alias Waloo,
Basheer, Illahi Bakhsh both sons of Adam all by caste Ujjan armed with TT
pistols and five unknown persons armed with Kalashnikovs appeared there.
Complainant had claimed to identify unknown persons if came before him. As soon
as culprits appeared, they declared that
Ghulam Nabi would not be spared. Complainant and other witnesses due to fear remained
calm. A set of accused persons, who were armed with pistols fired upon brother
of the complainant namely Ghulam Nabi, which hit him and he fell down. Complainant,
other eye witnesses raised cries and on
fire arm reports other persons also came running to spot. Accused succeeded to
run away towards Northern side. Complainant party saw that Ghulam Nabi had
sustained fire arm injuries at his chest, left shoulder and other parts of body
and succumbed to injuries at spot. Thereafter, complainant made P.Ws to sit
over the dead body of his brother and he went to Police station and lodged FIR
against the accused persons, it is further alleged that accused persons named
above had committed the murder of brother of the complainant at the instigation
of Imam Bakhsh son of Tayyab Ujjan. FIR of the incident was recorded by ASI
Manzoor Hussain Siyal vide crime No.28/2011 on 21.02.2011 at 1445 hours at
Police station Tando Masti Khan. After registration of the FIR, investigation
was entrusted to SIP Jamsher Ali. He proceeded to the place of vardat, it was
shown to him by complainant. Dead body of Ghulam Nabi was lying at the place of
vardat. Investigation Officer inspected it in presence of complainant and
mashirs and noted that deceased had sustained 03 injuries, on different parts
of body. I.O collected five empties of TT pistol and four empties of Kalashnikovs
from vardat. He had also collected blood stained earth in presence of mashirs
Pervez and Nisar. Investigation Officer prepared inquest report of dead body
and mashirnama of vardat. Thereafter, dispatched dead body of Ghulam Nabi through
PC Bakht Ali to the Medical Officer for conducting post mortem examination
report. During investigation, he recorded 161 Cr.P.C statements of the P.Ws Ali
Gul and Abdul Qadir on the same day and further statement of complainant was
recorded during investigation. PC Bakht Ali handed over last worn clothes of
deceased to the I.O. He prepared such mashirnama in presence of mashirs. SHO
Ghulam Abbass Shar arrested accused Allah Dino on 22.02.2011 in presence of the
mashris and such mashirnama was prepared. Accused Muhammad Ilyas was arrested
on 23.02.2011 near Ghulam Ujjan road in presence of same mashirs, such
mashirnama was also prepared by him. On the spy information, accused Wali
Muhammad was also arrested in presence of same mashirs and from his possession
one TT pistol was recovered with 04 live bullets, it was without license, such
mashrinama was also prepared. Thereafter, accused Wali Muhammad and case
property were brought to PS where FIR against the accused Wali Muhammad U/s
13(d) A.O was lodged on behalf of State. Appellant Muhammad Ramzan was also
arrested during investigation and TT pistol was recovered from his possession
in presence of mashirs Nisar and Pervez. Accused Muhammad Ramzan had also no
license of the weapon carried by him. Mashirnama of arrest and recovery was
prepared. Thereafter, accused and case property were brought to Police Station
Tando Masti Khan and FIR against accused Muhammad Ramzan was lodged on behalf
of state U/S 13(d) A.O. I.O dispatched crime weapon empties to the
ballistic expert so also blood stained earth for analysis. During investigation
Mukhtiarkar inspected place of vardat and prepared such sketch. I.O received
the report of chemical examiner and submitted challan against accused Wali
Muhammad alias Waloo and Muhammad Ramzan U/S 302, 147, 149 PPC. Accused namely
Ilyas, Basheer, Illahi Bakhsh, Imam Bux and Allahdino were let off by the
police during investigation and their names were kept in column No.2 of the
charge sheet.
3. Learned trial Court framed charge
against appellants Wali Muhammad and Muhammad Ramzan at Exh. 3. Both accused pleaded not guilty and claimed to
be tried.
4. In order to substantiate the charge, prosecution
has examined (11) P.Ws, thereafter prosecution side was closed.
5. Trial Court recorded statements of the
accused / appellants U/S 342 Cr.P.C at Exh. 32 and 33. Both accused denied the
prosecution allegations and raised plea that PWs are interested and related to
the deceased. Accused/appellant Wali Muhammad in a reply to question No.6 what
else he has to say ? He replied that complainant
party has involved him falsely in this case to take the revenge . Accused Muhammad
Ramzan has also raised plea that complainant party had kidnapped his sister and
he lodged FIR against them and he has been falsely implicated in this case to
pressurize and to withdraw from that case. Both accused did not lead any
defense and declined to give statement on oath in disproof of prosecution
allegations.
6. Learned trial Court after hearing
learned counsel for the parties and assessment of the entire evidence,
convicted and sentenced the appellants to death as stated above. By this single
judgment, we intend to decide the aforesaid appeals as well as confirmation
Reference made by the trial Court.
Facts
of this case as well as evidence produced before the trial Court find an
elaborate mention in the judgment passed by trial Court and, therefore, same
may not be re-produced here so as to avoid duplication and unnecessary repetation.
7. Mr. Imdad Ali Malik Advocate for appellants mainly contended that P.Ws were
chance witnesses and medical evidence was contradictory to the ocular evidence.
It is further contended that some accused were let off by the police during
investigation as such evidence of eye witnesses against appellants was not
trust worthy and confidence inspiring. It is also argued that specific motive
has been set up in the FIR at the time of reporting crime by the
complainant but prosecution has failed
to prove it at trial. Lastly, it is argued, in case, Court is not convinced
from the arguments advanced by defense counsel then it is prayed that appellants’
death sentence may be converted to imprisonment for life. Learned advocate for
appellants, in support of his contentions relied upon the case of Abdul Ghaffar
v. The State reported as 2015 P.Cr.L.J 985. Learned counsel for appellant did
not press Cr. Jail Appeal No.96/2016 for offence U/S 13(d) Arms Ordinance as
appellant Wali Muhammad has already served sentence of 05 years, hence, Cr.
Jail Appeal No.96/2016 is dismissed as not pressed.
8. Syed Sardar
Ali Shah DPG argued that occurrence in this case had taken place at 2.00 pm on
21.02.2011 near Union Council Drib Mehar
Shah and FIR in respect of the alleged
offence had been lodged at Police station Tando Masti Khan within 45 minutes of
the incident, which excludes the possibility of the false implication of the
accused. It is further argued that ocular evidence has been corroborated by the
medical evidence and recovery of pistols from possession of appellants.
However, learned DPG very rightly and
frankly argued that prosecution has failed to prove motive at trial and submitted
that the death sentence awarded to the appellants may be converted to the
imprisonment for life. In support of his contentions, he relied upon the case of
Mst. Nazia Anwar v. The State reported as 2018 SCMR 911.
9. As regards
to the unnatural death of deceased Ghulam Nabi, prosecution has examined Dr.
Syed Muhammad Hussain (PW-3) he has deposed that on 21.02.2011, SHO PS Tando
Masti Khan referred to him dead body of Ghulam Nabi son of Photo Khan for
conducting the post mortem examination and report. He stated post mortem
examination of deceased at 5.15 pm and completed at 5.45 pm, on the same date.
From external examination of dead body M.O found the following injuries.
1. Lacerated wound of 1 x1 cm in L side of chest
below clavical with inverted margins wound of (entry).
2. Lacerated wound of 1 x 1.5 cm L back of chest
with averted margins wound of (Exit).
3. Lacerated wound of 1x1 cm L pubic area with
inverted margins wound of (entry).
4. Lacerated wound of 1x1.5 cm L buttock
posterior with averted margins wound of (exit).
5. Lacerated wound of 1x2 cm on back of R thigh
with averted martins wound of (Exit).
6. Lacerated wound of 1x1.5 cm on Antero medial
side of R thigh with inverted margins wound of (entry).
From
the internal examination, Medical Officer found that damage was caused to the
left lung, it was ruptured and congested.
From
the external as well as internal examination of the dead body of deceased
Ghulam Nabi, M.O was of the opinion that death had occurred due to excessive
bleeding caused by fire arm injuries. All the injuries were ante mortem in
nature and were sufficient to cause death. The time elapsed between injuries
and death 15 to 30 minutes, while the time in between death and post mortem was
about 1˝ hours. Unnatural death of deceased has not been disputed by defense
counsel, even integrity and efficiency of the doctor were not questioned before
the trial Court. We have no hesitation to hold that deceased died due to fire
arm injuries as described by Medical Officer.
10. Now, the
question arises that who had committed murder of the deceased. In order to
prove it, prosecution has mainly relied upon the evidence of following
witnesses.
Complainant Noor Muhammad has deposed
that on 21.02.2011 he along with his brother Ghulam Nabi (now deceased), his
son Ali Gul and PW Abdul Qadir had gone to Drib Mehar Shah for some work. At
about 2.00 pm, when they reached near Union Council Drib Mehar Shah, accused
Muhamamd Ramzan, Wali Muhammad, Basheer, Illahi Bakhsh armed with TT pistols
and five unknown persons armed with K.Ks appeared there. They challenged to the
complainant party to remain keep and clam and declared that Ghulam Nabi would
not be spared. Thereafter, he deposed that accused armed with pistols fired at
Ghulam Nabi with intention to kill him and fires hit him and he fell down and
accused ran away. As regards to the motive for commission of offence,
complainant has stated that Muhammad Ismaeel had contracted marriage with Mst.
Mithan against wishes of her parents which caused much annoyance to accused
Basheer and others. Complainant further stated that deceased Ghulam Nabi died
at spot and he went to PS and lodged report. Ali Gul (PW 1) was also
accompanied with complainant at the time of incident, he narrated the same facts
and stated that accused Wali Muhammad, Ramzan, Basheer, Illahi Bakhsh, Ilyas
armed with pistols and K.K.s appeared at place of incident and declared that
Ghulam Nabi would not be spared and made firing upon Ghulam Nabi, fires hit
him, he fell down. Accused went away while making aerial firing. Abdul Qadir (PW 2) has also narrated the same
story, that on 21.02.2011 he along with deceased Ghulam Nabi went to Drib Mehar
Shah for purchase of fertilizer, at 2.00 pm they reached near Union Council
where accused Muhammad Ramzan, Wali Muhammad, Ilyas, Basheer, Illahi Bakhsh
armed with TT pistols and 7/8 unknown persons appeared and declared that Ghulam
Nabi would not be spared. He tried to intervene but as accused were armed with
weapons he remained calm. Investigation
Officer (PW- 5) had conducted investigation and collected material / evidence
against the appellants / accused and submitted challan against them.
During trial complainant Noor
Muhammad, P.Ws Ali Gul and Abdul Qadir had appeared as eye witnesses. They
remained firm on all major particulars of the case i.e date, time and place of
occurrence. Despite lengthy cross examination, their credibility could not be
shaken. The PWs had no enmity with the appellants to falsely implicate them in
the case. The incident had taken place on 21.02.2011 at 1400 hours whereas the
FIR was registered on the same day at 1445 hours i.e after forty five minutes
of the occurrence wherein the appellants were specifically nominated with a
role. Such a promptly lodged FIR excludes any chance of false implication. Eye
witnesses had given sufficient explanation with regard to their presence at the
time of incident. PW 1 has replied in cross examination that he intervened but
remained calm as culprits were armed with deadly weapons. We firmly believe
that nature of every person is different, some times some people keep themselves away at the time of incident
because of the fear of the death. As we have already mentioned that medical evidence has provided
full support to the ocular account furnished by complainant Noor Muhammad and
eye witnesses Ali Gul and Abdul Qadir. Learned trial Court has already undertaken an exhaustive
analysis of the evidence available on record and came to the conclusion that
prosecution has established its case against the appellants. Upon our
independent evaluation of evidence, we have not been able to take a view of the
matter different taken ;by the trial Court. Findings of the trial Court carry weight
in the eyes of law.
11. As regards to the motive for commission of offence
as set up in the FIR, it is mentioned that newphew of the complainant namely
Muhammad Ismaeel had contracted marriage with Mst. Mithan against the wishes of
her parents, which caused much annoyance to the absconding accused Basheer and
others but at the trial no independent corroboratory evidence on the point of
motive has been furnished. Prosecution had also failed to examine Muhammad
Isameel and Mst. Mithan to prove the
motive. According to prosecution case, one Muhammad Ismaeel had contracted
marriage with Mst. Mithan, as to why deceased was attacked, it is shrouded in
mystery. Investigation in this case has been carried
out by SIP Jasmher Ali (PW-5). In the cross examination, he has replied that he
had not recorded statements of Muhammad Ismaeel and Mst. Mithan to ascertain
the motive. I.O has also admitted that he failed to collect any document /
material with regard to marriage in between Muhammad Ismaeel and Mst. Mithan.
Motive of the incident has remained absolutely unproved. D.P.G has rightly
argued that prosecution could not prove the motive at trial. The law is settled
by now that if prosecution asserts the motive but fails to prove the same then
such failure on the part of the prosecution may react against a sentence of
death passed by the trial Court and reference in this respect may be made to
the Judgment of Hon’ble Supreme Court in the case of Mst. Nazia Anwar v. The
state (2018 SCMR 911). Relevant para is reproduced as under:-
“4. I have particularly attended to
the sentence of death passed against the appellant and have noticed in that
context that the motive set up by the prosecution had remained far from being
establish ed. According to the FIR as well as the statement of the complainant
the motive was based upon borrowing of a sum of Rs. 5,000/- by the appellant
from the deceased and on the issue of repayment of that loan a heated exchange
had taken place between the appellant and the deceased. Mst. Sadiqa Bibi
complainant (PW2) was the only witness produced by the prosecution regarding
the alleged motive but in her deposition made before the trial court the
complainant had admitted that the appellant and the deceased were on very good
and friendly terms, no date or time of borrowing of the relevant amount by the
appellant from the deceased had been specified by the complainant, the
complainant was not present when the money had been borrowed by the appellant
from the deceased, no date, time or place of the altercation taking place
between the appellant and the deceased over repayment of the borrowed amount
had been specified by the complainant and admittedly the complainant was not
present when the said altercation had taken place. In these circumstances it is
quite obvious to me that the motive asserted by the prosecution had remained
utterly unproved. The law is settled by now 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), Iftikhar Mehmood and another v.
Qaiser Iftikhar 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), Sabir Hussain alias Sabri v. The State (2013 SCMR 1554), Zeeshan Afzal
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 Nadeem
Waqas 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). After going through the entire record of the case from cover to
cover and after attending to different aspects of this case I have found that
although it is proved beyond doubt that the appellant was responsible for the
murder of the deceased yet the story of the prosecution has many inherent
obscurities ingrained therein. It is intriguing as to why the appellant would
bring her four months old baby-boy to the spot and put the baby-boy on the
floor and then start belabouring the deceased with a dagger in order to kill
her. I have, thus, entertained no manner of doubt that the real cause of
occurrence was something different which had been completely suppressed by both
the parties to the case and that real cause of occurrence had remained shrouded
in mystery. Such circumstances of this case have put me to caution in the
matter of the appellant's sentence and in the peculiar circumstances of the
case I have decided to withhold the sentence of death passed against the
appellant.”
After
going through evidence available on record, we have come to the conclusion that
prosecution has proved its case beyond doubt that appellants had committed
murder of Ghulam Nabi and FIR was lodged against them within 45 minutes. Ocular
evidence was corroborated by medical evidence, yet the story of the prosecution
has many inherent obscurities ingrained therein. Since the motive has not been
established at trial, such circumstances of the case has put us to the caution
in the matter of appellants’ sentence and in the peculiar circumstances of the
case while relying upon the case of Mst. Nazia Anwar (supra) we have decided to
withhold the sentence of death passed against the appellants.
12. For what has
been discussed above, this appeal is
dismissed to the extent of
appellants’ conviction for offence U/S 302 PPC but the same is partly allowed
to the extent of their sentence of death which is reduced to imprisonment for
life. Trial Court had failed to pass orders regarding compensation to be paid
to the legal heirs of the deceased in terms of section 544-A Cr.P.C. We direct
the appellants to pay compensation of Rs. 200,000/- each to be paid to the
legal heirs of deceased. In case of default thereof appellants shall suffer SI for six months.
Benefit of section 382-B Cr.P.C shall be extended to the appellants. Reference
for confirmation of death sentence is answered in negative.
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J U D G E
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J U D G E
Irfan/PA