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

Irfan/PA