Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Jail Appeal No. D – 69 of 2016

Conf. Case No. D – 04 of 2016

Before :

Mr. Justice Naimatullah Phulpoto

Mr. Justice Abdul Mobeen Lakho

Date of hearing : 12.09.2019.

Date of announcement : 19.09.2019.

Mr. Ubedullah Malano, Advocate for the appellant.

Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General.

J U D G M E N T

NAIMATULLAH PHULPOTO, J. – Ghulam Hussain alias Guloo, appellant was tried by learned II^nd Additional Sessions Judge, Khairpur for offence under Section 302, PPC. After regular trial, vide judgment dated 06.04.2016, appellant was convicted under Section 302, PPC as Taazir and sentenced to death.

2. Precise but relevant facts leading to the present tragedy are that on 07.12.2009, Hakim Ali Ujjan lodged FIR at Police Station Tando Masti Khan, District Khairpur alleging therein that appellant Ghulam Hussain alias Guloo was annoyed with the complainant over the matrimonial dispute. It is alleged that a few days back appellant had exchanged harsh words with the brother of the complainant namely Mushtaque Hussain (now deceased). On 06.12.2009 at 1900 hours, complainant along with his cousins Ghulam Rasool son of Iqbal Ujjan and Ghulam Shabbir son of Zanwar Fateh Ali Ujjan was sitting in the street outside the tailor’s shop and the brother of the complainant Mushtaque Hussain was coming from the street; at 07:00 p.m., he reached near Masjid where it is alleged that complainant saw on the light of electric bulbs that accused Ghulam Hussain alias Guloo armed with T.T pistol came running and declared that the brother of the complainant namely Mushtaque Hussain would not be spared. Thereafter, he fired upon Mushtaque Hussain, which hit him and he fell down and accused succeeded in running away. Complainant saw that his brother had sustained firearm injuries and blood was oozing. Injured was shifted to Taluka Hospital, Gambat for immediate treatment then injured was referred to Larkana for further treatment, but he succumbed to the injuries. After taking the dead body, complainant appeared at Police Station Tando Masti Khan and lodged an FIR on 07.12.2009 at 1200 hours; it was recorded vide Crime No.176/2009 under Section 302, PPC.

3. After usual investigation, challan was submitted against the accused under Section 302, PPC.

4. Trial Court framed the charge against the accused at Ex.02. Accused did not plead guilty and claimed to be tried.

5. At the trial, prosecution examined eleven (11) prosecution witnesses. Thereafter, prosecution side was closed.

6. Trial Court recorded statement of accused under Section 342, Cr.P.C at Ex.19, in which accused claimed false implication in this case and denied the prosecution allegations. Accused did not lead evidence in defence and declined to give statement on oath in disproof of prosecution allegations.

7. Trial Court, after hearing the learned counsel for the parties and assessment of the evidence available on record, convicted and sentenced the appellant to death vide judgment dated 06.04.2016 and made reference to this Court for confirmation of death sentence.

8. By this single judgment, we intend to decide the aforesaid appeal as well as confirmation reference made by the trial Court.

9. The facts of this case as well as evidence find and 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. Learned counsel for the appellant, at the very outset, stated that appellant does not intend to challenge his conviction on merits and only prays for reduction of the quantum of sentence on the ground that it is not the case of capital punishment and there are some mitigating circumstances, which necessarily call for reducing the sentence of death into imprisonment for life. Mainly, it is argued that prosecution has failed to prove the motive at trial. In support of the contentions, reliance is placed upon the cases of Ghulam Mohy-ud-Din alias Haji Babu and others v. The State and Haji Muhammad Sadiq v. Liaquat Ali and others reported as 2014 SCMR 1034, Ijaz Ahmad v. The State reported as 2017 SCMR 1941 and Muhammad Akram alias Akrai v. The State reported as 2019 SCMR 610.

11. Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General did not oppose the prayer so made by the appellant for reduction of the death sentence into imprisonment for life.

12. Dr. Sanaullah (PW-7) conducted autopsy on 07.12.2009 at 02:10 p.m. From the external as well as internal examination of the dead body, Medical Officer came to the conclusion that deceased died of the firearm injuries.

13. With the assistance of learned counsel for the parties, we have perused the entire evidence.

14. In the present case, eyewitnesses i.e. complainant Hakim Ali and Ghulam Shabbir have been believed by the trial Court. There is no legal infirmity in their statements. They had successfully faced the test of cross-examination. They had no enmity against the accused / appellant to involve him falsely in the case. It is a case of single accused. Question of mistake in identity of the culprit does not arise in this case as parties were known to each other. The accused has not been able to lay down any foundation for his substitution in place of real culprit. The two eyewitnesses are wholly dependable and implicit reliance can be placed on their statements. Moreover, their evidence is corroborated by the medical evidence. Realizing this fact, counsel for the appellant did not press appeal on merits, however, as regards to the motive, complainant Hakim Ali did not disclose it in his evidence. He simply deposed that appellant / accused committed murder of deceased in his presence. Ghulam Shabbir (PW-2) had also failed to disclose the motive, however, stated that appellant / accused committed murder in his presence. Investigation Officer had also failed to interrogate / collect evidence with regard to the motive for the commission of the offence. In this case matrimonial dispute between complainant party and accused has been cited as the motive behind the crime, without many details thereof, and thus, it is far from being clear as to what really actuated the appellant to take the life of deceased. Thus, motive remained absolutely unproved.

15. In the case of Mawaz Khan v. Ghulam Shabbir and the State reported as 1995 SCMR 1007, while determining the proper quantum of sentence, Hon'ble Supreme Court held as under:

“9. Adverting to the question of sentence raised by the learned counsel for Mawaz Khan, we find that Abdullah Khan (P.W.9) and Muhammad Akhtar (P.W.10) have deposed about the motive but they were not present when the incident of motive took place. The circumstance of chopping of nose and cutting the ear of the deceased will show that the act of the accused of killing the deceased was somewhat provoked. So the real motive for the crime remains shrouded in mystery. The question of benefit of reasonable doubt is necessarily to be determined not only while deciding the question of guilt of an accused person but also while considering the question of sentence, particularly in a murder case, because there is a wide difference between the two alternative sentences-death or imprisonment for life. Benefit of reasonable doubt in respect of the real cause of the occurrence was thus available to the accused. Needless to add that whenever the real cause of murder is shrouded in mystery, is unknown or is concealed, the Courts have normally awarded the lesser punishments under section 302, P.P.C. as a matter of abundant caution. ” (Underlining is ours)

16. In the present case too, motive setup in the FIR has not been proved at trial. Unfortunately, trial Court awarded death sentence to the appellant without taking notice of the fact that prosecution has failed to prove the motive. This fact certainly serves as a mitigating circumstance, where normal penalty of death was not to be awarded, but proper legal sentence of imprisonment for life was more appropriate as it has been held in the case of Ghulam Mohy-ud-Din alias Haji Babu and others (supra).

17. At the cost of repetition, it is observed that we have particularly attended to the sentence of death passed against the appellant and have come to the conclusion that motive setup by the prosecution has not been proved at trial, but it has been proved by cogent evidence that appellant had committed murder of deceased. Ocular evidence has been corroborated by the medical evidence. In these circumstances, it is quite obvious to us that the motive asserted by the prosecution had remained utterly unproved. The law is settled by now that if 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. Reference in this respect may be made to the case of Mst. Nazia Anwar v. The State and others reported as 2018 SCMR 911.

18. In the view of above stated circumstances, we have decided to withhold the sentence of death passed against the appellant.

19. For what has been discussed above, this appeal is dismissed to the extent of appellant’s conviction for offence under Section 302, PPC, but the same is partly allowed to the extent of his death sentence, which is reduced to the imprisonment for life. Trial Court had failed to order the appellant, to pay the compensation in terms of Section 544-A, Cr.P.C to the legal heirs of the deceased. It is ordered that appellant shall pay compensation of Rs.3,00,000/- (Rupees three lac) to be paid to the legal heirs of the deceased. In case of the default in the payment of compensation, appellant shall suffer S.I for six months more. The benefit under Section 382-B, Cr.P.C shall be extended to the appellant.

20. The appeal and confirmation reference are disposed of in the above terms.

J U D G E

Abdul Basit