Judgment
Sheet
IN THE HIGH COURT OF SINDH, BENCH
AT SUKKUR
Cr. Jail Appeal No. D – 22 of 2012
Conf. Case No. D – 02 of 2012
Before :
Mr. Justice Naimatullah Phulpoto
Mr. Justice Abdul Mobeen Lakho
Date of hearing : 26.09.2019 & 01.10.2019.
Date of announcement : 15.10.2019.
Mian Mumtaz
Rabbani, Advocate for appellant.
Mr. Zulfiqar Ali
Jatoi, Additional Prosecutor General.
J U D G M E N T
NAIMATULLAH PHULPOTO, J. – Ghulam Mustafa alias Mustan, appellant was
tried by learned Additional Sessions Judge, Gambat for offence under Section
302, PPC. After regular trial, vide judgment dated 31.03.2012, appellant was found
guilty. He was convicted under Section 302(b), PPC and sentenced to death.
He was directed to pay compensation / fine of Rs.1,00,000/- (rupees one lac) in
terms of Section 544-A, Cr.P.C, to be paid to the legal heirs of the deceased.
In case of the default in the payment of compensation / fine, appellant has
been ordered to suffer S.I for six months more. Appellant has been extended
benefit of Section 382-B, Cr.P.C.
2. Brief
facts of the prosecution case, as reflected in the judgment of the trial Court,
are as under:
“ Succinctly
unfolded facts in crime No. 64 of 2008 are that Syed Shoukat Ali Shah, on
25.5.2008, at 0940 hours, lodged FIR, of the incident alleged to have taken
place, on the same date on 0900 hours, that Syed Irshad Ali shah aged about
47/48 years was his elder brother who gave Rs.10,000/- to accused Ghulam
Mustafa about one year ago on credit and his brother used to demand said amount
from accused who kept him on false hopes. On 25.5.2008 complainant along with
his cousin Manzoor Hussain and relative Mithal Shah were jointly taking the tea
in the hotel of Zamir and were sitting in the hotel, where accused Ghulam
Mustafa came there with hatchet who was sitting there. In the meanwhile, Irshad
Ali Shah came and Irshad Ali Shah demanded Rs.10,000/- from the accused as he
was in strong need of money. Accused said to Irshad Ali to talk with him at
outer side of hotel, thereafter both were standing and talking on eastern
side, all of sudden at 9’o Clock, accused Ghulam Mustafa raised voice and said
to Irshad Ali that frequently he was demanding for his money, therefore, he was
sick off it and to-day he will not spare him. Saying so, before the eyes of
complainant party accused Ghulam Mustafa directly hit hatchet blow to him who
after receiving hatchet injuries raising cry fell on earth. In the meanwhile,
complainant party raised cries of “Murder” Murder” and accused said to
complainant party to not come near to him, saying so accused ran away in
western side with hatchet from the place of occurrence. Thereafter, complainant
saw that Irshad Hussain had received hatchet injuries below the ear who
succumbed to his injuries. Thereafter, complainant left the PWs, over the dead
body and came at P.S. and lodged the FIR. ”
FIR
was recorded on 25.05.2008 at P.S Sobhodero, District Khairpur vide Crime
No.64/2008 for offence under Section 302, PPC.
3. Investigation has been carried out by
SIO Muhammad Ameen. After receipt of the FIR, he inspected the place of
occurrence situated in front of the hotel of Zamir, which was shown to him by
the complainant in presence of mashirs namely Mehar Ali and Raza Muhammad;
such mashirnama was prepared. Dead body was lying at the place of
occurrence. Inquest report was prepared. Bloodstained earth was secured and it
was sealed at spot. Thereafter, SIO dispatched the dead body through ASI
Muhammad Khan for conducting the postmortem examination and report. After
postmortem examination by the doctor, the dead body was handed over to the
legal heirs of the deceased. Investigation Officer dispatched bloodstained
clothes of the deceased, bloodstained earth and hatchet produced by the accused
to the chemical examiner for analysis and report. Investigation Officer wrote a
letter to the Mukhtiarkar for preparation of the sketch of the place of wardat
and he recorded 161, Cr.P.C statements of the PWs on 26.05.2008, next day of
the incident. Accused was arrested on 01.06.2008 in presence of the mashirs.
During interrogation, accused prepared to produce the hatchet used by him in
commission of the offence. Accused led the Investigation Officer and mashirs
to the graveyard and produced the hatchet. It was bloodstained and secured by
the Investigation Officer; such mashirnama was prepared in presence of
the mashirs. On the conclusion of the investigation, challan was
submitted against the accused for offence under Section 302, PPC.
4. Trial
Court framed the charge against the accused at Ex.02. Accused pleaded not guilty
and claimed to be tried.
5. At
the trial, prosecution examined seven (07) prosecution witnesses. Thereafter, prosecution
side was closed.
6. Statement
of the accused was recorded under Section 342, Cr.P.C, in which accused claimed
false implication in this case and denied the prosecution allegations. Accused
has denied all the incriminating pieces of the evidence against him. 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, vide judgement dated 31.03.2012, convicted the appellant
for offence under Section 302(b), PPC and sentenced to death, however, death
sentence was subject to the confirmation by this Court. Appellant has impugned
the said judgment in this appeal.
8. By
this single judgment, we intend to decide the appeal filed by the appellant as
well as confirmation Reference made by the trial Court.
9. As
regards to the unnatural death of the deceased, Investigation Officer had
dispatched the dead body of Syed Irshad Ali Shah to the Medical Officer, GIMS
Gambat. Prosecution has examined Dr. Maqsood Ahmed (PW-1) at Ex.04 and he has
deposed that on 25.05.2008, SHO, P.S Sobhodero referred to him the dead body of
Syed Irshad Ali Shah for conducting the postmortem examination and report.
Medical Officer started postmortem examination at 11:30 a.m. and finished it at
12:30 p.m. On external examination of the dead body, Medical Officer found
following injuries:
“ 1. One
incised injury on right side of neck size 11 cm x 4 cm deep
muscle.
2. One incised injury on right side of neck upper part size 12 cm x 5 cm deep muscle. All vessels of concerned
part and trachea cut down.
3. One mark of abrasion on left side of chest. ”
On
internal examination of the dead body, Medical Officer found that left thorax
wall, larons, trachea and blood vessels of throat were damaged. From the
external as well as internal examination of the dead body of the deceased,
Medical Officer was of the opinion that death of deceased has been occurred due
to hemorrhage shock, the result of injuries sustained by the deceased by means
of sharp cutting weapon. All the injuries were ante mortem in nature and were
sufficient to cause death in the ordinary course of life. Probable time elapsed
between the injuries and death was a few minutes up to 5/8 minutes. Probable
time elapsed in between death and postmortem examination report was 1 hour and
30 minutes. Medical Officer issued such postmortem examination report and
produced it at Ex.04/B. Medical Officer has been cross-examined by the defence counsel
and he denied the suggestion that he had issued the postmortem examination
report at the instance of the complainant.
10. Three
eyewitnesses have been examined by the prosecution namely Syed Shoukat Ali Shah
(PW-3), Syed Mithal Shah (PW-4) and Syed Manzoor Hussain Shah (PW-5). All of
them had deposed that death of the deceased was caused by means of sharp
cutting weapon i.e. hatchet. It is proved that the deceased died his
unnatural death as described by the Medical Officer.
11. Now
the question arises that who had committed murder of the deceased? In order to
substantiate the same, prosecution has examined following witnesses:
Complainant
Syed Shoukat Ali Shah, deposed that deceased Syed Irshad Ali Shah was his
brother; Syed Manzoor Hussain Shah is his cousin and Syed Mithal Shah is his
relative. Present incident took place about three years back. He was present in
the village. In the morning time, he along with Syed Mithal Shah and Syed
Manzoor Hussain Shah went to the hotel of Zamir for taking a cup of tea. He has
further deposed that after some time when they were taking a cup of tea there, accused
Ghulam Mustafa armed with hatchet appeared and sat at the hotel. At that time,
brother of the complainant namely Syed Irshad Ali Shah (now deceased) was also
sitting at the hotel and he demanded money from accused Ghulam Mustafa by
saying that sufficient time had passed, but accused has kept him on false
hopes. Accused Ghulam Mustafa said to the deceased to come out of the hotel for
discussing the issue. Thereafter, deceased went out of the hotel and accused
declared that deceased would not be spared. Thereafter, within the sight of the
PWs accused caused hatchet with blunt side to the brother of the complainant,
which hit him at his ear and on neck, so also at chest. Complainant and other
eyewitnesses challenged the accused, but he asked the complainant party not to come
near to him else they would face the consequences. Thereafter, accused
succeeded in running away. After the incident, other persons of the locality
were also attracted. The time of the incident has been shown at about 09:00
a.m. Injured succumbed to the injuries at spot. Complainant made to sit PWs
over the dead body of his brother and went to Police Station Sobhodero where he
lodged the FIR bearing Crime No.64/2008 and produced it at Ex.06/A. In the
cross-examination, complainant has replied that he has been serving in PIA
since 1996 but the incident had occurred on Sunday. The distance between the
place of occurrence and his house is about 15 to 20 paces. Complainant has
further replied that at the time of the incident, some other persons were also
sitting at the hotel. Complainant has denied the suggestion that deceased had
dispute with Lashari community and he has been murdered by them.
Syed
Manzoor Hussain Shah (PW-5) was also the eyewitness of the incident. He has
deposed that deceased Syed Irshad Ali Shah was his cousin and present incident
took place on 25.05.2008. On the day of the incident, he along with Syed Mithal
Shah and Syed Shoukat Ali Shah went to the hotel of Zamir Hussain for taking
tea. They were sitting at the hotel.
Within 10-15 minutes, accused Ghulam Mustafa appeared there. He was armed with
hatchet. After 10-15 minutes, Syed Irshad Ali Shah came there who demanded
money from the accused, but accused replied him to come outside the hotel. It
was 08:30 a.m. He has further deposed that accused loudly declared that deceased
was developing pressure upon him and he would not spare him. Thereafter, the accused
inflicted hatchet blows to the deceased and PW Syed Manzoor Hussain Shah and
others did not go near to the accused as he was armed with hatchet. He was
cross-examined by the defence counsel. He has denied the suggestion that that
he was deposing falsely against the accused due to relationship with the
complainant and the deceased.
Prosecution
has examined third eyewitness Syed Mithal Shah (PW‑4). He has also
narrated the episode in the same manner and stated that present incident
occurred about three years ago. Deceased Syed Irshad Ali Shah had given
Rs.10,000/- to accused Ghulam Mustafa and was demanding the same amount from
him. On 25.05.2008, he along with Syed Shoukat Ali Shah and Syed Manzoor
Hussain Shah was sitting at the hotel for taking tea. In the meanwhile, accused
Ghulam Mustafa armed with hatchet appeared there and deceased demanded money
from accused Ghulam Mustafa. Thereafter, accused Ghulam Mustafa asked the
deceased to come out of the hotel for two minutes. It was 09:00 a.m. After few
minutes, accused Ghulam Mustafa asked the deceased that he would not be spared
because he was pressurizing him for return of the money. Thereafter, above
named PW has deposed that in his presence, accused with intention to commit
murder, caused hatchet blows upon the face of the deceased and accused declared
that no one should come near to him else they would also be murdered. He has
further deposed that after committing murder of the deceased, accused Ghulam
Mustafa ran away along with hatchet to the eastern side and deceased succumbed
to the injuries at spot. This eyewitness along with Syed Manzoor Hussain Shah
sat over the dead body and complainant went to the Police Station and lodged
the FIR against the accused. He was also cross-examined at length by the
defence counsel, in which he has stated that 2-3 persons were sitting at the
hotel at the time of the incident and owner of the hotel namely Zamir was also
there. However, he has denied the suggestion that he was deposing falsely
against the accused due to relationship with the complainant.
12. Prosecution
has also examined Akhtar Hussain, Tapedar of Deh Agra and he has produced
sketch of the place of incident. PW / mashir Mehar Ali has deposed that
he acted as mashir of the place of incident; such mashirnama was
produced by him at Ex.09/A. He has further deposed that on 01.06.2008, police
arrested accused Ghulam Mustafa. He was also acted as mashir of the
arrest and mashir of the recovery of the hatchet that was produced by
the accused from the graveyard. He was also cross-examined by the defence
counsel and denied the suggestion that hatchet was not recovered before him. He
has also denied the suggestion that he was deposing falsely against the accused
at the instance of the complainant.
13. Learned counsel for the appellant, after
arguing the appeal at some length, does not press the same on merits. He prayed
for reduction of the death sentence into imprisonment for life mainly on the
ground that motive has not been proved at trial. In support of his contention,
he has placed reliance upon the case of Ahsan Shahzad and another v. The
State and others (2019 SCMR 1165).
14. 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.
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)
In
the present case too, motive setup in the FIR has not been proved at trial. In
the FIR, it is mentioned that appellant had obtained loan of Rs.10,000/- from
the deceased one year ago. When the deceased demanded the return of his loan,
appellant committed his murder. Complainant Syed Shoukat Ali Shah (PW-3) has
deposed that on the day of the incident, deceased demanded money from the
accused. PW-4 Syed Mithal Shah and PW-5 Syed Manzoor Hussain Shah have also
deposed that deceased demanded money from the accused, which caused him
annoyance and he committed his murder. Motive alleged was Rs.10,000/- given by
deceased to the accused one year back. What immediately preceded occurrence
remains shrouded in mystery? No eyewitness has mentioned the details that on
which date and time, deceased gave Rs.10,000/- to the accused as loan and in
whose presence. One thing more came on record that before the incident, accused
and deceased talked out of the hotel secretly and no one knew about that
conversation. Unfortunately, the trial Court awarded death sentence to the
appellant without taking notice of the fact that prosecution had 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 v. The State
and Haji Muhammad Sadiq v. Liaquat Ali and others (2014
SCMR 1034).
16. In the recent judgment pronounced in the
case of Ahsan Shahzad and another v. The State and others (2019
SCMR 1165), Hon'ble Supreme Court held as under:
“ 10. We
have, however, observed that conviction and sentence of the appellant recorded
by the learned trial court and altered/modified by the learned appellate court
under section 7(a) of the Anti-Terrorism Act, 1997 cannot sustain because the
prosecution alleged a specific motive in the FIR as well as before the learned
trial court. Although according to the verdict of the learned Lahore High Court
the said motive was not proved but the fact remains that the prosecution
pressed hard that the murder of Amjad Rashid was committed because of personal
vendetta. Moreover, it was brought
on record through the cross-examination of complainant that the provisions
of Anti-Terrorism Act, 1997 were added in this case after a considerable
delay. Considering the overall circumstances of the case, we are of the view
that provisions of Anti-Terrorism Act, 1997 are not attracted in this case
particularly when only deceased was the target. Accordingly conviction and
sentence of the appellant under section 7(a) of the Anti-Terrorism Act, 1997 is
set aside and he is acquitted of the aforesaid charge. Sentence of imprisonment
for life under section 302(b), P.P.C., the amount of compensation and the
sentence in default thereof as altered/upheld by the learned appellate court
for qatl-i-amd of Amjad Rashid (deceased) are maintained. Benefit of section
382-B, Code of Criminal Procedure shall be available to the appellant. ”
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 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. Reference in this
respect may be made to the case of Mst.
Nazia Anwar v. The State and others (2018 SCMR 911).
18. In the view of above discussion, this
appeal is dismissed to the extent of appellant’s conviction for offence
under Section 302(b), PPC, but the same is partly allowed to the extent
of his death sentence, which is reduced to the imprisonment for life. Appellant
is ordered to pay compensation of Rs.1,00,000/- (one lac) to legal heirs of
deceased, in terms of Section 544-A, Cr.P.C, as directed by the trial Court. In
case of default in the payment of compensation thereof to suffer S.I for 06
months. The benefit under Section 382-B, Cr.P.C shall be extended to the
appellant. The Reference made by the trial Court for confirmation of the death
sentence is answered in the negative.
19. The appeal and confirmation Reference are
disposed of in the above terms.
J U D G
E
J U D G
E
Abdul Basit