Judgment Sheet
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Criminal
Appeal No. D – 76 of 2013
Confirmation
Case No. D – 01 of 2013
Criminal
Acq. Appeal No. D – 19 of 2013
Present:
Mr. Justice
Naimatullah Phulpoto
Mr. Justice Khadim
Hussain Tunio
Date
of hearing: 14.11.2019
Date of announcement: 26.11.2019
Mr. Riaz Hussain
Khaskheli, Advocate for appellant in Cr. Appeal No.D‑76/2013 and for
respondent in Cr. Acq. Appeal No.D-19/2019.
Mr. Ali Gul Abbasi,
Advocate for appellant / complainant in Cr. Acq. Appeal No. D-19/2013.
Mr. Zulifqar Ali
Jatoi, Additional P.G.
-.-.-.-.-.-.-.-.-.-.
J U D G M E N T
NAIMATULLAH
PHULPOTO, J. Appellant
Roshan Ali along with Ghulam Shabbir (since acquitted) was tried by learned
Additional Sessions Judge, Gambat in Sessions Case No.96/2008 for offences
under Sections 302, 114, 34, PPC. After regular trial, vide judgment dated
16.01.2013, Appellant was convicted under Section 302(b), PPC and sentenced to
death. Appellant was directed to pay compensation of Rs. 200,000/- (two lac),
to be paid to the legal heirs of the deceased in terms of Section 544-A,
Cr.P.C. In case of the default thereof, Appellant was ordered to suffer S.I for
six months. Appellant was extended benefit of Section 382-B, Cr.P.C. Co-accused
Ghulam Shabbir was acquitted of the charges.
2. Brief facts of the prosecution case as reflected
from the evidence of the complainant are as under:
“I am complainant in this case. Deceased Raja was my son.
Hadi Bux, Haji Ismail, Muhammad Ali, Faiz Muhammad and Haji Abdullah are my
witnesses. This incident took place about 4 years ago. I was available in my village.
Deceased Raja my son used to live with his maternal uncle in village Bellharo
who had kreyana Shop. On 15.3.2018 at 7.30 evening time I along with my son
Raja were sitting on his shop then accused Ghulam Shabir, Amanullah empty
handed and accused Roshan Ali having hatchet came there. Ghulam Shabir said to
Raja that his maternal uncles were closing the door of street and they were not
prevented. Raja replied that law and order is out of control therefore, main
gate of street was close but window was left open. Accused Ghulam Shabir said
his brother to take Raja and teach him lesson. Amanullah caught hold of my son
Raja and accused gave hatchet blows to Raja with an intention to cause his
murder. I raised cries which attracted Muhammad Ali, Hadi Bux, Abdullah,
Ismail and Faiz Muhammad. Accused persons seeing coming the PWs ran away from
there. We saw that my son Raja had received one injury on his head on whole
material was out and an other injury was caused in his right side hand and its
fore finger was chopped off and an other injury was on left leg and final was
in back. Raja became unconscious. Muhammad Ali and an other persons brought the
vehicle and on van we took injured Raja to taluka Hospital Gambat for treatment
and report. Raja succumbed to his injuries at the outside gate of taluka
hospital Gambat. I left the PWs in hospital and came at Sobhodero where
I lodged FIR.”
FIR was recorded on 15.03.2008 at
2200 hours vide Crime No.41/2008 for offences under Sections 302, 114, 34, PPC.
3. During
investigation, Investigation Officer found co-accused Amanullah and Ghulam
Shabbir innocent and their names were placed in column No.2 of the charge sheet.
However, challan was submitted against Appellant Roshan Ali under Section 302,
PPC.
4. Trial
Court framed the charge against Appellant Roshan Ali at Exh.2. He pleaded not
guilty and claimed to be tried. At
trial, prosecution examined complainant Arbab Ali at Exh.4 and PW / eye-witness
Hadi Bux at Exh.8.
5. During
trial, let off accused Ghulam Shabbir was joined as accused by trial Court. Amended
charge was framed against Appellant Roshan Ali and co-accused Ghulam Shabbir.
Both accused pleaded not guilty and claimed to be tried.
6. In order to prove it’s case, prosecution
has examined eight (08) PWs. Thereafter, prosecution side was closed.
7. Trial Court recorded statements of Appellant
and co-accused under Section 342 Cr.P.C at Exh. 23 and 24. Appellant Roshan Ali
examined himself on oath in disproof of prosecution allegation while accused
Ghulam Shabbir declined to examine himself on oath. Appellant examined in
defence D.Ws Nazir Ahmed, Deedar Ali, Muneer Ahmed, Dr. Zulfiqar and Abdul
Qadir.
8. Learned trial Court after hearing
learned counsel for the parties and assessment of the entire evidence, vide judgment
dated 16.01.2013, awarded death sentence to Appellant Roshan Ali while
co-accused Ghulam Shabbir was acquitted of the charges. Appellant Roshan Ali
has preferred this Appeal, while complainant Arbab Ali Mangi filed Appeal against
acquittal of respondent / accused Ghulam Shabbir. Trial Court has made
Reference for confirmation of death sentence awarded to Appellant Roshan Ali as
required under Section 374 Cr.P.C. By this singe Judgment, we intend to decide
aforesaid Criminal Appeal and Confirmation Reference made by the trial Court as
well as Acquittal Appeal filed by complainant Arbab Ali against respondent /
accused Ghulam Shabbir.
9. 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 repetition.
10. Mr.
Riaz Hussain Khaskheli, Advocate for Appellant Roshan Ali has mainly contended
that presence of complainant Arbab Ali and other eye-witnesses at the time of
incident was doubtful; that there are material contradictions in the evidence
of complainant Arbab Ali and other eye-witnesses on material aspects of the
case; that on same set of evidence co-accused Ghulam Shabbir has been acquitted
by the trial Court and conviction on same set of evidence to Appellant is not
sustainable under the law; that motive set up by the prosecution in the FIR has
not been established at trial. Lastly, argued that prosecution has failed to
prove it’s case against Appellant and prayed for his acquittal. In support of
his contentions, he has relied upon the cases of Muhammad Sharif v. Tahirur Rehman
and 3 others (1972 SCMR 144), Mangio v. The State (1976 P.Cr.L.J 243), Bashir Ahmed alias Manuu v. The State
(1996 SCMR 308) and Abdul Rahim v. Ali Bux and 4 others
(2017 P.Cr.L.J 228).
11. Mr. Ali Gul Abbasi, Advocate
for complainant argued that Appellant Roshan Ali had caused hatchet blows to
the deceased; that incident was witnessed by the father of deceased and other
eye-witnesses and ocular evidence was corroborated by the medical evidence;
that eye-witnesses had sufficiently explained their presence at the shop of deceased.
It is also argued that mere relationship of PWs with deceased is no ground to
discard their evidence, particularly when PWs had no motive to falsely
implicate the Appellant. He further argued that trial Court has rightly
appreciated the evidence and awarded death sentence to Appellant Roshan Ali. As
regards to the acquittal of respondent Ghulam Shabbir, it is argued that trial Court
had not assigned sound reasons for acquittal of the respondent. As regards to
the motive, Mr. Abbasi argued that prosecution had proved motive against Roshan
Ali and Ghulam Shabbir for commission of the offence. Learned counsel for
complainant prayed for confirming the death sentence awarded to Appellant Roshan
Ali and conversion of the Acquittal Appeal against respondent to the
conviction.
12. Mr. Zulfiqar Ali Jatoi,
Additional P.G argued that ocular evidence was corroborated by the medical
evidence; that incident was reported to the police without loss of time; that Appellant
Roshan Ali had caused hatchet blows to the deceased at his shop and incident
was witnessed by his father and other eye-witnesses. However, Additional P.G
argued that no overt act was attributed against respondent Ghulam Shabbir and
trial Court has rightly acquitted him. As regards to the motive,
Additional P.G submitted that it has come on record through evidence of
complainant Arbab Ali at Exh.11 that accused Roshan Ali gave hatchet blow to
deceased Raja at the instigation of Ghulam Shabbir and Appellant had dispute
with maternal uncles of deceased and Appellant had no direct motive for
commission of offence. Learned Additional P.G argued that there are mitigating
circumstances in this case, death sentence may be converted to imprisonment for
life. In support of his submissions, he relied upon the cases reported as Mst. Nazia Anwar v. The State and others (2018
SCMR 911) and Zulfiqar Ali v. Imtiaz and others (2019 SCMR 1315).
13. As regards to the unnatural death of deceased Raja,
prosecution has examined Dr. Majid Ali (PW-5). He has deposed that on 14.03.2008,
he was posted as Medical Officer in GIMS Hospital. On the same date, PC Jinsar
Ali Mallah of Police Station Sobhodero brought dead body of Raja for conducting
post mortem examination and report. He started post mortem examination at 10:45
p.m. and finished the same at 11:45 p.m. On external examination of dead body,
Medical Officer found the following injuries on the body of deceased.
1.
One incised wound on right side
of skull brain matter came out.
2.
One
incised wound on right side of occipital region brain matter out.
3.
Incised wound on cutted left
side.
4.
Incised wound on left leg
muscle deep.
5.
Incised wound on back 4 inches
deep.
From the external as well as
internal examination of dead body, Medical Officer was of the opinion that
death of deceased had occurred due to hemorrhage, shock and due to injuries
mentioned above. Probable time that elapsed between injury and death was two
hours and probable duration between death and post mortem was about one hour. We,
therefore, hold that deceased Raja died his unnatural death as described by
Medical Officer. Learned defense counsel has also not disputed unnatural death
of deceased.
14. Ocular evidence has been furnished by complainant Arbab
Ali, Hadi Bux and Haji Ismail. Complainant Arbab Ali has deposed that deceased
Raja was his son. Incident had occurred on 15.03.2008 at 07:30 p.m. At that time,
he along with his son Raja was sitting at his shop where accused Ghulam Shabbir
and Amanullah empty handed and accused Roshan Ali armed with hatchet appeared.
Ghulam Shabbir asked to Raja (now deceased) that his maternal uncles were
closing the door of street. Raja replied that because of law and order
situation main gate will remain closed at night time. Thereafter, accused
Amanullah caught hold the son of complainant namely Raja and accused Roshan
caused hatchet blows to deceased Raja. Complainant raised cries which attracted
to PWs Muhammad Ali, Hadi Bux, Abdullah, Ismail and Faiz Muhammad. Accused
succeeded to run away. Complainant took his son to the hospital in injured
condition but he succumbed to the injuries at the gate of Taluka Hospital,
Gambat, then he lodged FIR of the incident. He was cross examined by the
defense counsel. In the cross examination complainant has replied that deceased
Raja used to live with his maternal uncles and complainant had gone to the shop
of his son two hours before the incident. Complainant in his cross examination
further replied that accused Roshan Ali gave hatchet blows to deceased Raja at
the instigation of Ghulam Shabbir.
P.W Hadi Bux has deposed that deceased Raja
was his cousin. Present incident took place on 15.03.2008 at 07:30 p.m. He
heard cries of his uncle Arbab Ali and went running there along with Faiz
Muhammad and Muhammad Ali and saw accused Roshan Ali armed with hatchet. Ghulam
Shabbir and Amanullah were empty handed. Accused Roshan Ali was inside the shop
and remaining accused were standing at the gate of the shop. Bulbs were burning
in the shop. Accused Roshan caused hatchet blows to the deceased. PW Haji Ismail
has deposed that on 15.03.2008, complainant Arbab Ali went to his son and they
both were sitting at the shop of deceased Raja, it was sunset time. Accused
Amanullah and Ghulam Shabbir empty handed, accused Roshan Ali armed with
hatchet entered into the shop and over the dispute of the street door accused
Roshan Ali at the instigation of his father gave hatchet blows to Raja and he
succumbed to injuries. PW-4 Mumtaz Ali had acted as mashir in this case and stated that on 18.03.2008, police arrested
accused Roshan from the village at 02:00 p.m. and recovered hatchet from his
possession. Police secured the same and prepared such mashirnama and sealed at spot. PW-8 Abdul Sami, S.I.O has conducted
investigation in this case. He had inspected place of vardat in presence of mashirs,
collected bloodstained earth, sent dead body for post mortem examination and
recorded 161 Cr.P.C statements of PWs. I.O recorded statements of some independent
persons of the locality and found Amanullah and Ghulam Shabbir innocent and
placed their names in column No.2 of the
challan. He had sent bloodstained earth, clothes of deceased and hatchet to the
chemical examiner and received positive report and produced at Exh.20-A. It was
whole prosecution evidence brought on record.
15. Appellant Roshan Ali in his statement under
Section 342 Cr.P.C has claimed false implication in this case and examined
himself on oath and examined DWs Dr. Nazeer Ahmed and Dr. Deedar Ali in his
defence. It may be mentioned here that Appellant had raised plea during trial
that he was mentally ill and had remained under treatment of Dr. Nazeer Ahmed
before this case.
Dr. Nazeer Ahmed, DW-1 deposed that accused
Roshan Ali suffered from urine problem. Dr. Zulifqar Ali, DW-4 has deposed that
he is psychiatric specialist. Appellant Roshan Ali has produced his fake
prescription. He had never examined Roshan Ali.
16. Record reflects that present incident occurred at
the shop of deceased in village Belharo on 15.03.2008 at 07:30 p.m. Incident of
causing hatchet blows to deceased was witnessed by complainant and other eye-witnesses.
Father of deceased namely Arbab Ali lodged FIR at 2200 hours and police station
was at the distance of 10 kilometers. After the incident, complainant took his
injured son to hospital, who succumbed to injuries at the door of hospital.
Complainant made to sit PWs over dead body and he went to Police station. It
clearly shows that FIR has been lodged promptly against the Appellant at the
police station on same date at 2200 hours. Complainant has explained that on
the day of incident, he went to village Belharo to the shop of his son to meet
him. Accused Roshan Ali was previously known to complainant. Evidence of
complainant is fully corroborated by the medical evidence. We have no
reason to disbelieve the evidence of complainant against the Appellant merely
on the ground that deceased was his son. Complainant was cross examined at
length. No inherent defect in his evidence came on record. Complainant had no
motive to falsely implicate appellant in the murder of his young son aged about
21 years. Other eye-witnesses namely PWs Hadi Bux and Haji Ismail had also
witnessed the incident. Their evidence is also fully corroborated by the
medical evidence. They had also no motive to falsely implicate the Appellant in
this case. We, therefore, hold that ocular evidence is corroborated by the
medical evidence. Ocular evidence is trust worthy and confidence inspiring.
Defence theory appears to be after thought, the same has not been
substantiated. DW Dr. Nazeer Ahmed has deposed that he had not examined the
Appellant, and his fake prescription has been produced by Appellant in defence.
Trial Court has rightly disbelieved defence evidence. It is well-settled by now
that merely on the ground of inter se relationship the statement of a witness
cannot be brushed aside as held by the Hon’ble Supreme Court in the case of Zulfiqar Ahmad and another v. The State
(2011 SCMR 492).
17. As regards to the motive for the commission of
offence is concerned, complainant in his evidence has deposed that incident
resulted due to closure of the door of the street. As regards to the motive, he
deposed that on 15.03.2008 at 07:30 p.m, he along with his son Raja was sitting
at his shop. Accused Ghulam Shabbir and Amanullah empty handed and accused
Roshan Ali armed with hatchet came there. Accused Ghulam Shabbir said to
Raja that his maternal uncles have closed the door of the street. Thus, it
is clear that door was closed by the maternal uncles of the deceased. Appellant
had no direct motive against Raja, deceased. Relevant portion of the evidence
of the complainant on this point, is reproduced as under:
“Ghulam Shabbir said to Raja
that his maternal uncles were closing the door of street and they were not
prevented.”
Eye-witnesses
have deposed that father of Appellant had raised lalkara and exhorted his son / accused Roshan Ali to kill deceased,
accused thus had acted under the influence of his father. Such facts could also
be treated as mitigating circumstances for lesser sentence as held by Hon’ble Supreme
Court in the cases of Nazir Ahmed v. The
State (1999 SCMR 396) and Muhammad Imran @ Asif v. The State (2013 SCMR 782).
Relevant portion of the case of Nazir Ahmed (supra) is reproduced as under:
“2. We have heard the learned counsel for the
parties at some length. The necessary record has also been perused by us. After
arguing his case for some time, Mr. M. Asghar Khan Rokhari, the learned counsel
states that he will not press the appeal, in case, his request for grant of
lesser sentence to the appellant is considered favourably. The learned State
Counsel has opposed the prayer of the learned counsel for the appellant
inasmuch as, according to him, it is a case of premeditated murder pure and
simple. In our considered view, evidence of Ghulam Muhammad P.W.2 and Nazir
Hussain P.W.3 inspires confidence and it had been rightly believed by the
Courts below. Ghulam Muhammad P.W.2 is the uncle of the deceased while Nazir
Hussain P.W.3 belongs to his brotherhood. Despite the above relationship, there
is nothing to discard their testimony. Learned counsel submits that it is a fit
case for the award of lesser sentence to the appellant because according to the
eye-witnesses Ghulam Rasul, father of the appellant had raised Lalkara and
exhorted his son to kill Muhammad Hussain. In this view of the matter, the
appellant appears to have acted under the influence of his father, which can be
treated to be a mitigating circumstance for awarding lesser sentence to the
appellant This being the position, sentence of death awarded to the appellant
is, hereby, converted into imprisonment for life with benefit of section 382-B,
Cr.P.C. With this modification in the sentence the appeal is partly allowed.”
Evidence of other eye-witnesses
shows that Appellant had no direct motive against deceased. Investigation
Officer had also failed to examine the persons of the locality, in order to
ascertain about the motive for the commission of the offence. In our considered
view, sentence of death awarded to the Appellant requires consideration by this
Court. Complainant and other eye-witnesses have categorically stated that
accused Roshan Ali caused injuries to the deceased by means of hatchet at the
instigation / influence of his father. Secondly, prosecution has failed to
prove the motive on the part of Appellant for the commission of the offence. 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 let against the sentence of death passed by the trial Court. Reference
in this respect may be made to the recent Judgment of Hon’ble Supreme Court in
the case of Mst. Nazia Anwar v. The State and others (2018 SCMR 911). Relevant paragraph 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 established. 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.”
18. 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 the 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. Moreover, it
has come on record that Appellant appears to have acted under the influence of
his father Ghulam Shabbir (since acquitted), which can also be treated to be a
mitigating circumstance for awarding lesser sentence to the appellant as held
in the case of Nazir Ahmed v. The State (1999 SCMR 396). As regards to motive, 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. Reliance in
this respect may be made to the case of Mst. Nazia Anwar (supra).
19. In the view of above
discussion, this Criminal Appeal No. D-76 of 2013 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 death sentence, which
is reduced to the imprisonment for life. Appellant is ordered to
pay compensation of Rs.2,00,000/- (two lac), to be paid to the legal heirs of
the deceased in terms of Section 544-A Cr.P.C, as directed by the trial Court.
In case of the default thereof, appellant is ordered suffer S.I for six
months. The benefit of Section 382-B Cr.P.C shall be extended to the appellant.
Reference made by the trial Court for confirmation of death sentence
is answered in the NEGATIVE and death sentence is NOT
CONFIRMED.
20. Now, we examine Appeal against acquittal of respondent
Ghulam Shabbir. It may be observed that respondent Ghulam Shabbir was declared
innocent during investigation. However, he was joined as accused and faced
trial. At the trial, eye-witnesses deposed that he was empty handed and overt
act has been attributed to him for the commission of offence. Trial Court
through the impugned judgment dated 16.01.2013 recorded
acquittal in his favour by assigning the following reasons:
“I have come to the irresistible conclusion that
accused Roshan Ali by causing hatchet injuries had committed the murder and
prosecution evidence is complete, straight forward, fully confidence inspiring,
cogent, consistent, unimpeachable, unshaken and has brought home the charge
hilt. As accused Ghulam Shabir his name was kept in column No.2 of the challan
during the course of investigation he was found innocent and in our society it
is tradition that names of more and more accused are added with the real
offender and it is proved on the record that only accused Roshan had given
hatchet blow to deceased and except Roshan no other accused was present on the
spot, therefore, to the extent of accused Ghulam Shabir prosecution could not
be prove its case, hence Point No.2 is answered in the affirmative.”
Trial
Court has assigned sound reasons for acquittal of respondent Ghulam Shabbir.
View taken by the trial Court is a possible view, structured in evidence
available on record and as such not open to any legitimate exception. It is by
now well settled that acquittal once granted cannot be recalled merely on the
possibility of a contra view. Unless, the impugned view is found on the fringes
of impossibility, resulting into miscarriage of justice, freedom cannot be
recalled. Reliance in this respect is placed upon the case of Zulfiqar Ali v. Imtiaz and others
(2019 SCMR 1315).
Accordingly, Criminal Acquittal Appeal No. D-19 of
2013 is found without merit and the same is dismissed.
__________________
J U D G E
__________________
J U D G E
Irfan/PA