JUDGMENT SHEET

IN  THE  HIGH  COURT  OF  SINDH, CIRCUIT  COURT,  LARKANA

Criminal Jail Appeal No.D-72 of 2018

Crl. Reference No.D-11 of 2018

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DATE                                      ORDER WITH SIGNATURE OF HON’BLE JUDGE

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Before:

Mr. Justice Irshad Ali Shah,

 Mr. Justice Shamsuddin Abbasi,

For hearing of main case.

17.11.2021

                        Mr. Ahsan Ahmed Qureshi, Advocate for the appellant.

                        Mr. Nizamuddin Abro, Advocate for the complainant.

Mr. Ali Anwar Kandhro, Addl. Prosecutor General for the State.

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IRSHAD ALI SHAH, J;- Appellant Shahmir for committing murder of Mst.Saleemat by causing her hatchet injures, after due trial, for offence punishable under section 302 (b) PPC, was convicted and sentenced to death with fine of Rs.400,000/- payable to the legal heirs of the deceased as compensation and in default whereof, to undergo simple imprisonment for six months, by learned 5^th Additional Sessions Judge, Larkana, vide judgment dated 28.11.2018, which has been impugned by the appellant by preferring an appeal from jail and reference is also made by learned trial Court confirmation of death to the appellant.

            At the very outset, it is contended by learned counsel for the appellant that he would not press disposal of instant jail appeal on its merits provided that death sentence awarded to the appellant is modified with imprisonment for life by considering the mitigating circumstances of the case.

            Learned A.P.G for the State and learned counsel for the complainant have recorded no objection to above said proposition.

            We have considered the above arguments and perused the record.

            It is inter-alia stated by complainant Manzoor Ali, PWs Ahsanullah and Ghulam Abbas that the appellant in order to satisfy his matrimonial dispute, committed murder of Mst.Saleemat by causing her hatchet injuries and then went away and on arrest from the appellant, as per Investigating Officer/ASI Muharram Ali was secured incriminating hatchet with positive report of the chemical examiner. They have stood by their version on all material points despite lengthy cross examination by learned counsel for the appellant. In these circumstances, the learned trial Court was right to conclude that the prosecution has been able to prove its case against the appellant beyond the shadow of doubt.

            However, the death sentence awarded to the appellant requires to be modified with Rigorous Imprisonment for life being alternate sentence for the reasons that there was simple dispute between the parties over matrimonial affairs; FIR of the incident has been lodged with delay of about one day; the postmortem on dead body of the deceased has been conducted with delay of about eight hours and 161 Cr.PC statements of PWs have been recorded with further delay of one day even to FIR.

            In case of Muhammad Akram alias Akri (2019 SCMR 610), the death sentence awarded to the accused was modified with imprisonment for life by Hon’ble apex Court by making observation that;

“Having concluded so, it has been observed by us that a specific motive was set out by the complainant in the FIR and in his statement recorded before the trial court inasmuch as four days prior to the occurrence, appellant along with his vagabond friends had come and stood in front of the house of the complainant. Muhammad Riaz (deceased) had reprimanded the appellant, whereupon an altercation took place between the two. The appellant had threatened the deceased Muhammad Riaz of dire consequences and on account of this grudge, the appellant committed the crime. In his cross-examination, the complainant Fiaz Ali admitted that he had never reported to police that appellant along with his vagabond friends used to come and stand in front of their house. There is also nothing on record to prove that the incidence of altercation between appellant and deceased was ever reported to police. The complainant also did not disclose the names of vagabond friends of the appellant who used to come and stand in front of the house of the complainant. It appears that the real cause of the occurrence has not been disclosed by either of the sides. In these circumstances, we are of the view that the motive set out by the prosecution remained far from being proved. It is well settled that when prosecution alleges something against an accused person and then fails to prove the same, the premium of such failure must go to an accused person. In this case as well, prosecution's failure to prove the motive set out by it certainly benefits the appellant.

The conviction of the appellant under section 302(b), P.P.C. is maintained but his sentence of death is converted into imprisonment for life.”

            In view of above, the death sentence awarded to the appellant is modified with Rigorous Imprisonment for life with fine of Rs.400,000/- payable to the legal heirs of the said deceased as compensation and in case of default in payment whereof, he to undergo Simple Imprisonment for Six months with benefit of Section 382(b) Cr.PC.

            The instant criminal jail appeal and reference are disposed of accordingly.                

JUDGE

JUDGE