IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Before:

Mr. Justice Adnan Iqbal Chaudhry,

Mr. Justice Zulfiqar Ali Sangi,

Crl.Revision Appln.No.D-15 of 2020

Applicant/Complainant : Asadullah s/o Muhammad Siddique Through Mr.Altaf Hussain Surhio, Advocate

Respondents No.1 to 3 : Through Mr.Altaf Hussain Khoso, Advocate

The State : Through Mr.Ali Anwar Kandhro, Addl.P.G.

Date of hearing : 01-03-2023

Date of decision : 01-03-2023

O R D E R

ZULFIQAR ALI SANGI, J:- Through instant Criminal Revision Application, the applicant/complainant has sought for enhancement of sentence for the private respondents from life imprisonment to death, by impugning the judgment dated 26.11.2020, passed by learned Sessions Judge, Kashmore @ Kandhkot, in Sessions Case No.159/2010 (Re. St. Vs. Muhammad Ayub and others) emanating from FIR bearing Crime No.49/2007 registered with Police Station Kashmore, for offences punishable under Sections 302, 324, 34 PPC, whereby the private respondents/accused on due trial were convicted and sentenced as under;

“I hold that prosecution has proved its case against accused Muhammad Ayub, Hazoor Bux and Muhammad Maroof. Accused are found guilty of committing Qatl-i-Amd of Muhammad Siddique by causing him fire arm injuries, are convicted and sentenced U/S.302 (b) PPC read with Section 34 PPC as Tazir, to suffer imprisonment for life and to pay compensation of Rs.2,00,000/- (Rupees Two Lac) each, on realization it shall be paid to LRs of deceased Muhammad Siddique, in case of failure above accused shall further undergo S.I for Six months each. Lenient view in sentence is taken, having regard to the facts, circumstances of the case and accused have suffered agony of long trial. Accused Muhammad Ayub, Muhammad Maroof and Hazoor Bux are also convicted and sentenced U/s.324 PPC read with Section 34 PPC, for attempting to commit Qatl-i-Amd of PW Rehmatullah by causing him fire arm injuries, are also convicted and sentenced for Seven years R.I and to pay fine of Rs.20,000/- (Rupees Twenty Thousand) each and on realization to be paid to injured Rehmatullah, in case of failure accused shall further undergo S.I for three months more. Accused Muhammad Maroof had caused hurt to P.W Rehmatullah which was declared by MLO as Jurh Jaifah, therefore, accused Muhammad Maroof is also convicted and sentenced U/S.337-D PPC to pay an amount of (one third of the Diyat amount) Rs.9,25,784.333333 as Arsh and also to undergo (5) years R.I as Tazir. Accused Muhammad Ayub had caused hurt to P.W Rehmatullah which was declared by MLO as Jurh Jaifah including Jurh Ghayr Jaifah Hashimah, therefore, accused Muhammad Ayub is convicted and sentenced U/S.337-D PPC to pay an amount of (one third of the Diyat amount) Rs.9,25,784.333333/= as Arsh and also to undergo 5 years R.I as Tazir. Accused Hazoor Bux had caused hurt to P.W Rehmatullah, declared by MLO as Jurh Ghayr Jaifah Mutalahimah, therefore, accused Hazoor Bux is convicted and sentenced U/S.337-F(iii) PPC to pay an amount of Rs.50,000/- as Daman and also to undergo Two Years R.I as Tazir. Above amount of hurt on realization to be paid to injured Rehmatullah. All the sentences to run concurrently. The accused are extended the benefit of Section 382-B Cr.PC.

2. Brief facts of the prosecution case are that on 22.03.2007, at 1100 hours, complainant Asadullah got registered the FIR with P.S Kashmore to the effect that the complainant party were on inimical terms with accused Daim (since dead), Maroof and others over the landed property which was in possession of complainant party, accused used to ask them to vacate the land and hand over its possession to them, else they would be murdered. He and Rehmatullah are Primary Teachers. On eventful day i.e 22.03.2007, while they were performing their duty at Government Primary School Muhammad Siddique where they received direction from the office of ADO office Kashmore to collect some important documents, hence the complainant alongwith his brother Rehmatullah, father Muhammad Siddique, cousin Muhammad Amin and relative Mitho left the School on two motorcycles for ADO office Kashmore to collect the documents. When at about 09.30 A.M, they reached in Kashmore town near water supply, they saw accused Hazoor Bux and Daim (since dead) duly armed with K.Ks, accused Muhammad Ayub and Muhammad Maroof armed with T.T pistols, who challenged them that since they were not leaving the disputed land therefore they will be done to death. Saying so, accused Muhammad Maroof fired from his pistol upon complainant with intention to kill him but he saved himself by falling on ground and the said fire hit to Muhammad Siddique (father of the complainant) at his chest, accused Hazoor Bux also fired from Kalashnikov upon Muhammad Siddique which also hit him at his chest who fell down raising cries, thereafter, third fire was made by accused Muhammad Ayub from T.T pistol upon Muhammad Siddique which hit him at his chest, accused Daim (since dead) fired from his Kalashnikov upon Muhammad Siddique which also hit him. Thereafter, accused Muhammad Maroof fired from his T.T pistol upon P.W Rehmatullah with intention to kill which hit him at his chest, accused Muhammad Ayub also fired from his T.T pistol upon Rehmatullah which also hit him at right side of his abdomen, accused Daim (since dead) fired upon Rehmatullah which also hit him, thereafter, all the accused fired upon complainant and P.Ws with intention to commit their murder but they saved themselves. Then accused on seeing the citizens coming towards the venue fled away. Complainant and PWs took injured Muhammad Siddique and Rehmatullah to P.S Kashmore where obtained letter to Taluka hospital for their treatment and after providing first aid they were referred to Larkana hospital for better treatment but on way to Larkana injured Muhammad Siddique succumbed to injuries. The complainant after arranging conveyance sent injured Rehmatullah to Larkana through Mitho Khan and others while he alongwith dead body of Muhammad Siddique returned back to Kashmore hospital and after leaving the dead body of deceased at hospital, he went to police station and got lodged the FIR against the accused.

3. Learned counsel for the applicant/complainant contends that the prosecution has successfully proved its case against the private respondents beyond the shadow of reasonable doubt, so also the motive asserted in the FIR has been proved; that there was no mitigating circumstance, which could have justified learned trial Court for awarding the lesser sentence to the private respondents; that the death penalty is to be awarded when the Courts find that the case has been proved against the accused which is lacking in the present case; that no reasoning for taking lenient view by not awarding death sentence has been mentioned in the impugned judgment; therefore, he sought for enhancement of the sentence for the private respondents from life imprisonment to death.

4. Conversely, learned counsel for the private respondents and learned Addl.P.G for the State while supporting the impugned judgment have sought for dismissal of the instant Criminal Revision Application by contending that no any irregularity has been committed by learned trial Court in awarding conviction/sentence to the private respondents which is based on sound reasoning, therefore, the instant Crl.Revision Application filed by the applicant/complainant being devoid of merits is liable to be dismissed.

5. We have considered the above arguments and perused the entire material made available on record with their able assistance.

6. Normal penalty is a death sentence for murder; however, once the Legislature has provided for awarding alternative sentence of life imprisonment, it would be difficult to hold that in all cases of murder, the death penalty is a normal one and shall ordinarily be awarded. If the intent of the Legislature was to take away the discretion of the Court, then it would have omitted from clause (b) of section 302, P.P.C, the alternative sentence of life imprisonment. It is a fundamental principle of Islamic Jurisprudence on criminal law to do justice with mercy, being the attribute of Allah Almighty but on the earth the same has been delegated and bestowed upon the Judges, administering justice in criminal cases, therefore, extra degree of care and caution is required to be observed by the Judges while determining the quantum of sentence, depending upon the facts and circumstances of particular case/cases. A single mitigating circumstance, available in a particular case, would be sufficient to put on guard the Judge not to award the penalty of death but life imprisonment. No clear guideline, in this regard can be laid down because facts and circumstances of one case differ from the other, however, it becomes the essential obligation of the Judge in awarding one or the other sentence to apply his judicial mind with a deep thought to the facts of a particular case. If the Judge/Judges entertain some doubt, albeit not sufficient for acquittal, judicial caution must be exercised to award the alternative sentence of life imprisonment, lest an innocent person might not be sent to the gallows. So it is better to respect the human life, as far as possible, rather put it at end, by assessing the evidence, facts and circumstances of a particular murder case, under which it was committed as has been held by Honourable Supreme Court of Pakistan in case of Ghulam Mohy-ud-din alias Haji Babu and others v. The State (2014 SCMR-1034).

7. We have observed that the motive set up by the prosecution was quite vague and admittedly no independent evidence worth names of the persons in whose presence accused issued the threats to the deceased and which was the land in dispute, to whom the disputed land belongs and what was actual dispute on the land in support of the asserted motive. The investigation officer also failed to collect such evidence about the asserted motive. It is well-settled principle of law 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 and another v. The State (2011 SCMR 593), Iftikhar Mehmood and another v. Qaiser Iftikhar and others (2011 SCMR 1165), Muhammad Mumtaz and another 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).

8. For what has been discussed above, we are of the unanimous view that no case for enhancement of sentence against the private respondents is made out. Consequently, the instant Crl.Revision Application being devoid of merits is dismissed accordingly.

JUDGE