IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA.

Criminal Appeal No. D–15 of 2022

Crl.Conf. Case No.D-07 of 2022

Before:

Mr. Justice Irshad Ali Shah.

Mr. Justice Arbab Ali Hakro.

Appellants: 1). Sajid s/o Muhammad Ibrahim

2). Munwar s/o Allah Dino Mugheri

Through Mr.Rafique Ahmed K.Abro, Advocate

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

Date of hearing: 16-05-2023.

Date of decision: 24-05-2023.

JUDGMENT

IRSHAD ALI SHAH, J. It is the case of prosecution that the appellants with rest of the culprits, after having formed an unlawful assembly and in prosecution of its’ common object, committed murder of Abdul Qadir and Qurban Ali by causing them fire shot injuries and then went away by making fires in air to create harassment, for that they were booked and reported upon by the police; they denied the charge and prosecution to prove the same, examined in all nine witnesses and then closed its’ side. The appellants in their statements recorded under Section 342 Cr.PC denied the prosecution allegation by pleading innocence, by stating that they have been involved in this case falsely by the complainant party due to enmity; it however, was stated by appellant Sajid that on the date of incident; he was working as helper with Umer Garments Factory at Karachi; he wanted to examine Shift Incharge of above said Garment Factory; both of the appellants however did not examine themselves on oath to disprove the allegation against them and then without examining any one in their defence closed their side. On conclusion of trial, they were convicted U/S.302(b) PPC and sentenced to death, for committing death of the above named deceased, subject to confirmation by this Court; additionally they were directed to pay compensation of Rs.5,00,000/- each, (total Rs.10,00,000/-) to each of the legal heirs of the deceased and in default whereof, to undergo simple imprisonment for 06 months, by learned 1^st Additional Sessions Judge/MCTC Qamber, vide judgment dated 19.04.2022, which they have impugned before this Court by preferring the instant Criminal Appeal. A reference is also made by learned trial Court in term of Section 374 Cr.PC for confirmation of death sentence awarded to the appellants.

2. It is contended by learned counsel for the appellants that they being innocent have been involved in this case falsely by the complainant party in order to satisfy its dispute with them over old enmity; no specific injury to the deceased is attributed to either of the appellants; the pistols have been foisted upon them; the complainant and his witnesses being unnatural have been believed by learned trial Court without assigning cogent reasons; the motorcycles whereby the complainant, his witnesses and the deceased were having at the time of incident, have not been produced at trial; the case of the prosecution was not free from doubt; therefore, the appellants are entitled to be acquitted by extending them benefit of doubt.

3. None has come forward to advance arguments on behalf of the complainant. However, learned Addl.P.G for the State by supporting the impugned judgment has sought for dismissal of the instant criminal appeal by contending that the pistols secured from the appellants have been matched with much of the empties secured from the place of incident and they have rightly been awarded death sentence by learned trial Court which needs to be confirmed.

4. Heard arguments and perused the record.

5. It was stated by Complainant Abdul Hameed, PWs Nisar Ahmed and Shabir Ahmed that on the date of incident, they and the deceased when were going towards Norang Wah Madersah on their motorcycles, when reached at Norang Wah Bridge, they were confronted by the appellants and others; they by raising hakals made them to stop and then absconding accused Anwar Ali and Nek Muhammad fired at Abdul Qadir and Qurban Ali; they by sustaining those fires fell down on the ground, the appellants and others fired at them; they died at the spot, the appellants and others then went away by making fires in air to create harassment; they arranged for the vehicle and took the dead bodies of the deceased to Civil Hospital Qamber and then lodged report of the incident with P.S Qamber City. They have stood by their version, on all material points though have been subjected to cross examination to its satisfaction by learned counsel for the appellants; they could not be disbelieved by making a conclusion that they are unnatural witnesses to the incident only for the reason that they were having enmity with the appellants and others and have not sustained any injury during course of incident; the FIR of the incident has been lodged promptly which has excluded the possibility of false implication of the appellants; on arrest from them have been secured pistols of 30 bore which they allegedly used in commission of the incident; those have been found matched at least with four of empties secured from the place of incident; the pistols allegedly secured no doubt as per evidence of PW/WHC Riaz Hussain were deposited with him by the investigating officer/SIP Attaullah with delay of about 12 days but such fact is not enough to believe that those have been foisted upon them; Investigating officer/SIP Attaullah was having no enmity with the appellants to have foisted upon them the unlicensed pistols which they confessed before him to have been used in commission of the incident; no doubt, it has not come on record as to which of the injury was caused to which of the deceased by which of the appellants but this fact alone is not enough to conclude that the appellants have never participated in commission of the incident; good number of injuries were found sustained by both of the deceased as is evident of the medical evidence which prima facie suggest that they were fired at by more than one person; non production of the motorcycles at trial which the complainant, his witnesses and the deceased were having at the time of incident could hardly be treated to be fatal to the case of prosecution; the appellants have failed to examine themselves on oath in disproof of the prosecution’s allegation or anyone in their defence though was named at least by one amongst them. In these circumstances, the learned trial Court was right to conclude that the prosecution has been able to prove its case against the appellants beyond shadow of doubt.

6. The appellants are appearing to be young men; it has not been brought on record as to which of the fire shot injury was caused by them to which of the deceased. By considering these factors as mitigating circumstances, the sentence of death awarded to the appellants on two counts is modified with rigorous imprisonment for life with fine of Rs.500,000/-(Five Lacs) each payable by them to the legal heirs of each of the deceased as compensation and in default whereof, they would undergo simple imprisonment for six months. Needless to state that sentences on both counts will run concurrently, with benefit of Section 382-B Cr.PC.

7. In case of Ghulam Mohiuddin alias Haji Babu &ors Vs. The State (2014 SCMR-1034), it has been observed by the Apex Court that;

“---S.302(b)---Qatl-e-amd---Sentence---Death sentence or imprisonment for life---Single mitigating circumstance---Sufficient to award life imprisonment instead of death penalty---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---If a single doubt or ground was available, creating reasonable doubt in the mind of Court/Judge to award either death penalty or life imprisonment, it would be sufficient circumstance to adopt alternative course by awarding life imprisonment instead of death sentence---No clear guideline, in such regard could be laid down because facts and circumstances of one case differed from the other, however, it became 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 entertained 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---Better to respect human life, as far as possible, rather than to put it at end, by assessing the evidence, facts and circumstances of a particular murder case, under which it was committed”.

8. In view of above, the reference for confirmation of death sentence is answered in negative, while the instant criminal appeal subject to above modification is dismissed.

9. The criminal appeal and reference are disposed of accordingly.

JUDGE