IN THE HIGH COURT OF
SINDH BENCH AT SUKKUR
Crl.
Revision Application No.D- 33 of 2023
Present:-
Mr.
Justice Yousif Ali Sayeed, J.
Mr. Justice Zulfiqar Ali Sangi, J.
Date of hearing: 25.10.2023
Date of decision: 25.10.2023
Mr. Ubedullah Ghoto, Advocate
for applicant/complainant
Syed
Sardar Ali Shah, Addl.P.G.
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J U D G M E N
T
ZULFIQAR ALI SANGI, J; Through
this Revision Application, appellant/complainant seeks enhancement of sentences
awarded by 1st Additional Sessions Judge (MCTC) Sukkur in Sessions
case No. 218/2017 (Re-Nazeer Ahmed and others), culminating from a FIR No. 43/2005
P.S Sarhad, District Ghotki, for offence punishable U/S 302, 324, 337-F(i),
337-F(iii), 337-H(2), 148, 149 PPC, whereby respondents/accused No. 1 to 4 were
convicted and sentenced as under:-
Respondent/accused
Nazeer Ahmed
i)
He had committed Qatl-i-Amd of
deceased Shafi Muhammad by causing firearm injuries. He is therefore, convicted
under section 302(b) PPC and awarded life imprisonment as Ta’azir. He is
further directed to pay fine of Rs. 500,000/- (five lac) as compensation to be
paid to the legal heirs of deceased as
provided U/S 544-A Cr.PC. In default thereof, he shall suffer imprisonment for
06 (six) months.
ii)
He is further convicted for
attempting to commit murder of complainant, against an offence under section
324 PPC r/w Section 149 PPC and awarded a rigorous imprisonment for 10 (ten)
years, with fine of Rs. 100,000/- in default thereof, he shall suffer simple imprisonment
for fifteen days.
Respondent/accused
Wali Muhammad
i)
He is convicted under section
324 PPC r/w section 149 PPC and sentenced for (10) years R.I with fine of Rs.
100,000/- in default thereof, he shall suffer simple imprisonment for fifteen
days.
ii)
He is further convicted for
causing injury to complainant Abdul Qadir under section 337-F(i) PPC and
sentenced to R.I for one year with fine of Rs. 100,000/- as daman to victim, in
case of default thereof he is ordered to undergo S.I for simple imprisonment
for fifteen days.
Respondent/accused Muhammad
Hassan
i)
He
is convicted under section 324 PPC r/w section 149 PPC and sentenced for (10) ten years R.I with fine of Rs. 100,000/- in default thereof, he shall suffer
simple imprisonment for fifteen days.
Respondent/accused Rais
Qaloo
i)
He is convicted under section
324 PPC r/w section 149 PPC and sentenced for (10) ten years R.I with fine of
Rs. 100,000/- in default thereof, he shall suffer simple imprisonment for
fifteen days.
ii) He is further convicted for causing injury to PW/injured Abdul
Haq under section 337-F(iii) PPC and sentenced to R.I for three years with fine
of Rs.200,000/- as daman to victim, in case of default thereof he is ordered to
undergo SI for six months more.
2. The
crux of prosecution case, as unfolded in the FIR lodged by the complainant
Abdul Qadir on 08.07.2005, are that Shafi Muhammad aged about 55 years is his
father and there is dispute with Nazeer Ahmed Lakhan over matrimonial issue,
whereupon said Nazeer Ahmed and others used to remain annoy while issuing
threats of murder. It is alleged that on 08.07.2005 complainant, his father
Shafi Muhammad, cousin Abdul Haque and relative Ghulam Murtaza were available
at road outside the home for waiting the conveyance to go towards city
Qadirpur. It was about 1100 hours, in the meanwhile accused each namely Nazir
Ahmed armed with Kalashnikov, Wali Muhammad armed with pistol, Raees Qalo armed
with rifle, Muhammad Hassan and Yaqoob armed with pistols came in a private Jeep
driven by accused Nazeer Ahmed, who on seeing the complainant party stopped the
Jeep and all the accused alighted from it. While coming, accused Nazeer Ahmed
caused fire shot injuries of K.Kove to Shafi Muhammad, which hit him at his left
side of neck and at left arm. Accused Wali
Muhammad fired at complainant with his pistol, which hit him on his right hand
whereas accused Raees Kalo fired from his rifle at Abdul Haque, which hit him
on the left arm. Accused Muhammad Hassan fired from his pistol at Ghulam Murtaza,
which hit him at his elbow. Accused Yaqoob caused harassment and made aerial
firing. Complainant party raised cries, whereupon co-villager rushed there,
then all the accused ran away towards western side. Complainant, Abdul Haque
and Ghulam Mustafa saw that Shafi Muhammad had died at spot on receiving such
injuries, which were bleeding. Complainant then left Abdul Haque and Ghulam
Murtaza at the dead body, appeared at P.S and
lodged FIR, as stated above.
3. After
usual investigation challan was submitted against the accused before the Court having jurisdiction.
4. Trial
Court framed the charge against the accused. Accused pleaded not guilty and
claimed to be tried.
5. At
the trial, prosecution examined ten (10) prosecution witnesses, who produced
the relevant documents and items in support of their statements. Thereafter,
prosecution side was closed.
6. Trial
Court recorded statement of the accused Under Section 342 Cr.PC. Accused denied
the prosecution allegations, however, raised plea that they have been involved in
this case falsely as there had matrimonial dispute with complainant. 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 impugned judgment dated 15th
June, 2023 convicted and sentenced the respondents/accused as stated above.
8. Learned
counsel submits that normal penalty provided under section 302 PPC is death,
however, same has been overlooked by the trial Court; that there appears strong
evidence to prove motive against the accused persons while trial Court had
given no weight to the evidence of prosecution witnesses and wrongly observed
in the impugned judgment that the prosecution has
failed to prove motive against accused/respondents, therefore, the Revision
Application may be allowed and the sentences awarded by trial Court be
enhanced.
9. Conversely,
Syed Sardar Ali Shah, Additional Prosecutor General for the State submits that trial
Court in para No. 43 has given cogent reasons for awarding lesser sentence and
in view of such, this Revision Application is liable to be dismissed.
10. We
have heard learned counsel for the parties and perused the material available
on record.
11. From
the perusal of impugned judgment it reflects
that learned trial Court has taken a lenient view for
awarding lesser sentences by giving detailed reasons in para No.43, of the judgment
by relying the judgment of the apex Court, para
No. 43 is re-produced here as under:-
43. The
lenient view is taken while not awarding a normal punishment of a death to
accused Nazeer Ahmed; due to mitigating circumstances. In this regard it is
observed that the motive set up by the prosecution i.e dispute over matrimonial
issues, was weak as no specific evidence was brought on record in support of
the said motive. It is settled law that if the prosecution asserts to motive
but fails to prove the same then such failure on the part of prosecution may
react against sentence of death passed against a convict on the charge number.
In the present case prosecution has not succeed to prove the motive against him
hence, such failure to prove motive constitute a mitigating circumstances for
reducing the sentence of a Death to ‘imprisonment for life’ Reliance in this
respect is placed upon case law reported in 2017 P.Crl.L.J (Lahore) 491(
Re-Hassan Ali and another versus The State and others) and an unreported
Judgment dated 06.10.2020 in Crl. Appeal No. D-53-2016 Re-Ghulam Rasool vs. the
State passed by the Honourable High Court of Sindh, Circuit Court Hyderabad.
Nonetheless, imprisonment for life is legal sentence provided under the law.
Reference can be made to the case of Khalid Naseer versus The State Criminal
Petition Nos. 534 and 513 OF 2019, decided by Honourable Supreme Court of
Pakistan on 17.09.2020.
12. To
ascertain the above reasons recorded by the
trial Court, we have perused the FIR which reflects that the dispute was going
on with Nazeer on the matter of relationship and both the parties were not on
talking terms. That dispute between the parties is not specified in FIR. The
charge framed against the respondents/accused is also silent in respect of the motive and examination-in-chief of complainant
Abdul Qadir and eye witness Abdul Haque does not disclosed the nature of such
dispute nor we find any finding of investigation officer in his report U/S 173
Cr.PC in respect of asserted motive. Under these circumstances we find that
motive asserted by the complainant is shrouded in mystery.
No doubt normal penalty for offence as alleged is death, however, failure of
prosecution to establish motive may react upon the sentence of death as has
been held by the Supreme Court in cases of Ahmed Nawaz vs. 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 @ Asif v.
The State (2013 SCMR 782) Sabir Hussain @ Sabri v. The State (2013 SCMR 1554)
Zeeshan Afzal @ Shani and another v. The State and another (2013 SCMR 1602)
Naveed @ Needu and others v. The State and others (2014 SCMR 1464) and Muhammad
Nadeem Waqas and another v. The state 2014 SCMR 1658).
13. It
is observed that appeal of the appellants is pending before this Court to be
decided by a Single Bench, therefore, we do not touch entire evidence as same
will effect either parties while hearing appeal in single bench.
14. The upshot of the above discussion
is that the trial Court has not committed any illegality or infirmity while discussing
the evidence in respect of motive and for awarding lesser sentence and we find
no merits in the instant Crl. Revision Application and dismissed the same.
15. These
are the findings of short order dated 25.10.2023.
J
U D G E
J U D G E
M.Ali/steno