HIGH COURT OF SINDH AT KARACHI

Criminal Jail Appeal No.453 of 2011

Confirmation Case No.14 of 2011

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Mohammad Karim Khan Agha

Appellants : Nazir Ahmed son of Nazar Ali Chandio

Dilawar Khan son of Nazar Ali Chandio

Ghulam Ali son of Nazar Ali Chandio

Asghar Ali son of Ghulam Ali Chandio

Dr. Abdul Jalil son of Nazar Ali Chandio

through Mr. Mehmood A. Qureshi, Adv.

Respondent : The State through Mr. Mohammad Iqbal Awan, Deputy Prosecutor General Sindh

Date of Hearing : 08.04.2019

Date of Announcement : 16.04.2019

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Nazir Ahmed, Dilawar Khan, Ghulam Ali, Asghar Ali and Dr. Abdul Jalil, appellants were tried by Mr. Ghulam Rasool Samoon, learned Additional Sessions Judge-II, Badin. After full-dressed trial, vide judgment dated 08.08.2009, appellants Dilawar Khan and Nazir Ahmed were convicted under Section 302(b), PPC for committing Qatl-i-Amd of deceased Ghulam Muhammad and Sultan Ahmed and sentenced to death on two counts subject to confirmation by this Court. They were directed to pay compensation of Rs.100,000/- each, to be paid to the legal heirs of both the deceased separately, in case of non-payment of compensation to suffer S.I. for 5 years. All the appellants were convicted under section 148, PPC for 2 years R.I. Appellants Dr. Abdul Jalil, Asghar Ali and Ghulam Ali were convicted under section 302(b), PPC read with section 149, PPC and sentenced to imprisonment for life and to pay the fine of Rs.50,000/- each. In case of nonpayment of fine, they were ordered to suffer S.I. for 2 years more. Appellant Asghar Ali was convicted under section 337-A(i), PPC and sentenced to one year R.I. and to pay Daman of Rs.10,000/- to be paid to PW Muhammad Umar, in case of default in payment thereof he was ordered to suffer S.I. for six months. He was also convicted under Section 337-F(i), PPC and sentenced to suffer R.I. for One year and to pay daman Rs.10,000/- to P.W. Muhammad Umer, in case of nonpayment, he was ordered to suffer S.I. for six months more. Appellant Ghulam Ali was convicted under Section 337-A(iii), PPC and sentenced to 5 years R.I. and to pay Arsh of Rs.30,000/- to PW Niaz Ahmed and in default of payment of Arsh to suffer S.I. for one year more. He was also convicted under section 337-A(i), PPC and sentenced to suffer R.I. for 2 years and to pay Daman of Rs.10,000/- to PW Niaz Ahmed, in default in payment thereof, he was ordered to suffer S.I. for six months. All the sentences were ordered to run concurrently. Appellants Ghulam Ali, Asghar Ali and Dr. Abdul Jalil were extended benefit of 382-B, Cr.PC. Trial Court made Reference No.14 of 2011 for confirmation of death sentence as required under Section 374, Cr.PC.

2. The facts of the prosecution case as reflected in the judgment of the trial court are as under:-

“That on 27.08.1997 at about 10:30 a.m., PWs Fida Hussain, Muhammad Umar, Niaz Ahmed, deceased Ghulam Muhammad and Sultan Muhammad went to their lands in order to excavate simnali in old Bhada. While the PWs were excavating the simnali, both the deceased were sitting on the Eastern side of Bhada. The accused Dr. Abdul Jaleel, empty handed, accused Nazir Ahmed, Dilawar Hussain Asghar Ali and Ghulam Ali armed with hatchets came there. Accused Dr. Abdul Jaleel asked the PWs and the deceased to stop excavating the simnali as he had previously restrained them from doing so but they did not listen to him. Therefore, he instigated the other accused to kill the PWs and the deceased. On the said instigating, accused Nazeer Ahmed gave hatchet blows to deceased Sultan Ahmed on his head and neck. The accused Ghulam Ali gave hatchet blows to PW Niaz Ahmed. The accused Asghar Ali gave hatchet blows to PW Muhammad Umer, PW Fida Hussain raised cries and due to fear ran away from the wardat. Both the deceased and both the injured after receiving injuries fell down on the ground. Thereafter, the accused ran away from the vardat. After the departure of the accused, PW Fida Hussain returned to the vardat and found the deceased Sultan Ahmed and Ghulam Muhammad lying dead. Whereas PWs Muhammad Umer and Niaz Muhammad lying injured and unconscious. PW Fida Hussain went to complainant Suhrab Khan, father of deceased Ghulam Muhammad and injured Niaz Muhammad and informed him about the incident. After hearing the incident the complainant along with PWs Fida Hussain, Gul Hassan and Gul Muhammad went to the place of incident where they found the dead bodies and injured lying there. The complainant leaving the PWs at the vardat went to the police station and lodged the report at about 11:50 a.m. The police after registering the FIR took up investigation and on completing the investigation, presented challan against the accused.”

3. Autopsies of both deceased Ghulam Muhammad and Sultan Ahmed were conducted on 27.08.1997. According to medical officer, both the deceased died of injuries by means of sharp cutting weapon. On the conclusion of investigation, challan was submitted against the accused under sections 302, 324, 147, 148, 149, 337-A(ii), 337-F(ii), 114, PPC.

4. Trial court framed charge against the accused Nazir Ahmed, Dilawar Khan, Ghulam Ali, Asghar Ali and Dr. Abdul Jalil at Ex.2. Accused pleaded not guilty and claimed to be tried, pursuant whereto, the prosecution besides placing reliance upon forensic reports produced as many as 12 witnesses. Its case primarily structured upon ocular account furnished by Fida Hussain (PW-2), Muhammad Umar (PW-3) and Niaz Muhammad (PW-4). They with one voice reiterated the case set up in the crime report. Prosecution side was closed.

5. The accused were confronted with the prosecution evidence under section 342, Cr.PC, they denied the prosecution allegations. Appellants examined in defence DWs Haji Misri, Sawan, Natho Khan, Asghar Ali and Muhammad Haroon. Accused declined to give statement on oath in disproof of prosecution allegations.

6. Learned trial court after hearing the learned counsel for the parties and assessment of evidence vide judgment dated 08.08.2009 convicted appellants Dilawar Khan and Nazir Ahmed under section 302(b) of the Pakistan Penal Code, 1860 and sentenced them to death on two counts with compensation of Rs.100,000/- each or in case of default in payment of compensation to suffer further S.I. for 5 years. Remaining appellants were convicted under section 302(b), PPC for imprisonment of life. All the accused were convicted under section 148, PPC and sentenced to 2 years R.I. so also under other sentences as mentioned in the impugned judgment, vires whereof are being challenged through the Appeal clubbed with Reference No.14/2011, seeking confirmation of death sentence awarded to the appellants Dilawar Khan and Nazir Ahmed, bound by a common thread this Appeal and confirmation Reference are being decided by us through this single judgment.

7. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the judgment dated 08.08.2009 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

8. Mr. Mehmood A. Qureshi, counsel for the appellants Ghulam Ali, Asghar Ali and Dr. Abdul Jalil contended that trial court convicted and sentenced these accused under section 302(b), PPC for commission of double murder to imprisonment for life. Mr. Qureshi pointed out that appellants Ghulam Ali, Asghar Ali and Dr. Abdul Jalil after undergoing the sentence have been released by the jail authorities. Mr. Qureshi does not press the appeal to the extent of appellants Ghulam Ali, Asghar Ali and Dr. Abdul Jalil. As such the appeal to the extent of appellants Ghulam Ali, Asghar Ali and Dr. Abdul Jalil is dismissed as not pressed.

9. Mr. Mehmood A. Qureshi, learned advocate for the appellants, confined his submissions to the reduction of death sentence of appellants Dilawar Khan and Nazir Ahmed, on the ground that prosecution had failed to prove the motive. Mr. Qureshi in order to substantiate his contentions read out the prosecution evidence.

10. Mr. Muhammad Iqbal Awan, learned D.P.G., conceded that prosecution has failed to establish the motive, however, he has argued that since the appeal is not pressed on merits, he has no objection if death sentence is reduced to imprisonment for life.

11. The occurrence in this case has taken place in broad day light. Appellants Dilawar Khan and Nazir Ahmed committed murders of Ghulam Muhammad and Sultan Ahmed by means of hatchet injuries. FIR had been lodged quite promptly and appellants had been nominated therein as perpetrators of the alleged murders. PWs were natural witnesses of the occurrence as their houses were situated in front of the simnali where incident had occurred. From the perusal of evidence, we have found no reason for the eyewitnesses to falsely implicate the appellants in the case of this nature. The said eyewitnesses had made straightforward evidence before the trial court, which had inspired confidence. The ocular account furnished by the eyewitnesses had found full support from the medical evidence. Learned trial court after assessing and evaluating the evidence in great detail came to the conclusion that prosecution had succeeded in establishing the guilt of the appellants to the hilt and upon our independent reappraisal of the evidence we have also come to the conclusion that the prosecution had proved its case against the appellants.

12. After serving the sentence of imprisonment for life and other sentences, appellants Ghulam Ali and Asghar Ali have been released on 06.09.2010 whereas Dr. Abdul Jalil has been released on 03.09.2010 by the jail authorities as such appeal is not pressed by Mr. Qureshi appearing for appellants Ghulam Ali, Asghar Ali and Dr. Abdul Jalil, the same is dismissed as not pressed. However, trial court rightly convicted appellants Dilawar Khan and Nazir Ahmed for the murders of Ghulam Muhammad and Sultan Ahmed. We have not been able to take a view of the matter different from that taken by the trial Court but only argument made before us is the prayer for reduction of the death sentence, on the ground that prosecution has failed to establish the motive.

13. From the close scrutiny of the evidence, it transpired that complainant in his evidence has reiterated the entire episode of the incident the same need not to be repeated but about the motive, deposed that, “appellants Dilawar and Nazir Ahmed had committed murder of the deceased persons, namely, Ghulam Muhammad and Sultan Ahmed by means of hatchet, as there was dispute over excavating of simnali”, Dr. Abdul Jalil asked co-accused that, “inspite of their restraining, Fida Hussain and others are excavating the simnali, therefore, they should be murdered.” Another eyewitness, namely, PW-2 Fida Hussain deposed that, “I cannot say regarding the motive of this incident.” Injured eyewitnesses Muhammad Umar (PW-3) deposed that, “I cannot say anything about motive of this incident.” PW-4 Niaz Ahmed deposed that, “accused were harbouring grudge against us because of their design to occupy Government Bhada land after the sale of land by Abdul Latif Chandio to Master Nazar Ali”.

14. In the present case, a specific motive was set up in the FIR that there was dispute between the parties over excavating of simnali. However, no independent evidence on the point of dispute over simnali was brought on record. Other eye witnesses, namely, Fida Hussain and Muhammad Umar, clearly stated before the trial Court that they were not aware about the motive for the crime. PW Niaz Ahmed deposed that accused had grudge against the complainant party due to dispute over the Government land sold by Abdul Latif Chandio to Master Nazar Ali. It was Government land which was sold by Abdul Latif Chandio to master Nazar Ali but no documentary proof was furnished before the trial Court. Thus, the real motive for the crime has remained absolutely unproved.

15. From the perusal of evidence, we have come to the conclusion that motive set up by the prosecution had not been proved by it. It 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 the sentence of death passed against a convict on the charge of murder as held in the case of Haji MUHAMMAD SADIQ versus LIAQUAT ALI and others (2014 SCMR 1034). Relevant portion is reproduced as under:-

“23.       In the case of Mawaz Khan v. Ghulam Shabbir and the State (1995 SCMR 1007),  while determing the proper quantum of sentence, this Court in para-9 of the judgment held as follows:--

            "9. Adverting to the question of sentence raised by the learned counsel for Mawaz Khan, we find that Abdullah Khan (P.W.9) and Muhammad Akhtar (P.W.10) have deposed about the motive but they were not present when the incident of motive took place. The circumstance of chopping of nose and cutting the ear of the deceased will show that the act of the accused of killing the deceased was somewhat provoked. So the real motive for the crime remains shrouded in mystery. The question of benefit of reasonable doubt is necessarily to be determined not only while deciding the question of guilt of an accused person but also while considering the question of sentence, particularly in a murder case, because there is a wide difference between the two alternative sentences-death or imprisonment for life. Benefit of reasonable doubt in respect of the real cause of the occurrence was thus available to the accused. Needless to add that whenever the real cause of murder is shrouded in mystery, is unknown or is concealed, the Courts have normally awarded the lesser punishments under section 302, P.P.C. as a matter of abundant caution.

In the present case too, the motive set up in the F.I.R. was not of that degree and magnitude, if at all it did lay with the appellants, to take lives of two persons, more so, when the same has shrouded in mystery.”

16. In another the case, QURBAN HUSSAIN versus the STATE (2017 SCMR 880), the Honourable Supreme Court has held as follows:-

“4.         We have also attended to the sentence of death passed against the appellant and in that context we have noticed that Haji Bashir Ahmed complainant (PW1) was not an eye-witness of the occurrence and even Saeed Ahmed (PW3) had not witnessed the occurrence with his own eyes as both the above mentioned eye-witnesses had reached the place of occurrence after the injuries had already been caused by the appellant to Mushtaq Ahmed deceased. In the impugned judgment passed by it the High Court had clearly concluded that the motive set up by the prosecution had not been proved by it. 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 Iflikhar and others (2011 SCMR 1165), Muhammad Mumtaz v. The State and another (2012 SCMR 267), Muhammad Inman @ 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). The record of the case also shows that the alleged recovery of hatchet from the appellant's possession was not of much legal consequence because no report of the Serologist had been brought on the record of this case confirming that the recovered hatchet was stained with human blood. As the motive set up by the prosecution had not been proved by it, therefore, the real cause of occurrence had remained shrouded in mystery. For all these reasons we have decided to exercise caution in the matter of the appellant's sentence of death. This appeal is, therefore, dismissed and the appellant's conviction for the offence under section 302(b), P.P.C. is upheld but this appeal is partly allowed to the extent of the appellant's sentence of death which is reduced to imprisonment for life. The benefit under section 382-B, Cr.P.C. shall be extended to the appellant. The order passed by the High Court regarding payment of compensation by the appellant to the heirs of the deceased as well as the order in respect of imprisonment in default of payment of compensation are, however, maintained. This appeal is disposed of in these terms.”

17. In the recent judgment in the case of NADEEM RAMZAN versus The STATE (2018 SCMR 149) it is held that in absence of proof of the asserted motive, real cause of occurrence had remained shrouded in mystery and this factor has put the Court to caution in the matter of appellants’ sentence of death. In the above reported case death sentence has been reduced to the imprisonment of life.

18. Since appeal is not pressed on merits, we have specifically attended to the sentence of death passed against the appellants Dilawar Khan and Nazir Ahmed and have found that motive set up by the prosecution has not been established at trial. Such fact certainly is a mitigating circumstance where normal penalty of death is not to be awarded but sentence of life imprisonment would be more appropriate.

19. In the case in hand, we have come to the conclusion that in absence of proof of the asserted motive, real cause of occurrence has remained shrouded in mystery and this factor had put us to the caution in the matter of appellant’s sentence of death. Learned D.P.G. concedes to this legal position. Additionally, as per jail roll dated 09.04.2019 appellants Dilawar Khan and Nazir Ahmed are in custody in this case since 08.09.1997 (21 years 7 months and 1 day).

20. For whatever has been discussed above, this appeal is dismissed to the extent of appellants’ conviction for offence under section 302(b), PPC, but the same is partly allowed to the extent of sentence of death passed against appellants Dilawar Khan and Nazir Ahmed, which is reduced to the imprisonment for life on each count. It may be observed that appellants Dilawar Khan and Nazir Ahmed have not been convicted for other offences. The order passed by the trial court regarding payment of compensation by the appellants to the legal heirs of both the deceased is maintained. However, in case of default in payment of compensation, appellants shall suffer S.I. for six months more instead of 5 years S.I. Both sentences shall run concurrently. The benefit of section 382-B, Cr.PC is extended to the appellants. Reference for confirmation of death sentence, made by the trial court, is answered in negative.

In the view of above, appeal is disposed of in these terms.

J U D G E

J U D G E

Gulsher/PS