For

THE HIGH COURT OF SINDH AT KARACHI

Criminal Jail Appeal No.365/2016

Confirmation Case No.09 of 2016

Present:

Mr. Justice Naimatullah Phulpoto

Mr. Justice Mohammad Karim Khan Agha

Appellant: Ishtiaq Ahmed son of Mushtaq Ahmed through Mr. Qadir Hussain Khan, advocate

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

Date of hearing: 21.01.2019

Date of announcement : 28.01.2019

J U D G M E N T

NAIMATULLAH PHULPOTO, J.- Ishtiaq Ahmed son of Mushtaq Ahmed appellant was tried by learned Additional Sessions Judge-VI, Karachi East, in Sessions Case No.400 of 2007 for offences under sections 396, 397, 302, 324, 34, PPC registered at P.S Al-Falah, Karachi. After full-dressed trial, by judgment dated 06^th October 2016, appellant was convicted under Section 302 PPC and sentenced to death. Appellant was also convicted under section 324 PPC and sentenced to 7 years R.I. and to pay fine of Rs.30,000/-, in default whereof to suffer six months R.I. Impugned judgment concluded by stating that, “As regards injuries sustained by injured Muhammad Rafiq, Muhammad Ilyas, Ghulam Sakina and Sidra are concerned and it is mentioned in the medical certificates that same was result of firearms but final opinion is not given by the doctor, therefore, I avoid to convict the accused for the injuries sustained by the witnesses though it is necessary but final medical certificate is not available and accused has been also convicted U/s. 324 PPC, therefore, I hesitate to do so in the present case.” Trial court has made Confirmation Reference to this Court in terms of Section 374, Cr.PC.

2. Brief facts of the prosecution case, as disclosed in the FIR are that on 11.04.2007 at 04:30 AM, complainant Mst. Hashmat Bibi was offering Namaz-e-Tahajud in her room in House No.R-59, Ahsanabad, Malir, Karachi. Suddenly, six persons having pistols entered into her house through roof and snatched ornaments of gold from her and abused her on which she raised cries, which attracted her son Idrees (now deceased). In the meantime, all family members came in her room and tried to apprehend accused. It is alleged that accused persons fired upon the husband of complainant, namely, Muhammad Rafiq, his son Ilyas, daughter Sakina and daughter-in-law Sidra. All family members sustained firearm injuries at the hands of culprits. On the fire shots mohallah people gathered outside the house. It is stated that accused ran away from the place of incident. All the injured persons were taken to the hospital but Muhammad Idress succumbed to the injuries.

3. SI Azhar Hussain Jafri after receiving such information rushed to the hospital and found that Muhammad Idrees was lying dead. He recorded statement of Mst. Hashmat Bibi under section 154, Cr.PC and on the basis of her statement, he lodged FIR vide Crime No.78/2007, under sections 396, 397, 398, PPC on 11.04.2007 at 10:30 AM.

4. Investigation was carried out by SI Azhar Hussain Jafri. He inspected the place of wardat; prepared the inquest report of deceased Muhammad Idrees. Appellant Ishtiaq Ahmed was arrested by police in another case. However, during interrogation in that case, he disclosed about the commission of present offence. As such, he was arrested in this case on 05.07.2007. During investigation, he was produced before the concerned Judicial Magistrate for identification parade through eyewitnesses on 09.07.2007. Complainant Mst. Hashmat Bibi and PW Muhammad Raheel, appeared before Judicial Magistrate-X, Karachi East where identification parade was held and the appellant was identified by both the witnesses. Other injured witnesses were seriously injured and were admitted in hospital as such they could not join identification parade. After completion of usual investigation, challan was submitted against the appellant under sections 396, 397 and 398, PPC, showing co-accused, namely, Furqan, Aslam, Zubair and Faisal as absconders.

5. Learned trial court after completing the formalities, ordered the case to proceed against absconding accused named above under section 512, Cr.PC, proceedings under sections 87 and 88, Cr.PC were concluded against them.

6. Trial court framed charge against accused Ishtiaq Ahmed at Ex.2 under sections 396, 302, 34, PPC. Accused pleaded not guilty and claimed to be tried.

7. At the trial, prosecution examined complainant (PW-1) Mst. Hashmat at Ex.4, PW-2 Muhammad Rafiq at Ex.5, PW-3 Muneeruddin at Ex.6, PW-4 Muhammad Ilyas at Ex.7, PW-5 Mst. Sidra at Ex.10, PW-6 Ghulam Sakina at Ex.11, PW-7 MLO Afzal at Ex.13, PW-8 Muhammad Raheel at Ex.16, PW-9 Mr. Allah Bachayo, Judicial Magistrate at Ex.17, PW-10 SI Azhar Hussain Jaffri at Ex.18, PW-11 Changez Khan at Ex.19 and PW-12 Raja Tariq Mehmood at Ex.20. Thereafter, prosecution side was closed at Ex.21.

8. Statement of accused was recorded under section 342 Cr.PC at Ex.22, in which he denied the prosecution allegations and claimed his false implication in this case. Accused raised plea that he was arrested from gate of Masjid and weapon was foisted upon him. Accused stated that he has been acquitted in a case under section 13(d) of the Arms Ordinance registered against him. Accused did not lead evidence in defence and declined to examine himself on oath in disproof of prosecution allegations.

9. Learned trial Court after hearing the learned counsel for the parties and assessment of the evidence, vide judgment dated 06.10.2016 convicted the appellant and sentenced him to death as stated above. Hence, appellant filed this appeal. By this single judgment, we intend to dispose of the aforesaid appeal as well as Confirmation Reference No.09/2016 made by trial court.

10. Mr. Qadir Hussain Khan, learned counsel for the appellant, does not press the appeal on merits but prayed for reduction of death sentence to the imprisonment for life. Learned counsel for the appellant submits that there are mitigating circumstances in the case to reduce the death sentence to imprisonment for life that postmortem examination of the deceased has not been conducted; that firearm injury caused to deceased has not been specifically attributed to appellant. Lastly, argued that source of light has not been disclosed by the prosecution witnesses in their evidence. In support of his submissions, he relied upon the cases of Muhammad Abbas vs. The State and others (2018 SCMR 397) and Jan Muhammad @ Janoo Vs. The State (2016 YLR 2359 (Sindh).

11. Mr. Muhammad Iqbal Awan, DPG argued that prosecution has proved its case against the appellant but in view of the submissions made by the learned advocate for the appellant that postmortem examination of deceased has not been conducted, and firearm injuries of deceased were not specifically attributed in FIR to appellant, recorded no objection for converting death sentence to imprisonment for life.

12. We have carefully heard the learned counsel for the parties at length and scanned the entire evidence available on record.

13. Firstly, we discuss medical evidence. In order to prove unnatural death of deceased Muhammad Idrees and firearm injuries sustained by Muhammad Ilyas, Mst. Sakina, Sidra and Muhammad Rafiq, prosecution has examined PW-7 Afzal Ahmed Memon, MLO, JPMC, Karachi at Ex.13. He deposed that on 11.04.2007 he was posted as MLO at JPMC in night shift, at 05:35 a.m. Injured namely, Muhammad Ilyas, Mst. Sakina, Muhammad Rafiq and Mst. Sidra were brought in hospital. MLO examined injured Muhammad Ilyas, aged about 35 years, and found firearm injury, punctured wound size 2cm in diameter and mid of chest of examination margins inverted as wound of entry and referred him for emergency treatment. MLO examined Mst. Sakina daughter of Muhammad Rafiq and found firearm injury, punctured wound size 1.5 c.m. in diameter at right mid axillary line above 5cm to right chest on examination margins inverted as wound of entry, she was referred for emergency treatment. MLO examined injured Muhammad Rafiq, aged about 65 years, and found injury No.1 firearm punctured wound size 1.6 c.m. in diameter at left limber region on examination margin inverted as wound of entry; injury No.2, firearm injury, punctured wound size 2cm in diameter at left in general region on examination margin averted as wound of exit, he was referred for emergency treatment. MLO examined injured Sidra daughter of Idrees, aged about 20 years, and found injury No.1 firearm injury, punctured wound size 1cm in diameter at 2^nd toe of left foot with inverted margin as wound entry; injury No.2 firearm punctured wound size 2cm in diameter at medial side of left foot bone averted margin as wound of exit. Medical Officer issued medico legal certificates at Ex.13/A to 13/E. Perusal of Medical certificate Ex.13/B reveals that Muhammad Idrees was brought dead, but postmortem examination was not conducted by the Medical Officer. It is clear from medical evidence that deceased Idrees died his unnatural death but cause of death has not been determined and injured persons, namely, Muhammad Ilyas, Mst. Sakina, Muhammad Rafiq and Mst. Sidra had also sustained firearm injuries as described by the Medical Officer.

Ocular Evidence

14. PW-1 Mst. Hashmat Bibi deposed that on 11.04.2007 at 04:00 a.m., she along with her husband was offering Tahajud prayers and reciting Darood Shareef. All of sudden, three accused persons armed with weapons came in a room and on gunpoint demanded her to give everything in her house. She removed bangles of gold from her wrist and accused gave her beating. She raised cries which attracted her children. Accused persons confined all family members in a room. One of accused snatched necklace of her daughter-in-law Sidra, which she was wearing. She further deposed that her son Idrees resisted, on which one of the accused fired upon her son Muhammad Idrees. She has stated that culprits fired upon other family members.

15. PW-2 Muhammad Rafiq has deposed that on 11.04.2007 at 04:30 a.m he along with his wife Mst. Hashmat was offering prayers and Tasbeeh in the room where three persons entered and they snatched ornaments of gold from his wife. He raised cries which attracted his son Idrees and other family members namely Sidra, Ilyas, Raees, Sakina, Maryam and Bushra. Accused persons asked the family members to handover to them whatever they had. P.W Muhammad Rafiq grappled with accused. Deceased Muhammad Idrees also resisted and accused fired upon family members. One fire hit to Idrees and other family members also sustained firearm injuries. Thereafter, accused made their escape good from the place of incident. It is further stated that Mohallah people took injured persons to hospital where Idrees was declared as dead. P.W Muhammad Rafiq was admitted in hospital for 20 days.

16. PW-4 Ilyas has also given the same version with regard to the incident and stated that he was sleeping in the house on 11.04.2007 at 4:00 am, some boys entered into the house, started to give beating to the family members and snatched ornaments of gold from his mother and sister-in-law. His brother Muhammad Idrees protested to the accused persons as to why they were abusing the family on which accused Ishtiaq fired upon his brother Idrees which hit him at his chest.

17. PW-3 Muniruddin has deposed that on 11.04.2007, he was present at his house and was performing Tahajud prayers. He heard gunshot report from the house of the complainant and his door was also knocked by PW Raheel, who disclosed that dacoits had entered into the house. The persons of the Mohallah were called and he went to the house of Raheel and saw that 2/3 ladies, Ilyas, father of Ilyas and Idrees were lying injured on the ground. Idrees had succumbed to the injuries. Injured persons and Idrees were shifted to the hospital.

18. PW-5 Mst. Sidra, wife of deceased Muhammad Idrees deposed that on 11.04.2007, she was sleeping on the ground floor of the house. At 04:30 hours she wake up on some noise and observed that his father-in-law Muhammad Rafiq was raising noise that dacoits have entered into the house and made call to 15. She has further deposed that the dacoits asked the family members to handover golden ornaments and she removed her bangles from the hands. In the meanwhile, one dacoit snatched chain from her neck to which her husband Muhammad Idrees (now deceased) asked dacoits not to physically abuse the ladies and quarrel started in between her husband and dacoits. She has further deposed that her father-in-law, her brother-in-law and her husband caught hold the dacoits and the dacoit who was caught hold by her father-in-law had released himself from his father-in-law and made fire upon her husband, namely, Muhammad Ilyas and dacoit who was caught hold by her husband was released and he fired upon her brother-in-law and dacoit who was caught hold by her brother–in-law was released and made fire upon sister-in-law, namely Ghulam Sakina. While the accused persons running away they also made fire upon her father-in-law and fire hit him. Thereafter, injured persons were taken to the hospital and her husband expired. She has categorically stated that accused Ishtiaq Ahmed made fire upon her husband Muhammad Idrees.

19. PW-6 Ghulam Sakina is also eyewitness of the incident. She had deposed that on 11.04.2007 at night time, she was sleeping in the upper portion of the house. She heard noise and came running on the ground floor and saw that a person was standing armed. He pushed her to the room and culprits directed the family members to handover all the ornaments of gold. She handed over her bangles. Suddenly, present accused snatched a chain from the neck of her sister-in-law to which much annoyance was caused to deceased Muhammad Idrees and asked accused as to why they were disgracing the family. She has stated that present accused fired upon her brother Idrees, fire hit him and he fell down. PW Mst. Ghulam Sakina had also given the entire episode of the incident.

20. PW-8, Muhammad Raheel is also eyewitness of the incident. He had deposed that on 11.04.2007 he was sleeping in the house, at 04:45 a.m. he heard some noise and came down from the first floor of the house and saw two stranger persons were present in the house and they were armed with pistols. One culprit caused butt blow to PW Muhammad Raheel at his head and asked him to keep silence and pushed him into the room where other family member were confined. His mother and sister-in-law handed over the ornaments of the gold to the accused. He has further stated that one dacoit snatched chain from the neck of his sister-in-law (wife of deceased) to which Muhammad Idrees resisted and appellant fired upon Idrees. He has further stated that remaining accused fired upon remaining family members.

21. PW-9 Allah Bachayo, Civil Judge & Judicial Magistrate had conducted the identification parade. He has deposed that investigation officer produced accused Ishtiaq before him for holding identification parade through witnesses Muhammad Raheel and Mst. Hashmat Bibi on 09.07.2007 in Crime No.78/2007 under sections 396/397/398, PPC. Judicial Magistrate conducted identification parade through the above named witnesses and stated that both the witnesses identified accused Ishtiaq by assigning the role to the accused. Judicial Magistrate was also cross-examined by the defence counsel and he denied the suggestion that witnesses had seen the accused before holding of identification parade.

22. PW-10 SIP Azhar Hussain Jaffri deposed that on 11.04.2007 he was posted at P.S. Al Falah as a duty officer and received information through 15 by ASI Asif at about 05:30 hours about the incident which had taken place in House No.R-59, Ahsanabad. Upon receipt of such information, he rushed to JPMC. MLO informed him that one Muhammad Idrees had expired, whereas three injured persons were in operation theatre. SIO examined dead body of Muhammad Idrees and prepared inquest report. Medical Officer told police that postmortem examination of deceased was not conducted at the request of his uncle. SIO recorded his statement at Ex.18/C. Other injured persons were not able to give statements, therefore, SIP recorded 154, Cr.P.C statement of Mst. Hashmat Bibi wife of injured Muhammad Rafiq at Police Station and lodged FIR No.78/2007 under sections 396/397/398/34 PPC against unknown accused persons. Investigation was entrusted to Incharge Investigation.

23. PW-11 SHO Inspector Changez Khan has stated that on 11.04.2007 he was posted at Police Station Al-Falah, he received information at 04:45 a.m. that dacoity has been committed in House No.R-59. He along with subordinate staff reached at the abovementioned house and found a crowd over there. Injured persons were taken in Ambulance to the hospital. SHO inquired about the incident. IO inspected the place of occurrence, secured 2 empties of 12 bore and 4 empties of TT pistol, bloodstained earth. Accused Ishtiaq was arrested in this case on 05.07.2007 as he was already under arrest in a case under Section 13(d) of the Arms Ordinance, 1965. During interrogation, accused Ishtiaq disclosed that he had committed this crime along with his 5 accomplices in Bungalow No.59. Accused led police and pointed out the place of incident/house, IO prepared such mashirnama in presence of mashirs Muhammad Rafiq and Muhammad Ilyas. He was declared hostile to the extent of recovery of empties and securing blood. PW-12 Raja Tariq Mehmood, carried out investigation of this case. He has deposed that on 11.04.2007 he inspected the place of wardat and secured 2 empties of 12 bore, four empties of 30 bore and 2 bullets (sikka) on 05.07.2007. According to prosecution case, accused Ishtiaq was arrested by SHO Al-Falah, namely, Chang Khan and a pistol was recovered from his possession used in the case. SIO Raja Tariq Mehmood has stated that accused was identified by Muhammad Rafiq at spot and accused was arrested in this case and brought to the police station and accused was produced before the Judicial Magistrate for identification parade through eyewitnesses, namely, Muhammad Raheel and Mst. Hashmat Bibi. Identification parade was held on 09.07.2007 and accused was remanded to the judicial custody.

24. As regards to the identification parade held on 09.07.2007, we have noticed that injured witnesses, namely, Muhammad Rafiq, Muhammad Ilyas, Mst. Sidra and Mast Sakina were admitted in the hospital, they were unable to appear before Magistrate and identification parade was held through only PWs Hashmat Bibi and Muhammad Raheel, who picked out the appellant during the identification parade. The Honourable Supreme Court in the case of Solat Ali Khan vs. State (2002 SCMR 820) has observed as under:

“The figure and features of the appellant must have been imprinted on the minds of Mrs. Shahnaz Hamid (P.W) and Umer Shahid (PW.12) widow and son respectively of deceased Shahid Hamid. How they can forget the person who had committed this gruesome act of killing Shahid Hamid along with his driver and gunman? It is expecting too much from the complainant to point out the detailed description and features of the accused in the FIR as at that moment she must be undergoing a very traumatic condition.”

25. PWs Muhammad Rafiq, Muhammad Ilyas, Mst. Sidra and Mast Sakina had identified the present appellant before the trial court that he had actively participated in the dacoity and fired upon the deceased Muhammad Idrees. In absence of any motivation on the part of these witnesses to falsely implicate the appellant in this case, we have no hesitation to rely on such identification of the appellant as actual culprit who had, along with absconding accused, committed the offence.

26. The medical evidence had provided corroboration to the ocular evidence inasmuch as the date and time of occurrence, but it is a fact that cause of death of deceased could not be determined by Doctor for want of postmortem examination.

27. Learned counsel for the appellant argued that no light was available at the time of occurrence, is devoid of any force as according to the case of prosecution, incident occurred in the double-storied house, complainant and her husband were offering Tahajud Prayers and Durood Sharif, it could not be presumed that Tahajud Prayers were being offered in a room which had no light. In this regard, we are fortified by the dictum laid down by the Honourable Supreme Court in the case of NASRULLAH KHAN & 2 Others vs. The State (2010 SCMR 881). Relevant portion is reproduced as under:

“3. We have carefully examined the contentions as agitated on behalf of petitioners and perused the judgment impugned with the eminent assistance of learned Advocate Supreme Court on behalf of petitioners. The question of identification has been dealt with in depth by scrutinizing the entire evidence which has come on record in a comprehensive manner and relevant portion of the judgment impugned is reproduced herein below for ready reference:---

"According to statement of the complainant, Muzaffar, Zulfiqar Ali and Tasneem Aslam had also witnessed the occurrence and that complainant and other P.Ws. could identify the assailants. The descriptions of the two accused who had entered into the room and resorted to firing was given in the statement. One of the accused was aged about 24-25 years, was of strong physique, was keeping beard his height was about 5 feet 7/8 inches and was wearing `Shalwar Kameez', the other accused was of the height of about 5 feet 6/7 inches, he was of whitish complexion, had a strong physique was aged about 20-25 years and was wearing `Shalwar Kameez'.

It was also observed in the judgment impugned that "the identification test was conducted by P.W.30 Muhammad Tajamal Abbas Rana Magistrate. Perusal of his statement, on oath, reveals that the witnesses while identifying the accused had also described the role played by them. Furthermore, all the P.Ws. identified the accused before learned trial Court and also specified their roles. The argument of the learned counsel that no light was available at the time of occurrence is devoid of any force as it cannot be presumed that the Daras was being given in a room which had no lights."

28. Learned advocate for appellant after some arguments has confined his submissions to the reduction of sentence of the appellant, on the grounds mentioned in the earlier part of this judgment. Besides the conceding statement by D.P.G. for reduction of death sentence, we, after careful reappraisal of the evidence have come to the conclusion that prosecution has proved its case.

29. Since Appeal is not pressed on merits, we have particularly attended to the sentence of death passed against appellant. In a chain of case-law the view held is that normal penalty is 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 the 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. In this view of the matter, we have no hesitation to hold that the two sentences are alternative to one another, however, awarding one or the other sentence shall essentially depend upon the facts and circumstances of each case. There may be multiple factors to award the death sentence for the offence of murder and equal number of factors would be there not to award the same but instead a 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 as held by the Honourable Supreme Court in the case of Ghulam Mohy-ud-din alias Haji Babu & others Vs. State (2014 SCMR 1034).

30. 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 to put it at end, by assessing the evidence, facts and circumstances of a particular murder case, under which it was committed as held by the Honourable Supreme Court in the case of Ghulam Mohy-ud-din alias Haji Babu and others Vs. The State (2014 SCMR 1034).

31. Learned D.P.G. has also conceded for reduction of the sentence in view of above mentioned multiple factors/ circumstances. Learned defence counsel rightly has placed reliance upon the cases of Jan Muhammad @ Janoo Vs. The State (2016 YLR 2359 (Sindh) and Muhammad Abbas versus The State and others (2018 SCMR 397). This Court in last paras of the judgment of Jan Muhammad alias Janoo (supra) held as follows:

“In the present case motive remained shrouded in mystery. It is not certain what happened immediately before the incident. As per FIR complainant stated that appellant demanded share in the shop purchased by the deceased but the complainant refused. However, motive as set up by prosecution does not appear to be strong enough.

Besides, it is not clear as to why relatives of deceased took dead body without postmortem examination. As per evidence, Dr. Abdul Jabbar received the dead body of the deceased but relatives of the deceased forcibly took away the dead body without postmortem examination and such information was given by him to police and the police prepared the Danishnama as well as mashirnama of the deadbody at the house of the deceased. It has not come on record as to why the relatives of the deceased forcibly took away the dead body from the hospital without postmortem. Report of chemical examiner regarding bloodstained clothes of deceased has not been produced. Moreover, no crime weapon was recovered from the appellant. According to prosecution case, 7/8 fires were made but only 04 empties were collected from place of incident, prosecution has no explanation for such ambiguity. These are the mitigating circumstances in this case for lesser penalty. We have noticed that appellant Jan Mohammad was convicted under section 302(a), P.P.C. and sentenced to death as Qisas. Conviction in the circumstances of case under section 302(a), P.P.C. was erroneous and appellant named above was liable to conviction under section 302(b), P.P.C. as Tazir.

In view of above stated circumstances, we reduce the death sentence awarded to the appellant to imprisonment for life and decline to confirm the death penalty. Benefit of section 382-B, Cr.P.C. shall be extended to the appellant. With this modification in the sentence, the appeal is dismissed. The confirmation reference is answered in negative.”

32. In the case of Muhammad Abbas (supra) the Honourable Supreme Court has observed as under:-

“3. As many as six persons sleeping in a street were done to death in this case in the backdrop of a sectarian dispute and after a detailed assessment of the evidence available on the record both the courts below had concurred in their conclusion regarding guilt of the appellant having been established beyond reasonable doubt and upon our own independent evaluation of the evidence we have not been able to take any legitimate exception to the said conclusion concurrently reached by the courts below. As regards the sentences of death passed against the appellant we note that it had nowhere been alleged by any eye-witness that the appellant had actually fired at any of the deceased or had caused any injury to any person. Even the extra-judicial confession attributed to Shah Nawaz co-accused confirmed the said aspect of the matter as according to the same the appellant had merely accompanied his co-accused to the place of occurrence, he had remained present with a motorcycle at the spot and had not caused any injury to any person during the incident in issue. Although a firearm had allegedly been recovered from the custody of the appellant during the investigation yet the said firearm never stood connected with the alleged offences. We have been informed that the appellant had been arrested in connection with this case way back in the year 1997 and he has remained behind the bars ever since. In this view of the matter we have found that in terms of the role attributed to the appellant he did not deserve the maximum sentence provided for the offences in question.”

33. In the present case, postmortem examination of deceased Muhammad Idrees had not been conducted for ascertaining the cause of death. Complainant is the injured witness and nowhere in her FIR at Ex.4/B, she has given the description of the appellant that he had actually fired upon her deceased son because in all there were six accused persons and the allegations are generalized in nature. These are the mitigating circumstances available in the case, which would be sufficient not to award penalty of death but imprisonment for life. In this view of the matter, we have found that appellant did not deserve the maximum sentence provided for the offence in question. Therefore, death sentence awarded to the appellant in our view is not sustainable in the eyes of law.

34. For what has been discussed above, the death sentence is reduced to imprisonment for life. The order passed by Trial Court regarding payment of compensation by the appellant to the legal heirs of the deceased as well as order regarding imprisonment in default in payment of compensation are maintained, however, in case of default of the payment of compensation appellant shall suffer S.I for six months instead of R.I for six months. Conviction and sentence under Section 324 PPC is also maintained. Benefit u/s 382-B Cr.P.C shall be extended to the appellant. With this modification in the sentence, the appeal is dismissed. All the sentences to run concurrently. The confirmation Reference No. 09 of 2016 made by the Trial Court is answered in negative.

35. Before parting with the judgment, it is observed that in criminal case, postmortem examination of the deceased is the requirement of law. Medical Officers are legally bound to conduct the postmortem examination of the deceased persons in all circumstances, without being influenced by request of relatives of deceased persons. Let the copy of the judgment be sent to the Health Secretary, Government of Sindh, Karachi for strict compliance.

J U D G E

Gulsher/PS