THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Cr. Jail Appeal No. D-62 of 2015

 

Date

               Order with signature of Judge

 

Present:

Mr. Justice Muhammad Iqbal Kalhoro &

Mr. Justice Fahim Ahmed Siddiqui.

 

Date of hearing : 18-01-2018

Date of order     : 18-01-2018

 

Mr. Altaf Hussain Surahio, advocate for the appellant.

Mr. Habibullah G. Ghouri, advocate for the complainant.

Mr. Khadim Hussain Khooharo, Additional Prosecutor General.

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J U D G M E N T

 

MUHAMMAD IQBAL KALHORO-J:- By means of this appeal, the appellant Abid Kandhro has challenged his conviction and sentence of death awarded to him by Sessions Judge, Kambar-Shahdadkot @ Kambar in Sessions Case No.104/2007, bearing F.I.R No.37/2007 of P.S. Nasirabad, registered U/Ss: 302,114 and 34 P.P.C and payment of Rs.500,000/- as compensation to the legal heirs of the deceased as provided U/S 544-A Cr.P.C. in default thereof to suffer S.I for 6 months vide impugned judgment dated 15.09.2015

2.         Brief facts of the case are that on the day of incident viz. 28.04.2017, the complainant along with his brothers Ghulam Sarwar and Fida Hussain and his father Muhammad Saleh were present at Nasirabad-Waggan Road near “Jangi Wah” at about 08-00 hours, where they saw every one Abid son of Fazul Kandhro with repeater, (2) Yar Muhammad son of Muhammad Umar Massan and (3) Pervaiz son of Yar Muhammad Massan having a pistol coming from western side. As soon as they saw the complainant party, Yar Muhammad instigated Abid (present appellant) to commit murder of Ghulam Sarwar as he was causing him annoyance. At his instigation, the appellant Abid opened fire from his repeater on Ghulam Sarwar which hit him on his head and as result of which he died at the spot. This matter was subsequently reported by the complainant to the above said Police Station on the same date viz 28.04.2007, where instant F.I.R was registered. The record also reflects that on the same date, police visited the site and recovered 5 empty cartridges from the spot.

3.         The appellant was arrested on the next date of incident on 29.04.2007 and from his possession allegedly the crime weapon i.e. repeater  along with three live bullets was recovered. After usual investigation, the challan was submitted against the appellant, whereafter a formal charge was framed against him at Ex-1 and Ex-2, to which he pleaded not guilty and claimed trial.

4.         In support of its case, the prosecution examined complainant Khadim Hussain at Ex-4, who produced F.I.R at Ex-4-A, PW/eye witness Muhammad Sale Massan at Ex-5, P.W/eye-witness Fida Hussain Massan at Ex-6, Corpse bearer H.C Ghulam Abbas at Ex-7, who produced the receipts of the delivery of dead body at Ex-7-A & 7-B, P.W/Tapedar Nasirabad namely Anwar Ali at Ex-8, who produced sketch of place of vardat at Ex-8-A, P.W/mashir Abdul Qadir Massan at Ex-9, who produced mashirnama, place of vardat and recovery of blood stained earth and inquest report at Ex-9-A and 9-B respectively. PW/A.S.I. Duty Officer Ali Hassan Mugheri at Ex-10, P.W/I.O A.S.I. Ashique Ali Tunio at Ex-11, who produced the “Lash Chakas Form”, mashirnama of arrest of accused Abid and mashirnama of arrest of accused Yar Muhammad, Pervaiz Massan, Chemical and Ballistic reports at Ex-11-A to 11-E respectively, P.W/Dr. Guroo Dino at Ex-12, who produced post mortem report at Ex-12-A. After examining all the above cited witnesses, the side of prosecution was closed and statement of the appellant U/S 342 Cr.P.C. was recorded, wherein he has pleaded his innocence and has further stated that he has been falsely implicated in this case by the police. However, he did not examine himself on oath in terms of sub-section (2) of Section 340 Cr.P.C. nor led any evidence in his defence. After hearing the parties, learned trial court convicted the appellant vide impugned judgment in the terms as stated in para No.1. Being aggrieved by the same, the appellant has preferred this appeal which is taken up today for the final hearing.

5.         Mr. Altaf Hussain Surahio, learned counsel for the appellant, at the very outset of his arguments has submitted that he would not press this appeal on merits, if the sentence of death awarded to the appellant is converted into imprisonment for life as there are a number of mitigating circumstances which have extenuated gravity of the offence. While explaining those circumstances, he has contended that although the motive has been alleged but it has not been proved by the prosecution; the instigator, namely, Yar Muhammad, who is shown to be present at the spot, was let-off along with co-accused Pervaiz who is also shown to be present at the spot armed with the weapon but their release was not challenged by the complainant at any forum during the trial; only a single fire shot is attributed to the appellant and he did not repeat the same; the blood stained clothes were never sent for F.S.L report; the motive is against the let-off accused and there were no reason for the appellant to commit murder of the deceased, therefore, the actual motive is shrouded in mystery; although the alleged crime weapon was recovered from the appellant on 29.04.2007 but it was sent on 20.06.2017 along with 5 empty cartridges recovered on 28.04.2017. He has further contended that recovery of 5 empty cartridges does not correspond with the prosecution story as in the F.I.R only a single fire arm shot is shown to be made; the appellant has remained in jail since the date of his arrest viz. 29.04.2017, which would become more than 10 years. In support of his contentions, he has placed his reliance on Abdul Nabi versus The State (2017 SCMR 335), Muhammad Ismail versus The STATE (2017 SCMR 713), Qurban Hussain versus The STATE (2017 SCMR 880), Zahoor Ahmed versus The STATE (2017 SCMR 1662), Mazhar Abbas alia Baddi versus The State (2017 SCMR 1884) and Amanat Ali versus The State (2017 SCMR 1976).

6.         Learned counsel for the complainant has conceded to the request of learned defence counsel in view of the case laws relied upon by him so also learned Additional Prosecutor General.

7.         We have considered the submissions of the parties and have perused the material on record. The prosecution has examined in all nine witnesses. A perusal of their evidence would indicate that they have supported the prosecution case on all material facts qua the role of appellant that he has committed murder of the deceased. In their cross examination such assertion has not been shaken, therefore, the charge against the appellant stands proved. However, as the same time, we have noted that although in the case, the motive has been alleged by the prosecution, but during trial it was not proved. The motive is alleged against the co-accused, Yar Muhammad, who is stated to be instigator, and co-accused Pervaiz who is son of the said Yar Muhammad but they were let-off during investigation and the complainant did not dispute their release before any forum. The appellant had no occasion to commit murder of the deceased as such the real motive is shrouded in mystery. Additionally it has to be appreciated that though the appellant was arrested on 29.04.2007 and from him the crime weapon was recovered but it was sent after about two months of such recovery and after submission of the challan. The crime empties recovered on the very day of the incident viz. 28.04.2007 were also sent along with the said weapon viz. repeater after submission of the challan, therefore, the FSL report in respect of such recovery is of no use to the prosecution. In the F.I.R and in the evidence it is evident that the appellant is shown to have fired only a single shot on the deceased but strangely from the place of incident 5 empty cartridges were recovered. The recovery of such number of cartridges has not been properly explained by the prosecution. In our view, the period of detention the appellant has undergone in jail coupled with the above facts can be taken as mitigation circumstances for deciding the quantum of sentence of the appellant. We, therefore, in view of above facts and circumstances and in the light of dictum laid down by the Honourable Supreme Court in the above cited cases accept the request of the learned defence counsel. Consequently this appeal is dismissed on merits, however, the sentence of death awarded to the appellant vide impugned judgment dated 15.09.2015 is altered and converted into imprisonment for life U/S 302(b) P.P.C. Benefit of Section 382(b) is duly extended to him. However, the order of payment of compensation of Rs.500,000/- in terms of Section 544-A Cr.P.C. would remain intact.

8.         Instant appeal in terms of above stands disposed of.

            In view of above, Cr. Reference No.10/2015 for confirmation of the death sentence is replied in negative and accordingly disposed of.

 

                                                                                                 Judge

                                                                        Judge

Abdul Salam/P.A