Cr

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Revision Application No: D-127/2003

Present:-

Mr. Muhammad Ather Saeed &

Mr. Ahmed Ali M. Shaikh, J.J.

Date of hearing: 24-03-2010

Applicant: Kehar Ali Panhyar through

For Applicant: Mr. Ghulam Shabir Dayo, Advocate.

Versus

Respondents: Lutif Ali @ Sher and others

For Respondents: Mr. Dareshani Ali Hyder Ada

For State: Mr. Zulifiqar Ali Jatoi,

Deputy Prosecutor General.

J U D G M E N T

Muhammad Ather Saeed, J--- This Criminal Revision, for enhancement of sentence of life inflicted by the learned Sessions Judge, Khairpur, vide his Judgment, dated 14-11-2003 in S.C No. 471/1999 relating to Crime No. 155/1998 registered with P.S: Kotdiji for offences under Section 147, 148, 302/149, PPC, to death sentence has been filed by the Complainant.

Brief facts of the Case are that the Complainant Kehar Ali S/O Habibullah Panhyar had registered a FIR No. 155/1998 at P.S: Kotdiji on 29-09-2998 for an incident which occurred on the same date. He had stated that the deceased Rasheed Ahmed was his cousin and deceased Altaf Hussain was his maternal nephew. According to him, the land of Rasheed Ahmed was near the house of one of the Accused Lutif Ali who also had a cattle pan and always used to leave his cattle in the lands of the deceased damaging the crop and in view of this attitude of Lutif Ali, the deceased persons had exchanged hot words with him and slapped him. He further states that this had annoyed the Accused and on the day of the incident when he along with deceased persons and two other persons Mevaluddin and Darya Khan was proceeding for some work towards Bozdar Wada Town and reached the curve of the road, the Accused persons duly armed with Mousers and T.T Pistols gave lalkara to the deceased persons that they had insulted them and will not be spared and then initially Accused Lutif Ali fired at Rasheed Ahmed which hit him on the chest and Accused Imdad fired on Altaf Hussain which also hit him at the left side of the chest whereas the remaining accused also fired from their weapons with intention to commit murder. The accused persons then ran away and on examination of the injured Rasheed Ahmed and Altaf Hussain, it transpired that both of them had died whereas Rasheed Ahmed had received two fire shots and deceased Altaf Hussain had sustained three fire shots.

The accused persons were arrested and tried by the Sessions Court and were sentenced to life imprisonment by the Impugned Judgment. The Sessions Court, while awarding the life imprisonment, gave the following reasons for awarding lesser sentence:-

“The lesser punishment is being awarded for the reasons that all the five accused are continuously in Jail since the date of their arrest and their case was pending for a long time and out of them four accused belong to one family and that the occurrence was also the result of beating and insult of the accused, therefore, the same is also considered as mitigating circumstance in view of the law laid down in the authority of 1999 SCMR 52”.

We have heard Mr. Ghulam Shabir Dayo, the learned Counsel for Applicant, Mr. Dareshani Ali Hyder Ada, the learned Counsel for Respondents and Mr. Zulfiqar Ali Jatoi, the learned DPG.

The main contention of the learned Counsel for Applicant is that the circumstances that the accused persons were of the same family, i.e., father and three sons and that they had committed the murder after exchanging hot words and being slapped by the deceased were not mitigating circumstance as the murder was not committed on the day the hot words were exchanged but it was a planned murder which took place after passing of the incident of exchanging hot words and slapping by the deceased, therefore, it was pre-meditated murder and the circumstances do not tantamount to the mitigating circumstances justifying awarding of lesser punishment of life imprisonment. He further submitted that it has been stated by the Complainant that all the accused persons directly on the deceased persons and their fires hit on the body of the deceased persons and specific role has been assigned to all the accused persons as the deceased persons had received five bullets’ wounds. In support of his arguments, the learned Counsel relied on the following Judgments:-

a) Mohammad Iqbal versus the State

2002 SCMR 374

b) Zaheer Ahmed versus the State

2008 SCMR 1177

c) Mohammad Hanif versus the State

2000 SCMR 1805

d) Abdul Shakoor and others versus the State

1986 SCMR 1247

He, therefore, prayed that the Impugned Judgment may be modified to the extent that the sentence of life may be converted into death sentence.

The learned Counsel for Respondents/accused strongly opposed the death sentence and submitted that it was not a pre-meditated murder but was a result of hot words exchanged and the beating and slapping of the accused Lutif Ali by the deceased person and had taken place as a direct consequence of these hot words and insult. In this connection, he relied on a Judgment of the Honourable Supreme Court in the Case of Mohammad Akram versus the State, reported in 1989 SCMR 389. He, therefore, prayed for dismissal of this Revision.

The learned DPG, in order to assist the Court, relied on only one Judgment of the Honourable Supreme Court, i.e. Mohammad Yakoob versus the State, reported in 2009 SCMR 527.

We have examined this Revision in the light of arguments of the learned Counsel and have carefully perused the record of the Case, including the FIR, the Impugned Judgment and the Judgments relied on by the learned Counsel.

As far as the Judgments relied on by the learned Counsel for Applicant are concerned, we find that all these Judgments are based on the merits of the Case and the death sentence has been confirmed where the Honourable Supreme Court came to the conclusion that the merits of the Case and the facts and circumstances of the Case led to the conclusion that it was a pre-meditated and brutal murder and justified the imposing of death sentence. The Judgment relied on by the learned Counsel for Respondents/accused is also distinguishable as in that case, the murder was committed immediately after the exchange of hot words and altercation between the parties, and therefore, the Honourable Supreme Court had held that there were enough mitigating circumstances which justified the lesser punishment. However, the Judgment relied on by the learned DPG, i.e. Mohammad Yakoob versus the State quoted supra, is in all force with the Case in hand. In this Judgment, the Honourable Supreme Court held as under:-

“As regards the quantum of sentence though the learned trial Judge has not inflicted normal penalty for murder on the appellants on the ground that since all the three appellants were real brothers, therefore, he did not want to inflict capital punishment on them, yet, we are afraid the reason being absurd simply and extraneous to the established principles governing the administration of criminal justice, can neither be recognized nor approved. Relationship inter se of the accused persons can hardly be a consideration for imposition of lesser penalty and it can also not be regarded as a mitigating circumstance by any stretch of imagination. However, despite that, we are not inclined to enhance the sentence inflicted on the appellants because as per record, in the instant case, firing was attributed to all the accused persons and it too, has come on record that the injuries caused by the accused persons collectively culminated in death of the deceased persons, therefore, we feel that ends of justice would be met with if sentences inflicted on the appellants are maintained as awarded by the trial Court particularly in view of the fact that the occurrence took place way back in 1999 and the accused persons have already undergone the agony of a protracted trial. In this view we are fortified by the observations made in the case of Mohammad Idrees, etc. versus the State 2008 SCMR 1544”.

We find ourselves in complete agreement with the above conclusion reached by the Honourable Supreme Court and despite the fact that the learned Counsel for Applicant has submitted that all the cases have been decided on the circumstances of the Case, therefore, the Judgment is not binding on us but we are of the opinion that since the circumstances are almost identical, therefore, this Judgment is binding on us. We may point that in this Case also, the FIR was registered on 20-09-1998 and after a prolong trial lasting more than five years, the Impugned Judgment was pronounced on 20-11-2003, and case has been pending in this Court for more than six years. We are also of the opinion that the slapping of the deceased persons may have provoked the murder as a consequence of the murder.

At this stage, we would also like to refer to another Judgment of the Honourable Supreme Court in the Case of Iftikhar Ahmed Khan versus Asghar Khan, reported in 2009 SCMR 502. In this Judgment, the Honourable Supreme Court held as under:-

“In clause (a) of Article 13 of the Constitution, two situations have been kept in view, one is prosecution and the other is punishment. When a person has been prosecuted and punished for the same offence, then he cannot be retried for the same offence. The other situation is that of a person who has been punished for an offence, in that event, he cannot be punished once again for the same offence. To our mind this second portion of clause (a) of Article 13 of the Constitution comes into play and is fully applicable to this case. It is an admitted fact that respondent/convict has already served out the sentence of life imprisonment for the offence, as he has been tried and convicted and has been released from jail. In other words, if we decide to convert the sentence of life imprisonment into punishment of death, this Article 13 of the Constitution prohibits us from passing another sentence of death for the same offence which he has already suffered. Respondent No. 1 has already served out the substantial and legal sentence of punishment of life imprisonment. In that eventuality, it would be a case of double jeopardy also”.

Although in the present case, the entire life sentence awarded has not been served but we feel that substantial portion of the sentence has already been served, and therefore, this Case will also apply to the Case in hand.

Respectfully following the above two Judgments of the Honourable Supreme Court in the Cases of Mohammad Yakoob quoted supra and Iftikhar Ahmed Khan quoted supra, we find that the present Revision does not merit consideration and is, therefore, dismissed.

Judge

Rashid