SHAH NAWAZ Versus State
KHADIM HUSSAIN TUNIO, J .---Through captioned Appeal, the appellants have impugned the judgment dated 09.03.2016, passed by the Additional Sessions Judge, Tando Adam in Sessions Case No.163/2009, {Re-State v. Shah Nawaz and others], culminating from crime No.150 of 2009 under sections 302, 324, 109, 34, P.P.C. registered at Police Station Tando edam, whereby they were convicted and sentenced in the manner, which reads as under:-
1. Accused Shah Nawaz caused injuries under section 337-A(i), Sujah-i-Khafifa therefore, he is liable to pay dama.n Rs.5000/- to injured Khadim Hussain, in default he shall suffer two months' S.I.
2. Accused Shah Nawaz and Ghulam Rasool caused injures under section 337-A(v) Shujah-i-Ammah, to pay one third of diyat which is Rs.4,20,067-5/-, under section 337-A(ii) Shujah-i-Mudihah, to pay Arsh 5% of diyat which is Rs.84,013-5/-, under section 337-A(i) Shujah-i- Khafifah to pay daman Rs.5000/- and under section 337-L(2) to pay daman Rs.5000/- to injured Rabdino alias Pathan, in default they shall suffer six months' S.I.
3. Accused Shah Nawaz caused injuries under section 337-A(iv) Shujah-i-Munacnillah therefore, he is liable to pay arsh 15% of diyat which is Rs.2,52,040-5/- to Ghulam Nabi, in default he shall suffer six months' S.I.
4. Accused Shah Nawaz and Ghulam Rasool caused injuries under section 337-A(i) Shujah-i-Khafifa and under section 337-A(ii) Shajjah-i-Hashimah to pay daman of Rs.10,000/- and Arsh 5% of diyat which is Rs.84,013-5/- each to injured Haji alias Waris, in default they shall suffer six months' S.I.
5. Accused Shah Nawaz caused injuries under section 337-F(ii) Badi'ah therefore, he is liable to pay daman Rs.5000/- to injured Haji alias Waris, in default he shall suffer two months' S.I.
6. Under section 302(b), P.P.C. accused Shah Nawaz and Ghulam Rasool both sons of Muhammad Hussain Rahoo sentenced to death as Tazir. They shall be hanged by neck till they are dead subject to confirmation of death sentence by the Honourable High Court of Sindh. They are also directed to pay Rs.2,00,000/- each, fine to the L.Rs of deceased in terms of section 544-A, Cr.P.C. or in default they shall suffer six months' more S.I.
All the sentences were ordered to run concurrently. However, benefit of section 382-B, Cr.P.C. was extended to the accused.
Reference under section 374, Cr.P.C. being Confirmation Case No.13 of 2016, was also made by the trial Court for confirmation or otherwise.
The appeal and reference are being decided through his common judgment.
2. Briefly, facts of the prosecution case as unfolded by the complainant Khuda Bux in the FIR are that on 25.04.2009, Muhammad Hussain, Shahnawaz and Ghulam Rasool are his relatives and there was dispute on matrimonial affairs between them. They have no visiting terms with each other. Prior to incident, Shahnawaz and Ghulam Rasool used to issue threats to the complainant and his. brothers. On 23.04.2009, in the evening, complainant, Dur Muhammad, Ghulam Nabi, Khadim Hussain, Pathan alias Rab Dino and Haji alias Waris were excavating the watercourse near their house. Dur Muhammad went to his house for getting water and while returning towards there and at some distance from them, at about 06.00 p.m. Ghulam Rasool, Shah Nawaz and one un-identified person armed with hatchet came there, out of them Ghulam Rasool challenged Dur Muhammad that he would not be spared today, then accused Ghulam Rasool and Shah Nawaz caused hatchet injuries with sharp side to Dur Muhammad on his head and back of his body with intention to commit his murder, while unknown accused also caused blunt side hatchet injuries to Dur Muhammad, due to which Dur Muhammad fell down by raising hue and cries, on which Ghulam Nabi, Khadim Hussain, Pathan alias Rabdino and Haji alias Waris came running and challenged the accused, who also caused hatchet blows with sharp side to them. P.Ws also fell down. On hue and cries by the complainant, the PWs Anwar, Shah Nawaz son of Muhammad Bux relatives of complainant and other persons also came running there. On seeing them, accused fled away while abusing the complainant party. Due to serious condition of injured Dur Muhammad and other injured persons, he shifted them to police station, after obtaining letter from police brought them at Taluka hospital Tando Adam. After providing necessary treatment to Dur Muhammad and other injured persons, they were referred to LUMH Hyderabad where Dur Muhammad succumbed to his injuries at 10.00 p.m. then he leaving his relatives in injured condition at hospital brought the dead body of his brother Dur Muhammad at village, after funeral ceremony and attending the guests coming for condolence, he appeared at PS and lodged FIR.
3. After conducting usual investigation, case was challaned by the police. After compliance of section 265-C, Cr.P.C. a formal charge was framed against the accused, to which they pleaded not guilty and claimed to be tried. During pendency of the case, co-accused Muhammad Hussain died away, therefore, after completing codal formalities, the proceedings were abated against him.
4. At the trial, the prosecution' examined as many as ten (10) witnesses and they produced numerous documents in their evidence, then prosecution side was closed.
5. Statement of the accused under section 342, Cr.P.C. were recorded, in which they denied all the allegations leveled by the prosecution in toto and pleaded their innocence and stated that they have falsely been implicated due' to share of their mother. However, neither the accused examined themselves on oath nor examined any witness in their defence.
6. After hearing the learned counsel for the parties, learned trial Court convicted and sentenced the appellants as stated above, hence, this appeal.
7. Learned counsel for the appellants has contended that there is delay in lodgment of FIR; that there is delay in recording 161, Cr.P.C. statements of the witnesses; that the independent witnesses, namely PW Anwar and Shahnawaz have been given up by the prosecution; that the alleged recovered crime weapons are stated to be stained with blood but the hatchets were neither sealed at the spot nor sent to the chemical examiner; that the motive has not been proved by the prosecution; that there are material contradictions in the evidence of the prosecution witnesses. However, he has lastly prayed that he would not press the appeal on merits if the sentence awarded to the appellants is converted from death penalty to life imprisonment as there are Many mitigating circumstances.
8. Learned counsel, who has filed Vakalatnama on behalf of Mr. Altaf Hussain Junejo, Advocate for complainant, and learned A.P.G. with one voice supported the impugned judgment, while arguing that the contradictions, if any, appear in the impugned judgment are minor; that there is sufficient material available on record and the prosecution has successfully established" the case against the appellants; hence, the trial Court - has rightly convicted the appellants. The learned A.P.G. however, raised her no objection to the conversion of sentence from death penalty to life imprisonment. She has placed her reliance on the case reported as 2015 YLR 519.
9. The evidence of the prosecution witnesses finds an elaborate mention in the judgment of the trial Court, therefore, the same is not reproduced hereinafter for the sake of brevity and to avoid repetition.
10. We have heard the learned counsel for appellants, ledrned Advocate for the complainant and learned A.P.G and have perused the record.
11. After perusing the evidence available on record, we have come to the conclusion that prosecution has undeniably proven its case against the appellants for the offence alleged against them by examining number of star/marginal i.e. PWs, Ghulam Nabi, Khadim Hussain, Pathan alias Rab Dino and Haji Waris, whose evidence remained un-shattered on material aspects of the case even after lengthy cross-examination. The deceased was caused to death by the appellants by inflicting the sharp side of hatchet blows., On 30.04.20009 at 1000 hours, the appellant led the police to the recovery of hatchets, which they had used to commit Qatl of deceased Dur Muhammad and caused injuries to injured PWs Ghulam Nabi, Khadim Hussain, Pathan @ Rab Dino and Haji @ Waris. As far as, the contention of learned counsel for the appellants regarding the delay in recording of 161 Cr.P.C. statements of witnesses is concerned, the same has been satisfactorily explained by the complainant as the deceased and injured witnesses were admitted in the hospital and were busy in getting treatment. The incident was witnessed by complainant, PWs Ghulam Nabi, Khadim Hussain, Pathan @ Rab Dino and Haji @ Waris, who are related to both the parties. Per their depositions, they were excavating water course and 'deceased Dur Muhammad was returning from his house after taking the water, the appellants abused them, caused hatchet injuries and committed Qatl of deceased Dur Muhammad, so also the accused caused injuries to injured Ghulam Nabi, Khadim Hussain, Pathan alias Rab Dino and Haji alias Waris. Both the appellants were specifically nominated by the complainant and injured P.Ws with specific role. They were able to provide adequate details of the incident and even after lengthy cross-examination, the evidence on material aspects of the case has not been shattered. The learned counsel for the appellants mainly contended that all the prosecution witnesses, including the eye-witness of the incident, are related to the deceased, the complainant and to the appellants, therefore, they are interested. Such an argument advanced by the counsel for appellants is baseless and. merits no consideration as it its a well-established principle of law that mere relationship of an eye-witness with the deceased or complainant does not brand the c. eye-witness as interested if their evidence is confidence inspiring and corroborated by an independent source. Reliance in this respect is placed on the case law reported as 2000 SCMR 163 (Raqib Khan v. The State), wherein the Hon'ble Apex Court has held that:-
"11. The contention that a witness who is related to the deceased is an interested witness, has since long been discarded by this Court. It is settled proposition of law by now that interested witness is the one who has an animus for false charge. Mere relationship of a witness to the deceased is not enough of a reason to discard his testimony because such a witness is necessarily not an interested witness in the true sense of the term. This Court has gone to the extent that even evidence of interested witness is always not discarded. Reference may be made to the law laid down by this Court in Niaz v. State (PLD 1960 SC 387) which was reiterated again in Nazir Hussain v. State (PLD 1965 SC 188). In Aslam and another v. The State (1997 SCMR 1284), a Full Bench of this Court had reiterated the law on this score that in the final analysis, it is neither the relationship of the witnesses with the deceased - or that of the P.Ws. inter se nor in the appropriate cases even their being the interested witnesses that provided an ultimate guidance for according credence to their testimony. It is ultimately inherent worth of evidence of a witness that determines his reliability."
12. Similar view has been taken in the recent case law reported as 2016 SCMR 2152 (Nazir Iqbal alias NASRA and another v. The State), wherein a larger bench of the Hon'ble Apex Court has been pleased to observe that:-
"The testimony of both the eye-witnesses is confidence inspiring and from the facts and circumstances of the case, as mentioned above, they cannot in any manner be considered to be chance witnesses. Moreover, mere relationship or enmity is not always enough to declare a witness to. be partisan or interested witness when his testimony is confidence inspiring and trustworthy. The motive of the instant occurrence is fully established atleast to the extent of appellant Muhammad Ashraf being accused in the previous murder case of Naveed Akram who was extending threats to the complainant party to effect compromise and being proclaimed offenders such like modus operandi are usually adopted to clear themselves and to get rid of the murder cases and in the given circumstances the prosecution has amply succeeded to establish motive part of occurrence atleast against appellant Muhammad Ashraf. Further we have observed that the medical evidence corroborate the ocular account: Recoveries have been effected which also corroborate the prosecution version. The parties were known to each other and FIR was promptly lodged all this rules out any possibility of substitution or consultation to falsely rope in or involve the accused persons."
13. However, the only point requires to be determined by this Court is whether there are enough mitigating circumstances or even single circumstance on record, which may suggest for reduction of sentence from death sentence to imprisonment for life. it is well-established principle of law that even there appears single mitigating factor, it can be considered sufficient to award a lesser sentence. The Court can exercise its discretion where a case qualifies for awarding of both, imprisonment for life and death penalty, in presence of a mitigating circumstance to award the lesser sentence.
14. We find that the murder was not carried out in a brutal manner by the appellants. There are some elements of the prosecution case, which expose some minor doubts but it is not enough to hold that the prosecution has' not proved its case against both the appellants for the offences, they are charged with, beyond reasonable doubt. We are also fortified by the case law titled as Ghulam Mohy-ud-Din alias Haji Baby and others v. The State (2014 SCMR 1034), whereby the Hon'ble Supreme Court has held that where the judges entertain some doubt albeit not sufficient' for acquittal, judicial caution must be exercised to award the alternative sentence of life imprisonment at P-1043 Para-20 and 21, which reads as under:-
"20. Albeit, 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/cases.
21. 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."
15. Now, adverting to the mitigating circumstance(s) of the case, it would be relevant to discuss the allegation of motive Sbehind the crime. In the present case, the complainant has alleged in the FIR that there was matrimonial dispute, however, during course of cross-examination, he has admitted that "It is fact that prior to this incident on 12.06.2003 accused Ghulam Rasool 'made an application to SHO . against deceased Dur Muhammad, PW Pathan, PW Khadim Hussain and (7) others for illegal use of their irrigation water. Plea of accused is that there was dispute over kidnapping and selling of a lady. Not only this but accused had alleged that they have been falsely implicated due to dispute over share of mother in the property. In the present case, the prosecution has failed to prove the motive, though alleged by the prosecution, behind the incident even the charge against the appellants has been proved. It is well-settled principle of law that when the prosecution fails to prove the motive behind the murder, the valid consideration would be that of reduction of sentence. In this respect, reliance is placed on the case law reported as 2015 SCMR 993 (Ahmed v. The State), wherein the Hon'ble Apex Court has observed that:-
After attending to the said pieces of evidence we have felt convinced that all those pieces of evidence did point towards the appellant's culpability but the motive set up by the prosecution had remained far from being established beyond reasonable doubt. Some prosecution witnesses had stated about the alleged motive but they had admitted before the learned trial Court in so many words that they had no personal knowledge about the alleged motive or the details thereof and all they knew was that there was some on-going dispute between the appellant and the deceased on the issue of an outstanding amount. This kind of evidence could hardly be accepted by any court of law to conclude that the motive set up by the prosecution had been proved by it to the satisfaction of the Court. It may be of some importance to mention here that the motive part of the case was not relevant to the case against Munir Ahmed co-convict at all and, thus, the absence of motive or failure of the prosecution to prove the motive could not have any bearing upon the question of guilt or even punishment of the said co-convict. Culpability of the said co-convict as well as his -punishment had been determined by the learned courts below as well as by this Court on the strength of the prosecution's case against him based upon many other factors available on the record.
16. The Hon'ble Apex Court in the case reported as PLD 2017 SC 152 (Amjad Shah v. The State) held that:-
"Notwithstanding that the participation of the appellant in the commission of offence is duly established, his intention, guilty mind or motive to commit the same remains shrouded in mystery and is therefore unproven. In such like cases where the motive is not proved or is not alleged by the prosecution, the Court for the sake of safe administration of justice, adopts caution and treats the lack of motive as a mitigating circumstance for reducing the quantum of sentence awarded to a convict. Reference is made to Zeeshan Afzal v. The State (2013 SCMR 1602). Another ground for mitigation in sentence of the appellant is the fact that about two months after the occurrence, on 10.06.2002 the learned Trial Court whilst framing the charge has recorded the appellant's age to be 24 years. and that of his co-accused to be 19/20 years. Youthful tendency toward excitement and impulsiveness are also treated by the law as a mitigating circumstance. Under section 302(b) P.P.C. imprisonment for life is one of the lawful sentences for the commission of offence under section 302, P.P.C. In the light of the aforesaid discussion the sentence of the appellant merits reduction from death to life imprisonment."
17. Similar view has been taken by the Hon'ble Apex Court in the cases of Naveed alias Needu and others v. The State and others (2014 SCMR 1464), Haq Nawaz v. The State (2018 SCMR 21) and Nadeem Ramzan v. The State (2018 SCMR 149).
18. Additionally, as far as the case of appellants is concerned, the allegation against them is of causing sharp side hatchet blows to the deceased and injured P.Ws and the presence of appellants was confirmed by the PWs. This aspect of the case being one of the mitigating circumstances needs consideration. The Hon'ble Supreme Court of Pakistan in the case of Muhammad Abbas v. The State and others (2018 SCMR 397) has held that:-
"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."
19. For what has been discussed above, we convert the death sentences awarded to the appellants to imprisonment for life along with benefit of section 382-B, Cr.P.C. However, the remaining conviction and sentences awarded to the appellants by learned trial Court are maintained. With this modification in the sentences of appellants, Criminal Jail Appeal No.D-17 of 2016 stands partly allowed and partly dismissed.
20. Resultantly, Confirmation Case No. 13 of 2016 is answered in the negative and death sentence awarded to the appellants is not confirmed.
21. These are the reasons for our short order dated 13.02.2020.
JK/S-94/Sindh Order accordingly.