2007 P Cr (PLP)

MUHAMMAD MOOSA K. LEGHARI, J.

This appeal is directed against the judgment dated 27-5-1997, recorded in Sessions Case No.10 of 1988 arising out of crime reported vide F.I.R. No.70 of 1988 Police Station Matli registered under sections 302, 307, 34, P.P.C.

2. Brief facts of the case as depicted in the F.I.R. dated 23-6-1988 registered on the complaint of Ghulam Hussain are that on the said date he along with his brother namely Ali Ahmed, Abdul Razak, Rahim Dino and P.W. Yakoob went to attend marriage ceremony of brother of Abdul Shakoor Shah at village Heero Talpur. Deceased Qabool also met them there. At about 8-00 p.m. accused Allah Dino, Muhammad Hussain armed with hatchets while accused the complainant, his brothers and deceased Qabool had attacked them. Accused Allah Dino gave sharp side hatchet blow on the head of deceased Qabool while accused Malook caused Lathi injuries to deceased Qabool who fell on the ground. Muhammad Hassan gave hatchet blow to Ali Ahmed whereas accused Malook and Uris caused Lathi blows to said P.W. After having committed the offence the culprits ran away. Injured were brought at the Taluka Hospital Math and F.I.R. was registered. Subsequently, deceased Qabool who was in precarious condition expired in the midway while being taken to Civil Hospital Bailin. It is alleged that two days prior to the incident accused Allandino teased Rahim Dino brother of the complainant by persuading him to have friendship. Accused Allandino was thereupon admonished by the complainant and in retaliation such incident took place.

3. As result of investigation, four accused persons namely, Allandino, Muhammad Hassan, Uris and Malook were sent up to stand trial. A charge was framed against the accused persons on 10-12-1989 which was denied by them and the trial commenced.

4. At the trial in all 9 witnesses were examined by the prosecution, which included, complainant injured, other eye-witnesses, Medical Officer and Investigating Officer of the case. In their statements recorded under section 342, Cr.P.C. the appellants pleaded their innocence. They also recorded their statements on oath.

5. On the appraisal of the evidence learned trial Court acquitted accused Malook and Uris but sentenced accused Muhammad Hassan to imprisonment for life and awarded sentence of death to accused Allandino for causing the murder of deceased Qabool and attempting to kill P.W. Ali Ahmed.

6. During the pendency of appeal, appellant Muhammad Hassan was released on 6-7-2001 after serving out the sentence, as per the report submitted by Jail authorities vide memo. dated 16-12-2006. Since nobody appeared on his behalf to pursue the appeal the same stands dismissed.

7. We have heard Messrs Allah Bachayo Soomro, Advocate for the appellant Allandino and Rasheed Ahmed Qureshi, Assistant Advocate-General for the State. ?

8. In support of appeal it is submitted that the motive set up by the prosecution was weak, there were inconsistencies in the deposition of the eye-witnesses, the trial Court did not properly appreciate the evidence on record, as such, the conviction was not sustainable in law. In the alternate it was pleaded that the appellant was entitled to lesser penalty for the reasons that the trial Court disbelieved the evidence of the prosecution witnesses in respect of accused Uris and Malook and therefore, they were acquitted as such death sentence was not sustainable on the same evidence. Further that the appellant does not deserve extreme punishment, as the murder was not premeditated and he is alleged to have given only one blow of hatchet to the deceased, moreover that he has been in death cell since the date of the judgment passed by the trial Court, viz. last 10 years, which constitute mitigating circumstances. Reliance was placed on 2003 PCr.LJ (Karachi) 21 and 2006 SCMR 1158.

9. Learned A.A.-G. for the State though supported the impugned judgment to the extent of conviction, yet, he was at pains to advance cogent reasons against alteration of the sentence.

10. We have considered the arguments advanced before us and perused the material placed on the record. It must be stated at the outset that we are not persuaded to take any exception to the findings of the, trial Court vis-a-vis the guilt of the appellant. However, we feel it necessary to examine the conduct of the appellant so far as the quantum of sentence is concerned.

11. Undoubtedly death sentence is the normal penalty for the offence of murder, but in appropriate cases where some extenuating circumstances are available to reduce the criminal's level of culpability, the Courts have the discretion to award lesser punishment of imprisonment for life. The meaning of extenuating or mitigating circumstance as contained in the Black's Law Dictionary is; "

1. A fact or situation that does not justify or excuse a wrongful act or offence but that reduces the degree or culpability and thus may reduce the damages (in a civil case) or the punishment (in a criminal case).

2. A fact or situation that does not bear on the question of a defendant's guilt but that is considered by the Court in imposing punishment and esp. in lessening the severity of a sentence". It was observed by the Honourable Supreme Court in Mst. Bevi v. Ghulam Shabbir and another 1980 SCMR 859, "it has been held in some cases that the principle underlying the concept of benefit of doubt can in addition to the consideration of question of guilt or otherwise, be pressed in matter of sentence".

12. Adverting to the circumstances of the case in hand, it may be observed that the motive set up by the prosecution as appearing from the contents of the F.I.R. and the evidence produced on record is that convict-appellant Allandino was admonished by complainant Ghulam Hussain for teasing his brother Rahimdino. In the circumstances, as a natural consequence, in retaliation the appellant would have attacked the complainant being the real brother and the person by whom he was offended. Alternatively, the appellant would have assaulted any of the other brothers of Rahimdino/complainant Ghulam Hussain who were available at the scene of occurrence and not to take life of deceased Qabool, as admittedly deceased Qabool has no relationship with the complainant party and that appellant has no enmity, ill-will or grudge of any sort against him. Thus, the motive is shrouded in mystery. It is the case of the prosecution that appellant gave only one hatchet blow to the deceased which is evident from the post-mortem report of the deceased. Conceivably it could not be case of premeditated or preconceived murder but an act, having occurred on account of sudden flare up at the spur of moment as despite having the opportunity the appellant did not repeat the act. The prosecution also entangled co-accused Uris and Malook but could not prove the case against them with the result that they were acquitted. Resultantly, the version of the prosecution would not be deemed to be a gospel truth, to warrant sentence of death, more particularly when ocular evidence with regard to injuries sustained by deceased Qabool and injured Ali Ahmed is not consonant to medical evidence. Out of four material witnesses including the complainant, namely Ghulam Rasool, Ahmed, Rahimdino, and Anwer, three are real brothers, while latter is the cousin. The circumstance that though the incident took place at a marriage ceremony of the people by caste Sayed, at Village Heero Talpur, where number of people of different castes were admittedly residing and were available, no independent witness was either associated or examined would not be easy to ignore. The defence, in the circumstances has ably created some suspicion in the prosecution case for taking into account mitigating circumstances for awarding lesser penalty to the appellant. In addition to above, the appellant has undergone the agony of' languishing in death cell for almost ten years, waiting for a verdict and wandering between life and death. A conceivable mental distress suffered on this account could hardly be ignored or omitted to be an strong extenuating circumstance to mitigate the punishment. It was held in Muhammad Tahir Khan v. The State 1983 SCMR 1169 that "the prosecution is bound by law to exclude all possible extenuating circumstances, in order to bring the charge home to the accused for the award of normal penalty of death".

13. On thorough examination of the evidence available on the record and the attending circumstances, we are of the view that the facts and circumstances having surfaced cumulatively make out a case for mitigation of sentence. We, therefore, hold that the extreme penalty of death awarded to Allandino appellant was not called for, and the lesser sentence of life imprisonment would meet the ends of justice. Thus, relying upon the principle laid down by Honourable Supreme Court in Ansar Ahmed Khan Barki v. The State and another reported in 1993 SCMR 1660, Muhammad Akram v. The State 1999 SCMR 52 and Muhammad Ikram alias Billa v. The State 1999 SCMR 406, we accept this appeal to the extent that the sentence of the death awarded to the appellant is converted to imprisonment for life. Consequently, murder reference is rejected. The appellant shall be entitled to the benefit admissible under section 382-B, Cr.P.C.

14. Appeal and death reference stand disposed of in the above terms.

15. These are the reasons in support of short order, dated 15-2-2007. H.B.T./A-46/K??????????????????????????????????????????????????????????????????????????????????? Order accordingly.