2011 P Cr (PLP)

IMAM BUX BALOCH, J.

Appellant Rajib Ali was convicted and sentenced to death by learned 1st Additional Sessions Judge, Larkana in sessions case No.183 of 1996 arising out of Crime No.37 of 1996 Police Station, Hyderi Larkana registered for offence falling under section 302, P.P.C. The brief facts of the prosecution case are that on 8-6-1996 complainant Shahid Hussain Mirani lodged F.I.R. at Police Station Hyderi, alleging therein that on the day of incident he along with his friend Ali Gul Chano came at his shop and after chitchatting they were going towards open plot. Complainant was followed by Ali Gul when at about 2030 hours they were in front of shop of Ghaffar Muhajir complainant heard gun fire which hit Ali Gul who by raising cry fell down. Complainant also raised cries which attracted P.Ws. Muhammad Bachal Mirani, Asif Ali Mirani, Nisar Ahmed Korai. They saw accused Rajib Ali armed with gun was standing and ran away towards Ghulam Bhutto. The electric bulbs were on and due to fear the complainant did not chase the accused. Thereafter, the complainant and P.Ws. went over Ali Gul and found him lying dead having firearm injuries. Then complainant leaving the above P.Ws. over the dead body of deceased Ali Gul left for Police Station Hyderi and lodged the F.I.R. The prosecution to prove its case examined Dr. Ghulam Muhammad, who produced postmortem report; P.W. Tapedar Sher Muhammad, who produced sketch of wardat; complainant Shahid Hussain, who produced F.I.R; P.W. Nisar Ahmed, who produced his statement under section 164, Cr.P.C; P.W. Asif Ali, who produced his 164, Cr.P.C. statement. P.W. Nisar Ahmed was again examined, who produced mashir of wardat and inquest report; S.H.O./I.O. Ahmed Nawaz Rind, who produced mashirnama of arrest of accused and recovery of gun, cartridges and license book, and report of Chemical Examiner. Prosecution also examined PC Munawar Ali mashir of arrest and recovery. Thereafter, statement of accused under section 342, Cr.P.C. was recorded, in which he denied the prosecution allegations. Mr. Inayatullah Morio, learned counsel for the appellant at the very outset contended that he does not press this appeal but he requests for lesser punishment. Mr. Naimatullah Bhurgri, learned State Counsel after going through the material available on record concedes to the proposition. We have heard learned counsel for the parties and perused the material available on record. It appears that the offence has been committed during the night time and according to F.I.R the complainant and witnesses were going ahead and deceased was on their back side. Suddenly the complainant and witnesses heard gun fire shot and they saw that appellant/accused Rajib Ali seeing them ran away towards Ghulam Bhutto Mohalla Larkana. Perusal of F.I.R shows that there are shops and residential houses near the place of incident but none from the inhabitants of the locality was cited as witness and to corroborate the ocular evidence furnished by the witnesses. It also appears that the motive is not mentioned in the F.I.R while the appellant had committed the murder of deceased Ali Gul who is resided of Gambat District Khairpur Mirs. Perusal of mashirnama of place of incident shows that no empty cartridge was recovered from the place of incident by the police and the alleged gun recovered from the possession of appellant was not sent to Ballistic Expert for expert opinion. Postmortem report discloses that the deceased has received only one fire shot on his chest near nipple. The shot was not repeated by the appellant/accused. We have considered all the aspects of the case we observe that there is no motive assigned for commission of crime, no empty cartridge was recovered from the place of incident. Independent corroboration is lacking in the present case. We also observe that the appellant has remained in jail as UTP and as a convict for more than seven years. In the case of Ansar Ahmad Khan Barki v. The State, 1993 SCMR 1660, following observations were recorded by the Hon'ble Supreme Court:-- "

8. In the matter of quantum of sentence we agree with the learned trial Court and accept this appeal to the extent that the death sentence is converted into life imprisonment, on both the counts, to run concurrently. The sentence of fine of Rs.20,000 on two counts and in case of default in payment, to suffer further rigorious imprisonment for four years, awarded by the learned trial Court, is not disturbed. To meet the ends of justice we further order that the appellant shall pay Rs.50,000 as compensation, under section 544-A, Cr.P.C. to the heirs of each of the deceased. If the amount is not paid, it shall be recovered as arrears of land revenue for the benefit of the heirs of the two deceased. In case of default in payment of compensation, the appellant shall also undergo further imprisonment for six months." In the case of Allah Ditta v. The State 2007 YLR 811 (Lahore), it has been observed as under:-- "

9. Having come to the conclusion that the prosecution has proved its case against the appellant we have given our considerate thought to the quantum of sentence. It has been noticed by us that admittedly no previous ill-will or enmity existed between the deceased and the appellant. The deceased and the appellant jointly owned the Tube-well for the last 8/9 years. Tube-well was repaired 15/20 days prior to the occurrence. It was the deceased, who had paid for the repair of the Tube-well, so he did not allow the appellant to use Tube-well till payment of his share of the repair bill. The appellant was being consistently deprived of the use of Tube-well and had legitimate fears that agricultural land owned by him would become barren. Unfortunately situation worsened on the fateful day when the appellant was again refused to use Tube-well. This provoked the appellant, who fired with his licensed rifle upon the deceased. However, he did not repeat the fire. In these circumstances, we feel that it was not a case of extreme penalty. Hence, while maintaining the conviction of the appellant for offence under section 302(b), P.P.C. we reduce his sentence to imprisonment for life. Benefit of section 382-B, Cr.P.C. is given to the appellant. However, order passed by the learned trial Court under section 544-A, Cr.P.C. is maintained." After considering the dictum laid down by the Hon'ble apex Court and after considering all the above factors, we are of the view that the appellant has made out a case for lesser punishment and mitigating circumstances are available to award lesser punishment to the appellant. Consequently, while dismissing the appeal we alter the death sentence to life imprisonment. We also direct that the appellant shall pay Rs.50,000 as compensation under section 544-A, Cr.P.C. to the legal heirs of deceased Ali Gul. In case of default in payment of fine he shall suffer R.I for six months. The benefit of section 382-B, Cr.P.C. is also extended to the appellant. With the above modification in the sentence, criminal reference is answered accordingly. N.H.Q./R-8/K Sentence reduced.