MOSSA S/O MUHAMMAD KHAN (Appellant) VS THE STATE (Respondent)

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FROM TIIE COURT OII II"ADDITL DISTRIC-T & SESSION I UDGE KARACHI WEST No, lllAD,/lirq? /2016 Kllrrqb-ilel blvlQ16,

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Regislrar, llrBh Couft ofSindh ltlracli

SUEJEC'T: REFI'RENCE U/S. 37t CLP-C TOR CONFIRNIA'TION OT DEATII SIiHTUI'CE AWARI)ED lfr SEsSlOtlS (lsE XO456/'2013 (1HE SIATI V/S MOOSA A'{t' !x;=30jr,/:!-L.11-3 {-llPl-.ilt oi xcllo!{tr ^-N_O1]IFJLUB{a.z!9,tzor-a

i havc the hol)ortr ro submit that vide judgmcnt dated 22d lu.ly 2016 pa'ssed by rhe undersigned in the ahove notcd Sessions Casc, wherEblr a'tused Moosa s/o Muhanrmad Khnn convicted u/s302 [b) PPC and awarderl death sentence besidcs to Pay compensatron to fhe legal heirs oi deceased, thercfore' lhe suhiect judgmcnt atongwith R&Ps ot S.C No.455/?013 arc submitled hcrcwith under section :i74 Cr.P.C for contlrmation ot deatl\sentencc (Mns. s NI cHouRt) t, \*\tt I IND ADDI, DISTRI(II SE IC) IUDGE KARACIIt wrjs'l liJEllre4 R&Ps ol SCNo.4s6/2013 (2'P.l.|s)

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IN THE HI(;H COUITT OF SINDH AT KARACTII

(lriminalJail Appeal No277 ot 2A16 Criminal Jail Appeal N0.294 of 2016 Confhnution Case No.05 of 2016

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M/. lustice MohdtDni.l Rarifi Khan Agha l',!t.Itstic. Ztlfiuat Ali Sangi.

Afl'ell'rrrts Mcxrsa and Shan alias Bablo through llfr Abdul Razzak, Advcrcate

For Complainant: Nlr l\'luhammad Akram, .\dvorate For State: I\4r. Nfuhanmad Iqbal A!\'an, Deput) l'r()se.un)r (;eneral

Date of hearin8r I6.10.20',19

Date of announcement: 22.1r).2019

I]LDCMENT

Mohammad Karim Khan Agha, f.- Appellants Moosa S/o Mr.rhamrnad Khan and Shan aiias Bablo s/o. Moosa hale prefened thesc iail appeals against the impugncd iudgment dated 22.07.2016 passld bv the leamed IInd Additional District & Sessions Judge Karachi West in Sessions Casc No.456 of 2013, F.l.R. No.209/2012 t/s.302/324/U PPC registered at P.S. Orangi Town Karachi ovest) wherebl- the appellant Moosa S/o. Muhamfiad Khan ha$ b€:en convicted and sentenced tu death under S€ction 302(b) PPC subiect to confirmation by this court with finc of Rs.1,00,000/- (Rupecs one lac only) to be paid as comp€nsation k) the legal heirs tf the cleceascd. ln case of non-payment of fine he was ordered to undergo S.l. {or six montlu more. The apPellant Shan alias Bablo 5/o. Moosa was convi(ted and sentenced to rigorous li(e imprigonment \eith Iine of Rs.50,tU0i/- to be paid as compensalion to tlu tegal heirs oi the deceased.

2.The brief facts of the prosecution case as per FIR are that $ith Referen.e to Roznamcha report No.33 dabed 06.09.2012, S.l. Noor Ahmed aJter proccedings under section 174 Ct.l>-C. of deceased lqbal Shah S/o. Suchal Shah (the deceased) at Abbasi Shaheed Hospital, leturned to P.S

Tlle dctail of statement u/s. 19 Ci.P.C. of de.eased's {ather are ac lollows:-

"1, Suchal Shah S/o. Muhammad Shah, aged 55 ye:fs, resident ol t Housc No 240. situated at Noorafli I')ark seclor 7/A, Salouch Coth Llangi Town, Karachi are along with my Iamily members residing at aloresaid address. On 06.9.2m2 at 7:45 pm at rught my son Iqbal Shah was sitting in front of our house while I left my house to go to the shop ot Babo Pathal for rereiving sale pr(eed of milk h'here from back side children came and told me that a file am1 bullet had hit lqbal Shah. On this inforrnatio& I irl.stantly returned back and saw my son Iqbal Shah lying in a pool of blood in dead condition. Upon inquiry, I camc to know that near 8.00 pm (night) two unknown pe6ons on ar unoumbered motor(ycle camc and due to unknown reasons fired with fire arrns upon my son lqbal Shah sitting there, due to which two bullets hit my son and he (licd/expired ul the spot. From thejr firing two persons namely Muharnmad Ali S/o. Mumtaz Ali and Lutuf S/o. Ismail have received injuries too. My claim is against two unknown persons for committing murde! of my son Iqbal Shah by firc arm shots due to unknown reasoru atrd cawed injury to above iniured pcrsons".

3.In!,estigating Office! ASi Culzar Ahmed submitted challan against both ac.used nameiy Moosa S/o, Muhammad Kha! and shah alias Bablo S/o. Moosa u/s. 512 C!.P.C. be{ore the Court of learned Judicial Magistrate Kardchi Wesl, who while observing oflence u/s.302/324/34 PIrC orderecl NBws against accused persons. Wlen investigation h'as in plogress both acc$ed had obtained interim pre-arrest bails in order to ioin the investigation which were subsequently dismissed vide order dated 16.7.2013.

,t. The charge was framed against the accused persons in whi(h they pleadetl not guiltl'and claimed their trial.

5.ln ordcl to provc its casc the prosecution cxamined 08 PIV's and exhibited various do.uments and other ltemJ in suPPort o[ its case. the appcllants/accused reaorded their statements unde! section 3,12 Cl.rc whereby they both admitted their presence at the scene of Lhe offense but l

claimod not to havc shot at the de{caseal oI anybody els€ but rather took the deceased to hospital in their car. The)_ did not Sive cviden.e under oath or cail any witness in support of their deJense casc.

t 6, Leamcd lln.l Additional Dishict & Sessions Judge Karachi West aftcr hearing the leahed counsel for the parties and ass€ssmcnt of evidence available on record, vide the impugned judgment dated 22.07.2016. convicted and sentcnced the apf,ellants as stated above, hen.c these appcals have been separately {iled by the apPcllantB against their convictio11.

7.'Ihe faats of the .ase a5 wcll as ef idence Produced before the trial (ourt lind an claborate mention in the imPu8ned iudgment, thercfore, the same are not reproduced llere so as to avoid duPlication and unnecessary rePetition.

8.Aiter the reading out of the evidence and thc impugned judgment learned counsel fo! the appellants irlitidlly tried to argue the aPPellants' case however in the face of the overwhelming evidence against the appcllan!\ on record he de(ided not to Press the appcals.,n merits but instead prayed for reduction of the sentence Iron the death Penalty to one of life imFris()nment in respect of appellant Moosa based on the folloivinB nitigatinp, circumslances (a) that the Proce.ution had neither aliege,l nor proven anv motive as to lvhy the aPPellants should murder the deceased and (b) the vcry slightest of doubt in the Pr()sccution case although nol suflicient a doubt t(, lead to the acquittal of the aPPellants was enou8h to impose thc alternatc sentence of life imPrisotunent instead of dcath whi.h was prcsent in this.ase. In supPort of his contentions for a reduction in sentence from dcath to that of life inrPrisonnrent for aPpellant Motlsa he placed rcliane on Muhammad Arwar v Stale (2017 SCMR 630) and Gholam Mohyuddin V Srate (2fi4 scMR 1034).

9.t,earned DI'G and the complainant both contended that based t'n the eviLlence on recold the prosecution had proved its case against both tlre appellants beyoad a reasonable doubt and as such the imPugned judBment did not Equire interference. When, however, the DPG was asked by the court whether the rnitiSating cilcufiLstances raised by the appellant justified a reduction in scntence he candidly conceded that as a

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matter of law they did iustify a reduction from lhe death Pcnali' to that of life imprisonment which was also the position taken by the comPlainant

10.llaving gone through thc evidcnce on record lve luve no doubt that the prose(ution has been able to Prove its case against both thc t appellants belond a reasonable doubt for the oilrnses for which thev have been chaiged. In thal the appellants have admitted their Prcscnce at thc sccnej that thc eve witnesses vr.ho saw Moosa shool the deceascd along lvith Shan who was on the fioto! bike anci helped Moosa to escaPe are reliable and confidence inspiring and ale corroborated by the medical evi(lence and the recovcry of the empties at the crime saene. The onllr' issue belore us is *'hcther suf{icicnt mitigating circumstances have been shown to iustify thc iedu(tion in sentence flom that of the death Penalty to imprisonment for Iifc as praye!l by the aPPellant Moosd

11.We are of thc viev'' that thc prosccution has not been to provc any motive Ior ihc killing of the dcteased. Ccnerally it has been accePted by the superior coutts that if thc plocecution fails to Prove the motive for the murder the courts are iustified in imposin8 the altemate scntence of lilc imprisonment as opposed to the death penalty. Reliance in this resPcct is placed ('Ir the case of Amiad Shah v State (PLD SC 2U7 P.152) rvhere it was held as under at P.]56 Para 9;

"Nohtithstnndi S llat tlt prtiL'ipnhan oJ lle aPpclllrtl i1 lhe commissio ol oflente E duly eshtbl6he!1, his itnEntion, g|ilfu rnn.t or t oltl,? lo aonnil lltt stnlt re\nuls shro tlpd n nvslen/ nd 6 thekfotc, ufipr(nd. ln such like lnses uherc the otitte is ot prolrcd or is ttot ulleged bll th" pfisec tiorl, the Court for thc sakc of saJc adtnirtisttttiolt oI jttsticc, oiopts caution ind treats the lsck of t lotire as a ,fiitigatittg circtltlstance lor rcduclrtg the qua firi of sextence taaded to a cofiaict- R(ferc ce is nrfu to Zeeshan Afzal a. Thc State (201J SCMR 1602)." (boid added)

12- ln our vierv taking into account the fact that no motive has been proved against the appcllant and that there night be somc doubts in the prosecotion case albeit insufficient to lead to an acquittal such as the slight delay in rccording of some of the 5.161 stat€menls and whilst exelcising judicial cautic'n by taking guidancc from the SuPreme Couft authoril!'of

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2tt Chulam Mohyuddin (supra) where it lvas stressed as under whilst dealinli with scntencirrg in a murder case in the lollowing terms;

''A sirlgk ttlihg.'titlg ]rL:.onsla ce, aruilabb in n partiaklar tttsc, tlould b? suffci.nl to pul on g ttrd lhe Ftdge nol to dtL,atd llu pcnaltv of iealh bul lile utrpisi.nmenl. No L:lear l l guidrlite, irt thi! rego cn he l doton beco \c lacls uii tir. lllstunccs oJ one use differ lront the alher, holliat\ il bcca, es ltu essential lblt3ntion oJ lhe lutlie tn iustdinS oflc ot th. othcr su urce to ady his iudicial tnind rith a d.eP tlrcught lo tlp Jacts t)f a pdrtic at case. If the lrdg?/ludges ertertntu some aloubt, albeit nol su//icie t fot 4cquittal, j ilicial caution nfist be exerciscd to atoari thP oltetnntil'a sentefice of lifi irnprisonment, lest afi itnoccfit peEo rnight ot be se t to the qLllotos, So it is b?tter to ftspecl the hufisn lile, as far as possible, rather to put it dt cnil, bu assessi g the a'idence, facts an.l circumstahccs of a ?atticuldr nltodet cose, nder urhich it aJas .ontmltte.L (Uold ndded)

13.We hereby uphold the convictions in the imPuSned judgment but reducc the sentence oI the appellant Moosa from that of the death Pcnalty to life imprisonmcnt ac such the conlimation re{erence is ans}'ered in the negativ€ in rcspect ot appellant Moosa and rnaintain the sentence o[ lile imprisonment imposed on appellant Shan. APart From the abovc variation in sentence all other fines and penalties imPosed against the aPPellants in the impugned judgment shall remain in tact and b(,th the aPPellants shall have tlr!- benefit of5.382 (B) Cr.I')C.

I.1 lhe appeals stand disPosed ol in the above tern$.

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