1. ' Appellant Ismail Shaikh along with co-accused Dodo, Deedar and Zulfiqar were tried for committing murder of deceased Nazeer Hussain son of Muhammad Qasim Shaikh and vide judgment dated 19-5-2003, passed by the learned VII-Additional Sessions Judge, Larkana in Sessions Case No,156 of 1999 re State v. Ismail Shaikh and others, arising out of Crime No,26 of 1999 of P.S. Bakrani, registered under sections 302, 34, P. P.0 . Appellant Ismail Shaikh was convicted and sentenced for death and to pay fine of Rs.100,000 in default of payment of such fine to suffer R.I. For two years more, coupled with compensation of Rs.50000 in terms of section 544-A, Cr.P.C. To be paid to the legal heirs of deceased, in default of payment of which to further undergo S.I. For six months, while co-accused Dodo, Deedar and Zulfiqar were acquitted. This appeal was filed by appellant Ismail Shaikh through jail authorities to challenge the judgment of the learned trial Court.
2. ' The prosecution story in brief is that the complainant along with his brother Nawab was residing with him. Ismail, Dodo, Deedar, all sons of Kouro, Zulfiqar son of Guman, all Shaikh by caste also resided in the same village. About one year prior to incident, Ismail Shaikh and others had demanded from complainant hand of his daughter Mst. Mandam Khatoon for Isamail Shaikh, but the complainant refused. On such refusal, Ismail Shaikh and others had extended threats of dire consequences and they further threatened that if the hand of daughter of complainant is not given to Ismail, they will take revenge from him. It is further case of the prosecution that complainant then gave the hand of his daughter to his nephew Inayat Hussain son of Muhammad Usman and in order to fix the date of marriage in the evening time of 26-3-1999 they all were available in the house of complainant. Son-in-law of complainant, namely, Nazeer Hussain son of Muhammad Qasim Shaikh was also available in the house of complainant, where they were exchanging views, when at about 7:30 p.m, accused Ismail armed with gun, Dodo armed with pistol, Deedar with pistol, Zulfiqar empty-handed and two unidentified persons, who were also armed with guns, would be identified if seen. Zulfiqar abused the complainant and asked his son-in-law Nazir Hussain that he has proposed to give the hand of Mst. Mandam in marriage to nephew of the complainant, hence he would not be spared. On the instigation of Zulfiqar, accused Ismail fired directly from his gun at Nazir Hussain, who received gunshot injuries and fell down and all other accused persons also made firing in the air and raising slogans ran away. The complainant and witnesses noticed Nazir Hussain having fire shots and blood was oozing and he expired at the spot. The complainant lodged such F.I.R. At P.S. Bakrani.
3. ' After usual investigation, challan was submitted in the Court of law. Charge was framed, to which the accused pleaded `not guilty' and the prosecution during trial examined complainant Ghulam Sarwar, who produced F . I . R. , P. W . Nawab, who produced his 164, Cr. P.C.Statement, P.W.
4. Allandino, who also produced his statement under section 164, Cr.P.C., Mashir Chanessar, who produced Mashirnama of place of incident, inquest report and Mashirnama of arrest of accused Ismail, Dodo, Deedar and Zulfiqar, P.W. Noorullah, P.W. Dr. Abdul Ghaffar, who produced postmortem report of the deceased, P.W. Abdul Lateef, who was corpse bearer and he produced receipt of delivery of dead body of deceased to legal heirs, P.W. Rustam Ali, Tapedar, who produced site sketch, P.W. Inspector Izhar Hussain Lahori, who produced Ballistics Expert's Report, Mashirnama of gun and lastly P.W. Ali Nawaz was examined. After completion of prosecution evidence, statements under section 342, Cr.P.C. Of the accused were recorded. After hearing the parties, the learned trial Court passed the impugned judgment.
5. Learned Counsel for the appellant at the very outset argued that he does not press the appeal on merits, but he submitted that the death sentence may be converted into life imprisonment on the ground that mitigating circumstances are available in the case. He pointed out that actually the incident had taken place on matrimonial dispute as the hand of daughter of complainant, namely, Mst. Mandam was firstly given to appellant Ismail Shaikh, but subsequently the complainant resiled from his promise and had given the hand of his daughter to his nephew Inayat Hussain. Learned Counsel further argued that the eyewitnesses had made improvements and exaggerations in their evidence qua their statements under sections 161 and 164, Cr.P.C. He further argued that the appellant is in jail since 1999. In the above circumstances, the learned Counsel argued that the appellant has made out a case for lesser punishment.
6. ' Mr. Naimatullah Bhurgri, learned State Counsel, after going through the evidence of the prosecution witnesses, conceded to the proposition of Mr. Soomro.
7. ' With the assistance of the learned Counsel for the respective parties we have scanned the entire evidence.
8. We have observed that there was a matrimonial dispute between the complainant and appellant Ismail Shaikh, as previously complainant promised to give the hand of his daughter Mst. Mandam Khatoon to appellant Ismail, but subsequently he resiled from his promise and gave the hand of his daughter to his nephew, which provoked the appellant. Besides this, we have examined the evidence of the witnesses, who had made so many improvements and exaggerations in their evidence during trial. In the case of Shiraz-ul-Haq v. The State, 2010 SCM R 646, it has been held as under:- "The prosecution alleged that incident of abduction was witnessed by P.W Zeeshan Siddiqui but he has not been examined as such on this aspect of the case there is evidence of victim only. The ransom amount has not been recovered from the appellants. Furthermore, the prosecution alleged that the culprits had used the Credit and Debited Cards and lacs of rupees were taken out from the account of the victim but no cogent evidence through any Bank official has been produced to prove such allegation. The confinement of the victim is of two days only with no allegation of torture."
9. ' In the case of Muhammad Ikram alias Billa v. The State 1999 SCM R 406, it has been observed by the Hon'able Supreme Court as under:- "However, there is mitigating circumstance so far as the sentence of Muhammad Ikram appellant is concerned, because Sohail Qaisar P.W.3 had himself admitted that Muhammad Ikram appellant had given Rs.300 to the deceased as loan and that the deceased had quarrelled and scuffled with him when he demanded his money back. He further admitted that the deceased had also abused the appellant on that occasion. Muhammad Ikram appellant, who was a youth and teenager must have felt highly offended over the conduct of the deceased for his failure to return the borrowed money and having received abuses from the deceased on demanding his money back. This fact entitles him to leniency in the matter of sentence, and we think that the ends of justice will be met it his death sentence is converted into life imprisonment plus the same fine and compensation as awarded by the learned trial Court."
10. ' In the case of Ansar Ahmad Khan Barki v. The State, 1993 SCM R 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 appellantshall 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."
11. ' In the case of Allah Ditta v. The State 2007 YLR 811 (Lahore), it has been observed as under:- ' 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.
12. ' 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.
13. 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."
14. After considering the dictum laid down by the Hon'ble apex Court, we are of the considered view that the appellant has made out a case for lesser punishment, as the refusal of the complainant to give the hand of his daughter to appellant Ismail as promised by him and subsequently resiling from his promise annoyed the appellant to commit the offence and considering the improvements and exaggerations made in the evidence of the prosecution witnesses, we are of the firm opinion that the extreme penalty of death awarded to the appellant is harsh, hence we alter the death sentence to life imprisonment and so also alter the sentence of fine from Rs.100,000 to Rs.50,000, and in default of payment of fine the appellant shall suffer S.I. For six months more. The compensation of Rs.50,000 under section 544-A, Cr.P.C. Awarded to the legal heirs of the deceased shall remain intact and in case of failure of the appellant to make payment of such compensation he shall suffer further S.I. For six months. Benefit of section 382-B, Cr .P.C . Is also extended to the appellant.
15. ' With the above modification in the sentence awarded to the appellant by the learned trial Court the appeal is dismissed. Criminal Reference No,4 of 2003 is answered accordingly.