NAIMATULLAH PHULPOTO, J.--- Appellant Izzat Khan son of Sher Zamin was tried by learned Sessions Judge, Karachi (West) in Sessions Case No.544 of 2006. After trial, by judgment dated 20.05.2013, appellant was convicted under Section 302(b), PPC and sentence to death. He was ordered to pay fine of Rs.100,000/- as compensation under section 544-A, Cr.PC to the legal heirs of the deceased.
In case of default in payment of fine, he was ordered to suffer SI for six months. Appellant Izzat Khan was also convicted under section 324, PPC and sentenced to 10 years R.I. and to pay fine/compensation of Rs.25,000/- to be paid to the injured/complainant. In case of default in payment of fine, he was ordered to suffer S.I. for three months. Learned trial Court made reference to this Court for confirmation of death sentence awarded to accused as required under Section 374 Cr.P.C. Appellant, being aggrieved and dissatisfied, filed instant Criminal Appeal. By this judgment, we intend to dispose of Criminal Appeal as well as Reference made by the trial Court.
2. Brief facts of the prosecution case as disclosed in the F.I.R. are that on 05.08.2006 at 1530 hours, complainant Saleem Khan son of Ali Haider lodged his report, alleging therein that he resides at Pirabad Colony in a rented house along with his mother and two sisters. His two married brothers, namely, Muhammad Zaman and Fazal Amin reside in same mohallah but separately with their families. Complainant and his brother Fazal Amin (now deceased) used to repair the old shoes at footpath at Route No.60 Bus Stop, Manghopir Road, Karachi. It is alleged in the F.I.R. that 14 months ago Izzat Khan (accused) married with Mst. Shaheen at Karachi and after five months of the said marriage, father of the complainant expired. Thereafter, it is alleged that accused Izzat Khan sold the ornaments of gold of his wife and other valuable articles which were given to her by parents and started her maltreatment. About five months ago, accused Izzat Khan drove out his wife after maltreatment and she was residing with complainant. It is alleged that 2/3 times accused Izzat Khan came to the house of the complainant for return of his wife but elder brother of the complainant, namely, Fazal Amin demanded some guarantee from the accused that he would not maltreat his wife in future. It is alleged that on 05.08.2006 complainant was repairing the shoe at footpath, it was about 1300 hours. His elder brother Fazal Amin was with him and was leaving for taking the meals. All of sudden accused Izzat Khan appeared armed with hatchet and caused hatchet blow at the left side of neck of his brother Fazal Amin, who after sustaining the injury fell down on the ground. Complainant came forward to rescue his brother. It is further alleged that accused Izzat Khan caused him hatchet blows with intention to kill at head and stomach, complainant also fell down. Fazal Amin succumbed to the injuries at spot and accused Izzat Khan succeeded in running away from the place of incident. Thereafter people, who gathered there, shifted complainant in the injured condition so also the dead body of his brother to Abbasi Shaheed hospital. Complainant after first aid treatment, went to the police station and lodged his report. F.I.R. was recorded by SIP Sikandar Khan, vide Crime No.110/2006 at P.S. Orangi Town for offences under sections 302, 324, PPC.
3. F.I.R. was entrusted to inspector Muhammad Iqbal Hussain for investigation. He inspected the place of wardat in presence of mashirs, collected blood stained earth from spot, recorded 161 Cr.PC statements of the PWs and arrested accused Izzat Khan on 08.08.2006 and recovered crime hatchet. On the completion of usual investigation challan was submitted against the accused under the above referred sections.
4. Charge against accused Izzat Khan was framed by learned trial Court under sections 302, 324 PPC at Ex-2. Accused not pleaded guilty and claimed to be tried.
5. At the trial, prosecution examined the following witnesses:
1. Complainant Saleem Khan at Ex-4.
2. PW-2 Nekzada at Ex-5
3. PW-3 Islam Gul at Ex-6.
4. PW-4 Ali Haider at Ex-7.
5. PW-5 Umer Rahim at Ex-8
6. PW-6 Dr. Shiraz Ali at Ex-9
7. PW-7 Sikandar Khan at Ex-16.
8. PW-8 Ahmed Khan at Ex-18.
9. PW-9 Iqbal Hussain at Ex-20.
Thereafter, prosecution side was closed vide at Ex-22.
6. Statement of accused was recorded under section 342, Cr.PC at Ex-23, in which he denied the prosecution allegations leveled against him and claimed false implication in the case due to enmity. Accused did not lead evidence in defence and declined to give statement on oath in disproof of prosecution allegations.
7. Learned Sessions Judge after hearing the learned counsel for the parties and assessment of the evidence, convicted the appellant and sentenced him to death as stated above.
8. Mr. Abdul Razzak, learned Advocate for appellant did not press the appeal on merits and contended that appellant had committed murder of deceased on account of matrimonial dispute for return of his wife. Appellant had no previous enmity with deceased over any property. No other ground has been urged by learned counsel for the appellant. In support of his contentions, he has relied upon the case reported as MUHAMMAD NADEEM v. THE STATE (2010 SCM R 1729).
9. Mr. Mohammad Iqbal Awan, learned Assistant Prosecutor General Sindh, argued that appellant had committed coldblooded premeditated murder of deceased and inflicted hatchet blows to the complainant. Ocular evidence was corroborated by medical evidence, blood stained hatchet was recovered and no other evidence was required in the present case to establish the factum of the intention. In support of contentions reliance has been placed upon the case of MUNAWAR ALI versus THE STATE (2001 SCM R 614).
10. We have carefully heard Mr. Abdul Razzak, learned counsel for the appellant and Mr. Mohammad Iqbal Awan, learned Assistant Prosecutor General Sindh and perused the entire evidence.
11. The facts of this case as well as evidence produced before the trial Court find an elaborate mention in the judgment of the trial Court dated 20.05.2013 therefore the same may not be reproduced here so as to avoid duplication and unnecessary repetition.
12. Learned counsel for appellant did not press the appeal on merits and prayed for reduction of death sentence to imprisonment for life only on the ground that incident occurred due to matrimonial dispute. We have minutely examined the prosecution evidence for our satisfaction because it is the settled law that prosecution has to prove its case against the accused beyond any shadow of doubt. Complainant has deposed that incident occurred on 05.08.2006 at 01:00 p.m.
At that time brother of complainant, namely, Fazal Amin was going to home for lunch. Appellant Izzat Khan armed with hatchet appeared there and caused hatchet blow to Fazal Amin.
Complainant tried to rescue his brother but appellant caused him hatchet blows. As regards to the motive, complainant has deposed that Izzat Khan was his brother-in-law, after marriage he had sold ornaments of his wife and started maltreatment. He has stated that before the incident his sister was driven out of house and Mst. Shaheen came to house of complainant. Accused approached the complainant and deceased for return of his wife but deceased demanded some guarantee from the accused that he would not maltreat his wife in future, that caused much annoyance to the appellant and appellant caused death of deceased and inflicted hatchet blows to the complainant and he lodged such report. PW-2 Nekzada has deposed that on 05.08.2006, he was going to purchase vegetables, when he reached in front of Akber Autos, he saw that accused was inflicting hatchet blows to Fazal Amin, in the meanwhile complainant Saleem came forward to rescue his brother, the appellant also inflicted hatchet blows to him. He further deposed that he tried to catch hold the appellant but appellant succeeded to ran away from the place of incident.
Fazal Amin expired at the spot. He along with Islam Gul and Raheem took the injured to Abbasi Shaheed hospital. PW 6 Dr. Sheraz Ali has deposed that deceased had sustained one injury by sharp cutting weapon at neck and complainant Saleem Khan had sustained two injuries caused by sharp cutting weapon. Learned advocate for appellant did not dispute the unnatural death of deceased and injuries received by complainant as described by medical officer.
13. From the scrutiny of evidence, we have come to the conclusion that prosecution has proved it's case against the appellant by cogent evidence for the reasons that appellant had inflicted hatchet blow to deceased at neck and caused three hatchet blows to the complainant. Deceased died at the spot. Evidence of complainant was quite reliable; he had no motive to falsely implicate accused. Moreover, evidence of complainant was corroborated by medical evidence. Complainant was also injured in the incident. Learned trial Court rightly relied upon such evidence. It is settled law that relationship of a witness with deceased is no ground to discredit him as held by Honourable Supreme Court in the case of MUNAWAR ALI versus The STATE (2001 SCM R 614).
Relevant portion is reproduced hereunder: "........................It is well settled by now, that mere friendship or relationship does not make a witness an interested one and testimony of such a witness who otherwise seems to be a truthful witness cannot be rejected on such ground. An interested witness is one who has a motive for falsely implicating an accused, is a partisan and is involved in the matter against the accused. Friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused".
14. PW Nekzada was disinterested witness, he has given sufficient cause of his presence at the place of occurrence at the time of incident. He has implicated the appellant in the commission of offence and narrated the entire episode. PW Nekzada had also tried to catch hold the appellant but appellant pushed him and ran away. We are unable to disbelieve his evidence for the reason that witness had no motive for falsely implicating accused. Bloodstained hatchet was also recovered from the accused. Motive as set up by the prosecution has also been established at the trial. Learned counsel for the appellant while relying upon the same motive/dispute of the appellant with his wife has argued that matrimonial dispute is a mitigating circumstance in this case to convert the death sentence to imprisonment for life.
15. In the present case, appellant has committed a murder of a poor person in a brutal manner by inflicting hatchet blow in broad day light in street and inflicted three hatchet blows to complainant.
From the acts of accused and weapon used by him, intention was very much clear, appellant had also motive to commit the offence. It was cold blooded premeditated murder.
16. The upshot of above discussion is that no benefit can be extended in favour of appellant on account of dispute over the matrimonial affairs, which does not constitute a mitigating circumstance. In our humble view case law relied upon by learned advocate for appellant is quite distinguishable from the facts and circumstances of this case. Prosecution has succeeded to prove it's case that appellant committed murder of the deceased during broad day time in the street by means of hatchet, hence, appellant does not deserve any leniency in sentence. Trial Court has examined each and every piece of evidence carefully and appreciated evidence according to settled principles of law. Death sentence in a murder case is a normal penalty, Court should give reasons for lesser sentence as held in the case of DADULLAH and another versus The STATE (2015 SCM R 856), the Honourable Supreme Court of Pakistan has held as under:- "............... Death sentence in a murder case is a normal penalty and the Courts while diverting towards lesser sentence should have to give detailed reasons. The appellants have committed the murder of two innocent citizens and also looted the bank in a wanton, cruel and callous manner.
Now a days the crime in the society has reached an alarming situation and the mental propensity towards the commission of the crime with impunity is increasing. Sense of fear in the mind of a criminal before embarking upon its commission could only be inculcated when he is certain of its punishment provided by law and it is only then that the purpose and object of punishment could be assiduously achieved. If a Court of law at any stage relaxes its grip, the hardened criminal would take the society on the same page, allowing the habitual recidivist to run away scot-free or with punishment not commensurate with the proposition of crime, bringing the administration of criminal justice to ridicule and contempt. Courts could not sacrifice such deterrence and retribution in the name of mercy and expediency. Sparing the accused with death sentence is causing a grave miscarriage of justice and in order to restore its supremacy, sentence of death should be imposed on the culprits where the case has been proved."
17. While considering the quantum of sentence awarded to the appellant, we do not find any mitigating or extenuating circumstances available on record so as to justify for awarding lesser punishment to the appellant. The appellant had committed cold-blooded murder of the deceased, therefore normal penalty of death awarded by the trial Court seems to be justifiable.
18. For the above stated reasons no occasion has been found by us for reducing the appellant's sentence from death to imprisonment for life.
19. As a sequel to the discussion made above, appeal is dismissed and Reference for confirmation of death sentence is answered in affirmative.