HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.331 of 2012

Confirmation Case No.05 of 2012

Present:

Mr. Justice Naimatullah Phulpoto

Mr. Justice Ghulam Qadir Leghari

J U D G M E N T

Appellant: Syed Abbass Ali son of Syed Abdul Rahim through Mr. Muhammad Farooq, Advocate.

Respondent: The State through Mr. Muhammad Iqbal Awan, A.P.G.

Date of hearing: 08.04.2016

Date of Announcement: 21.04.2016

Naimatullah Phulpoto, J.--- Appellant Syed Abbas Ali was tried along with co-accused Syed Ali Shah (since acquitted) by learned VI Additional Sessions Judge, Karachi (East) for offences under sections 302/212, PPC. Vide judgment dated 28.11.2012, accused Syed Abbas Ali was found guilty. He was convicted under section 302, PPC and sentenced to death. He was ordered to pay fine of Rs.100,000/-. In case of default in payment of fine, he was ordered to suffer R.I. for two years. Trial Court made reference for confirmation of death as required under section 374, Cr.PC. By this appeal, appellant Syed Abbas Ali has challenged his conviction and sentence. We intend to decide the appeal as well as death reference by this single judgment.

2. Brief facts of the prosecution case as disclosed in the F.I.R. are that complainant Jamil Hussain lodged report on 25.11.2009 at 0010 hours, alleging therein that on 24.11.2009, when he was returning to home from office and reached at Ghazi General Store. He was informed by his nephew Sajid that his uncle Amjad has sustained fire arm injuries. Complainant saw that his brother Amjad, aged about 20/22 years was lying seriously injured. Thereafter, it is alleged that complainant took him to Darul Sehat Hospital where death of Amjad was declared by doctors. On inquiry, complainant was informed by his nephew Muntazir Hussain that accused Syed Abbas, a boy of the same area, had snatched mobile from him outside of house and he went home and narrated the fact to his maternal uncle Amjad. Thereafter, it is alleged that Amjad Hussain came out of the house with his nephew Muntazir and started search of Syed Abbas Ali on motorcycle. It is alleged that Abbas was found standing with Raza at Star General Store. Amjad inquired from Abbas as to why he quarreled with his nephew and snatched mobile, which caused annoyance to Abbas and he made fire shots upon Amjad. It is alleged that three fires hit at the chest and abdomen of Amjad. Amjad succumbed to the injuries on the way to hospital. It is further alleged that accused Abbas was living in the house of co-accused Ali Shah and he had harboured accused Abbas. Complainant in the F.I.R. has stated that accused Ali Shah and his son Ghulam had supplied pistol to accused Abbas for commission of offence.

3. F.I.R. of the incident was recorded by ASI Muhammad Siddiq Abbasi of P.S. Gulistan-e-Johar on 25.11.2009 at 0010 hours, vide Crime No.476/2009, under sections 302/212, PPC. ASI Muhammad Siddiq Abbasi proceeded to the hospital where he inspected the dead body of Amjad Hussain in presence of the mashirs and prepared such mashirnama. He had written a letter to the medical officer for conducting the postmortem examination of deceased and report. After postmortem examination dead body was handed over to his brother Jameel Hussain and ASI sealed clothes of the deceased in presence of mashirs. Further investigation was carried out by Inspector Muhammad Fariduddin. He inspected place of incident on the pointation of the complainant and secured four empties of 30 bore pistol in presence of the mashirs and sealed at the spot. IO arrested accused Syed Ali Shah and Syed Abbas Ali on 26.11.2009 in presence of the mashirs. IO recorded 161, Cr.PC statements of PWs. Eye witnesses were produced before III Judicial Magistrate Karachi East on 04.12.2009 for recording their 164, Cr.PC statements and IO sent bloodstained earth and clothes of deceased to the Chemical Examiner for examination and report. On the conclusion of investigation, IO submitted challan against accused Ali Shah and Abbas under sections 302, 212, PPC. Accused Ghulam was shown as absconder. Case was sent up to the Court of Sessions and it was transferred to learned VI Additional Sessions Judge, Karachi East, for disposal according to law.

4. Charge was framed against accused Syed Abbas Ali Shah and Syed Ali Shah at Ex-3. Both accused pleaded not guilty and claimed to be tried.

5. At trial, prosecution examined Jamil Hussain (PW-1), Muntazir Hussain (PW-2), Muhammad Nazar (PW-3), Sajid Hussain (PW-4), Asghar Hussain (PW-5), Kaleem (PW-6), Muhammad Siddiq Abbasi (PW-7), Mohammad Fareeduddin (PW-8), Syed Khalil Ahmed H. Jafri (PW-9). Thereafter, prosecution side was closed.

6. Statements of accused were recorded under section 342, Cr.PC at Ex-16 and 17. Both accused denied the prosecution allegations. Accused Syed Abbas Ali Shah has stated that PWs are related to the deceased and have deposed against him due to enmity. Accused Syed Abbas Ali has stated that brother-in-law of deceased, namely, Faqeer Hussain was arrested at Lahore in a dacoity and his father was serving in police Department at that time. Complainant suspected that father of accused Abbas Ali Shah was involved in the arrest of Faqeer Hussain. Both accused did not lead any defence and declined to give statement on oath in disproof of prosecution allegations.

7. Learned trial Court after hearing the learned counsel for the parties and assessment of evidence, acquitted accused Syed Ali Shah and awarded death sentence to accused Abbas Ali Shah, by the impugned judgment.

8. Mr. Muhammad Farooq, learned counsel for the appellant Abbas Ali argued that eye witness Muntazir Hussain is closely related to the deceased and interested witness. It is argued that name of PW Muhammad Nazar did not transpire in F.I.R. and conduct of eye witnesses Muntazir Hussain and Muhammad Nazar at the time of incident was unnatural as they made no efforts to rescue the deceased. It is also argued that one Raza was present at the time of incident but he was not examined by the prosecution. Lastly, argued that motive as set up by the prosecution, has not been proved at trial and prosecution case is highly doubtful. In support of his contentions, he relied upon the following cases:

1. Noor Muhammad versus The State and another (2010 SCMR 97)

2. Zeeshan Afzal alias Shani and another v. The State and another (2013 SCMR 1602)

3. Mir Alam v. Amroz Khan and another (PLD 2015 Peshawar 125)

9. Mr. Muhammad Iqbal Awan, learned Assistant Prosecutor General Sindh argued that PW Muntazir Hussain was accompanied with deceased at the time of incident and accused Syed Abbas Ali fired at deceased. It was not possible for PW Muntazir Hussain to catch hold accused Syed Abbas Ali. He has further argued that PW-3 Muhammad Nazar was returning from graveyard and witnessed incident and he had no motive to falsely implicate the accused in this case. As regards to the motive, learned A.P.G. argued that accused Abbas Ali had snatched mobile phone from PW Muntazir Hussain and Amjad came along with PW Muntazir Hussain to accused Syed Abbas Ali for mobile, over such matter accused Abbas Ali fired 3 shots upon Amjad. He has argued that ocular evidence was corroborated by the medical evidence and mere relationship of witness Muntazir to deceased is not enough to discard his testimony. Learned A.P.G. argued that trial Court has rightly awarded death sentence to accused Abbas Ali. In support of his contentions, he relied upon the following cases:-

1. Dadullah and another V. The State (2015 SCMR 856)

2. Sheraz Tufail v. The State (2007 SCMR 518)

3. Amal Sherin and another v. The State (PLD 2004 SC 371)

4. Muhammad Ehsan v. The State (2006 SCMR 1857)

5. Khan alias Khani and another v. The State (2006 SCMR 1744)

10. Facts of this case and evidence produced before the trial Court find an elaborate mention in the judgment passed by the trial Court and, therefore, same may not be reproduced here so as to avoid duplication and unnecessary repetition.

11. The case of the prosecution mainly rests upon following pieces of evidence:

(i) Ocular evidence.

(ii) Medical evidence.

(iii) Motive.

12. The fact that deceased died unnatural death, prosecution examined PW-6 Dr. Kaleem at Ex-10. He has deposed that on 24.11.2009 he was performing his duty at JPMC in the night shift. A dead body of one Amjad son of Sultan, aged about 20 years was brought from Gulistan-e-Johar for conducting postmortem examination and report.

From the external examination of the dead body, MO found following injuries:

1. Firearm wound of entry 0.5cm x 0.5cm on front of left of chest, below the nipple. Exited from lateral aspect of right of chest

2. Firearm wound of entry 0.5cm x 0.5cm on front of left of lower chest at the costal margin. Exited from back of left of abdomen.

3. Firearm wound of entry 0.5cm x 0.5cm on front of left of abdomen. Exited from back of left of abdomen.

On the internal examination of the dead body MO found head, all bones, neck intact. However, chest cavity was full of blood. Heart and both lungs were damaged. Abdominal cavity was full of blood, intestine was ruptured.

From the external as well as internal examination of dead body, MO was of the opinion that death of the deceased caused due to cardio respiratory failure, resulting from fire arm injuries.

13. Learned advocate for the appellant did not dispute unnatural death of the deceased. We, therefore, hold that deceased died by means of fire arm injuries as described by the medical officer.

14. We now proceed to examine ocular evidence. Eye witness Muntazir Hussain deposed that on 24.11.2009 at 07:15 p.m. he was returning to the home from video game shop, when reached at the gate of the house accused Abbas Ali caught hold of him, and started quarrel. Abbas Ali was armed with T.T. pistol and asked PW Muntazir Hussain to hand over him mobile phone. Thereafter, he gave him mobile phone Samsung of black colour. PW Muntazir Hussain went inside the house and narrated the incident to his material uncle Amjad Hussain, who was watching TV at that time. Thereafter, Amjad along with Muntazir, his nephew, came out of the house in the search of Abbas Ali and they found Abbas inside the Raza General Store. PW Amjad asked Abbas as to why he had snatched mobile phone from his nephew Muntazir Hussain. Thereafter, Abbas abused Amjad and fired 3/4 pistol shots at him, which hit him at his chest and he fell down. PW Muntazir Hussain took mobile phone from the packet of trouser of Amjad and made a call to his uncle Sajid and narrated him the incident. He has further deposed that Nazar Bhai came there and inquired from Muntazir Hussain about incident. Maternal uncle of Muntazir Hussain, namely, Jamil Hussain also arrived there and injured Amjad was taken in a vehicle to Darul Sehat hospital and he succumbed to the injuries. Complainant Jamil Hussain lodged FIR. Police recorded his statement. He further stated that police inspected place of wardat in his presence and secured four empties, two empties were lying on the road and two empties were lying on the side of the road. Empties were sealed at the spot and accused were also arrested in his presence. Eye witness Muhammad Nazar has deposed that on 24.11.2009, after offering Fateha on the grave of his son he was returning back, it was 07:30 to 07:45 p.m., when he reached near Raza General Store, he saw accused Abbas was holding T.T. pistol in his hand and was abusing to Amjad and made 3 / 4 fires upon Amjad. He sustained injuries, his nephew Muntazir Hussain was present at that time.

15. Evidence of PW Muntazir aged about 16 years is of unimpeachable character, trustworthy and confidence inspiring, corroborated by medical evidence. He had no motive to falsely implicate accused Abbas Ali in the murder of his uncle Amjad. PW Muntazir Hussain has mentioned the details in evidence regarding snatching of mobile from him by accused Abbas. He has also deposed that he narrated incident to his uncle Amjad and came out of the house Amjad asked accused Abbas at General Store to return mobile, which caused much annoyance to accused Abbas and he fired upon Amjad. There is no legal force in the contention of the learned advocate for appellant that PW Muntazir Hussain is nephew of the deceased Amjad Hussain, evidence of boy Muntazir Hussain could not be rejected only on the ground that he is nephew of the deceased mainly for the reason that Muntazir Hussain had no motive to falsely implicate the accused in the murder of his maternal uncle Amjad Hussain, there was no background of enmity. Legal position in this regard is very much clear. In the case reported as RAQIB KHAN v. The STATE (2000 SCMR 163), Honourable Supreme Court has held as under:-

“11. The contention that a witness who is related to the deceased is an interested witness, has since long been discarded by this Court. It is settled proposition of law by now that interested witness is the one who has an animus for false charge. Mere relationship of a witness to the deceased is not enough of a reason to discard his testimony because such a witness is necessarily not an interested witness in the true sense of the term. This Court has gone to the extent that even evidence of interested witness is always not discarded. Reference may be made to the law laid down by this Court in Niaz v. State (PLD 1960 SC 387) which was reiterated again in Nazir Hussain v. State (PLD 1965 SC 188). In Aslam and another v. The State (1997 SCMR 1284), a Full Bench of this Court had reiterated the law on this score that "in the final analysis, it is neither the relationship of the witnesses with the deceased or that of the P.Ws. inter se nor in the appropriate cases even their being the interested witnesses that provided an ultimate guidance for according credence to their testimony. It is ultimately inherent worth of evidence of a witness that determines his reliability."

16. Learned counsel for the appellant contended that evidence of PW-3 Muhammad Nazar is unreliable as his name did not transpire in the F.I.R. Evidence of PW-3 Muhammad Nazar, who witnessed the incident, was confidence inspiring. He has deposed that on 24.11.2009 after offering Fateha on the grave of his son he was returning back, it was 07:30 to 07:45 p.m., when reached near Raza General Store, he saw that Abbas was carrying T.T. pistol in his hand and was abusing to Amjad and fired 3 / 4 shots at him. Amjad sustained injuries. No doubt, name of PW Muhammad Nazar did not transpire in the F.I.R. but this fact itself would not be sufficient to discard his testimony for the reasons that he had no enmity with accused Abbas for involving him falsely in murder case. In the case of MUHAMMAD BASHARAT versus The STATE (2003 SCMR 554), Honourable Supreme Court of Pakistan has observed as under:-

“Learned counsel has challenged its authenticity and submitted that had the witness been present at the spot, his name would have been disclosed in F.I.R. It is noted that this witness is a son of the complainant and uncle of the deceased and was residing in the same house. His presence at the spot was natural. Mere fact that he was not named in F.I.R. was not by itself sufficient to discard his testimony, which otherwise inspires confidence. The testimony of a witness cannot be believed or disbelieved simply for the reason that his name appears or does not appear in F.I.R. Real test is its own intrinsic value. In our view, High Court was justified to believe him.”

17. Trial Court has appreciated evidence according to the settled principles of law and found cogent evidence against Syed Abbas Ali Shah for his conviction in this case. We hold that trial Court has rightly awarded death sentence to the appellant. No mitigating circumstance was pointed out by learned counsel for the appellant for reduction of sentence. A young boy, aged about 20/22 years was murdered in a brutal manner. 3/4 shots were fired by appellant in cruel manner. Highhandedness of accused Abbas, the choice of weapon of offence, seat of injuries and act done by him established the intention of accused to kill. Honourable Supreme Court of Pakistan in the case of WAZIR GUL versus The STATE (1975 SCMR 289) has observed as follows:-

7. As regards the second point of the two knife injuries at least one was given on the vital part of the body causing perforation of intestines and leading to development of peritonitis. From the nature and the seat of the injury the, intention to kill could be clearly spelt out. It is common knowledge that murders have been committed for no motive worth the name and at any rate on mere minor pretexts. No hard and fast rule could be laid down in regard to the determination of intention which can be spelt out from all the ambient circumstances taken together. A host of them including the highhandedness of the petitioner ; the choice of the weapon of offence by him, the seat of injury and the damage done by it unmistakably establish the intention to kill or at least the knowledge that death could in all probability follow in consequence thereof.”

18. We have come to the conclusion that the prosecution had proved its’ case against the appellant and defence plea that PWs have deposed against accused Abbas Ali due to enmity, such plea has not been substantiated by some documentary evidence.

19. Learned counsel for the appellant lastly contended that pistol used by appellant Abbas was not recovered from him during investigation. Perusal of evidence of PW-1 shows that son of acquitted accused Ali Shah used to give pistol(s) on rental basis to the persons of the locality for crime. It is very unfortunate, in such circumstances, recovery of T.T. pistol from such type of accused was difficult. Medical evidence had fully supported the ocular account furnished by eye-witnesses. Non-recovery of pistol from possession of present accused was inconsequential. Even otherwise, recovery of weapon of offence or empties was not mandatory requirement of law, but was a circumstantial piece of evidence which would tend to corroborate other piece of evidence as held in the case of ALI IMRAN versus The STATE (2002 PCr.LJ 1856).

20. While considering the quantum of sentence awarded to the appellants, we do not find any mitigating or extenuating circumstance available on record so as to justify for awarding lesser punishment to the appellants. The appellant Syed Abbas Ali committed murder in cruel and callous manner by repeating fires. Therefore, normal penalty of death awarded by the trial Court seems to be justifiable. 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 SCMR 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.”

21. Trial Court did not mention in judgment, under which clause of section 302, PPC accused Syed Abbas Ali has been convicted and sentenced him to death. Section 302, PPC itself divides Qatl-i-Amd for the purpose of punishment into three categories:

(a) Qatl-i-Amd which is punishable with death as Qisas;

(b) Qatl-i-Amd punishable with death or life imprisonment as Ta-zir; and

(c) Qatl-i-Amd punishable with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable.

We have perused the evidence minutely. Offence under section 302(b), PPC punishable with death as Ta-zir is proved against accused Syed Abbas Ali. Under section 302(b), PPC, no fine can be imposed but compensation under section 544-A, Cr.PC shall be given to the legal heirs of the deceased. Trial Court has imposed fine in case of default in payment of fine, ordered that accused Syed Abbas Ali shall undergo R.I. for two years. Fine and R.I. for two years imposed by the trial Court are not sustainable under the law. We modify fine to compensation of Rs.100,000/-, which shall be paid to the legal heirs of the deceased and in case of default, appellant shall undergo S.I. for 6 months. Consequently, we do not find any justification to interfere with death sentence recorded by trial Court against accused Syed Abbas Ali.

22. As a sequel to the discussion made above, appeal is dismissed and Reference for confirmation of death sentence is answered in affirmative.

J U D G E

J U D G E

Gulsher/PS