HIGH COURT OF SINDH AT KARACHI

Criminal Jail Appeal No. 314 of 2013

Criminal Jail Appeal No. 82 of 2014

Confirmation Case No. 14/2014

Present

Mr. Justice Naimatullah Phulpoto

Mr. Justice Aftab Ahmed Gorar

J U D G M E N T

Date of Hearing : 25^th February 2016

Date of Announcement : 11^th March 2016

Appellants : Zahid @ Liaquat through Mr. Abbass Haider Gaad Advocate.

Mohammad Ibrahim through Mr. Abdul Razzak Advocate.

Respondent : State through Mr. Muhammad Iqbal Awan APG.

Naimatullah Phulpoto, J.—Appellants Muhammad Ibrahim, Zahid @ Liaquat and Muhammad Wazir were tried by learned III-Additional Sessions Judge, Karachi (West) in S.C.No. 676/2006, Crime No.325/2007 of P.S. Sohrab Goth, Karachi for offence under Sections 302/34 PPC. After full-dressed trial, learned IV-Additional Sessions Judge, Karachi West, by judgment dated 30.09.2013, convicted accused Muhammad Ibrahim under Section 302(b) PPC and sentenced him to death. He was ordered to pay fine of Rs.15,00,000/- to be paid to the legal heirs of the deceased as compensation as provided under Section 544-A Cr.P.C. In case of default in payment of fine, he was ordered to suffer R.I for one year more. Death sentence was subject to the confirmation by this Court as required under Section 374 Cr.P.C. Accused Zahid was convicted under Section 302(b) PPC read with Section 34 PPC as Tazir and sentenced to imprisonment for life. He was also directed to pay fine of Rs.15,00,000/- to be paid to the legal heirs of deceased as compensation as required under Section 544-A Cr.P.C. In case of default in payment of fine, he was ordered to undergo R.I for one year more. Accused Zahid was extended benefit of Section 382-B Cr.P.C.

2. Brief facts of the prosecution case as disclosed in the FIR are that complainant Muhammad Ashraf resides near Safar Hotel Mangsi Mohalla Jahanabad, Karachi. His younger brother Muhammad Yasin (now deceased) used to live with him. On 27.07.2006 at 10:00 am, it is alleged that accused Ibrahim son of Muhammad Ismail quarreled with younger brother of complainant, namely, Abdul Jamal Nasir and his another brother namely Muhammad Yasin came forward and settled the matter. It is further alleged that brother of complainant, namely, Muhammad Yasin after offering Zohar prayer reached near his house. It was 2:00 pm, accused Ibrahim son of Ismail, Wazir son of Ismail and Ahmed son of Lal Mohammad were standing near the house of the complainant armed with pistols. It is further alleged that accused fired from their pistols at the younger brother of the complainant namely Muhammad Yasin, he became seriously injured. Complainant immediately came out of the house on firing. His brother Muhammad Yasin was bleeding. It is stated that accused Ibrahim, Wazir and Ahmed fled away from the place of occurrence. Incident was witnessed by Sohail Ahmed and his younger brother Abdul Jamal Nasir. Complainant took his injured brother to the civil hospital immediately but he succumbed to the injuries on the way. Complainant lodged such report against the accused persons on 27.07.2006 at 1810 hours. FIR was recorded vide Crime No. 118/2006 at PS Pak Colony against accused u/s 302/34 PPC.

3. Zulfiqar Ali, Investigation Officer of this case, inspected the place of wardat on the pointation of complainant in presence of mashirs on 27.07.2006 and secured two empties of 30 bore, one sikka, collected blood stained earth and prepared such mashirnama in presence of the mashirs. IO recorded 161 Cr.P.C statements of P.Ws. after postmortem examination dead body was handed over to the legal heirs of the deceased. IO arrested accused Ibrahim on 12.10.2006 in presence of mashirs from graveyard and conducted his personal search and secured cash of Rs.130/-. On 15.10.2006, accused Ibrahim disclosed during interrogation that he had hidden crime weapon in the graveyard. Accused Ibrahim led the police party to the graveyard and produced unlicensed pistol bearing No.BBS-5842 with four live bullets and I.O prepared such mashirnama in presence of mashirs and sealed weapon. He had brought accused and case property to the police station and lodged FIR against him on behalf of state bearing No. 176/2006 under Section 13(e) of Arms Ordinance. Accused Wazir was arrested by SI Muhammad Ameen Khokhar on 19.10.2006. On 21.10.2006 accused Zahid @ Liaquat son of Shoukat was arrested by SI Safdar of PS Pak Colony. On 21.10.2006 IO got 164 Cr.P.C statements of P.Ws Muhammad Asharf, Muhammad Naeem and Shah Feroz recorded before the concerned Magistrate. I.O sent crime weapon, empties, blood stained earth and clothes of the deceased to the Ballistic/Chemical Expert. On the conclusion of usual investigation, Challan was submitted against accused, under Sections 302/34 PPC

4. Charge was framed by trial Court against accused Muhammad Ibrahim, Zahid @ Liaquat son of Shoukat and Muhammad Wazir at Ex.2. To the charge, accused pleaded not guilty and claimed to be tried.

5. In order to prove its case, prosecution examined the following witnesses before the Trial Court:

1. P.W-1 Muhammad Naeem at Ex.3.

2. P.W-2 Complainant Muhammad Ashraf at Ex.8.

3. P.W-3 Abdul Jamal Nasir at Ex.14.

4. P.W-4 SIP Muhammad Ameen at Ex. 17.

5. P.W-5 PC Muhammad Rafique at Ex.20.

6. P.W-6 Dr.Abdul Jabbar Memon MLO Civil Hospital Badin at Ex.23.

7. P.W-7 SIP Mehmood Safdar at Ex.24

8. P.W-8 Zulfiqar Awan at Ex.25.

9. P.W-9 Mr. Ali Ahmed Jan Judicial Magistrate at Ex.26.

Thereafter, prosecution side was closed by learned DDPP vide statement dated 29.07.2013.

6. Statements of accused Muhammad Ibrahim, Zahid @ Liaquat and Muhammad Wazir were recorded under Section 342 Cr.P.C at Ex. 27 to 29. Accused Muhammad Ibrahim denied the allegation of the commission of the Qatl-e-Amd of deceased Muhammad Yasin. Other accused Zahid @ Liaquat and Muhammad Wazir have also denied the prosecution allegations. Accused Muhammad Ibrahim denied the recovery of the pistol No. BBS-5842 on his pointation from graveyard, in presence of the mashirs. However, he has stated that he has been acquitted in 13(e) Arms Ordinance case. He has stated that P.Ws have deposed falsely against him. Accused Zahid @ Liaquat and Wazir have stated that nothing was recovered from them. All the three accused did not lead evidence in defence and declined to give statement on oath in disproof of prosecution allegations. Thereafter, accused Muhammad Wazir son of Muhammad Ismail absconded away and he was declared as proclaimed offender vide order dated 29.08.2013. Proceedings under Section 87 & 88 Cr.P.C were concluded.

7. Learned Trial Court after hearing the learned counsel for the parties, assessment of the evidence convicted appellant Muhammad Ibrahim under Section 302(b) PPC and sentenced him to death and appellant Zahid @ Liaquat was convicted u/s 302(b) r/w section 34 PPC and sentenced to imprisonment for life as stated above.

8. We have carefully heard M/s. Abdul Razzak, Abbass Haider Gaad Advocates for the appellants, Mr. Muhammad Iqbal Awan APG and perused the evidence minutely.

9. Learned Advocates for the appellants argued that it was unbelievable that complainant Muhammad Ashraf had seen incident at the roof of the house. Regarding other eye witnesses Muhammad Naeem and Jamal Nasir, it is argued that they were also chance witnesses. Learned counsel for the appellants argued that there was allegation of instigation against accused Zahid and no overact has been attributed to him. It is argued that motive was not strong enough to commit murder of the deceased. Lastly, it is argued that P.Ws are brothers inter se of the deceased and their evidence required independent corroboration, which was lacking in this case and prosecution case is doubtful. In support of their contentions learned defence counsel relied upon the case reported as Shahid Iqbal and another vs. The State (2000 YLR 688) [Lahore].

10. Mr. Muhammad Iqbal Awan learned APG argued that it was broad daylight incident and ocular account was corroborated by medical evidence. It is argued that it was pre-mediated cold blooded murder. It is also argued that presence of the eye witnesses at the place of incident was natural as incident had occurred in front of the house of the eye witnesses. Learned APG further argued that evidence of eye witnesses could not be shattered during cross-examination. Testimony of the eye witnesses could not be rejected on the ground of relationship with the deceased. Learned APG has also argued that pistol was produced by appellant Muhammad Ibrahim, empties matched with the weapon as per report of the Ballistic Expert. Regarding accused Zahid, learned APG argued that he had instigated principal accused Muhammad Ibrahim to commit the offence and provision of Section 34 Cr.P.C were fully attracted. In support of the contentions, he has relied upon the case of Ali Sher Vs. The State (PLD 1980 SC 317) & Munawar Ali vs. The State (2001 SCMR 614).

11. From perusal of the evidence, it transpires that complainant Muhammad Ashraf has stated that on 27.07.2006 at 9:00 am, he was present at his house. He heard noise behind his house. He went out of the house and saw that his brother Yasin and accused Ibrahim were fighting with each other. Another brother of the complainant namely P.W Jamal Nasir had also marks of violation at his face. He intervened and accused Ibrahim went away while issuing threats. Complainant enquired from his brother that what had happened. P.W Jamal Nasir narrated to complainant that accused Ibrahim asked him that why he was looking with anger at him and started fighting. Complainant has further deposed that on the same day at 2:00 pm he went on the roof of the house and saw accused standing outside of his house. Within 15 to 20 minutes, he heard fire shot and saw that his brother Yasin was lying on the ground. Accused Wazir and Zahid instigated accused Ibrahim and two fires were repeated by accused Ibrahim at his brother Yasin and accused ran away. Thereafter, injured was taken by complainant, his brother Jamal Nasir P.Ws Shah Feroz and Naeem to the hospital but he succumbed to the injuries.

12. P.W-Muhammad Naeem, eye witness of the incident has also narrated the same facts and stated that on 27.07.2006 at 2:00 pm his brother Yasin (now deceased) had gone to offer prayer and did not return. P.W Muhammad Naeem came in the street and saw that accused Ibrahim fired at his brother Yasin from his T.T. Pistol. Accused Wazir and Zahid said accused Ibrahim not to leave Yasin alive and accused Ibrahim repeated two fires upon Yasin, which hit him. P.W Muhammad Naeem has stated that they tried to apprehend the accused but they pointed out their weapons and succeeded in running away. Thereafter, Yasin was taken by him, complainant Muhammad Ashraf and P.W Jamal Nasir in Suzuki to Civil Hospital but he succumbed to the injuries on the way. Third eye witness Abdul Jamal Nasir has also narrated the same episode and stated that incident had occurred on 27.07.2006 at 2:00 pm. On the same date while he was going to video game shop, he heard fire shots, he came running towards his house and saw that Ibrahim armed with pistol, accused Wazir and Zahid were standing there and his brother Yasin was lying injured. In presence of eye witnesses, accused Ibrahim fired shots upon his brother Yasin and thereafter, all the accused went to graveyard. Yasin was taken to the hospital but he succumbed to the injuries on the way.

13. Dr. Abdul Jabbar Memon has deposed that he had conducted postmortem examination of deceased on 27.07.2006 and found that deceased had sustained fire arm injuries. Learned counsel for the appellants did not dispute unnatural death of the deceased so also weapon used in the commission of the offence.

14. IO has stated that he had collected two empties of 30 bore and one sikka so also blood stained earth from the place of wardat and arrested accused Ibrahim on 12.10.2006 and on the pointation of accused Ibrahim on 15.10.2006 secured Pistol No. BBS-5842 from the graveyard. IO recorded 161 Cr.P.C statements of the P.Ws. Accused Wazir and Zahid were also arrested. I.O sent pistol, empties, blood stained earth and clothes of the deceased to the experts and he has produced positive chemical/ballistic reports. IO had also produced eye witnesses before the Magistrate for recording the statements under Section 164 Cr.P.C. Other PWs have also supported the prosecution case.

15. From the scrutiny of the evidence we have come to the conclusion that prosecution has proved its case against accused Muhammad Ibrahim for the reasons that there were three eye witnesses of the incident namely complainant Muhammad Ashraf, P.Ws. Abdul Jamal Nasir and Muhammad Naeem. It was broad day light incident, which occurred in front of the house of the witnesses. Therefore, presence of these eye witnesses at the time of occurrence was quite natural and FIR was lodged with reasonable promptitude, which excluded possibility of deliberation and consultation. Despite lengthy cross-examination, evidence of the eye witnesses could not be shattered on material particulars, such as date, time and place of incident. Therefore, ocular testimony could not be rejected merely on the ground of their relationship with the deceased. Ocular account was fully corroborated by medical evidence. In so far as firearm injuries are concerned, pistol was also recovered on the pointation of accused Muhammad Ibrahim from the graveyard in presence of the mashirs. Forensic examination of the weapon recovered from accused Ibrahim revealed that fires were made through it and empties matched. As regards to the motive, eye witnesses have deposed that there was fight between deceased and the accused Muhammad Ibrahim on the day of incident at 10:00 a.m. Both parties reside in the same locality and know each other. P.Ws had no motive to falsely implicate accused Muhammad Ibrahim in this murder case. There was no background of previous enmity between the parties. No doubt eye witnesses are brothers of the deceased, but their testimony could not be rejected on this ground as they had no motive to falsely implicate the accused as held in the case of Munawar Ali vs. The State (2001 SCMR 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.’

16. In the present case, accused Muhammad Ibrahim had committed brutal murder in broad daylight by repeating pistol shots in the street in front of the house of the deceased. From act of accused Muhammad Ibrahim and weapon used by him, his intention was very much clear and it was cold blooded pre-mediated murder.

17. As a sequel to the discussion made above, prosecution has succeeded to prove its case against appellant Muhammad Ibrahim. Therefore, appellant Muhammad Ibrahim does not deserve any leniency in sentence. There is no occasion in this case to constitute a mitigating circumstance. Trial Court has examined evidence against accused Muhammad Ibrahim carefully and appreciated it according to the settled principles of law.

18. Death sentence in a murder case is a normal penalty and the Courts while diverting towards lesser sentence should have to give detailed reasons as held by Honourable Supreme Court of Pakistan in the case of DADULLAH and another versus The STATE (2015 SCMR 856). Relevant portion is reproduced 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.”

19. Consequently, Criminal Jail Appeal No. 82 of 2014 filed by the appellant Muhammad Ibrahim is dismissed and Reference for confirmation of death sentence is answered in affirmative.

20. Case of appellant Zahid @ Liaquat son of Shoukat is distinguishable from the case of main accused Muhammad Ibrahim. In the FIR it is mentioned that Ahmed son of Lal Muhammad instigated accused Muhammad Ibrahim for commission of the offence, but eye witnesses at trial stated that accused Zahid and Wazir instigated accused Muhammad Ibrahim. It is unbelievable that complainant in FIR mentioned name of Zahid @ Liaquat wrongly as Ahmed and fathers name was also wrongly mentioned by him in FIR. We find force in the contention of learned counsel for the appellant Zahid @ Liaquat that dishonest improvement has been made by the P.Ws at subsequent stage. Moreover, except role of instigation to accused Zahid no overact has been attributed to him. Complainant in his FIR has stated that accused Ibrahim, Wazir and Ahmed were armed with pistols at the time of incident. If it is believed that Zahid was armed with pistol but it is not brought on record what circumstances prevented accused Zahid from firing at deceased. In the case titled HASSAN versus The STATE (1969 SCMR 454) Honourable Supreme Court of Pakistan has held that mere presence of accused was not sufficient for conviction. Proof of some overt act on the part of each accused in furtherance of common intention is necessary. Relevant portion is reproduced as under:-

“It appears from the observations of the High Court that the High Court was still thinking of the charge of rioting and that mere presence or being a member of the unlawful assembly was sufficient to warrant a conviction. The Sessions Judge had applied section 34 to the case and in order to support a conviction under that section mere presence would not be sufficient, but there must be proof of some overt act on the part of each accused done in furtherance of the common intention. Here the evidence is clear that the appellant was empty handed and he did not assault Suleman, as was stated by P. W. 3. Neither of the Courts has considered the case of this appellant separately or the evidence against him. He went to the place empty banded and there is no evidence that he assaulted anybody or that in the circumstances he could have intended to cause a grievous hurt to, anybody. Judged by the standard applied by both the High Court and the Sessions Judge to the case of the three acquitted persons, the case of the appellant stands on a much more favourable ground and we see no justification for upholding his conviction. The appeal is, therefore, allowed and the conviction and sentence on the appellant are set aside and he is acquitted.”

21. For the above stated reasons, while relying on the above cited authority we see no legal justification for upholding conviction of appellant Zahid alias Liaquat. It is known principle of appreciation of evidence that the benefit of all favourable instances in the prosecution evidence must go to the accused regardless of whether he has taken any such plea or not. The rule of benefit of doubt, which is described as golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law as held by the Honourable Supreme Court of Pakistan in the case reported as MUHAMMAD NAWAZ and others Versus The STATE (2016 SCMR 267). Relevant portion is reproduced as under:-

“7. This Court in the case titled “Ayub Masih v. The State reported as PLD 2002 SC 1048 observed as under:-

"……………It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right. It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him."

22. While extending benefit of doubt, by way of abundant caution, we allow the Criminal Jail Appeal No. 314 of 2013 filed by appellant Zahid @ Liaquat and acquit Zahid @ Liaquat of the charge. Appellant Zahid @ Liaquat shall be released forthwith if not required in any other case.

J U D G E

J U D G E

Gulsher/PS