THE HIGH COURT OF
SINDH AT KARACHI
Criminal
Appeal No.204 of 2015
Confirmation Case No.03 of 2015
Mr. Justice
Rasheed Ahmed Soomro
Appellant : Aijaz Nawaz alias Baba son of Sarfaraz
Nawaz through Mr. Muhammad Ramzan, advocate
Respondents : The State through Mr. Mohammad Iqbal Awan, Deputy Prosecutor General
Sindh.
Date of hearing: : 10.09.2018
Date of announcement : 25.09.2018
J
U D G M E N T
NAIMATULLAH
PHULPOTO, J.-
Aijaz Nawaz appellant was tried by learned Sessions
Judge Malir, Karachi in Sessions Case No.497 of 2012 for offences under
sections 392, 397, 302, PPC. After full-dressed trial, by judgment dated 25th
August 2015, appellant was convicted under Section 302(b), PPC, as Tazir and
sentenced to death. Appellant was directed to pay compensation of Rs.100,000/- in terms of Section 544-A, Cr.PC to the legal heirs
of the deceased Muddasir Hayyat, in default thereof the appellant was ordered
to suffer S.I. for six months more. Appellant was also convicted under Section
393, PPC and sentenced to 3 years R.I. and to pay fine of Rs.10,000/-, in
default thereof the accused shall suffer S.I. for 3 months more. Death sentence
awarded to the appellant was subject to the confirmation by this Court. Trial
court has made confirmation reference to this Court in terms of Section 374,
Cr.PC.
2.
Brief facts of
the prosecution case, as disclosed in the FIR are that on 26.05.2012 at about
07:55 a.m.,
3.
Investigation
was carried out by SIP Akbar Hameed Ghouri. He inspected place of wardat on
26.05.2012, blood stained articles were collected, photographs
of place of incident as well as of car were taken. IO recorded 161, Cr.PC
statements of PWs. He dispatched blood stained articles to the chemical
examiner. Pistol and empty were sent to the ballistic expert for opinion. He
went to the hospital for recording the statement of the injured but he could
not record such statement as injured was unconscious. Injured succumbed to the
injuries on 29.05.2012. IO collected medical certificate showing cause of death
of deceased. Investigation officer added section 302, PPC. IO produced accused
Aijaz Nawaz on 02.06.2012 before the Judicial Magistrate, Malir for holding
identification parade through eye witness Ms. Muqadas Hayyat (sister of the
deceased). After usual investigation, challan was submitted against the accused
Aijaz Nawaz under sections 392, 397, 302, PPC, showing co-accused Naveen alias
Naveed alias Joji as absconder.
4.
Learned trial court after completing the
formalities, ordered the case to proceed against absconding accused Naveen
under section 512, Cr.PC, proceedings under sections 87 and 88, Cr.PC were
concluded against him.
5.
Trial court
framed charge against accused Aijaz Nawaz at Ex.2. Accused pleaded not guilty
and claimed to be tried.
6. At
the trial, prosecution examined nine prosecution witnesses. Thereafter,
prosecution side was closed.
7. Statement
of accused was recorded under section 342 Cr.PC at Ex.17, in which he denied
the prosecution allegations and claimed his false implication in this case.
Accused raised plea that investigation officer failed to arrest real culprit
and booked him in this case falsely. Accused neither examined himself on oath
in disproof of the prosecution allegations nor examined any witness in defence,
though trial court provided him a fair opportunity.
8. Learned
trial Court after hearing the learned counsel for the parties and assessment of
the evidence, vide judgment dated 25.08.2015 convicted the appellant and sentenced
him to death as stated above. Hence, appellant filed this appeal. By this
single judgment, we intend to dispose of the aforesaid appeal as well as
Confirmation Reference No.03/2015 made by trial court.
9. Mr.
Muhammad Ramzan, learned advocate for the appellant has argued that prosecution
has failed to prove its case against the appellant beyond any shadow of doubt;
that according to the case of prosecution Ms. Muqaddas Hayyat was sitting in
the car with deceased but not a single injury was caused to her and her conduct
was unusual; that nothing was snatched by the accused from the deceased. He submits
that according to the prosecution case, incident had occurred at about 07:55
a.m. but surprisingly police reached within 10 minutes from the distance of one
kilometer. Learned advocate for the appellant further argued that it is
unbelievable that after commission of offence, appellant was standing at the
place of incident and police arrested him. It is argued that nothing was
snatched by accused and prosecution has failed to prove the motive for
commission of offence. It is argued that PW-5 Mukhtiar Ahmed claimed to be the
eye witness and stated that accused was caught hold by the public and he was
given beating but no injury was found on the person of accused. Mr. Muhammad
Ramzan argued that according to the case of prosecution, accused was caught hold
at the spot, then holding of identification parade was
highly doubtful. It is also submitted that postmortem examination of the
deceased was not conducted as such cause of death of the deceased remained
shrouded in mystery. It is contended that witnesses, in the present case, had
made dishonest improvements in order to bring the case in line with medical
evidence. It is further argued that complainant is the father of the deceased
and Ms. Muqaddas Hayyat is the sister of the deceased, as such, they are interested
witnesses and their evidence required independent corroboration, it was lacking
in this case. Lastly, argued that prosecution has failed to prove its case
against the appellant. In support of his contentions, he relied upon the
following cases:
1. 2017 SCMR 724 (Nasrullah alias Nasro Vs. The State)
2. 2017 SCMR 144 (Muhammad Sadiq Vs. The State)
3. 2017 SCMR 344 (Sardar Bibi & another Vs.
Munir Ahmed & Others)
4. 2018 SCMR 772 (Muhammad Mansha Vs. The State)
5. 2018 SCMR 506 (G. M. Niaz vs. the State)
6. 2017 PCr.LJ 114 (Sajjad Bhatti & Others vs. the State)
7. 1983 SCMR 428 (Arif Hussain & Another
Vs. The State)
8. 2009 PCr.LJ 444 (Akhtar Hussain alias Kaka Vs. The State)
9. 2015 SCMR 315 (Pathan Vs. The State)
10. Mr. Mohammad Iqbal Awan,
learned D.P.G. appearing for the State argued that prosecution has succeeded to
prove its case against the appellant; prosecution story was natural and
believable. According to the case of prosecution, deceased Muddasir Hayyat took
his sister to drop her at the bus stop in a car; accused tried to snatch
mobile, on resistance, accused fired upon the deceased. Learned D.P.G. argued
that evidence of Ms. Muqaddas Hayyat corroborated by medical evidence was
sufficient to prove the prosecution case. Learned D.P.G. submitted that ocular
evidence was corroborated by the medical evidence. Empty recovered from the car
of the deceased matched with the pistol recovered from the possession of the accused
as per FSL report. It is also argued that Ms. Muqaddas Hayyat identified the
appellant/accused in identification parade by assigning role and he was also
identified in the trial court. As regards to non-performance of postmortem
examination, learned D.P.G. argued that cause of death was due to fire arm
injury and other particulars have been mentioned in the certificates produced
before the trial court. Learned D.P.G. further argued that factum of Qatl-i-Amd
has been independently established through strong evidence, mere fact that
postmortem was not conducted has no material effect or legal consequence.
Learned D.P.G. prayed for dismissal of the appeal. In support of his
contentions, learned D.P.G. has relied upon the following cases:
1. 2006 SCMR 1857
(Muhammad Ehsan Vs. the State)
2. 2009 SCMR 99 (Ijaz
Ahmad vs. The State)
3. 2007 SCMR 641 (Ashfaq Ahmed Vs. The State)
4. 1998 SCMR 1778 (Abdur Rehman Vs. The State)
5. NLR 2002 Criminal 339 (Muhammad Ilyas, etc. Vs. The State)
6. PLD 2007 SC 104
(Zaigham-ur-Rehman alias Zaigi Vs. the State)
7. PLD 2007 SC 453
(Mst. Nazakat Vs. Hazrat Jamal and another)
8. 2013 PCr.LJ 1461 (Salam alias Toor Jan Vs. The State)
11. After hearing the learned
counsel for the parties, we have scanned the entire evidence.
12. As regards to the
unnatural death of deceased Muddasir Hayyat is concerned, PW-8 Dr. Muhammad Hassan
has deposed that on 26.05.2012 he was posted as Medical Officer at Intensive
Care Unit of National Medical Center, Karachi. On that date, injured Muddasir
Hayyat, aged about 25 years, was brought by his parents from JPMC for
treatment; injured had received fire arm injury on his left eyebrow penetrating
to brain and exit was on occipital region. Despite medical intervention,
injured could not survive and expired on 29.05.2012 at 09:30 a.m. He issued
medical certificate of deceased Muddasir Hayyat, showing cause of death as
cardio-respiratory arrest due to brain death secondary to gunshot injury over
the head. He issued such certificate at Ex.6/C. Dr. Muhammad Hassan has been
cross-examined by the defence counsel.
13. P.W. 7 Dr. Nasreen Qamar
has deposed that she was serving as Senior Medical Officer at JPMC and she had
worked with Dr. Manzoor Memon, who was MLO, JPMC. She is well conversant with
his signatures and handwriting. She further stated that Dr. Manzoor Memon has
been murdered in the year 2014. She produced medico legal certificate issued by
Dr. Manzoor Memon, in respect of injured Muddasir Hayyat at Ex.11/A. Medical
officer has described injury in certificate dated 26.05.2012 as under:-
“Fire arm wound of
entry over left eye ball, incasing 0.5 cm margin inverted, blood oozing out
from eye ball.
Fire arm wound of
exit over left parietal region, incasing 1 cm in diameter margin everted.”
14. As
regards to the contention of the defence counsel that postmortem examination of
the deceased was not conducted, the factum of Qatl-i-Amd of Muddasir Hayyat has
been independently established through strong and convincing evidence by Dr.
Muhammad Hassan and Dr. Nasreen Qamar. In medical certificates, nature of
injury and use of firearm are mentioned. Mere fact that postmortem examination
was not conducted has no material effect or legal consequences for the reason
that deceased had sustained firearm injury at head. Non-performance of
postmortem would not be fatal to the prosecution case as held by the Honourable
Supreme Court in the case of Abdul
Rehman vs. The State (1998 SCMR 1778). We, therefore, agree with the trial
court that deceased Muddasir Hayyat died unnatural death in the result of
firearm injury as described by medical officer.
15. As regards to ocular
testimony, according to prosecution evidence deceased Muddasir Hayyat took his
sister, namely, Ms. Muqaddas Hayyat on 26.05.2012 in a car to drop her at bus
stop for Medical College, both reached at the Bus Stop, Korangi Crossing at
07:55 a.m. Brother and sister were waiting in a car for Bus, in the meanwhile,
two persons appeared on motorcycle, one accused came to car, drew pistol for
snatching the mobile from Muddasir, who was sitting on the driving seat and Muqaddas
Hayyat was sitting on the rear seat of the car. Her brother resisted and
present appellant fired upon Muddasir Hayyat, which hit him at forehead. Whole
incident was closely seen by his sister Ms. Muqaddas Hayyat, the main eye
witness of the incident. PW-2 Ms. Muqaddas Hayyat is educated girl, aged about
23 years, it was day time incident, her presence with her brother in a car at
the time of incident has not been denied. She had no motive to falsely
implicate the accused in the murder of her brother. Evidence of Ms. Muqaddas Hayyat has also
been corroborated by medical evidence. One most important circumstance came on
record is that Dr. Manzoor A. Memon, MLO, JPMC in the certificate dated
26.05.2012 has mentioned that injured Muddasir Hayyat was brought in medical
center by Ms. Muqaddas Hayyat. Presence of Ms. Muqaddas Hayyat with brother at
the time of incident is fully established. She has categorically deposed as
under:
“This incident had
taken place on 26.05.2012. At that time, I was studying in Dow Medical College.
At about 07:50 a.m. I along with my brother Muddasir
Hayyat left the house in our Mehran Car. My brother had taken me to drop at
Korangi Crossing stop, wherefrom I had to go to College in College Bus. We
reached at bus stop and were waiting for College Bus, when a person having
pistol in his hand knocked the glass window of our Car and asked us to handover
our mobile phones, which we did not give him on which, he fired from his
pistol, which hit head of my brother Muddasir Hayyat, resultantly, he fell down
and went unconscious. Meanwhile, on fire shot report police mobile reached at
the place of incident, apprehended the said culprit and recovered pistol from
him. I also informed my father about the incident, he
came at the place of incident and called ambulance for removing my brother to
Hospital for treatment. We thereafter went to Hospital. On 29th May
2012, my brother Muddasir Hayyat succumbed to his injury at National Medical
Center, Kalapul. Police also recorded my statement. I received a notice for appearance
on 2nd June 2012 before the Judicial Magistrate for identification
test of the accused, where I identified the accused in a row of 10 persons to
be the same assailant, whose name later on was disclosed to be Aijaz. The
Judicial Magistrate also prepared such memo of identification test and obtained
my signature on it. I produce the memo of identification test at Ex.5/A, it is
same, correct and bears my signature. Accused Aijaz present in Court is same
culprit.”
Ms. Muqaddas Hayyat PW-2
in her cross-examination remained firm on all major particulars of the case
i.e. date, time and place of occurrence. She had no enmity with the appellant
to falsely implicate him in the present case. Incident had taken place at 07:55
a.m. on 26.05.2012 whereas FIR was registered on the same day at 11:30 a.m.
16. PW 4 ASI Aijaz Khan had
deposed that on 31.05.2012 accused Aijaz Nawaz was under arrest in this case
and led the police party, headed by SIP Akbar Hameed Ghouri to the house and
produced motorcycle lying in parts from a room. It was secured in presence of
the mashirs, such mashirnama was prepared at Ex.7/A.
17. PW 1
Khizar Hayyat (father of the deceased) has narrated the same facts as mentioned
in the FIR, which have been elaborately mentioned
in the judgment dated 25.08.2015 passed by trial court and, therefore, the same
may not be reproduced here so as to avoid duplication and unnecessary
repetition.
18. PW 6 ASI Muhammad Aslam
has stated that on 26.05.2012, he along with his subordinate staff left police station for patrolling
vide Roznamcha Entry No.16. During patrolling, at about 07:55 a.m. when police
party reached at Korangi crossing, heard firearm report near U-Fone Franchise
office. Police party proceeded and reached at the place of incident, where saw a
boy having pistol in his hand, standing near the driving seat of the Car
bearing No.AGB-053. He arrested him and secured 30 bore pistol from his
possession. ASI recovered one empty bullet from the place of incident. Accused
had no license for the weapon carried by him. ASI found one person lying
injured in the car on driving seat and a girl was sitting on passenger seat, on
inquiry, she narrated the incident to ASI Muhammad Aslam. He referred
immediately the injured to hospital for treatment and sealed the case property
at the spot, arrested the accused in presence of mashirs. ASI recorded
statement of Khizar Hayyat, father of the injured vide Crime No.149/2012 for
offences under sections 392, 397, 34, PPC. He lodged separate FIR No.150/2012
for offence under section 13(d) of the Arms Ordinance against the accused.
Injured succumbed to injures in hospital; investigation was assigned to SIP
Akbar Hameed Ghouri, who visited place of wardat, prepared mashirnama of the
place of incident, recorded statements of PWs under section 161, Cr.PC and sent
empty bullet and pistol to the expert for opinion and blood stained articles to
the chemical examiner for report and submitted challan against the accused.
19. Complainant Khizar Hayyat
(father of the deceased) PW-1 had received telephonic call made by his daughter
Ms. Muqaddas Hayyat, who was with the deceased at the time of incident, had
reached at the place of occurrence, soonafter the incident. Complainant had
also seen the accused, who was caught hold by the
police at the spot.
20.
There is no legal force in the
contention of the learned advocate for the appellant that complainant is the
father of the deceased and Ms. Muqaddas Hayyat, the eye witness of the
incident, is sister of the deceased, as such, they are related to deceased and
interested witnesses. Evidence of Ms. Muqaddas Hayyat and Khizar Hayyat could
not be rejected on the sole ground of relationship for the reason that they had
no motive to falsely implicate the present accused in the murder of the
deceased. Reference may be made to the law laid down 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."
It is also settled position of law that eye witnesses
being relative of the deceased it would be their endeavor to see that real
culprits are punished and they would not like to implicate a wrong and innocent
person in the crime so as to allow the real culprit to go unpunished.
21.
In our considered view, evidence of
Ms. Muqaddas Hayyat (sister of deceased) PW-2, is quite reliable for the
reasons that she was student of MBBS of Dow Medical College, it was day time
incident, she was present with her brother in the car, she
has given the details of the incident minutely. Her evidence appears to be quite
natural and believable. As regards to the contention of
learned counsel for the appellant that presence of Ms. Muqaddas Hayyat, the
sister of the deceased, in the car at the time of incident was doubtful because
she, being sister of the deceased, did not interfere and rescued her brother.
Learned D.P.G. refuted the contention. Strictly speaking, human behavior varies
from person to person; different people behave and react differently in
different situations. Human behavior depends upon facts of each case; how a
person reacts and behaves in particular situation can never be predicted. Every
person who witnesses a serious crime, reacts in his own way; some are stunned,
some are speechless; some would see the incident whereas some would flee from
the spot. There is no set of rule of natural conduct. Appellant was armed with
deadly weapon; he had fired upon the brother of PW-2 Ms. Muqaddas Hayyat; she was
sitting on rear seat of the car. In our view, Ms. Muqaddas Hayyat remained
silent and did not interfere in the incident as she is a girl, it cannot be
concluded that she was not present at the spot. We have noted that Dr. Manzoor
Memon, MLO, in his medical certificate has mentioned that injured was brought
in the hospital by Ms. Muqaddas Hayyat. In the above circumstances, her conduct
cannot be termed as unnatural.
22.
Learned counsel for
the appellant contended that there are major contradictions in the evidence of
the prosecution witnesses with regard to the number of accused and time of
incident. From deep examination of evidence of Ms. Muqaddas Hayyat and other
prosecution witnesses, we have observed certain minor contradictions but the
same are immaterial. We have come to the conclusion that contradictions as
pointed out by the learned defence counsel are of no avail to the defence.
Evidence of material witnesses has been recorded after two years of the
incident and, as such, due to lapse of memory, the contradictions are bound to
occur in the testimony of truthful witnesses. By and large, the people cannot
accurately recall the consequences of events which took place in a short span.
They can only remember the main purport of the incident. It is unrealistic to
expect from a witness to be a human tape-recorder or a video camera. It is not
expected from the witness to have a photographic memory and to recall the
minute details of the incident. It cannot be expected from a witness to narrate
the incident on the mathematical niceties in criminal cases. Thus, the
discrepancy pointed out by the learned defence counsel in prosecution evidence with
regard to the time of arrival of the police at the place of occurrence could
not obliterate, an otherwise acceptable evidence. From
the perusal of entire evidence, the manner of incident and the genesis of the
incident have not been disputed. We, therefore, do not find any force in the
contention of the learned defence counsel.
23.
After close
scrutiny of the evidence, we have come to the conclusion that the prosecution
has succeeded in proving the guilt of the appellant beyond any reasonable doubt
for the reasons that there is credible and cogent evidence of PW-2 Ms. Muqaddas
Hayyat, her evidence has been corroborated by the medical evidence and recovery
of empty from the place of incident, which matched with the pistol recovered
from the possession of the appellant as per FSL report Ex.15/G; present accused
was identified by Ms. Muqaddas Hayyat in the identification parade though
holding of identification parade is not mandatory and it is merely
corroborative piece of evidence. Appellant was identified by Ms. Muqaddas
Hayyat even in the trial court. Her evidence is confidence inspiring, being
constant on all material particulars. There is nothing in evidence to suggest
that she has deposed falsely. She had no motive to falsely implicate the
accused in the murder of her brother. Trial court has rightly appreciated the
evidence according to the settled principles of law and awarded death sentence
to the appellant. Appellant caused fire arm injury to the deceased at head, the
vital part of the body, then non-repetition of said act is hardly of any
consequence in the matter of determining the quantum of punishment that deserve
by the appellant as held by the Honourable Supreme Court in the case of Syed
Hamid Mukhtar Shah vs. Muhammad Azam and 2 others (2005 SCMR 427).
24.
In a chain of case law the view held is that normal
penalty is death for murder. 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. Nowadays 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.”
25.
Honourable Apex Court in the case of Noor Muhammad v. State (1999 SCMR 2722) has observed as
under:--
"However,
we may observe that the people are losing faith in the dispensation of criminal
justice by the ordinary criminal Courts for the reason that they either acquit
the accused persons on technical grounds or take a lenient view in awarding
sentence. It is high time that the Courts should realize that they owe duty to
the legal heirs/relations of the victims and also to the society. Sentences
awarded should be such which should act as a deterrent to the commission of
offences. One of us (Ajmal Mian, C.J., as he then was) has highlighted this
aspect, inter alia in the case of State through the Advocate-General Sindh,
Karachi v. Farman Hussain and others (PLD 1995 SC 1), relevant portion whereof
at page 19 reads as follows:--
(3)
It is a matter of public knowledge that in Sindh, on account of kidnapping for
ransom, commission of dacoities and other offences, the people are feeling
insecured. The learned trial Court has dilated upon these aspects in detail. I
am inclined to subscribe to the view found favour with it. The approach of the
Court in matters like the case in hand should be dynamic and if the Court is
satisfied that the offence has been committed in the manner in which it has
been alleged by the prosecution the technicalities should be overlooked without
causing any miscarriage of justice."
26.
It is the matter of
public knowledge that in Sindh, particularly at Karachi, on account of
kidnapping for ransom, commission of dacoities, mobile snatching and other
offences people are feeling insecure. The learned trial court has rightly
dilated upon these aspects of the case. We are satisfied that appellant has
committed this offence.
27.
While considering the quantum of sentence
awarded to the appellant, we do not find any mitigating or extenuating
circumstance available on record so as to justify for awarding lesser
punishment to the appellant. The appellant has committed murder of a young man,
aged about 25 years, for snatching mobile phone from him in a cruel manner. Appellant
fired at head of deceased, it demonstrated that he had no respect for human
life. The cumulative effects of all the circumstances justify the awarding of
normal penalty of death. Therefore, normal penalty of death awarded by the
trial Court seems to be justifiable.
28.
In view of the aforesaid discussion, we
hold that prosecution has established the guilt beyond reasonable doubt against
the appellant. Hence, appeal is liable to be dismissed.
29.
For
the aforesaid reasons, we find that appeal is devoid of any merit and it is fit
to be dismissed. Accordingly, this appeal is dismissed and Referenc e for confirmation of death sentences is answered
in affirmative.
J U D G E
J U D G E
Gulsher/PS