Present:

Mr. Justice Naimatullah Phulpoto

Mr. Justice Abdul Mobeen Lakho

Appellant : Muhammad Imran son of Muhammad alias Patel through Mr. Asadullah Memon, Advocate

Respondents : The State through Mr. Mohammad Iqbal Awan, Deputy Prosecutor General Sindh.

Date of hearing: : 14.01.2021

Date of announcement : 19.01.2021

J U D G M E N T

NAIMATULLAH PHULPOTO, J.- Muhammad Imran appellant was tried by learned Additional Sessions Judge-I, Karachi East for offence under section 302, PPC. After a full-fledged trial, vide judgment dated 22.08.2019, the appellant was convicted under section 302(b) PPC and sentenced to death. Appellant was further directed to pay Rs.500,000/- as compensation to legal heirs of deceased in terms of Section 544-A, Cr.PC. Confirmation Reference was made by trial Court to this Court as required under Section 374, Cr.PC.

2. Brief facts of the prosecution case, as disclosed in the FIR are that complainant Muhammad Zahid lodged his report on 15.12.2012 at 2215 hours, alleging therein that on 15.12.2012 at 2000 hours he was coming to Khokhrapar No.5 from Memon Goth on motorcycle with his friend, namely, Tayyab Hussain alias Ali Shahzad, aged about 30 years (now deceased). It is further alleged that Tayyab (deceased) telephoned to Imran, he told him that his brother Zahid had arrived and asked him to come and receive Rs.200/- daily in partnership. After sometime, Imran came, Tayyab Hussain gave Rs.200/- to him but Imran refused to accept Rs.200/- and asked Tayyab to pay Rs.500/-. In the result, quarrel started between accused Imran and Tayyab Hussain. It is alleged that Imran took out pistol and started firing upon Tayyab Hussain alias Ali Shahzad. Multiple fires hit to Tayyab Hussain and he fell down. Appellant succeeded in running away. Thereafter, information of the incident was given by the complainant to Police on 15 Madadgar and injured Tayyab Hussain was taken to the Jinnah Hospital in Ambulance. Injured was under treatment in Ward No.18 of Jinnah Hospital but he succumbed to the injuries, on the next day of the incident. It is further stated that Tayyab Hussain and Imran were partners in the mobile shop and dispute arose between them over some payment. FIR of the incident was lodged by complainant Muhammad Zahid. It was recorded by SHO P.S. Khokhrapar on 16.12.2012 at 0015 hours vide Crime No.178/2012 under sections 324, PPC against the appellant/accused. Inspector Faraz Gul Abbasi received copy of aforesaid FIR for conducting investigation.

3. Investigating officer inspected place of wardat on the pointation of complainant Muhammad Zahid in presence of PWs Muhammad Zahid and Shoaib Zaidi on 16.12.2012 at 0100 hours. He collected 4 empties of 30 bore pistol and bloodstained earth from the place of incident and sealed both parcels at spot. IO prepared sketch of place of incident in presence of same mashirs. Injured Tayyab Hussain alias Ali Shahzad expired in the hospital on the next date of incident. After receipt of such information, IO proceeded to the hospital for preparation of inquest report in presence of same mashirs and took the photographs of deceased Tayyab Hussain. IO obtained opinion of the medical officer regarding cause of death of the deceased. Thereafter, dead body was handed over to the legal heirs of the deceased. IO recorded 161, Cr.PC statement of the PWs and dispatched the empties to the FSL for report. Bloodstained clothes of the deceased were sent to chemical examiner for analysis and report. IO made all possible efforts for arrest of the accused but he could not succeed and he submitted challan against the accused under Section 512 Cr.PC before competent Court of law. Accused was arrested on 13.12.2014 and he was produced before the trial Court.

4. Trial Court framed charge against appellant Muhammad Imran under section 302, PPC. Appellant pleaded not guilty and claimed to be tried.

5. At trial, prosecution examined PW.1 Gul Hassan at Ex.6, PW.2 Muhammad Ameen at Ex.7, PW.3 Muhammad Zahid (complainant) at Ex.8, PW.4 Gul Faraz Abbasi at Ex.9, PW.5 Dr. Afzal Ahmed at Ex.10, PW.6 Muhammad Kashif at Ex.11, PW.7 Syed Shoaib Zaidi at Ex.13, PW.8 Syed Mukhtiar-ul-Hassan at Ex.14. Thereafter, prosecution side was closed vide statement dated 03.08.2019 at Ex.16.

6. Trial court recorded statement of accused under section 342 Cr.PC at Ex.17. Appellant claimed false implication in the case and denied the prosecution allegation and raised plea that he has been falsely involved in this case by complainant and PW Shoaib Zaidi. Appellant did not lead any evidence in the defence and declined to give statement on oath is disproof of prosecution allegations.

7. Trial Court after hearing the learned counsel for the parties and assessment of the evidence, vide judgment dated 22.08.2019 convicted the appellant and sentenced him to death as stated above. Hence, appellant filed this appeal. By this single judgment, we intend to decide the aforesaid appeal as well as Confirmation Reference No.22/2019 made by trial court.

8. In order to prove unnatural death of the deceased, prosecution has examined Dr. Afzal Ahmed (PW.5). He has deposed that on 15.12.2012, he was posted as MLO at JPMC, on the same day, he received injured Tayyab Hussain son of Allah Ditta, aged about 35 years for examination, treatment and certificate. He found following injuries on the body of injured:

1. Firearm wound of entry size 1cm in diameter at right side face blackening positive margin inverted.

2. Firearm wound of exit size 1.5cm in diameter at right side of neck margin averted.

3. Firearm wound of entry blackening positive at vertex of skull margin inverted.

According to doctor, injuries were caused by firearm. Doctor issued such certificate and produced it at Ex.10/A. According to medical officer, injured died in the hospital but as per record, his postmortem was not conducted by the doctors of ward No.18 of Jinnah Hospital. Anyhow, unnatural death of deceased by means of firearm is not disputed. Trial court has also held that deceased died by means of firearm injuries. The finding of the trial court in this regard requires no interference by this Court.

9. Now, the crucial point for determination is whether appellant had committed murder of the deceased? Trial court after assessment of evidence had come to the conclusion that appellant had committed murder of the deceased. In order to satisfy ourselves, we have closely scrutinized the entire prosecution evidence and defence theory. Complainant (PW.3) Muhammad Zahid has deposed that on 15.12.2012 he was coming from Memon Goth along with deceased Tayyab Hussain on the motorcycle, at 2000 hours, when they reached at Khokhrapar No.5, deceased telephoned to appellant Imran and told him to receive Rs.200/- from him. He further told him that Zahid (complainant) is also with him. Deceased gave Rs.200/- to the appellant at Bismillah Communication as he had some partnership with the appellant but accused/appellant demanded Rs.500/- not Rs.200/- per day. There was exchange of hot words in between deceased and accused. In the meanwhile, according to complainant, accused Imran took out pistol and made fires upon Tayyab Hussain. Tayyab Hussain received firearm injuries and fell down. After sometime, he called police on 15 Madadgar and shifted Tayyab Hussain to Jinnah Hospital for treatment where he was admitted in Ward No.18. SIP Ameer of P.S. Khokhrapar came in the hospital and recorded statement of Muhammad Zahid and he produced it at Ex.7/C. On 16.12.2012, IO visited place of wardat on the pointation of PW Shoaib Zaidi from where IO collected 4 empties of 30 bore pistol, collected bloodstained earth in presence of mashirs. Deceased Tayyab succumbed to injuries on the next date, i.e., 16.12.2012. Complainant was cross-examined at length. In cross-examination complainant admitted that he had not specifically mentioned the number of fires made by the accused upon the deceased.

10. Syed Shoaib Zaidi (PW.7) had deposed that he is motorcycle mechanic and his shop is situated in Khaskheli Goth. On 15.12.2012 at about 1930 hours he was present at his shop, where complainant Zahid and Tayyab came. Zahid told to PW Shoaib that his motorcycle was out of order and wanted to purchase some parts of motorcycle for repair. He accompanied with complainant Zahid and Tayyab to Khokhrapar No.5. When they reached at Khokhrapar No.5, near Bismillah market, accused Imran arrived there. As it was winter season, he was wearing shawl on his body. He further deposed that Tayyab gave Rs.200/- to accused Imran but accused Imran demanded him for Rs.500/- on which altercation started. Suddenly, accused Imran took out pistol and fired at Tayyab, which hit him on his forehead. He opened in all 4 fires, Tayyab fell down and ran away. Injured was taken to the hospital and he returned home. At about 0045 hours on 15.12.2012, complainant Zahid telephoned to Shoaib to reach to the place of incident due to arrival of the police. He has stated that police collected 4 empties and bloodstained earth from place of wardat and sealed the same in his presence. It is also stated by him that police recorded his statement under section 161, Cr.PC. He was cross-examined by the defence counsel at length. He has replied that he did not know who telephoned accused Imran to reach at the place of incident. He has admitted that there was dispute between Tayyab and accused Imran over the money and he did not hear conversation of accused and deceased Tayyab as he was standing on a side at a distance of few paces. He has further answered in the cross-examination that he did not see the denominations of the notes due to darkness. It is also replied by him in cross-examination that he cannot say whether second and third fire hit to deceased as he ran away after first fire which hit to the deceased, at his forehead.

11. IO Faraz Gul Abbasi (PW-4) had deposed that he received copy of FIR bearing Crime No.178/2010 under section 324, PPC, lodged by complainant Muhammad Zahid against appellant in respect of injuries sustained by Tayyab Hussain. He visited place of wardat on the pointation of complainant Muhammad Zahid in presence of mashirs on 16.12.2012, I.O collected 4 empties of 30 bore pistol and bloodstained earth from the place of wardat and dispatched the same to the experts and received positive reports. During investigation, he made all efforts for arrest of the accused but could not arrest him and submitted challan against accused under section 512, Cr.PC.

12. SIP Gul Hassan (PW-1) has deposed that on 12.12.2014 he was entrusted investigation of FIR No.173/2014 under section 23(1)(a) of the Sindh Arms Act, 2013 of P.S. Khokhrapar. In that case, ASI Mukhtarul Hassan had handed over to him custody of accused Imran. During interrogation, accused Imran disclosed that he was absconder of this murder case. After verification, appellant was arrested in this case by ASI Gul Hassan in presence of mashirs and he was produced before the trial court on 13.12.2014. In cross-examination to the learned advocate for the appellant, IO denied the suggestion that appellant has been falsely involved in this case.

13. It was the entire prosecution evidence which has been brought on the record by the prosecution. Appellant/accused in his statement recorded under section 342, Cr.PC has denied the prosecution allegations.

14. Learned advocate for the appellant after arguing the appeal at some length, did not press the same on merits and submitted that the motive asserted by prosecution was not proved at trial and immediate motive remained shrouded into mystery, which demands lesser punishment of life imprisonment. In support of his contentions, he has relied upon the cases reported as Amjad Shah vs. State (PLD 2017 SC 152) and Ghulam Mohy-ud-Din alias Haji Babu and others vs. The State (2014 SCMR 1034) and Bakhat Munir vs. The State (2020 SCMR 588).

15. Learned DPG contended that based on the evidence on record the prosecution had proved its case against appellant Imran beyond a reasonable doubt and, as such, the impugned judgment did not require interference. When he was asked by the Court whether the mitigating circumstances raised by the appellant justified a reduction in sentence, he candidly conceded that as a matter of law they did justify a reduction from the death penalty to that of life imprisonment.

16. We have heard the learned counsel for the parties and perused the evidence of witnesses Muhammad Zahid and Shoaib Zaidi, who have furnished incriminating, trustworthy and confidence inspiring evidence being natural witnesses of the incident. Both the eyewitnesses have no enmity with the accused and with zero possibility of substitution of the real accused with the appellant thereby allowing the former to go scot-free being the murder of deceased who had been done to death within their site fully involved the appellant in the commission of offence. In their examination-in-chief and in cross-examination defence had not denied their presence at the spot. Ocular evidence was fully corroborated by the medical evidence. Under the circumstances of the case, non-recovery of the crime weapon and non-production of the experts’ reports will also have no reflection on the prosecution case because it otherwise stands proved against the appellant.

17. From the close scrutiny of the evidence, we have come to the conclusion that prosecution had proved its case against the appellant beyond a reasonable doubt but failed to prove the motive for the reasons that complainant in his evidence has deposed that there was partnership in between appellant and deceased, in the business of mobile shop but no independent evidence in this regard has been produced at trial. According to prosecution case, complainant and PW Shoaib were eyewitnesses of the incident but evidence of these eyewitnesses with regard to the motive is contradictory to each other. In the FIR, motive has been set up that the appellant demanded Rs.500/- from the deceased per day for the business. When deceased gave Rs.200/- to the appellant, he refused to receive it and demanded Rs.500/- but on this point PW.7 Shoaib Zaidi has contradicted the complainant and deposed that he was with the complainant and deceased Tayyab at the time of incident but he did not hear the conversation of deceased and appellant. PW.7 Shoaib Zaidi has replied that it was night time, he did not see the notes. Relevant portion of his cross-examination on the piece of motive is reproduced as under:

“I do not know who telephoned accused Imran to reach at the place of incident. I do not know whether Zahid telephoned accused Imran. Tayyab and accused Imran had dispute on money. I did not hear what the accused and Tayyab discussed with each other as I was standing on a side at the distance of few paces, while Imran, Tayyab and Zahid were talking to each other. Deceased Tayyab was giving Rs.200/- to accused Imran but I did not see what was the denomination of the notes due to darkness. Deceased was facing towards Imran while Zahid was on the side of them and I was standing at the distance of few paces from Zahid.”

Investigating officer had also failed to collect independent piece of evidence with regard to the motive during investigation. Apart from that, PW.7 Shoaib in the cross-examination has replied that due to darkness he could not see the currency notes. We have no hesitation to hold that motive set up in FIR has not been established at trial.

18. We have already observed that evidence of the eyewitnesses is quite reliable and trustworthy. Mere relationship of the complainant with the deceased is no ground to reject his testimony. Even otherwise, complainant had no motive to falsely implicate the appellant in this case. Evidence of another eyewitness, namely, Syed Shoaib Zaidi is also reliable for the reason that he was independent witness. Evidence of both the eyewitnesses on all the material points is consistent. Ocular evidence is corroborated by the medical evidence, as such, no further corroboration is required in this case as held in the case of Asim versus the State (2005 SCMR 417).

19. The only issue before us is whether sufficient mitigating circumstances have been shown to justify the reduction in sentence from that of the death penalty to imprisonment for life as prayed by the appellant.

20. In the FIR itself, it is mentioned that occurrence in issue had taken place on account of a trivial verbal altercation between the appellant and the deceased over the payment of Rs.200/500. It is matter of record that deceased Tayyab Hussain alias Ali Shahzad had telephoned to appellant for receiving the amount, which clearly shows that appellant and deceased had good working relationship. It is crystal clear that there was no previous enmity between the parties. The circumstances of the case unequivocally suggest that the occurrence had taken place at the spur of the moment without any premeditation on the part of the appellant. Learned counsel for the appellant has rightly relied upon the case of BAKHT MUNIR versus The STATE and another (2020 SCMR 588). Relevant portion is reproduced as under:-

“3. After hearing the learned counsel for the appellant and learned Additional Advocate General, KPK, it has been observed by us that notwithstanding the fact that prosecution has proved its case against the appellant beyond reasonable doubt and the findings of guilt rendered by the learned courts below against the appellant are not open to exception, there are circumstances in this case which go in favour of prayer made by the appellant qua reduction in the quantum of his sentence from death to imprisonment for life. In the FIR itself, it is the case of the complainant that the occurrence in issue had taken place on account of a trivial verbal altercation between the parties. In his examination in chief as well, the complainant Ali Rehman (PW5) reiterated the same. In his cross-examination he explained the cause of occurrence as under:-

"....The verbal altercation took place between me and the accused facing trial at the time of incident. The altercation took place over a small bridge...."

4. It is crystal clear that there was no previous enmity between the parties. The circumstances of the case unequivocally suggest that the occurrence had taken place at the spur of the moment without any premeditation on the part of the appellant.

5. For the foregoing, the instant criminal appeal is partly allowed. The conviction of the appellant under section 302(b), P.P.C. is upheld and the sentence of death of appellant on two counts is converted into imprisonment for life on two counts. The convictions and sentences of appellant on other penal heads are maintained. The amounts of compensation and sentences in default thereof are also not disturbed. Benefit of section 382-B, Code of Criminal Procedure is extended to the appellant. All his sentences of imprisonment shall run concurrently.”

21. We have also observed that motive asserted by the prosecution was not proved at trial. It can safely be said that motive remained unproved. Even otherwise, it is very difficult for us to believe that appellant fired multiple fires upon deceased as appellant demanded Rs.500/- from deceased and deceased gave Rs.200/-. It appears that something else had happened prior to the occurrence which was suppressed by both the parties so immediate cause of occurrence is shrouded into mystery.

22. Generally it has been accepted by the superior courts that if the prosecution fails to prove the motive for the murder the courts are justified in imposing the alternate sentence of life imprisonment as opposed to the death penalty, Reliance in this respect is placed on the case of Amjad Shah vs. State (PLD 2017 SC 152) where it was held as under:

"9. Notwithstanding that the participation of the appellant in the commission of offence is duly established, his intention, guilty mind or not to commit the same remains shrouded in mystery and is therefore, unproven. In such like cases where the motive is not proved or is not alleged by the prosecution, the Court for the sake of safe administration of justice, adopts caution and treats the lack of motive as a mitigating circumstance for reducing the quantum of sentence awarded to a convict. Reference is made to the case of Zeeshan Afzal v. The State (2013 SCMR 1602).”

23. In our view taking into account the fact that no motive has been proved against the appellant and in taking guidance from the Supreme Court authority of Ghulam Mohyuddin (supra) where it was stressed as under whilst dealing with sentencing in a murder case in the following terms:

"Judicial caution must be exercised to award the alternative sentence of life imprisonment, lest an innocent person might not be sent to the gallows. So it is better to respect the human life, as far as possible, rather to put it at end, by assessing the evidence, facts and circumstances of a particular murder case, under which it is committed.”

24. The law is settled by now that if the prosecution asserts a motive but fails to prove the same, as in the present case as discussed above, then such failure on the part of the prosecution may react against a sentence of death passed against a convict on the charge of murder and a reference in this respect may be made to the cases of Ahmad Nawaz v. The State (2011 SCMR 593), Iftikhar Mehmood and another v. Qaiser Iftikhar and others (2011 SCMR 1165), Muhammad Mumtaz v. The State and another (2012 SCMR 267), Muhammad Imran alias Asif v. The State (2013 SCMR 782), Sabir Hussain alias Sabri v. The State (2013 SCMR 1554), Zeeshan Afzal alias Shani and another v. The State and another (2013 SCMR 1602), Naveed alias Needu and others v. The State and others (2014 SCMR 1464), Muhammad Nadeem Waqas and another v. The State (2014 SCMR 1658), Muhammad Asif v. Muhammad Akhtar and others (2016 SCMR 2035) and Qaddan and others v. The State (2017 SCMR 148).

25. For what has been discussed above this appeal is dismissed to the extent of the appellant's conviction for the offence under section 302(b), P.P.C. but the same is partly allowed to the extent of her sentence of death which is reduced to imprisonment for life. The order passed by the trial court regarding payment of compensation by the appellant to the heirs of the deceased as well as the order regarding imprisonment in default of payment of compensation are, however, maintained. The benefit under section 382-B, Cr.P.C. shall be extended to the appellant. Murder reference No.22/2019 made by the trial court is answered in ‘negative’.

26. Appeal stands disposed of in the above terms.

J U D G E

Gulsher/PS