THE HIGH COURT OF SINDH AT KARACHI

 

Criminal Appeal No. 870 of 2019

Confirmation Case No. 45 of 2019

 

Before:                                                      

Mr. Justice Mohammad Karim Khan Agha

Mr. Justice Irshad Ali Shah

 

Appellant:                                        Ali Murtaza through Mr. Muhammad Khalid advocate

Respondent:                                     The State through Mr. Ali Haider Saleem Additional Prosecutor General Sindh

                                                            Choudhry Mehmood Anwar Special Prosecutor Rangers

Date of hearing:                              09.09.2021

Date of announcement:                15.09.2021

 

J U D G M E N T

IRSHAD ALI SHAH, J- The appellant by preferring the instant Appeal has impugned judgment dated 05.12.2019, rendered by learned 1st Additional Sessions Judge, Karachi East, whereby the appellant for an offence punishable under Section 302(b) PPC for committing murder of Mashooq Ali by causing him fire shot injuries has been awarded death sentence subject to the confirmation by this Court and he has also been ordered to pay compensation of Rs.200,000/- to the legal heirs of the said deceased and in case of default in payment whereof to undergo simple imprisonment for six months.

2.       The facts in brief necessary for disposal of instant appeal are that the appellant and the deceased were constables in Pakistan Rangers and there arose between them a scuffle at Bachelors’ Barracks 63 Wing ‘B’ Company Bhittai Rangers, Block 17 KDA Officer Gulshan-e-Iqbal Karachi, on account of use of bathroom, as a result whereof, the appellant by taking his official Rifle committed murder of the deceased by causing him fire arm injuries for that he was booked and reported upon by the police.

3.       At trial, the appellant did not plead guilty to the charge and prosecution to prove it, examined complainant SI Rangers Wajid Hussain and his witnesses and then closed its side.

4.       The appellant in his statement recorded u/s 342 Cr.PC denied the prosecution’s allegations by pleading innocence by stating that;

“On 24.09.2016 I was posted at Unit Qasim Rangers Hyderabad, Wing No.42, D-Company Jamal Post. In the morning at about 0600 hours I was on foot tracing duty. On the same day when I went ahead I saw a civilian was giving something to the company commander. The company commander took that thing in his pocket. I inquired from the company commander namely DSR Manor as to what thing he got from the civilian on which he got annoyed. I made a call to my Wing Commander but the Wing Commander did not pick up the call but I told the company commander that I going to lodge complaint against him. I narrated this thing to Naik Liaquat. Suddenly one white car came in which four persons alighted Naik Liaquat informed me that they wanted to meet me. They tied my hands took me away blind folded in the car. They also maltreated me and asked me about question regarding smuggling and further asked me to how much money you got from smuggling. They were telling me that I was doing smuggling. They kept me on shifting in three to four unknown locations. One day I was brought in court in Rangers’ car. I was blind folded with covered face. I don’t know how this incident has occurred and I was falsely implicated in this case by rangers. All the witnesses have deposed against me at the instance of Rangers. I am innocent and pray for justice.”

 

          The appellant did not examine anyone in his defense or himself on oath in disproof of the allegations against him in terms of Section 340(2) Cr.P.C.

5.       On the basis of evaluation of evidence brought on record by the prosecution, learned trial Court convicted and sentenced the appellant as is detailed above, by way of impugned judgment.

6.       It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the police; the complainant and his witnesses were not Rangers personnel and were having no reason to be present at the place of the incident, therefore, they being managed witnesses could not be relied upon; that the Rifle secured from the appellant was never issued to him; that the incident has taken place at some other place; that there is conflict between medical and ocular evidence with regard to the injuries sustained by the deceased; that the custody of the appellant was never handed over to the police by Rangers personnel and the investigation was dishonest, therefore, the appellant is entitled to his acquittal by extending him benefit of doubt or alternatively sentence of death awarded to him to be modified with life imprisonment by taking the mitigating circumstances into consideration. In support of his contentions, he relied upon the cases of Abdul Jabbar and another vs. The State (2019 SCMR 129), Muhammad Khan and another vs. The State (1999 SCMR 1220), Sufyan Nawaz and another vs. The State and others (2020 SCMR 192), Mst. Mir Zalai vs. Ghazi Khan and others (2020 SCMR 319), Siddique vs. The State (1977 P.Cr.L.J 30) and Ali Ahmad and another vs. The State and others (PLD 2020 S.C 201).

7.       It is contended by learned Addl. P.G and learned Special Prosecutor Pakistan Rangers that the appellant is neither innocent nor is involved in this case falsely; that the complainant and his witnesses are natural witnesses to the incident; that there is no conflict between medical and ocular evidence and the Rifle was duly  issued to the appellant which he has misused by committing murder of the deceased and he has rightly been convicted by learned trial Court on the proper assessment of evidence. By contending so, they sought for dismissal of appeal and confirmation of death sentence to the appellant. In support of their contentions, they relied upon cases of Khaliq Hussain vs. The State (2011 SCMR 131), Anwar Shamim and another vs. The State (2010 SCMR 1791), Abdul Haque vs. The State and another (PLD 1996 S.C 01), Zulfiqar alias Bhutto vs. The State (1995 SCMR 1668) and Niaz-ud-Din and another vs. The State and another (2011 SCMR 725).

8.       We have considered the above arguments and perused the record.

9.       It is inter-alia stated by complainant Sub Inspector Rangers Wajid Hussain and P.W DS Rangers Muhammad Mukhtiar that on 23.10.2016, they were on their duties at the place of incident, there arose quarrel between the appellant and the deceased over use of bathroom. On account of making abuse by the deceased to the appellant, the appellant fired at the deceased by using his official Rifle. The appellant was apprehended at the spot and from him was secured the Rifle which he used in the commission of incident and the deceased, in injured position was sent for medical aid, but he died on his way to Agha Khan Hospital. The incident formally was reported to the police and on due investigation, the appellant was challaned. They have stood by their version, successfully, on all material points with regard to the death of the deceased at the hands of appellant, his arrest and recovery of incriminating Rifle from him, despite lengthy cross-examination by learned counsel for the appellant. They could not be disbelieved under the pretext that they were chance witnesses to the incident and/or under false assumption that they are not the Rangers officials. They indeed were having no reason to have involved the appellant in this case falsely. The Rifle secured from the appellant as per FSL report brought on record by I.O Inspector Farooq Azam has been found matched with the empties secured from the place of incident. In that situation it cannot be accepted that the incident has taken place at the place then the one claimed to be by the prosecution. It also excludes the possibility of foistation of Rifle and empties upon the appellant. If the appellant would have been in custody of the Rangers then it would have been hard for the police to have conducted the investigation of the present case. The unnatural death of the deceased is proved by the prosecution through the evidence of Medical Officer Dr. Shahzad Ali and there hardly appears to be conflict between the medical and ocular evidence with regard to the injuries sustained by the deceased, those are exit and entry wounds.

10.     The appellant has neither examined himself on oath nor has examined anyone in his defense to prove his plea of innocence, which was taken by him during course of his examination u/s 342 Cr.P.C, therefore his plea of innocence could be excluded from consideration safely being afterthought.

11.     The conclusion which could be drawn from the above discussion would be that it has rightly been concluded by learned trial Court that the prosecution has been able to prove its case against the appellant beyond shadow of doubt.

12.     However, the death sentence awarded to the appellant requires to be modified with Rigorous Imprisonment for life being alternate sentence for death for the reasons that there was no motive of the incident and incident had occurred as a result of sudden flare up.

13.     In case of Muhammad Akram alias Akri (2019 SCMR 610), the death sentence awarded to the accused was modified with life imprisonment by Hon’ble apex Court by making observation that;

“Having concluded so, it has been observed by us that a specific motive was set out by the complainant in the FIR and in his statement recorded before the trial court inasmuch as four days prior to the occurrence, appellant along with his vagabond friends had come and stood in front of the house of the complainant. Muhammad Riaz (deceased) had reprimanded the appellant, whereupon an altercation took place between the two. The appellant had threatened the deceased Muhammad Riaz of dire consequences and on account of this grudge, the appellant committed the crime. In his cross-examination, the complainant Fiaz Ali admitted that he had never reported to police that appellant along with his vagabond friends used to come and stand in front of their house. There is also nothing on record to prove that the incidence of altercation between appellant and deceased was ever reported to police. The complainant also did not disclose the names of vagabond friends of the appellant who used to come and stand in front of the house of the complainant. It appears that the real cause of the occurrence has not been disclosed by either of the sides. In these circumstances, we are of the view that the motive set out by the prosecution remained far from being proved. It is well settled that when prosecution alleges something against an accused person and then fails to prove the same, the premium of such failure must go to an accused person. In this case as well, prosecution's failure to prove the motive set out by it certainly benefits the appellant.

 

The conviction of the appellant under section 302(b), P.P.C. is maintained but his sentence of death is converted into imprisonment for life.”

 

14.     In view of above, the death sentence awarded to the appellant is modified with rigorous imprisonment for life with fine of Rs.200,000/- payable to the legal heirs of the said deceased as compensation and in case of default in payment whereof, the appellant would undergo simple imprisonment for six months with benefit of Section 382(b) Cr.P.C.

 

15.     The captioned appeal is dismissed subject to above modification and the death reference is answered in Negative.

 

JUDGE

JUDGE

 .