IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 362 of 2018

Appellant: Zafar Iqbal through Mr. Farhad Khan advocate

The State: Through Mr. Zafar Ahmed Khan Addl. P.G

Date of hearing: 05.10.2022

Date of judgment: 10.10.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is the case of prosecution that the appellant committed death of his real uncle Muhammad Ashfaq by causing him fire shot injuries only to satisfy his property dispute with him, for that he was booked and reported upon. On conclusion of the trial, the appellant was convicted under Section 302(b) PPC and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.100,000/- and in default whereof to undergo simple imprisonment for 01 year with benefit of Section 382-B Cr.P.C by learned IX-Additional Sessions Judge, Karachi South vide judgment dated 03.04.2018, which is impugned by the appellant before this Court by preferring the instant appeal.

2. It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the police at the instance of the complainant; the FIR of the incident is lodged with delay of about 06 hours; the complainant is not an eye witness of the incident; the evidence of the P.Ws, who claimed to be eye witnesses to the incident, being doubtful in its character has been believed by the learned trial Court without assigning cogent reasons and the appellant has already been acquitted in case relating to recovery of unlicensed pistol from him, therefore, he is entitled to his acquittal in this case by extending him benefit of doubt.

3. None has come forward to advance arguments on behalf of the complainant. However, learned Addl. P.G for the State by supporting the impugned judgment has sought for dismissal of the instant appeal by rebutting the above contentions by contending that the appellant has already been dealt with leniently by learned trial Court by awarding him lesser punishment.

4. Heard arguments and perused the record.

5. The material evidence is furnished by P.Ws Shakeel Yousuf and Muhammad Saeed. It was stated by them that on the date of incident when they were available at the place of incident, there came the appellant and fired at the deceased, who after sustaining those fire fell down and died on his way to Hospital. Their evidence takes support from evidence of P.W Abdul Waheed to the extent that soon after the incident, he found the appellant going with pistol, in front of his shop. They have stood by their version, on all material points with regard to the death of the deceased at the hands of the appellant as alleged by the prosecution and there appear no reason to disbelieve them under the pretext that they are connected with the complainant party or related inter-se. No doubt the complainant is not an eye witness to the incident but there could be made no denial to the fact that he has supported the factum of the incident as was narrated to him. The delay of about 06 hours in lodgment of FIR was natural in case like the present one and even otherwise, it has also been explained plausibly in FIR itself by the complainant. As per I.O/Inspector Mir Kalam Khan the incident took place at Iqbal Market and it does remain closed on the day of incident being Monday. Perhaps, in that context it was contended by learned counsel for the appellant that the incident has taken place in a manner other than the one, as is alleged by the prosecution. Surprisingly, it was the appellant, who during course of his examination on oath has stated that the deceased was fired at the place of incident by unknown culprit, he followed that unknown culprit and hit him with his drill machine. By stating so, the appellant has himself admitted that the incident has taken place at the place of incident as is alleged by the prosecution. After incident, the appellant has surrendered voluntarily at P.S Nabi Bux by making a disclosure that he has committed the death of the deceased and he was taken into custody by I.O/ASI Khalid Javed and subsequently, he led I.O/SIP Dhani Bux to the recovery of unlicensed pistol, which he allegedly used in the commission of incident, which on forensic examination was found similar at least with two empties secured from the place of incident. The appellant might have been acquitted in a case relating to recovery of unlicensed pistol from him but such acquittal itself is not enough to earn acquittal for him in present case, which apparently is proved fully by the prosecution beyond shadow of doubt. The appellant could not be absolved of the liability of murder of his own uncle under the pretext that it was committed by unknown culprit to whom he hit with his drill machine, such drill machine even otherwise, he has not been able to produce before the police or at trial. The plea of innocence, which has been raised by the appellant together with his statement on oath and evidence of his witnesses was rightly ignored by learned trial Court, apparently it is appearing to be after thought. The complainant is closely related to the appellant by blood, he apparently was having no reason to have involved the appellant falsely in murder case of his father, by substituting him with the real culprit of the incident. The substitution of the real culprit with the innocent one, is rare phenomenon. The evidence which is brought on record by the prosecution on ocular premises is taking support from ancillary evidence. In these circumstances, learned trial Court was right to conclude that the prosecution has successfully established the charge against the appellant.

6. In the case of Arshad Beg vs. The State (2017 SCMR 1727), the Hon’ble Apex Court has held that;

“This occurrence which took place in the broad daylight occurrence was reported to the Police with due promptitude as the FIR was got registered just after one hour of the occurrence. The ocular account was furnished by brothers of the deceased namely Afzal Beg complainant (PW.6) and Muhammad Ashraf Beg (PW.7). They were cross-examined by the defence at length but they remained consistent on all material aspects of the case. Even otherwise this is a case of single accused and substitution in such like cases is a rare phenomenon as normally kith and kin of the deceased (in this case real brothers) would not implicate an innocent person by letting off the real culprits. Therefore, we hold that both the witnesses of ocular account were present at the spot and had witnessed the occurrence. Ocular account furnished by these witnesses is substantially supported by medical evidence as three firearm injuries were observed on the person of Sharif Beg (deceased) out of which only one was exit would whereas two were entry wounds. Therefore, the prosecution case stood proved against the appellant beyond any shadow of doubt and conviction of the appellant under section 302(b), P.P.C. is fully justified.”

7. In view of the facts and reasons discussed above, it is concluded safely that the impugned judgment is not calling for any interference by this Court by way of instant appeal, it is dismissed accordingly.

JUDGE