THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 180 of 2019

Confirmation Reference No. 01 of 2019

Present: Mr. Justice Naimatullah Phulpoto

Appellant : Arshad Hussain through M/s. Iftikhar Ahmed Shah, Barrister Raja Zeeshan and Muhammad Naeem Awan advocates

Respondent : The State through M/s. Muhammad Iqbal Awan and Ali Haider Saleem Additional Prosecutors General Sindh

L.Rs of deceased complainant: Mehmood Alam having CNIC No.42401-4841145-5 and Muhammad Aamir having CNIC No.42101-6962321-5 are present in persons

Date of Hearing: 30.09.2024

Date of announcement of judgment: 16.10.2024

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Appellant Arshad Hussain was tried by learned IX-Additional Sessions Judge, Karachi West in FIR No.37/2015 for offences punishable under Sections 302, 392, 396, 397, 34 PPC registered at PS Peerabad. After regular trial, vide judgment dated 15.02.2019, appellant was convicted for an offence punishable under Section 302(b) PPC as Tazir and sentenced to death and to pay compensation of Rs.200,000/- to be paid to the legal heirs of deceased under Section 544-A Cr.P.C. Appellant was further convicted under Section 397 PPC and sentenced to seven years R.I and to pay fine of Rs.100,000/-, in case of default, he was directed to suffer six months S.I. Trial Court made reference under Section 374 Cr.P.C for confirmation of death or otherwise of appellant, to this Court.

2. Appellant preferred Criminal Appeal No. 180/2019 (Arshad Hussain vs. The State) against his conviction and sentence. Appeal as well as confirmation reference were heard by a learned Division Bench, comprising of my brothers (Mohammad Karim Khan Agha and Irshad Ali Shah, JJ). Vide judgment dated 24.08.2021, there was a difference of opinion; one of Hon’ble Judge Mohammad Karim Khan Agha J.) dismissed the appeal and confirmed death sentence whereas, another my brother (Irshad Ali Shah, J.) recorded acquittal and answered the confirmation Reference in negative. In view of difference of opinions/judgments, Honourable Chief Justice has been pleased to refer the matter to me to decide as a third Judge.

3. Brief facts of the prosecution case in a nutshell as disclosed in the FIR are that on 09.02.2015, the complainant was present at his home, when his son Amir informed him on phone that Javed (younger brother of the complainant) had received a bullet injury in his shop, who had been taken to hospital for treatment. Complainant reached at Abbasi Shaheed Hospital immediately, where injured Javed was already shifted to operation theatre. P.W-02 Shamsher Ali, an employee in the shop of deceased narrated actual incident to the complainant that on 09.02.2015 at 1530 hours, two young boys entered into the shop, pointed their pistols at Javed and demanded money from him. It is alleged that accused snatched money from Javed (now deceased) and demanded more money from him, to which Javed refused. It is further alleged that one accused fired at Javed. On hearing fire shot, people of the area gathered at spot and apprehended appellant Arshad Hussain outside of shop, whereas co-accused made his escape. Police party of PS Peerabad arrived at spot immediately and took the custody of apprehended accused. Police enquired his name, to which he disclosed his name as Arshad son of Sanaras Khan and disclosed the name of co-accused, who ran away as Bashir. Police secured a 30 bore pistol along with two live rounds loaded in the magazine from the possession of the appellant, it was unlicensed. Such mashirnama was prepared on spot in presence of mashirs; case property was sealed. Thereafter, accused and case property were brought to the police station, where FIR was lodged against the accused on 09.02.2015 at 1710 hours for offences punishable under Sections 302, 392, 396, 397, 34 PPC.

4. Investigation officer inspected place of wardat situated in the shop of deceased and collected one empty of 30 bore inside the shop and prepared such mashirnama in presence of mashirs and sealed it at spot. I.O recorded statements of P.Ws under Section 161 Cr.P.C. On 10.02.2015 I.O dispatched the crime weapon, two live bullets and one empty to FSL for examination and report. I.O received positive report. On conclusion of usual investigation submitted report under Section 173 Cr.P.C against accused Arshad Hussain showing accused Bashir as absconder. Proceedings against absconding accused were completed by trial Court.

5. Trial Court framed Charge against accused at Ex.02, to which he pleaded not guilty and claimed to be tried. In order to substantiate the charge, prosecution examined 08 P.Ws. Thereafter, prosecution side was closed.

6. Trial Court recorded statement of accused Arshad under Section 342 Cr.P.C at Ex.30, in which he raised plea that he was picked up by Rangers and has been falsely implicated in this case. Accused declined to examine himself on oath u/s 340(2) Cr.P.C in disproof of the prosecution allegations and did not lead evidence in his defence.

7. Trial Court, after hearing learned counsel for the parties and assessment of the evidence vide judgment dated 15.02.2019 convicted and sentenced the appellant to death as stated above and made confirmation reference to this Court. Hence, appellant filed appeal before this Court.

8. The evidence produced before the Trial Court finds an elaborate mention in the conflicting judgments/opinions recorded by my brothers dated 24.08.2021. Therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

9. Learned advocate for the appellant mainly argued that P.W-02 Shamsher Ali was employee of the deceased and interested, he was examined before trial Court, to strengthen case of prosecution; that evidence of P.W Shamsher Ali was contradictory to medical evidence with regard to number of injuries. It is further argued that it has come in evidence that appellant was given beating by the persons of the locality at spot but accused was not referred to the medical officer for examination; that there are material contradictions in prosecution evidence; that blood stained earth was not collected by the I.O from the shop. Lastly, argued that prosecution has filed to prove its’ case against the appellant. In support of his contentions, reliance has been placed upon the cases reported as Atta Muhammad and another vs. The State (1995 SCMR 599), Mst. Sughra Begum and another vs. Qaiser Pervez and others (2015 SCMR 1142) and Muhammad Ibrahim vs. Ahmed Ali and others (2010 SCMR 637).

10. Mr. Muhammad Iqbal Awan, Addl. P.G argued that P.W-02 Shamsher Ali was sole eye witness of the incident, he was employee of deceased Javed and he was present in the shop at the time of incident, which occurred on 09.02.2015 at 1530 hours; that evidence of P.W Shamsher is supported by medical evidence; that the conflict in regard to number of injuries is not material as appellant was only accused alleged to have caused such injuries to the deceased. It is further argued that appellant was arrested at spot, unlicensed pistol used by him in commission of offence was recovered from his possession and empty was collected from the place of wardat, that FSL report was also positive; that statement of eye witness could not be discarded for mere reason that blood stained earth was not collected by the I.O. Learned Addl. P.G argued that prosecution has proved its’ case against the appellant beyond any shadow of reasonable doubt. However, learned Addl. P.G frankly submitted that appellant fired a single shot upon deceased, fire was not repeated and intention of the appellant was to commit robbery. According to Addl. P.G there are mitigating circumstances to reduce sentence of death to imprisonment for life. Addl. P.G prayed for maintaining the conviction recorded against the appellant.

11. Legal heirs of the deceased present in Court submitted that death sentence passed by the trial Court to the appellant may be confirmed.

12. It appears that Mr. Justice Mohammad Karim Khan Agha believed evidence of P.W-02 Shamsher Ali and others, confirmed death sentence of appellant and opined as follows:

“(i) Eye witness PW 2 Shamsher Ali. He was working in the shop at the time of the incident. According to his evidence on 09.02.2015 he was present at the shop at about 15.30 hrs when two persons arrived at the shop having weapons in their hands and demanded money from the deceased whereupon one of them shot the deceased in abdomen after quarreling with them. That when the robbers tried to escape due to the hue and cry the local people were able to apprehend the appellant and seize pistol from him a few feet from the spot who they handed over to the police a few moments later who arrested him.

Although he did not know the appellant it was a day light incident and the appellant and his accomplice were before the eye witness in the shop for some time during their robbery and quarrel with unmuffled faces when the appellant shot the deceased and as such he would have got a good look at him and identified him in court. Even otherwise the appellant was captured immediately after he left the shop along with his pistol and was then handed over to the police. Thus, based on the particular facts and circumstances of this case when in effect the appellant was arrested red handed on the spot there was no need for an identification parade and as such we find the identity of the appellant as one of the persons who robbed the shop and murdered the deceased to be proven from the evidence. In this respect reliance is placed on Dadullah’s case (Supra). Furthermore, the eye witness had no reason to falsely implicate the appellant in this false case and the people of the locality had no reason to just grab a by stander and foist a pistol on him and then say that he was the culprit. Such conduct does not appeal to logic, common sense and reason. More so in Pakistan where it is quite common for the public to catch hold of a criminal who is caught in the act and then hand him over to the police.

The eye witness is not related to the deceased and is not a chance witness as he worked in the shop of the deceased as corroborated by the evidence of the complainant PW 1 Habibullah who even names him as being in the shop when the incident took place in his FIR.

He gave his S. 161 Cr.PC eye witness statement on the same day which left no room for concoction. His evidence reflects that of his S. 161 statement and the FIR and there have been no significant improvements in the same during his evidence so as to render his evidence unreliable. He had no proven enmity with the appellant and had no reason to falsely implicate him in the robbery and murder of the deceased. His evidence was not dented despite lengthy cross examination. We find his evidence to be reliable, trust worthy and confidence inspiring and we believe the same and can convict on this evidence provided that there is some corroborative/ supportive evidence. In this respect reliance is placed on Muhammad Ehsan v. The State (2006 SCMR 1857). As also found in Farooq Khan v. The State (2008 SCMR 917), what is of significance is the quality of the evidence and not its quantity and in this case we find the evidence of this eye witness to be of good quality.”

On the other hand, my another brother Mr. Justice Irshad Ali Shah recorded his separate opinion of acquittal and had observed as under:

“2. The facts of the case need not to be repeated as those has been elaborately disclosed by his lordship in his Judgment. Admittedly, PW Shemsher is the only eye witness to the incident. It is settled by now that the conviction could be awarded on the basis of solitary evidence of the witness, provided it is found to be trustworthy. PW Shemsher was employee of deceased Javed. It has inter alia been stated by him that the deceased sustained one bullet wound on his abdomen it was caused to him by the culprits during course of robbery, the deceased was taken by them to the Hospital, one of the culprit made his escape good while other (the appellant) was apprehended by the people available in locality after severe maltreatment from him was secured the Pistol and he then was arrested formally by the Police. On examination as per medical officer Dr. Muhammad Javed, the deceased was found sustained two fire shot wounds with no exit. By stating so, he belied PW Shemshar that the deceased was caused single fire shot injury at his abdomen. It was further stated by the said Doctor that the deceased was brought at the Hospital through Chhipa ambulance by Driver Nisar and none of his relative was found present at that time. By stating so, he belied PW Shemshar that they took the deceased to the Hospital. The circumstances suggest that the PW Shemsher has been introduced in investigation subsequently by the Police to strengthen the case of Prosecution. In that situation, it would be unsafe to rely upon his solitary evidence to maintain the conviction which is found to be doubtful and untrustworthy. None from public who allegedly apprehended the appellant after incident has been examined by the Prosecution, such omission could not be lost sight of. As per SIO SIP Rooh-ul-Ameen Shah, no blood mark was found at the place of incident. It goes to suggest that the incident has occurred at the place other than the one claimed by the complainant party. No postmortem has been conducted on the dead body of the deceased. The production of death certificate could hardly be dubbed to be substitute of postmortem report. There is no recovery of alleged robbed money. Nothing has been brought on record in shape of memo of injuries or medical certificate which may suggest that the appellant was apprehended by the public after severe maltreatment. In these circumstances, it would be unsafe to maintain the conviction against the appellant on the basis of recovery of pistol, which too in first instance was allegedly recovered by the person other than the police official.”

13. I have perused difference of opinions/judgments recorded by my learned brothers and have heard learned advocate for the appellant, Addl. P.G and re-examined the entire evidence.

14. Prosecution case mainly rests on the evidence of a sole eyewitness namely PW Shamsher Ali. My one brother Judge has heavily relied upon the evidence of P.W Shamsher Ali and other evidence, while another brother Judge had disbelieved his evidence. Hence, I have re-examined evidence of P.W Shamsher Ali and other evidence minutely.

15. After re-examination of entire evidence and defence plea, I have no hesitation to agree with the opinion of my brother Mr. Justice Mohammad Karim Khan Agha that prosecution had proved its’ case against the appellant beyond any shadow of reasonable doubt for the reasons that incident occurred in the shop of deceased Javed on 09.02.2015 at 1530 hours and FIR was promptly lodged within 01 hour and 30 minutes of incident. It excluded possibility of false implication of appellant in the case. P.W-02 Shamsher Ali deposed that on 09.02.2015 at about 1530 hours, he was present in the shop with deceased Javed. At that time, two persons arrived at shop having weapons in their hands, they pointed out weapons at Javed, who was owner of the shop, and demanded money from him. Seth Javed handed over all money, but accused persons demanded more money. Thereafter, accused persons quarreled with Javed and one of the accused fired shot at Javed in his abdomen and they ran away. However, appellant was apprehended by the persons of the locality outside of the shop and from his possession one pistol was recovered. Police made him mashir of arrest and recovery. Thereafter, Seth Javed was shifted to the hospital where he succumbed to the injuries. P.W-02 Shamsher Ali deposed that accused Arshad Hussain present before the trial Court was same. He was cross-examined at length, he replied that only one person made fire upon the deceased and accused Arshad Hussain was apprehended in front of the shop, where incident had occurred. Police arrived at the scene of incident within half an hour. According to P.W-02 Shamsher Ali deceased Javed received only one bullet wound just below the abdomen. He has denied the suggestion that accused has been falsely implicated in this case. P.W-02 Shamsher Ali eye witness of incident admittedly is not related to the deceased, he was serving at the shop of deceased since 12/13 years, he cannot be termed as a chance witness. On the day of incident, 161 Cr.P.C statement of P.W Shamsher Ali was recorded, which clearly showed that he was present at the time of incident. It may be mentioned here that P.W-02 Shamsher Ali was subjected to the cross examination, but intrinsic value of his evidence could not be shaken. Evidence of eye witness could not be discarded for mere reason that blood was not collected by the I.O from the shop, but empty was collected by the I.O from the shop. Hence, I hold that his evidence was quite reliable, trust worthy and confidence inspiring. I have no reason to disbelieve it. In the present case medical evidence also supported the ocular evidence. P.W-07 Dr. Muhammad Javaid examined injured Muhammad Javed and opined that deceased Javed had sustained two injuries by means of fire arm. Learned advocate for the appellant contended that ocular evidence is contradictory with medical evidence with regard to the number of injuries sustained by the deceased. There is no principle of law that in each and every case Doctor’s evidence must have preference over the direct evidence as held in the case reported as Muhammad Younas and another vs. The State and others (1990 SCMR 1272). It is the case of prosecution that appellant was only accused alleged to have caused the said injuries. Therefore, conflict in regard to the number of injuries caused by him is not material as held in the case reported as Shamshad Ali vs. The State (2011 SCMR 1394). Prosecution evidence has been properly assessed by the trial Court and I agree with the opinion of my brother Mr. Justice Mohammad Karim Khan Agha. It is settled principle of law that quality of evidence is to be seen and not its’ quantity and evidence of P.W Shamsher Ali qualifies to be relied upon. Another unrebutted aspect in this case is that the appellant was apprehended at the spot and he was given beating by the persons of the locality and on the same date (09.02.2015), appellant was referred by SIP Ghazan Zada of PS Peerabad to the MLO of Qatar Hospital for his examination leaving no ambiguity qua the involvement of the appellant in the aforesaid crime. The weapon of offence recovered from the appellant was transmitted to the office of Forensic Science Laboratory without any delay in its dispatch along with one empty and two live bullets. The report of Forensic Science Laboratory further confirmed that the empty recovered from the spot had matched with the weapon recovered from the appellant, which is positive, in nature. All these aspects further strengthen the prosecution case in its totality. Learned advocate for the appellant contended that various contradictions in the statements of the prosecution witnesses have not been taken into consideration causing serious prejudice against the appellant. I have examined such contradictions and found that the same are of minor nature. It may be observed that minor contradictions do creep in with the passage of time and can be ignored safely as held in the case of Khadim Hussain vs. The State (PLD 2010 SC 669).

16. Appellant has raised plea that he was picked up by Rangers and has been falsely implicated in this case. I have re-examined defence plea and found it without substance. Trial Court as well as my one brother Mr. Justice Mohammad Karim Khan Agha rightly disbelieved the defence theory while holding that it was an afterthought plea.

17. However, I respectfully disagree with the opinion recorded by my brother Mr. Justice Irshad Ali Shah for my above stated reasons.

18. I may state here that under Section 429 Cr.P.C, reference to the third judge is with regard to the whole case and the judgment or order shall follow such opinion. In the case of Muhammad Sharif vs. The State (PLD 1971 Lahore 708), it is held as under:

“When on a difference of opinion as case is referred to a third Judge no fetter can be placed on the third Judge. He is at liberty to express and act upon the opinion which he himself arrives at. If he chooses, he can pass a sentence of death, even though one Judge favours an acquittal and the other gives a sentence of transportation for life when convicting the accused.”

19. In the view of above legal position, I am entitled to determine the question of sentence after close scrutiny of evidence.

20. P.W-02/eye witness Shamsher Ali deposed before trial Court that his Seth Javed (now deceased) handed over all money, but accused persons demanded more money. Thereafter, accused persons quarreled with Javed and one of accused fired at Javed in his abdomen. According to mashirnama of the place of occurrence, only one empty was collected inside the shop. Appellant was arrested by the Mohallah people outside of the shop, pistol was recovered from his possession along with two live bullets. P.W-02 Shamsher Ali had also acted as mashir of arrest and recovery. Eye witness P.W-02 Shamsher Ali clearly deposed before the trial Court that appellant had fired a single shot upon the deceased when deceased refused to give more money. There is supportive and corroborative evidence in the case. In my considered view, prosecution had succeeded to prove its case against the appellant beyond any shadow of doubt.

21. So far quantum of sentence is concerned, there are mitigating circumstances for reduction of sentence of death to the imprisonment for life intention of the appellant was to snatch money from the deceased in his shop and not to commit his murder, when more money was demanded by accused persons, then a scuffle started and appellant fired a single shot upon the deceased at his abdomen, fire was not repeated. A single mitigating circumstance, available in a particular case would be sufficient to put on guard the Judge not to award the penalty of death but life imprisonment as held in the case of Ghulam Mohy-ud-din alias Haji Babu and others vs. The State (2014 SCMR 1034) and Imtiaz alias Taji and another vs. The State and others (2020 SCMR 287).

22. Resultantly, for the above stated reasons, I agree with the opinion recorded by Mr. Justice Mohammad Karim Khan Agha and partly allow Criminal Appeal No.180 of 2019. While maintaining conviction of appellant Arshad Hussain under section 302(b), P.P.C, as Tazir, but while taking into consideration the above mentioned mitigating circumstances, his sentence of death is reduced to imprisonment for life. Confirmation Reference is answered in ‘NEGATIVE’. Other sentences passed by trial Court shall remain intact. All the sentences shall run concurrently. Appellant shall be entitled to the benefit of Section 382-B Cr.PC.

23. In the view of above, appeal as well as confirmation reference are disposed of in the above terms.

JUDGE