Irfan Ali (Appellant) VS The State (Respondent)

q\

ORDER SHEET

v

IN THE HIGH GOURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

Criminal Appeal No.S- 249 of 2017 Criminal Revision Application No.S- 179 ,rf 2017

DATE ORDER WITH SIGNATURE OF JUDGE

l\l/s Aijaz Shaikh and Kamran Baig, Advo:ates for appellant alorrgwith appellant (on bail).

lVr. Shahid Shaikh, Additional Prosecutor General, Sindh.

lVl/s Sameeullah Rind and Bilal Mustafa Chandio, Advocates for complainant alongwith complainant.

With rbgard to appeal against conviction arrd criminal revision applicatiorr, I have heard the learned counsel for appellant, learned

L

A.P.G for State as well as learned counsel fo,'the complainant.

Reserved for Judgment.

/t

JUD6E

Tufail

Y-

_t try w}^r,-, \l,.-!-it^^rl- \z

HIC}H COURT OF SINDH, CIRCUIT COURT

v

HYDERABAD

Cr. App"al No.3-249 of 2017 [Irfan Ali versus The State]

(lr. Revision Application No. S'-L79 of 2017 [Fateh Muhammad Rind & another versus Irfan Ali Rind & another] Appellant/ Respondent Through Mr. Aiiaz Shaikh advocate a/w Mr. Kamran Baig advocate Complirinant / Applicants : Through Mr. Satneeullah Rind advocate a/w Mr. Bilal Mustafa advocate The State Through Mr. Sh,rhid Ahmed Shaikh Additional Pros'icutor General Sindh

Date of hearing 06.05.2024

Date of decision 1,0.05,2024

L I UDGMENT

MUHAMMAD KARIM KHAN AGHA, T.- /\ ppellant Irfan Ali has challenged the Judgment dated 13.10.2017 lrassed by the learned Sessio;rs Judge Shaheed Benazirabad in Set sions Case No.360 of 2A1,4 (rRe; The State aersus lrfan Ali), outcome t'f Crime No.17 of 20'l'4 registered at P.S Taluka Nawabshah under ljections 324,337-H(ii), 337-F(iii), 337-F(vi) and 337-L(ii) PPC, w hereby he has been convic ted and sentenced as follows:

0 The accused lrfnn Rind is sentu rced for (05) years R.I and fin, of Rs,50,000/- ffiftV thousnnd) for conrmitting ffince U/s 324 PPC, ln default of fine' paynxent he shall sffir 06 ntonths ntore S,l, \t?.

(it The nccused Irfan Rind is sentt'nced for (03) yenrs R,I for committing offence U/s 337-FA il PPC, He is also directed to pay Rs.50,000y' (ftftV thout,md) as Daman to iniured Fateh Muhanrruad. In case of iwn pnyment of Daman he ruill sffir S.l till Dantan is pai, ,

(iil The accused lrfan Rind is sentt nced for (05) years R.l for committing offence U/s 337-F(cil PPC. He is also directed to pay Rs.1,00,000/- (one lac) 'ts Dqmtin to injured Fateh Muhammnd, ln case of default in paynrcnt Danmn he ruill sffir S.l till Dnnmn is paid, Flowever, all the above sentences have been ordered to run concurrently and benefit of Section 382-B Cr.PC has also been

I

'f

extencred to appellanU whereas injured Fateh Muhammad Rind and complainant Ali Asghar have also preferred the captioned revision v application for enhancement of aforesaid. sent')nces.

2.l'he brief facts of the case are that on A).02.2014 at about 1000 hours complainant Ali Asghar appeared a' P.S Nawabshah and lodge<l the subject FIR by alleging that tht re is dispute between them rrnd Irfan Rind as such Irfan Rind used ;o tell his brother Fateh Muhammad to withdraw from such case and land also otherwise he will kill him; that yesterday at evening Rae:s Muhammad Ayoub Rind called them, hence his brother Fateh lvluhammad Rind aged about 50 years and cousins Ali Khan sfo l\.[uhammad Saleh Rind took their motorcycles and were going towa rds Raees Muhammad Rind; that Fateh Muhammad was going in ront of them, when at about 6p* they reached at Sijawal Shakh .'oad near Government Tubervell, they saw three persons standing a i road each one namely

L

Irfan Ali S/o Abdul Haleem Rind having Pistol in his hand and two unknown persons having Rifle and Kalashnikov in their hands and a 125 black coloured motorcycle was also standing beside them, who stopped Fateh Muhammad and meanwhile lrfan AIi made straight fires at Fateh Muhammad with intention l.o commit his murder, hence Fateh Muhammad fell down from his motorcycle; that they made hakals to accused persons who issue,l murderous threats to them meanwhile his cousin Gul Muhammad S/ o Muhammad Idrees also reached there on his motorcycle, who beseeched the accused with the name of Almighty Allah on which Irfan Rind told Fateh Muhammad that today he has been saved b'ut in future he will not leave him then accused persons went away on their motorcycle by making aerial firing, then they saw that Fateh Muhammad had firearm'injuries on both arms, shoulder and right side of flank; they immediately shifted him to Civil Hospital Nawabshah for treatment and remained busy their whole night and 1s,1a/ appeared at P.S and comprlained that above accused persons, with their cofiunon intention caused pistol injuries to his brother in order to commit his murder and also created harassment by making aerial firing; (-r' that

Mulnnnnnd Arif 2

two unknown person were also seen by them p'erfectly and they will Ir / be identified; complaint is that investigation mry be carried out'

/ Y

3.after usual investigation police submittr.:d the challan and the learnecl trial Court after completing necessary iormalities framed the

charge against the appellant/respondent to rvhich he pleaded not guilty imd claimed trial.

4.In order to prove its case the prosecuticn examined five (05) witnesses, who exhibited numerous documr;)rlts and other items. Then statement of accused und.er Section 34r'. Cr.P.C was recorded whereby he denied the allegations leveled against him and claimed his false implication on account of emnity; However, he neither examfured himself on Oath nor led any evidenr:e in his defense.

5.After hearing the parties and assessing lhe evidence on record the trial ,court convicted and sentenced the ap,pellant/ respondent as l- reprocluced under opening paragraph of this J,dgment, hence appellant has preferred captioned appeal rgainst his conviction while injured and complainant preferred rr:vision application for enhancernent of said sentences. Since captiorr ed appeal and revision have been preferred against the same judgl nent, as such both are being decided through this common judgmel'rt.

6.Learned counsel for the appellant hrs contended that the appeltant is innocent and has been falsely in,plicated in this case on account enmity hence the FIR was lodged a ter a delay of 1,6 hours which gave the complainant's side the charrcr r to cook up a false case against the appellan! that the eye witnesse i are planted witnesses and there evidence be discarded especially i, s they are all related to the cleceased; that the ocular evidence c: >ntradicts the medical evidence; that the recovery of empties is olt no assistance when no fire arm has been recovered. and that for i.my or all of the above reasons the appellant should be acquitted of the charge by extending him {he benefit of the doubt. In the event tt'at this court upheld the conviction of the appellant no case had beer r made out to revise the sentences handed down by the trial court ;rs the court had rightly exerc:ised. its discretion in terms of set'tencing based on the

I

Mttlnnunnd'Arif 3

t Llt T particular facts and circumstances of the case and the revision application be dismissed. In support of his ct:rntentions, he placed reliance on the cases of (i) HASHIM QASIM and another vs. The srATE 12017 scMR ss6l, (ii) FAHEEM AHh{ED FARooeuI vs. The sTz\TE [2008 SCMR 15721and (iii) SAINDAD and 2 others vs. The STATE U972 SCMR 741.

Z. Learned APG as well as learned counsel for the complainant, after going through the entire evidence of the prosecution witnesses as welL as other record of the case suPPrJrted the impugned judgment. In particular, they contended that the FIR was lodged promptly which gave no opportunity for the appellants to make up a false case against the appellanU that their wi:re two eye witnesses to the shooting incident one of whom was inji,rred on the spot both of whose evidence could be safely relied upon; that the medical eviden,:e supported the ocular evidence; that empties were recover.ed from the crime scene which supp,>rted the Prosecution -l case ald as such the prosecution had prov :d its case beyond a reasonable doubt and the appeal be dismisseC. In support of their contentions, they placed reliance on the cases of (i) MOHIBULLAH alias GANDHGEER and others vs. The STAT 'i 12024 MLD 5251, (ii) QUTUB'KHAN vs. The STATE and anothet l',t024 P Cr.L.I 5161, (iii) QASIM SHAHZAD and another vs. The ST,\TE and others 12023 SCMR 1171, (i") SAIID MEHMOOD vs. Thr,: STATE 12022 SCMR L882] and (v) LIAQAT vs. The STATE [2006 Si(]MR 331.

8.y/ith regard to the enhance of the sentr rrlCe under S. 324 PPC from Ii years the learned APG contended tliat the trial court had correctly exercised its discretion in awarding the appellant 5 years for this offence and that the revision applica tion be dismissed. On the other hand learned counsel for the comp,iainant contended that the trial court had erred in exercising its discr.:tion under 5.324 PPC based on the particular facts and circumstances of the case whereby the appellant fired 4 shots at the injured Fateh and as such is sentence should be increased. In support of his contentions he

I

Mtilnnuru,d Ai'if 4

I placed reliance on the case of SHEQAB Mt' HAMMAD vs' The Ir STATE and others 12020 SCMR 1486l

g. I have heard the arguments of the rea'ned counsel for the

I

learned appellant, learned Additional Prosecutor Gener al Sindh and counsel for the complainant and have gon€ through the entire

evidence which has been read out by the learned counsel for the and appellant and the impugned judgment with thc ir able assistance the have considered the relevant law including ther case law cited at bar

10.Based on my reassessment of the evidence of the PW's' especially the medical evidence, recovery of empties at the crime scene I find that the prosecution has proved beyond a reasonable doubt that Fateh Muhammed (Fateh) was ir rjured by firearm on 07.02.2014 at about 6pm at village pai Khan Rind near tube well

Manzoor Khan Rind, Deh 08 Dad Taluka Naw;tbshah'

11.Thb only question left before me therefore is who injured Fateh by firearm at the said time, date and loce'tion?

12.After my reassessment of the evidence on record, I find that the prosecution has proved beyond a reason lble doubt the charge against the appellant for which he was conv cted for the following reasons;

(u)Admittedly the FIR was lodged after a delay of 'l'6 hours of the incident however based on tl re particular facts and circumstances of the case I find that his delay has been fully explained as initially his injured b,:other/Fateh had to be taken to hospital for treatment which was about 25KM's away and would hurr. taken considerable time to reach where he Y remained overnight receiving treatment after receiving 4 gunshot wounds and then once Fate h was out of danger the iomplainant went to lodge the FIR ar the PS which was again a return distance of 25 KM's and as s uch I find that this delay is not fatal to the prosecution case. In this respect reliance is placed on the case of Muhammad Nadeem alias Deemi v. The State (2011 SCMR 872).

(b)The appellant is named in the FIR with the specific role of making direct fire on Fateh which lead to him sustaining firearm iniuries.

t,

Mtilwtand Arif 5

(,) In my view the prosecution's case pri narily rests on the eye witnesses to the attempted murder ', rhose evidence I shall consider in detail below;

i

(i)Ey* witness PW 1 Ali Asghar. He is the complainant and is the brother of the injur :d Fateh. According to his evidence prior to this incir ent the accused had a dispute with Fateh over agrir:ultural land who had threatened Fateh to withdraw :he land and the cases otherwise he will murder hir r. on 07.02.201,4 their nekmard had called a fesla ant' he and Ali khan were going there on one bike whilsl his brother Fateh was [oin[ on another bike. At erbout 6P* when they ieached Government tube w',11 near village Sujwal Shaikh link road he saw accus(,'l with a pistol and two unknown persons with a r.'lIe and KK. Accused signaled fiten to stop whe'euPon accused made rtLigf,t fire at Fatah with interrtion to murder him as well as firing at them. The ar :used then escaped by making aerial firing. They then ;hifted Fateh to hospital where they were busy in treatt tent overnight and then he went to lodge the FIR.

This eye witness knew the appellant before the incider* and saw the appellani from close range firing at his brother Fateh with a pis :ol which fire hit Fateh. .t Since it was a day light incid,,nt and the witness saw the accused fire at Fateh fror r close range (10 to 15 paces) with a pistol there ir, no case of mistaken identity and no need to hr rld identification. The accused is also named with spr, cific a role in the FIR. In this respect reliance is pli;ced on the cases of Amanuliah v state (2023 S IMR 527) and Qasim Shazad V State (2023 SCMR 117).

Admittedly the eye witness wii s related to the deceased who was his brother and al;o there aPPears to be enmity between the parties oi er agricultural land and hence I have considered the ,:vidence of this witness with some caution.

This eye witness is not a chpnce witness as he was going with his injured brothei Fateh to sort out their dispute with Irfan with their, local nekmard when the incident took place. Thtrre are no material improvements in his FIR from his evidence. He was not dented during a lengthy cross examination and he gave his evidence in a natural maru rer and thus I believe his evidence to be trust worthy; reliable and confidence inspiring and I believe the san'e.

It is well settled by now that/i .un convict the accused on the evidence of a sole eyc, witness provided that I find his evidence to be trt:st worthy reliable and confidence inspiring. In this i:espect reliance is placed on the case of Muhammad I',hsan v. The State (2006 SCMR 1857). As also found in the cases of Farooq Khan v. The State (2008 SCMR 917), Niaz-ud-Din and Mrlwnmnd Arif 6

another V. The State and anc ther (2011 SCMR Muhammad Ismail vs. The stale (2017 SCMR 713) and 725) v 117). That what is Qasim shazad v state (2023 S{IMR of significance is the quality of lhe evidence and not its \r qrruritity and in this .ir" I find ::he evidence of this eye *itr,"$"s to be of good quality ;ind believe the same' (i0 Eye witness Pw 2 Fateh IVI uhammed. He is the by the brother of the complainant anci \^ras fired upon accused and injured. His evidence corroborates the He evidence of the complainant in',rll material respects' is named as the iniured eye :,vitness in the FIR' He states in his evidence that ht, was fired upon from about 4 feet which accounts for the blackening in one of his firearm wounds. He states t.irat he was shot at on his arms, shoulder and stomach 'vhich accords with the medical evidence. His eviderrce was not materially improved on from his s, t61 Cr.PC statement' ordinarily I would have gi.;en no weight to his evidence since his 5.161 Cr.PC statement was recorded 13 days after the incident howc ver since he is named in the piomptly lodged FIR and according to his evidence he was ,"..rp"rating in the Agi t Khan hospital from his 4 bullet inflries ur'ta it is sr:ttled by now that the evidence oi an iniured eye v.'itness is deemed more reliable than usual eye witnesses. In this respect reliance is placed on the case of Aquil v state (2023 SCMR 831).He was not alsi,r dented during cross examination. He also knew th : accused from before in this duy light incident and he was injured by the u..rr.d wiich injury is su1::ported by the medical evidence and his evidence is corroborated by the complainant I give some weigltt to his evidence.

Havir,g believed the evidence of the two e)'3 witnesses (albeit one with lesser weight) which is discussed abov': I turn to consider the corrol>,cratlefsupportive evidence whilst lieeping in view that it was helct in the .ir" of Muhammad Waris v. The State (2008 SCMR 784) as trnder;

" Corroboration is only a rule o.,' caution and is not a rule of laru and if the eye witness acL )unt is found to be reliable and trust ruorthy there is hartily any need to look for any corroboration"

Y

(.1) That it does not appeal to logic, cori rmonsense or reason that one brother would let the real persr rn who seriously injured his other real brother get away scot free and falsely implicate an innocent person by way of sul,stitution. In this respect reliance is placed on the case of Mrihammed Ashraf V State

(2O21,SCMR 758).

(,r) That the medical evidence fr. lly support the eye- ' witness/ prosecution evidence that he injured Fateh received

I

firearm injuries on the parts of his t'odI as mentioned by the eyewitness complainant and Fate r who himself was the injured eye witness. In any event it .s well settled by now that Mrilmmt'md Arif 7

tl

I |,,

it

I

I

I

if the medical evidence is in conflict with the ocular evidence \1 the ocular evidence will take precedence over the medical evidence if it is found to be trusg worthy reliable and f confidence inspiring (which it is in this case). In this respect ! reliance is placld on the case of Imran' Mehmood versus The State and another 12023 SCMR 795).

(r)That there was no ill will or enmity between the police and the ' appellant and as such the police hal no reason to falsely implicate the appellant in this case, for instance, by planting the empties at ttte crime scene. Under these circumstances it is witnesses is as good :' settled'by now that the evidence of police as any oih., witness. In this respect riHa.,ce is placed on the case of Mustaq Ahmed v The state (f20zo scMR 474),Thus, I believe the evidence of the IO who f*ut not dented during cross examination. it

(g)That all the PW's are consistent in thi=ir evidence and even if there are some contradictions in their evidence I consider these contradictions as minor in naturle and not material and certainly not of such materiality so as io effect the prosecution case and the conviction of the appellant. In this respect reliance is placed on the cases of Zal<ir Khan V State (1995 scMR 17gl) Khadim Hussain v. The state (PLD 2010 Supreme Court 669) and Maskeen Ullah and another versus The state and another (2023 scMR 11r68).The evidence of the L PW's provides a believable corrobor,rted unbroken chain of events from the agricultural dispute between the appellant and Fateh to the appellant shooting Fatah and seriously injuring him to the recovery of empties at the crime scene to the appellant initially absconding befcre being arrested.

(h)That from the evidence it does not appear that the accused has denied his presence at the crime sc ene at the time of the murder of the deceased.

i

(i)The motive for the attack on Fateh bl the appellant has come on record through the FIR and witnes; evidence. Namely, that the appellant had a dispute with Fate:h over agricultural land which was also the subject of cir il litigation which the appellant wanted the injured Fateh torwithdraw.

(,) The appellant has a long CRO of sinrilar type cases and even further cases were lodged against him whilst he was on bail in this case. i t (k) Undoubtedly it is for the prosecution to prove its case against the accused beyond a reasonable doubt but I have also considered the defence case to see if it at all can caste doubt on or dent the prosecution case. The defence case as set out by the appellant is that he was falsely implicated in this case due to enmity and nothing more. He did nol give evidence on oath or call any DW in support of his deferice case and thus, in the face of reliable, trust worthy and <'onfidence inspiring eye witness evidence and other t upportivef corroborative evidence discussed above I disbeliev p the defence case which has not at all dented the prosecution ( ase.

Mrlwnmrd Arif B

I

I

Co

13.Thrrs, based on the above discussion, I find that the ppellant beyond a prosecution has proved its case against the a t

I

reasonabte doubt for the offences for which he has been convicted appeal is and sentr:nced in the impugned judgment and ar; such his dismissed.

14.In so far as the criminal revision applicatirn is concerned it is wounds none noted th rt the injured Fateh despite receiving 4 lrullet of death.

of these irit vital parts of his body and he was nor in danger As per record Fateh only spent one duy in hospital before discharging himself and no evidence of his tr*atment at the Aga no reason to Khan hospital was placed on record and as such I find in interfere with any of the sentences handed dow: r to the appellant the impugned judgment and the criminal re\ ision application is dismisstld.

). 15. The appellant who is on bail shall be tal':en it to custody by sHo p.ll raluka Nawabshah and returned to pl:ison to serve out the remaincler of his sentence. A copy of this judgr aent shall be sent to

SSP Shaheed Benazirabad for compliance

E

to {rt 21

\r

Mtilnntmal Ari! 9