Muhammad Siddique alias Abli (Appellant) VS The State (Respondent)

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SINDH HIGH COURT. CIRCUIT COURT HYDERABAD

COMPOSITION OF BENCH

HON'I}LE M[I..IUSTICII MOT{AMMAD KARIM KHAN AGIIA

(s.B.l Date of lasl hearing (heard/reserved): 04- 1 2-2023 Dccidcd on: 1 1- 12-2023

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(a).Judgmcnt approved for repclrtirrg YtrS Wn

CERTIFICATE

Certificate that the Judgm enLlOrder is based upon (]r enunciates a principle of law/decide a question of law which is oI first impression / distinguishes over-rules/ explains a prcvious dccision.

Strikc-out urhir:hcvcr is not applicable.

NO'I'IJ: - (i) 'l'his slip is only 1.o br: uscd whcn somc action is to bc t.aken.

(ii)If t.hr: slip is uscd, the Itcader must attach it to thc top ol' 1.hc first pagc of l.hc .Iudgmcnt.

(iii)Court Associate must ask the Judge written thr: judgmrrnl. rvhcther thc.juclgmcnt is approvr:d for reporting.

(iu)'l'ltosc clirr:ct.ions u'hich are not to bc used shoukl txl cleletecl.

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Clr. .lail Appeal Jrlo.S-234 of 2(V7

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DA'I'II oltDlllt wlrl] SIGNATIJRII oF JUDGII I:rol hearinq o ['maiu case.

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hrls. Atnbreen Si1,;11, Aclvocate ['or appellant along with appellant 1:rrcsent on lrail.

N4s. srrnrr Mcn-rou, Asst. l'rosecutor General, Sinclh.

I have hearrl the leamecl counsel tbr the appellant and learnecl A.p.C. I-ettrnecl cotlrtsel tol the complitinant clespite intirnation notice pret-errecl to renlniu absc-nt. I{eservecl lbr.iuclgment.

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II\I THE HIGH COURT OF SINDH, CIRCUIT COURT

HYDERABAD

t Criminal |ail App*al No. S- 234 of 20LT

MUHAMMAD SIDDIQT]E @ ABLI

Versus

THE STATE

Appellant : Muhammad Through Ms. Ambreen Siyal, Sidclique alias Abli s/ o Advocate.

Kewro Qambrani (present on bail).

I Respondent : The State Through Ms. Sana Memon, Assistant Prosecutor General, Sindh.

None present for complainant clespite being on notice.

Date of hearing 04.72.2023

Date of juclgment 11.12,2023

IUDGMEI{T

MOHAMMAD I(ARIM I(HAN AGHA, T.-This Criminal Jail Appeal \ is directed against' the judgment dated 27,09.2017, passed by the learned 1't Additional Sessions Judge, Mirpurkhas, in Sessions Case No. 182 of 2012 (re: The State versus Muhammad Siddique alias Abli), ernanating frorn Crime I{o.26 of 2012, registered at Police Station Mehrnoodabad Mirpurkhas, under section 302,504 PPC, whereby the appellant Muhammad Sidclique alias Abli has been convicted u/s 302(b) PPC as Ta'zir and serrtenced to suffer imprisonment for life for committing the murder of deceased Ghanshamdas. He was also

directed to pay Rs.3,00,000/- (Rupees Three Lac) as compensation to the legal heirs of deceased as provided u/ s 544-A Cr.P.C; and, in case of non-Payment of said compensation, the appellant shall further undergo S.I for 05 months more. Flowever, benefit of Section 382-8 Cr.P.C was also extended to the appellant.

2- The brief facts of the prosecution case as mentioned in the FIR are as under:-

" on 27.07.2012 nt 2210 lrcurs, conrylainant Rano todged FIR, alleging tlrcrein lrc is Semrity Guard in Cantpus of l.)niuersity, Ghansharu is ltis brotlrcr-in-1aru, ruln resides ruith lint, Muhamntad Sidrlique nlins Abli Sluedi nlso resides in their Milmllah, His brotlrcr-in-law Glmnshnm hnd told ldru tlmt lrc prohibited Mulmntnrnd Siddique fot playing songs on ntobile plnne in Mulmllnlt, on rulich tlrcre Tuns exchnnge tf Int words ancl ItAulmnnrmd Siddique tluentened to Ghansharu, On 22,07.2012 at 2230 ltours, the contplninant along ruith his brotlrcr-in-laru a Glmnsltnru, Lalclmnd and Din Muhantmad Malsani wtts sitting at tlw lrcuse of Din Mr.ilmntmad, Meanwlille, Mtthanmtad Siddique nlins Abli cfinte tlrcre ridding on lds ruotorcycle, nbused tlrc Glransltnru ancl stated tlmt since lrc (Ghansltanfi lus prohibited ltint fi'om playing sangs, so lrc (accused) witl not spare ltim taday and tlrcn tyok ottt pistol from lds fotd anr.I openecl straight fire st Clmnsltam with intention to kilt him, ruldch ldt on right sid.e of lils bnclc, zuln fell dorltl ot't the grotmd ruhile crying oni Mr.thantmnd Siddiqtte nliss Ahli urent muay ridcling on lds ,roiorcycle, Tlrcreafter tlrc cornplninnnt pnrty snut thnt Glmnsltam had. reieiaed fire arnt injttry att riglft side of tis bnclc nnd htood runs oozing. Ttrcy toolc Glrnnshnrn to Citil Hospital Mirptnlclus nnd obtained letterior ltis trentnrcnt, front rultere Iw runs referred to Hyderabad, Tlrcreafter, the corrrylainnrut ruerlt to Police Stntion and todged the report,"

3.After usual investigation police submitted the challan before the Court concernecl ancl after cornpleting necessary formalities, Iearned trial Court framed the charge against tl"re appellant, to which he pleaded not guilty and claimed trial.

4.At trial, the prosecution in order to prove its case examined 09 wihresses and exhibited numerous documents ancl other items. The statement of accused was recorded under sectionS42 Cr.P.C whereby he denied the allegations leveled against him and claimed his false implication by the complainant. However, neither the appellant examined himself on Oath nor led any evidence in his defense.

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5.Learnecl trial court after hearing the learned counsel for the parties ancl examining the evidence available on record, convicted and r sentenced the appellant as stated earlier in this judgment, Hence, the appellant has filed this appeal against his conviction.

6.Learned trial Court in the impugnecl judgment has already discussecl the evidence in detail and there is no neecl to repeat the same here, so as to avoid cluplication and Lrnnecessary repetition.

7, Learned counsel for the appellant has contendecl that the appellant is innocent and has been falsely implicated in this case on account of political victimization; that there is an unexplained delay in lodging the FIR; that there are material contraclictions in the prosecution case; that the alleged eye witnesses are not reliable and their eviderrce should be discarded; that the pistol was foisted on the -a appellant and that for any or all of the above reasons the appellant be acquitted of the charge by extending him the benefit of the cloubt. In suPport of her contentions she placed reliance on the cases of Tajamal Hussain Shall versus The State and another [2022 SCMR 156T], Muhammad Arif versus The State [2019 SCMR 691,], Amanat Ali versus The State [2017 SCMR 19761 and, Haleem and others versus The State [2017 SCMR 7091.

B. Learned Assistant Prosecutor Ceneral Sindh on behalf of the State, who was also looking after the interests of the complainant, after going through the entire evidence of the prosecution witnesses as well as othel record of the case has fully supportecl the impugned judgrnent. In particular sl-re has contendecl that the delay in lodging the

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FIR has been fully explained; that there are three eye witnesses all of whose evidence can be safely relied upon who directty implicate the appellant in the tnurder of the deceased; that the medical evidence supports the ocular evidence; that the pistol (murder weapon) was recovered on the pointation of the appellant and as such the Prosecution had proved its case against the appellant beyond a reasonable doubt and the appeal be dismissed. In support of her

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contentions, she placed reliance on the case of Abdul Wahid versus The State l2:{nn SCMR 12781.

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9.I have heard the learned counsel for the appellant as well as learned A.P.G and have also perused the material available on record and the case law cited at the bar.

10.Based on my reassessment of the evidence of the PW's, especiatly the , medical evidence, recovery of blood and empty at the crime scene which lead to both positive FSL report and chemical reports I find that the prosecution has proved beyond a reasonable doubt that Ghansham (the deceased) was intentionally shot by firearm in order to cause his cleath/murder on 26.07.2012 at 2230 hours in front of the house of Din Muhammed Makrani, Nasir Town, Mirpurkhas wlrich lead to his death on 28.07.?012 from his firearm injury whilst he

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was receiving treatment in hospital.

11.fhe only question left before me therefore is who murdered the deceased by firearm at the said time, date and location?

12.After rny reassessment of the evidence on record, I find that the prosecution has proved beyond a reasonable doubt the charge against the appellant for which he was convicted for the following reasons;

(u)That the FIR was lodged with a delay of one duy however based on the particular facts and circumstances of the case I do not find such delay fatal to the prosecution case. This is because after the shooting of the deceased he was immediately rushed to civil hospital Mirpurkhas for treatrnent and then shifted to civil hospital Hyderabad where he succumbed to his injuries on 28.07.201,2. The FIR \ was lodged after the hospital arrangements had been made for the deceased and accordingly the FIR was lodged under Section 324 PPC before the death of the deceased. Only when the deceased died a duy later was Section 302 PPC aclclecl to the I-,IR. Notably the FIR was lodged prior to the death of the deceased and as such any delay in the lodging of the FIR based on the particular facts and circumstances of the case has been fully explained leaving no chance for the complainant to cook up a false case against the appellant who he had no enmity or ill will with. In this respect reliance is placed on the case of Muhammad Nadeem alias ,l Deemi v. The State (2011 SCMR tJ72). .

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(b)The appellant is named in the promptly lodged FIR with the specific role of shooting the deceased by firearm on account I of a dispute with the deceased about playing loud music. Even otherwise no specific/proven enmity has come on record between the appellant and the complainant which would motivate him to lodge a false case against the appellant.

(.) In my view the prosecution's case rests on the eye witnesses to the murcter whose evidence we shall consider in detail below;

(i)Ey* witness PW l- Rano. He is the complainant in the case and is the brrither in law of the deceased. According to his evidence the deceased had informed him a couple of days before the incident that he had exchanged hot words with the appellant on account of the appellant playing his music loudly and the appellant warned him of dire consequences, That on 26.07.2012 he, along with the deceased and T his brother Lalchand were returning to their village at about 10.30pm and were by the house of Din Muhammed Makrani when the appellant came there on his motorbike. The appellant got off his motor bike and tolcl the deceased that he had wrongecl him by stopping him from playing his music and rnade a fire slrot with a pistol which hit the deceased who fell down. The appellant then fled the scene and the deceased was taken to Mirpurkhas Hospital an<l thereafter to the LUMS hospital in I{yderabad, He then lodged the FIR but on the next duy the deceased expired.

This eye witness knew the appellant before the incident, and saw the appellant from a few feet a way over a few minutes when the appellant shot the deceased so there is no case of mistaken identity and no need to hold an identification parade especially as he named the accused with specific a role in the \ promptly lodged FIR. In this respect reliance is placed on the cases of Amanullah v state (2023 SCMR sz7), Qasim Shazad V State (2023 SCMR 117).

Actnittedly the eye witness was related to the deceased who was his son in law however it is well settled by now that evidence of related witnesses cannot be discarded unless there is some ill will or enmity between the eye wifnesses and the accused which has not been proven in this case by any reliable evidence. In this respect reliance is placed on the cases of rjaz Ahmed v rhe State (2009 scMR 99) Nasir Iqbal alias Nasra and another v. The-

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state (2016 SCMR 2152) and Ashfaq Ahmed v. The State (2007 scMR 641),

T The cornplainant is not a chance witness. He livecl in the same village as his son in la w and was corning home with him after first going to the city so he had every reason to be where he was a t the time of the incident. Ary clelay in registering the FIR is fully explained as mentioned above. His eviderrce reflects that of his FIR and there have been no material improvernents in the same so as to render his evidence unreliable. He had no proven enmity with the appetrlant and had no reason to falsely implicate him in the mur,Cer of the deceased. His evidence was not dented despite lengthy cross examination which was given in a natural and straight forward marurer. I fir-rd his evidence to be reliable, trust worthy and confidence inspiring and I believe the same and I can convict on his evidence alone. In this respect reliance is placed on the cases of Muhammad Ehsan v. The State (2a06 SCMR 1857). As also found in Farooq I(han v. The state (2008 scMR glr), what is of L significance is the quality of the eviclence and not its qurantity and in this case I find the evidence of this eye witness to be of good quality. ,Ar was helcl in the case of Muhammad Mansha v. The state (2001 scMR lgg) .

" A bare perttsal ruoukl reuenr trmt tlre language *7.or, fis enryIoyed in tlrc said Article ll(r)(b) is nny free nnfuiguity and no sclnlnrlly interpretatiort is requirei. 7-1rc prouisions fis reproduced hereinnboae of tlrc sqid Article utould runlce it aburtdantry clear that partia.tlar rtttnrber of ruitnesses slmll not be required for the proof of nt'Ly fact meaning tlrcreby that a can be proued inly fnct hy o single ruitness "it is not selcloru thnt n crinte has been cotrrrrritted in tlrc preserlce of only one ruitness, leatting nsicle tlrcse cfises tuhiclt nre not of uncofiunon occLfftertce, rulrcre deterninntiort ,f guilt depends entirely olx ciruunstnrutial euidence. If the Legislature r.uere to insist upot'L pltn'ality utitvlgstrt, c{tse ruhere the testimony of tt single utitness oruly catild he auailable in proof "oy it* crin'rc, ruould go Lulpltnislrcd, It is lrcre thst tlrc discretion \ of tlrc Presiding ludge cor.te, into play, The runtter tlu,ts nutst depend upon tlrc circurnstnnces of each case and tlrc ,f quali\ the eaidence the single ruitness ruhose ,f testinruty has to be either nccepted. ar rejected, If strch a testinrony is found by the court to be entirely reliable, tlrcre is no legnl irryeditnent to the conuictian of the 'of rrcctrced person on suclt proof, Etten rts tlte guitt an ncaned person nuty be protted by tlrc testinrcny of n single uitness, the irunocence of frn nccused person inoy b, estnblished on tlrc testitnorry of a single witruess, eaen thouglt corusidersble nuntbe*f ,u[tnrrrrs ntny be fortlrconring to testrfy to the trttth of tlrc case fir tlrc, h

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proseclltiott, Tlrc Cotn't is clncerned tuitlt tlrc quality and 'rtot tttitlr tlrc quantity ,f tlrc euidence necessnry f,' prorting or disprouirrg fncts", (Principles and Digest of Y tlrc Laru of Eaidence by M. Monir, page 1,458.

(ii ) Ey* witness PW 2 Lalchand. Ramzan. The deceased was his brother and he is also related to the complainant. His eviclence corroborates that of the .orrplrinant in all material respects. He is named in the promptly lodged FIR as an eye witness. He gave his Section 1,b1, Cr.PC eye witness statement with prornpiitucle which was not rnaterially improved_ on .luring his eviclence. I-{e is not a chance witness. He had no ill will oI enmity to involve the appellant in a false case. I{e gave his evidence in a natural and straight forward tnannel and was not dented during the same. I-Ie knew the appellant from before so there was no need for an iderrtity parade as he saw the appellant shoot tl-re cleceased from close rallge, I find his evidence to be reliable, trustworthy arrd confidence inspiring and I believe the same ancl place reliance on it. The same 'evidence as to the evidence considelations apPly to his

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of the complairrant.

(iii)PW 3 Din Muhammed. He is an independent witness. I{e is namecl in the FIR. The incident happerred outside his house so he is not a chance witness' Like the other two eye witnesses he saw ttre appellant, who he knew, shoot the deceased, FIe gave his Section 1"6L Cr.PC eye witness statetnent which was not materially improved upotl at trial and he was not dented during his cross exarnination. I-Iis evitience corroborates the other eye witnesses tnentioned above in all material respects with regarcl to the shooting and the same considerations apply to l'ris evidence as to the two other eye witnesses and as such l rely believe and uPon the same.

I-Iaving believed the eye-witnesses evidence I turn to consider the corroboratlefsupportive evidence whitst keeping in view that it was it was helcl in the case of Muhammad Waris v. The State (200S SCMR 784), at P.786 para 4 as under;

"Corroborntion is only n nile of cntttion nnd is not n rule of laru nnd if tlrc eye ruitness nccount is found to be reliable nnd trust ruarthy there is hnrdly nny need to loolr for nr'Ly corroboration" Like wise in the case of Sikandar Ali Lashari & another v. The State (SBLR 2070 Sindh 981) it was held as under at P.1026Pata 4;

"Enclr criruinnl cfise hns its oTlt't peculiar facts. If eye utitness account is found trusfiuortlry then tlwe is hnrdly any need for corroboration'

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Thus, based on my believing the evidence of the 3 PW eye witnesses mentioned above by way of abundant caution what other t supportive/corroborative material is their against the appellant?

(.1) fhat it does not appeal to logic:, commonsense or reason that a brother would let the real rnurderer of his brother get away scot free and falsely implicate an innocent person by way of substitution. In this respect reliance is placed on the case of Muhammed Ashraf V State (2021SCMR 758).

(e)That the rnedical evidence and post mortem report fully supports the eye-witness/ prosecution evidence that the deceased receivecl a firearm injury which lead to his death.

(f)That on his arrest a few days after the incident the accused lead the police to the rnurder weapon which was a pistol on his own pointation which was hidden at in the bushes outside his house in a place which the police would not be + aware of.

(g)That there was no ill will or enmity between the police and the appellant and as such they had no reason to falsely implicate the appellant in this case, for instance, by foisting the pistol on him. Under these circumstances it is settled by now that the evidence of police witnesses is as good as any other witness. In this respect reliance is placed on the case of Mustaq Ahmed V The State (2020 SCMR 474).

(h)'I'hat the empty recovered at the crime scene when matched with the recovered pistol lead to a positive FSL report.

(i)That the blood stained earth recovered at the wardat and clothes recovered from the deceased were sent for chemical exatniuation which report for-rncl the blood recovered at the scene and on the clothes to be human blood.

0)The rnotive for the murder has come on record. Namely, that the appellant was annoyed with the deceased for

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admonishing him for loudly playing his music and disturbirrg the tranquility of the neighbor hood.

(k)That all the PW's are consistent in their evidence and even if there are sotne contradictions in their evidence I consider these contradictions as minor irr nature and not material and certainly not of such rnateriality so as to effect the Prosecution case and the conviction of the appellant. In this respect reliaucc is placecl on the cases of Zakir Khan V State (1995 SCMR 1793) and Khadim l{ussain v. The State (PLD 2010 Supreme Court 661)).The evidence of the PW's provides

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a believable corroborated unbroken chain of events from the deceased telling the appellant tc, stop playing loud music which annoyed the appellant to the appellant shooting the deceased with a pistol to the death of the deceased through firearm injury to the recovery of the murder weapon (pistol) on the pointation of the appellartt in a hidden place to the empty recovered at the crime scene leading to a positive FSL report when matched with the recovered pistol on the pointation of the appellant.

(1)Undoubtedly it is for the prosecution to prove its case against the accused beyond a reasonable doubt but I have also consiclerecl 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 during his cross examination was that the rnurder took place in the Otaq of Mir Muhammed Shah Talpur on account of politician rivalry and that Mir Muhammed Shah Talpur falsely implicated him in this case. 'I he appellant however did not inention this in his section 347 Cr.I'C statement, did not give evidence on oath and did not call any DW in support of his clefence case. In fact apart + from bald allegations he did not produce an iota of evidence to support his defence case. Thus, in the face of reliable, trust worthy and confidence inspiring eye witness evidence and other suppor t:e f corroborative evidence I disbelieve the defence case which has not at all dented the prosecution

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13.Thus, based on the above discussion especially in the face of reliable, trust worthy and confidence inspiring eye witness evidence and other corroborative/supportive evidence mentioned above, I find that the prosecution has proved its case against the appellant beyond a reasonable doubt for the offence for which he has been convicted and sentenced and as such his appeal is dismissed. The appellant on bail shall be arrested by SHO PS Mehmooclabad District Mirpurkhas who shall return the appellant on bail to Central Prison Hyderabad to serve \ out the rernainder of his sentence. A copy of this judgment shall be sent to SSP Mirpurkhas for compliance

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