Muhammad Ismail (Appellant) VS The State (Respondent)

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CtrRTIFIC ATE OF THE COURT IN R EGARD TO RtrPORTING

CRIMINAL APPEAL S-75 OF 2OO7

MUFIAMMT\D ISMAIL V/S TFtI St.A.rr]

COMPOSITION OF BENCH

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Date of last hearing (hearcl / rese rvecl): 23-01 2023 Decided on: 30-o 1-2023

(a)Judgment approved lor reportir-rg YtIS ).u

CERTIFI CATE

Certificate that the Judgment/ Order is based upon or a enunciates a principle of law/decide a question of lau, which is of first impression/ clistinguishes over_rules/ explains a previous decision.

Strike-out whichever is not applicable

NO'l'Il: - (i) 'l'his slip is only to be used when some action is to be tal(en.

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(iii)Court Associate must ask the Judge wrilren the judgment whether the judgment is approved for rcportirrg.

(iv)Those directions wl.rich are not to be usecl sl.rould be deleted.

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IN THE HIGI{ COURT OF SINDTI,

Cl I ltclUI'f C-OLl I{T, I I YI)[: ItAI] A I).

Criminal Appeal No.S- 7i of 2OO7

DAt'E 0 llt) ti tt wtl't I stGN.\'t't i ItI oti,, t I t)(; ti Syed Tarique Ahmed Shah, Advocate for appellant lt/s. Sana lr/emon, A p.G for State.

Appellant is present on bail. lhave heard iearned counsel for lhe appellant and learned A P.G for State This was a date and tinre fixed matter and the name of learned counsel for complainant appears in cause list however, he has preferred to rdmain absent. Since this was an old case of 2007, in the interest of justice, I did not see any justification in delaying it any longer simply because the complainant's counsel dad not ; choose to put his appearance. Reserved for judgment.

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JUPGE

Tufail

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IN THE HIGH COURT OF SINDH, CIRCUIT COURT

HYDERABAD

Cr. Appeal No.S-75 ol 2007

Muhamrnad Isr-r-ra il

Velsus

Tl.re State

Appellant : N,luharnrnarl througl.r Syed Tarique Ahmed Shah Isr.r.rail (prresent on bail) alongwith Mr. Arnmar Ahmecl, Aclvocate Respondent : The State through Ms. Sana Mernon, A.lr.G. Sindh None presetlt for cornplainant

Date of hearing 23.07.2023

Date of judgment 30.01.2023

TUDGM ENT

MOHAMM AD I(A RIM I(HAN AGHA, T.-ThiS criminal appeal is directed against the judgment dated 2Z.O3.2OOZ, passed by the learned IInd Additional Sessions Judge, Nawabshah, in Sessions Case No.128 of 2O0O (re: State V Muhammad Ismail and others), emanating from Crime No.82 of 2000, registered at police Station Sal<rand, under sections 302, 109, 34 ppc, whereby the appellant has been convicted u/s 302(b) PPC and sentenced to suffer imprisonment for life each for committing murders of deceased Gulab and Mst. Najma. He was also directed to pay Rs.300,000/- each as compensation to the legal heirs of deceased Gulab and Mst. Najma separately as provided under section 544-A Cr.P.C; and, in case of non-payment ol the said compensation, the appellant shall lurther undergo R.l for 06 months,

for each offence. He was awarded benelit of section 382-Cr.p.C v However, both the sentences were ordered to run concurrently whereas co-accused Shaukat and Anwar were acquitted of the charge 7 while extending the benefit of tl-re cloubt.

2.Facts of the prosecution case as per FIR are as under:- "That, on 16.05.2000 complainant Mouled.ino lod.ged FIR at P.S Sakrand stating therein thai he utas hai of Ghulam Mustafa Unar. Theg uere 06 brothers and. Gulab aged alout i0 elder to them. There were houses of Antuar Machi i;;;;*"" and. others towards their northern sid.e. on the d.ay of inc'id.ent time,- he along with his brothers Hussain Bux at eue,ntng and Gurab were auailable in the fi.eld and were irrtgating the Mustafa [Jnar. In the meanwhile, at aLoutbZ,OO p.*, fietd. oj CniUu, ]tiuhammad, Ismail anned with gun and. Muhammad Anwar armed. with hatchet came ouer there a.nd Muhammad. Ismait told. Gulab, the brother of the complainant, that since he (Gulab) had ilticit relations with Ltis sisfer Msf. Najma aged, about 30 gears, hence he will be done to d.eath and. accusJd, Muhammai Ismail firecl from his gun at Gulab tuhile accused. Antuar inJlicted haichet ?l?*? Gulab fell dottn on the ground on ,"".ipt of injuies' complainant party raiied cries wLtich attracted. fi.re arm his brother Ghulom Nabi, while the accused, persons went aLUaA towards their houses; and their brother Gulab had. succumbed" to tyiuries. It is furtLLer stated. that in the meantime theg heard. cies from the house of accused. Anwar and others and. is sucrt theg rushed there and saw that accused Anwar Machi tuas inflictin-g hatchet blouts to his wife Mst. Najma while accttsed. Muhimmad Ismail straightly fired at Mst. Najma from his gun, and- on receipt of such fi,re-arnt injury, she feil d.own ona d.i"d.. Thereafter, complainant went to police station and lod ged" repoft that the accused haue committed murd.er of his brother CitaA and. Mst. Najma at the instance of Aslam and. Shaukat.',

3.After usual investigation police submitted the challan before the court concerned and after completing necessary formalities, learned trial court framed charge (Ex.2) against the accused/ appelrant as well as co-accused Shaukat Ali and Anwar, to whicl-r they pleaded not guilty and claimed trial.

4.At trial, the prosecution in order to prove its case examined 09 witnesses and exhibited numerous documents and other items. The statements of both accused were recordecl under section 342 cr.p.c (Exh. 19, 20 and 21) whereby they denied the allegations leveled against them and claimed their false implication by the complainant.r, a

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5' Learned trial court arter hearing the learned counsel for the parties and examining the evidence availabre on record convicted and sentenced the appellant Muhammad Ismail, as stated above; however, acquitted the co-accused Shaul<at and Anr.r,ar.

6.Learned trial court in the impugned judgment l_ras already discussed the evidence in deta, and there is no need to repeat the same here, so as to avoid duplication and unnecessary repetition.

7.Learned advocate for the appellant has contended that the appellant is innocent and has been farsely implicatecr in this case by the complainant party; that the evidence against tl-re appellant is shaky and full of contradictions but the learned trial court has not appreciated the same; that the impugned judgment suffers from irregularities and illegalities and is not sustainable in law. Learned counsel further contended that the statement of the appellant under section 342, Cr.P.C has been recorded in stereo type manner and the t incriminating pieces of evidence were not even put to him for the purpose of seeking his explanation and, therefore, such pieces of evidence cannot be relied upon for the purpose of convicting the appellant. In support of his contentions he placed his reliance on the cases of Akhtar Ali and others V The State (2008 SCMR 6), Muhammad Imran V The State (2020 SCMR 857), Muhammad Asif V The State (2017 SCMR 486), Sardar Bibi and another V Munir Ahmed and others (2017 SCMR 344),lmtiaz alias Taj V The State and others (2018 SCMR 344) and Muhammad Arif V The State (2019 SCMR 6s1).

8.on the other hand Learnecr Assistant prosecutor General Sindh on behalf of the State, after going through the entire evidence of the prosecution witnesses as well as other record of the case has supported the impugned judgment. In support of her contentions, she placed reliance on the case of Mst. Sughra Begum and another V Qaiser Pervez and others (2015 SCMR 1142).

9 . I have heard the arguments of the learned counsel for the appellant and learned Additional prosecutor General sindh ancl gone through the entire evidence which has been read out by the learned

counsel for the appellant, and the impugned judgment with their able assistance and have considered the relevant law.

i0' The learned counsel for the complainant was ca,ed absent without intimation despite this matter being date and time fixed and the complainants name appearing in the cause list. This is an o1d case of 2oo7 (15 years oid ) a.d I decided that it wourd not meet the ends ofjustice to adjourn the appear any longer simpry because the learned counsel for the comprainant preferred to remain absent and as such I have proceeded to decide this appeal.

11.Based on my reassessment of the evidence of the pW,s especially the medical evidence and other medical reports and blood and empties at the crime scenes I find that the prosecution has proved beyond a reasonable doubt that Gulab and Mst.Najam (the deceased) were shot and murdered by firearm respectively on 16.05.2000 at t about 7pm in the lands of Ghulam Mustala Umar and at the nearby house of accused Anwar respectively.

12.The only question left before me therefore is whether it was the appellant who murdered both the deceased by firearm at the saicl time, date and locations ?

13.After my reassessment of the evidence I find that the prosecution has NOT proved beyond a reasonable doubt the charge against the appellant keeping in view that each criminal case must be decided on its own particular facts and circumstances for the following reasons;

(a)That the FIR was lodged with promptitude however complainant's FIR is compleiely at odds witf, tf,e the evidence which he gave at trial. According to ihe plR he *as present brother Ghulam Hussain on the land of Ghulam Mustafa with his on 16.05.2O20 when Ismail accusecl deceased Gulab of Umar illicit relations urith his sister Ms iVajma and shot him harrng shot gun and Anrvar hit him with Hatchet. ln his evidence with a however^ the comprainant states that he, Ghuram Nabi and yomel folk were present in his house when he hea.d gun fire shots from the land which was hall a Jareb away and came out of our house in a street and saw accused Ismail armed *ith gr;;

Ali Anwar and Shoukat with hatchet, Aslam with fired at them who fell to the ground in order to save DDBL who themselves l

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and then saw deceased Gulab lying on the earth and the 3:"1:1d heacling towards Anwar,s trol]... As such according to his FIR which was lodged with promptitude he was present as ar'I eye witness to the murder of deceased Gulab by the but according to his evidence he was not. If he *as appellant how did he even hear Ismail say anything to deceased "ot';r;;;;; Gulab about his sister let alone u,itnes" tt-r" .r.ril.r of Gulab. In his FIR he does not mention being fired at whilst he claims to be fired at in his evidence by Aslalm. In his pfn f,. only appeliant and Anwar whilst in his evidence he also names the states that Shoukat, Aslam and Ibrahim were also present. I contradictions in the FIR and eviclence to be of material find these significance and find that I cannot believe or safely rely on the evidence of the complainant as the appellant Ueir]i tf,J ;;;;

rvho shot the deceasecl Gulab. ln this respect reliaice is placed on Akhtar Ali (Supra).

ib) That according to the complainants FIR he and his brothers Ghulam Nabi anti Ghulam Hussain then heard cries from Anwar's house and as such they went to Anwar,s house and saw Anwar aim a hatchet blow ut frl" rvife deceased Ms T"jT" and the appellant shoot her with his shot gun. None of the brothers had any relationship with deceased MJ Najma so it does not 4ppea1 to logic commonsense or reason that they would t leave their dead brother and go to the cries at Anwar,s house especially as they were unarmed. Tl-re complainant in his evidence clarifies that he saw the murder of Ms Najma rvhilst peeping over the hedge. However the complainantl story of being able to peep over the top of the hedge is compietely belied by PW 6 the tapedar who says that it ro,as- impossible to- see Ms Najma's murder from over the hedge and as such I once again lind the complainant a clishonesi witness in respect of the *119.f of Ms Najma. He is also a chance witness as according to PW 3 Hussain Bux he was living with him at Sher Bago at th6 time of the incident which again suggests that this witness was not even present at the time of the incident as he had no reason to be there on that day.

(c)The second eye witness to both murders is pW 2 Ghulam Nabi who is the brother of tl-re complainant ancl the deceased. According to his evidence he is not even able to give the date of the incident and only says it occurrecl 1B- l9 months ago which is hardly confidence inspiring. He states that he was- present with other women folk in the house along with the compiainant when he heard shots. He came out and sarv the appellant, Ibrahim, Shoukat, Anwar stancling and deceased Gulab on the ground. As such he is not actually an eye witness to the murder of Gu1ab. He sees the appellant with a SBBL, Aslam with DBBL, Shaukat and Anwar witl-r hatchets. They went away and then he heard cries from Anwar's house where he saw appellant Ismail shoot deceased Najma. Again he had no reason to leave his clead brother and go to Anwar's house where he could not have seen the appellant Ismail murder Najma because of the l-redge. His evidence is flimsy and of a vey poor quality and i am .rribl. to

\0 b believe the same .lt appears that his so called eye witness is a put up witness by his brothers.

(d)The next eye witness is PW 3 Hussain Bux r.vho was alleged1y present with deceased Gulab at the time when he was shot. Again he is unable to specify even roughly the date of the ( incident and only states that it was about 12 months ago u,hich castes doubt on his evidence. His evidence also contradicts that of the complainant ancl PW 2 Ghulam Nabi. As according to his evidence the appellant shot deceased Gulab in his presence but Anwar did not try to attack deceased Gulab with a hatchet. Instead Anwar restrained him. He raised cries which lead to the arrival of the complainant and PW 2 Nabi Bux who u,ere clearly not eye witnesses to this murder. Again he whilst leaving his dead brother saw the appellant murder deceased Ms Najma over the hedge which was not possible. His evidence is flimsy and of a vey poor quality and I am unable to believe the same. It appears that this so called eye witness is a put up rvitness by his brothers. He is also a chance witness as at the time of the incident he was living with the complainant at Sl-rer Bago and had no reason to be at the place of the incident on that day.

(e)The evidence of PW 4 Dharoon r,vho was the mashir of arrest and recovery is also completely contradictory to that of the police. According to him all the accused including the t appellant were arrested on the spot at the vardat however according to PW 5 Mir Hussain rvho was the arresting officer he arrested the accused about 3 weeks later. According to his evidence he lived one and a half miles away and came when he heard the shots but it beggars belief that he could hear the shots from his house so far way. This also contradicts the evidence of the police who allegedly picked him up .He also claims that the dead body of Ms Najma u,as in her house when a-11 the evidence is that she was shot outside the hor-rse hence the PW's allegedly saw her murder by the appellant. As such I find that his evidence cannot be safely relied upon and I discard the same.

(0 2 empties were recovered at each vardat however only 3 were produced in court. Where did the fourth empty go keeping in view that the empties u,ere not sealed in the presence of mashir PW 4 Dharoon.

(S)The father of the deceased Ms Najma surprisingly did not give evidence and the semen found on her clothes did not belong to deceased Gulab so the alleged motive o[ some l<ind of extra maritai affair between deceased Ms Najma and deceased Gulab is not proven which allegedly leaci to his murder by the appellant. Hence the appellant had no motive to commit the murder of either Gulab or Ms Najma.

(h)According to the evidence Anwar caused hatchet blow to both deceased however he was acquitted however the appellant

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has been convictecl on similar eviclence except tl-rat he allegedly used a shot gun.

(i)Further doubt is caste on the witnesses by the fact that { the ocular evidence is not particularly supported by the medical evidence. For example, the eye witnesses say that the deceased Gulab received ti,vo gun shot wounds but ihey do not say on which part of the body. pW 4 Dharoon states that one injury was on the forehead whilst pW 5 Mir Hussain who was the iirsi IO states that there was only one firearm injury to the testicles. None of these places of injury tie in with in. po"t mortem of deceased Gulab. With regard to deceased Mst. 'lrlajma the post mortem found that there was charring surrounding orr" oih.. injuries which indicates firing at a very close ran"ge which is contradictory to the so called eye witness evidence who do not claim that she was shot from a close range.

(j)That the appellant was acquitted in the illegal arms case

14.Based upon the above discussion there appears to be many doubts in the prosecution case that the appellant murdered either deceased Gulab or deceased Mst.Najma and it is well settled by now that the appellant is entitled to the benefit of a single doubt as a matter of right and not as a matter of concession.

15.As such, by extending the benefit of the doubt to the appellant, the appeal is allowed, the appellant is acqllitted of tl-re charge and the impugned judgment is set aside. The appellant on bail shall have his bail bonds discharged and is free to go.

16.The appeal stands disposed of in the above terms r,6) JUDqT, l-lzt