Israr Ahmed Qureshi (Appellant) VS The STate (Respondent)

?qg Ol(DlrR SIIEE'I'

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

fl Criminal Jail Appeal No.S- 181 of 2006 ii

DATE ORDER WITH SIGNATUITE OF JUDGE

For hearing of case.

Ms. Riffat Bano, Advocate for appellant.

Mr. Shahid Shaikh, Additional P.G and Miss Sana Memon, Assistant P.G for State.

Appellant is present on bail. I have heard the arguments of learned .l ti counsel for appellant and learned A.P.G for State. Reserved for judgment.

DGE

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D.{"^,.. t S{ Drt -..- \."J.*\

IN THE HIGH COURT OF SINDH, CIRCUIT COURT

HYDERABAD

Cr. Jail Appreal No.S-l81 of 2006

Israr Ahmed Qureshi

Velsus

The State

Appellant : Israr Al-rrnecl thlough Syeda Riffat Bano r'\dvocate S/ o Haji Sikandar Ali Qureshi (present on bail)

Responder.rt : The State througl'r Mr. Sliahid Ahn-red Shaikh, Aclditional P. C. along with Ms. Sarra Mernor-r, Assistant Ir.G

None present for complainant without intimation despite direct intirnation notice of tl.ris time and date fixed rrlatter.

Date of healir-rg 13.03.2023

Date of judgrnent 15.03.2023

IUDGMENT

MOHAMMAD KARIM KHAN AGHA,.I.- This crirninal jail appeal is directed against the judgment dated 15.07.2006, passed by the leamed Ist. Additional Sessions Judge, Mirpurkhas, in Sessions Case No.95 of 2003 (re: The State V Israr Ahrned), emar.ratir.rg from Crir.ne No.22 of 2003, registered at lrolice Station Taluka Mirpurkl.ras, under section 302,324,504 PPC, whereby the appellant has been convicted u/s 302(b) PPC for committing murder of Jan Muharnmad and N4ir Fakir and sentenced to suffer imprisonrnent for life.

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He was also clirected to pay a fine of Rs.50,000/-; ancl, in case of non_payment of the said fine, he shall suffer further R.I for 01 year. The appellant was also convicted u/s 337-F(iv) PPC for causing injuries to p.w Aii Bux Brohi ancl sentenced to suffer R.l for 03 years and to pay Rs.20,000/_ as daman to injured/victim Ali Bux Brohi. However, he was awarclecl benefit of section 382-Cr.P.C.

2.Facts of the prosecution case as statecl in the FIR loclgecl by tlre complainant Abdul Hakeem at Police statio. Taluka Mirpurkhas o, 03.06.2003 at 1930 hours, are as under:-

"Thnt, tlte mnngo gnrden of lis trncle Mir Fnkir zpns on lense toith nccused Isrnr Aluned for tlu lnst ttoo yenrs nnrl sone leose n rcunt t'ns outstnnding ngninst ncarsed Isrnr Alnned. Tlnt on 03.06.2003, lrc (conplninnnt) nlong ruith ltis-wtcle Mit Fnkir nged nbout 70-75 years, cottsht lnt Mr tnnnnd nged nbiut 32 years nntl lis relntiues Linqunt Ali nnd Mulnnmnd Moosrt tocnt to lhe sttid utnngo gnrtlen, tphere ncatsed Isrnr Aluned nntl his lnbourers ruere mnilnble. His tutcb Mir Fakir nnd cousin Jnn Mttlnntnmd demnnded tlu remnining lease nnrount from ncansecl lsrnr Ahntecl on rultich nccusetl Isrnr Ahnrcd became enrnged nntl nbused errcssing 1 tlnt contplninnnt pnrty hnzte cnused torhtre to him on tphich Mir Fnkir and Jnrt Mulnmnnd preuented tle ncarsed frotn gitting obuse. Conscquetttly, nt about 1700 lnurs acr;,$ed nnde fre slnts froru lis reuoluer nt Mir Fnkir nnd lmr Mulnnntnd tpith intention to kill tlun. On receipiug ftrc slrot iujtries, Mir Fnkir nnd Jon Muhnmmnd fell down on tle growttl. Conrylnhnnt pnrty tried lo cntch ncatsed btrt he extencled tltrents to kill them if tlrey ruoukl conrc rrclr to linL rc such due to fenr they did not go nenr to nccused. Druing arch figlt Ali Bux Brohi, tlrc lnbourer of ncatsed Isrnr Almred nlso srrctninecl injuty. Accuscd lhcn mn trony. Coruplninnnt pnrty founrl tlnt lnn Muhnnunnd clue to snid ittjttries Imd died, rplrile Mb Fnkir nntl Ali Bux Brohi were injured. Tlteretfter, the contplninnnt lodge d FlR."

3.After usual investigation police submitted the challan before the Court concerned and after completing necessary fornralities, learned trial Court framed charge against the accused,/appellant, to which he pleaded not guilty and claimed trial.

4.At kial, the prosecution in order to prove its case examined 10 PWs and A exhibited numerous documents and other items. The statement of the accused was recorded under section 342 Cr'.P.C whereby he denied the allegations leveled against him and claimed it was a case of self defence. He also gave evidence on oath to this effect and called two DW's, Syed Muhammad Kamil and Suhail Sangi, in support of his defence case as well as bringing documents on record in this regard.

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5' Leamed trial Court after hearing the rearned counser for the parties and evaluating the evidence availabre on record convictecl ancr sentenced the appellant, as stated in the earlier part of this judgment.

6' Learned h'ial court in the impugnecl judgment has arready cuscussecr the evidence in detair and there is no need to repeat the same here, so as to avoid d uplication and unnecessary repeti tion.

7' Leamed advocate for the appeilant has contencred trrat the appellant is innocent and has been farsely impricatecr in this case; that trre appeilant has raised the defence of self defence which he has proven trrrougrr his evicrence under oath and DW's; that some of the prosecution r,vihresses r^/ere not Present at the scene of the incident ancr are pra.ted wit.esses; that the appellant had no reason to srroot the deceasecl a,cr no ,roti'e rras Lree. proven; that the medical evidence supports the appellar-rt's of e'enrs; 'ersion that the appellant surrenclered one day after the inciclent ancl harrdetl over the 1 murder weapon to the police which was then substitutecl b1, the 1'rolice a'cl that for any or all the above reasons the appellant srroulcl be acquittecl of the charge by extending him the benefit of the croubt. In support of her contentions she placed reliance on the cases of Mrrhammad Asif v rhe state (2017 SCMR 486), Muhammad Akram V The Srate (2012 SCMR 440) and sudheer through senior superintendent, Cenhal prison, Hyclerabad V The State (2023 PCr.Ll 25).

8' Learned Additional Prosecutor General sinclh on behalf of the state, after going through the entire evidence of the prosecution witnesses as well as other record of the case has fully supported the impugnecl judgment. In particular he has contended that the prosecution eye witnesses ar.e reliable, trust worthy and confidence inspiring and-as such their evidence is to be l. believed; that all the eye witnesses knew the appellant ancl as such there was no case of mistaken identity especially as it was a daylight inciden! that the pistol was recovered on the pointation of the appellanfi tl-ra t the medical evidence fully supported the prosecution case; that the rnotive for the murder was that the appellant wanted to avoid paying the lease fee whicl.r he owed to the deceased and as such the prosecution had proved its case beyond a reasonable doubt and the appeal be dismissed. In support of his contentions,

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4 v he placecl reliance o. the cases of Nlurrarn,racr Bashir.a,tr a.other v rhe state a.d others (2023scMR 190, Amanuilarr v rhe state a,cl anotrrer (2023 scMR 527), Imtiaz arias Taji and another v rhe state ana others (2020 scMR 287) anci Ali Ah,rad a,il a,other v rhe state a,d otrrers (pLD 2020 Suprerne Cour.t 201).

9' i have consiclered trre subrnissi.rrs of thc. partics arcr rra'e per.,seri tr.ie tnaterial availatrle on record a.d corrsicrerecr the case rar,r, citerl ;rt trre har.

10' "l'his is an olcl appeal of 2006 a.d rear-.ecr cou.sel for. the comprai,art has t'aIely put irr an appearancc. or-r the Iast date of rrear:irrg learr.rrerl couuser for the complaitlant was callecl aLrsent lvithor-rt irrtima tion arrrl rvers giver.r clirect inti,riciation notice of tocray's clate ancl tir-,e fixerl ,rattcr hon,ever he Prefe,'ed to ,emairr absence. Thus, sirce this olcl r.na tter .cecls to be clecicled a.c1 ca^not be allowed to li.gcr or-r foLe'c.L in thc. i.rter.csts of justicc I have l-rt'oceeclecl to dgcidc this appc.al *.,i th thc- co,plai.t's irltcrest lrci,g protectec-l by the lear..necl AlrG,

11.Based on my reassessment of the evidence of the pW,s and il-r e appellant especially the medical evidence and other medical reports and blood at the crime scene I find that the prosecutiou has proved beyond a reasonable doubt that Fakir and Jan Muhammed (the deceased) were shot and murdered by firearm respectiveiy on 03.06'2003 at about Spm in the Mango Garden of Fakir situate at Deh Kak Taluka Mirpurkhas.

12.The only question left before me therefore is whether it was the appellant who murdered both the deceased by firearm in cold blood or killed them in self defence at the saicl time, date and location?

13.After my reassessment of the evidence I find that the

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prosecution has 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)In this case the appellant has taken the particular plea of self defence. In this respect I have proceeded to put the prosecution case in juxtaposition with the defence case of self defence to see if this defence is at all plausible and can caste any doubt on the prosecution case.

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(b)That the yas lodged with promptitude being approximately 2 and allR half hours after the incident co.,sije.ing that th"e complainant had to walk for I and a half hours frori the ptace of incident to the pS. All the eye witnesses as well u" th" injured and deceased are named in the plR and the appellant is given a specific role. The complainant had no proven e.nmit5l with the appellant and thus had no reason to implicate him in a a false case. The- promptitude in which the FIR i,as lodged also gave no time for the complainant to cook up a false-case in collusion with the police.

(") I find that the prosecution's case primarily rests on the evidence of the eye witnesses to the murder of the deceasecl and whether I believe their evidence, over that of the appellant, whose evirlence I shall consider in detail below;

(i)Eye witness PW 1 Abdul Hakeem. He is the complainant and the nephew of deceased Fakir. According to his eviclence on 03.06.2003 at about 5pm he, along with pW,s Liaquat Ali arrii Muhammed Moosa canre to the Otak of Fakir who was sitting with l-ris son Jan Muhammed which is situate in a garden. Fakir asked them to accompany them. to visit the garcleu rvhen thev came across the appellant ancl his workers r,vho rvere fillirrg boxes of mangoes. Fakir demanded the remaining lease amount from the appellant on which the appellant becanre annol'ed aul{ abused Fakir. Jan Mul-rammed told the appellant to stop abusing after which the eye witness saw the appellant pull out i revolver and shoot both Fakir and Jan lvlultarnured who both fell down and one fire shot also lrit labourer Ali Bux. They dicl not intervene as the appellant thteatened then-r and tlren ran away with the revolver. Jan Muhanuned rlied on tl-re spot and Fakir and AIi Bux were both injured. Ile then left Liaquat AIi and Moosa with the dead body and the injurecl whilst he went to inform the police.

This eye witness is relatecl to the deceasecl however no enmity or dispute has been proven between the eye witness and the appellant and thus his mere r.elationship to the deceased is no reason to discard his evidence which has to be judgecl on its own worth. In this respect reliance is placed on the cases of Amal Sherin v The State (PLD 2004 SC 371), Dildar Hussain v Muhammad Afzaal alias Chala (PLD 20045C663).

This eye witness knew the appellant before the incident which occurred at 5pm in June when there would have been sufficient light to identify the appellant especially as the incident occurred quite close to him ancl thus there is no case of rnistaken iclentity and no need to holcl an identification parade in order to determine the identity of the appellant. His presence at the scene of the incident is corroborated by PW 3 Liaquat Ali and PW 4 Moosa. Even otherwise in his defence plea the appellant l'ras admitted his presence at the scene of the crime and the killing of both Fakir and Muhamrnerl Jan ancl the wouncling of Ali Bux but has contencled that the incident trappened in a different manner.

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This eye witness was not a chance wihless as he livecl in the area.and had every reason to be with the cleceased who was his relative at the time of tlre incident. He gave his 5.154 Cr.pC statement with promptitude wl-rich w-as not significantly improved on during his evidence. He named trre accused in rlK atong with the other eye witnesses. He gave his evidencehis in a natural manner and was not dentecl it all during cross examination and as such we find his eviclence to be reliable, trust worthy and confidence inspiring ancl believe the sanre especially when put in juxta position *ith th" defence version ot how the events unfolded which l shall come to later.

I can convict on the evic.lence of this eye witness alone though it would be of assistance by way of caution if there is some corroborative/ suppor.tive eviclence. In this respect r.eliance is placed on the cases of Niaz-rrd-Din and another v. The State and another (2011 SCMR 725) and Muhamnrad Ismail vs. The State (2017 SCMR 713). That wlrat is of significance is the quality of the evidence antl not its quantit)/ incl in this case I find the evidence of this eye witness to b" of goo.j quality and believe the same. In thie case however there i-s *o.u thun orr" eye witness.

(ii)Eye witness PW 3 Liaquat AIi. He is not related to the deceased or the appeltant and in that respect is an independent witness. His eviclence corroborates pW Z eUaut Hakeem's evidence in all uraterial respects. FIe knew the appellant from before, he saw the incident from close range and is not a chance witness. He is named in the FIR as an eye witness and his evidence is not materially improved from his 5.161 CI.PC statement. It is true that he gave his Section 161 Cr.PC statement after a delay of 8 days which can be fatal to his evidence however since he was namecl in the prornptly lodgecl -Cr.pe FIR and the fact that he gave his Section 161 statement one day after the injured Fakir died in hospital I anr inclined to b-elieve his evidence but give lesser weight to it as opposed to PW 2 Abdul Hakeem's eviclence otherwise the same considerations apply to his evic-lence as the evidence of pW 2 Abdul Hakeenr.

(iii)Eye witness PW4. Muhammed Moosa. He is not related to the deceased or the appellant and in that respect is an independent witness. His evidence corroborates pW 2 Abdul Hakeem's and PW 3 Liaquat's evidence in all nraterial respects. He knew tl're appellant from before, he saw the incident from close range and is not a chance witness. He is named in the FIR as an eye witness and his evidence is not materially improved from his Section 161 CI.PC statement. It is true that he give his Section 161 Cr.PC statement after a delay of 8 clays which can be fatal to his evidence however since he was narned iri the promptly Iodged FIR ancl the fact that he gave his S.161 Cr.pC statement one day after the iniured Fakir rlietl in hospital, like PW 3 Liaquat, I am inclined to believe his evidence but give lesser weight to it as opposecl to pW 2 Abclul Hakeem,s eviclence otherwise the same considerations apply to his evidence as the evidence of PW 2 Abdu.l Hakeern.

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(i") Eye witness pW 1 Ali Bux. He is not related to either the complainant,s side nor the appellant ancl as sucll is also an independent witness with leanings towarcls the appellant who s his boss. Accorcling to I.ris eviclen"ce at about t ;;.'30p_ il;;;

tlre appellant werej/orking in the garden of Fakir po.ki,l;

mangoes. He saw Fakir, Jan Muhanimed and the appellonl talking to each other when all of a sudden firing startej and he sustained fire arm injury to l-ris shoulder. He r.licl not see n ho made the firing ancl later regainecl Iris serues in tl-re civil hospital where he learnt trrat Jin Murramn-retr hat-r ti ier.-r on the spot and that Fakir had been serious.ly injuretl.

This witness was named in the FIR ancl n as injur.etl at the sceue of tl-re incident and as such his presence cannot be tloubtecl. He does not particularly support tlre prosecution case but cleiinitelt.

does not support the defLnce .uru. Tl.,i, is because ,f ,n"rglllr;

cloes not know who the firir-rg came h.onr he rloes not me"ntion any grappling between the parties. Impor.tantly, if the cleceased were talking to the appellant if the rleceasecl haci fired on the appellant how they could havc missecl the appellant with a fire shot and hit this witness instead. This eye *itn"r, was working for the appellant ancl thus mig'l-rt have been reluctant to elaborate on the precise cletails.

(d)That the medical evidence is supportive /corroborative of tl-re Prosecution case in so far as it can be relied upon. According to the medical evidence the firing came from close range as when th1 pistol touched the body and fired it woulc-l leave a recl"the mark around the wo.und.

-This opinion I do not find supported by any medical iurisprudence whereby crose range shots oi iess tha' irrree feet leave red marks around the wouncl raiher they leave blackening and then the closer you get, charring, tattooing an<l burning ancl not a red mark.

The red mark would intiicate thai the fire sho't was made from a distance of over three feet which c-loes not support the tjefence case of grappling and then a close range shot.

(e)That it does not appeal to logic, commonsense or leason that a real nephew would let the real murclerer of his uncle get away scott free and falsely implicate an innocent person by way of Jubstitution. In this respect reliance is placed on the case of Muhammed Ashraf V State (2021 SCMR 7s8)

(0 That the murder weapon was found on the poilltation of the appellant after his arrest at a hidden place only l-re would have been aware of as per mashimama of recovery and police evidence.

(e)That. one of the empties in the recoverecl pistol nratchecl the pistol wllich was recovered by the appellant on his pointation.

(h)That it tras not been proven through eviclence that any particular police PW's had any enmity or ill wiil towarcls the appellani and had no reason to falsely implicate him in this case for example by foisting the pistol on him and in such circumstances it has been herd that thI evidence of the police pW's can be fully relied upon and as suc.h I rely on the police evidence. In this respect reliance is placetl on the case of Mushtaq Ahmed V The State (2020 SCMR 474).

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(i)Tl-rat all the PW,s are consistent i.

their eviclence and eveu if ther.e are some co.tradictions in trreir evicrence we co,sicler these contr.adictions as rninor in nature anr-l not material ancl certainly not of such materiality so as to effect the prosecution .or" ,n.i ,h" co,viction of tlre appellant. jn this re.suect ."lio.,.u is placed o,-l ,t",u .ur", of Zakir I(han V Stare (1995 SCtritn fZOS; ancl I(hadinr ffrrr"i" v. The State jP,!D 2.0]0 Supreme Court 669).ihe erziclence of if.,"-pW," provicles believable corroboratec-l unblokerr chai, a of ti orr, the time the appellant got annoyecr witrr tl-re creceaseri "r"r.,f, ror .-temanaing rris r.e,tal Payment to the appellant shooti.g the cieceasecl to the a]r.est appe-llant to the recovery of the plstol of tl_re on his p;ir;t;orl to a positive FSL repor.t.

(i)That the motive for the appellant shooting the clecr,aserl r.vas that he dicl not want to pay thern i1.," l.ur" ,,-,or-,"y irhi.h i-,e crrve.i tliem.

(k)Now I shall examine the appellants, rlefence of self rlefence. Br. the very nature of the deferrce a per.his section 342 Cr.pC stateurcni.rr,.l eviclence uncler oatl.r the appellarrt has (a) aclmitterl hrs pr.eserrce at the crime scene and (b) acrmittecr kilring trre cieceasecr arbeit i. self rreiL..ce.

The question is whether we believe his eviclence or the prosecution widence. The prosecution eviclence against tl-re appellant has i:een discussed in c'letail above. As rega..is "tl-re appellarits clefer_rce of selt nor.producecl single clefence witness in rhis regarrl. 3:3::^,l." ]l1 Ali Bux wlro agave Everl hls worker. eviclerrce as PW zl clid rrot suliport his case Tlre DW's he pro.luceJ only suggestetl frorl their stturces tre mrght have been in police custocly on 07.06.2003.His that tlirect complaint was macle more tl.rat o,ru nlor,th alter l-ris arrest anc,l no explanation has been given for this long clelay which on the face of it a,ppears like an after thought. As cliscusierl above if he was so close to tlre cleceased how couki tl-rey have t.nissecl hirn with his fire shot and hit Lal Bux instead. This cloes r-rot appeal to logic, reasorl or.cor.nmon sense. Like wise it does not appeal io toglc, ..frorl o. comnlon sense that while he was gr.appling wiih Jan MJramrnecl a lire shor hit Fakir which caused his death a.ri the. a^other fi.e shot rrit Murrirmmed. Ja.

why was lre unable to crisarn Jan Murrarn,rccr? In sh.rt t ir,r..i trre,le io be no merit in the appellant,s cjefence case of self clefence especially in the face of reliable trust wor.thy ancl conJiclence inspiring eye witness evidence and other supportive/corrobor.ative evidcr-rcE. i clefence of self defence a cle'erl), constr.uctecl after fl".f f.,1, thought wlrich rloes not cleut the pr.osecution case at all ancl raises no cloubt in tl-re prosecution case.

1'4' Thus, based on trre above discussion r have no croubt tl-rat tr-re prosecution has proved its case agai.st the appelrant beyo,cr a reasonable doubt for the offence for wrrich he has been convictecr and hereby maintain his co.viction and sentence and crismiss the appear. Tlre appelrant,s bail is recalled with immediate effecf NBW's are issued for his arrest which shalr be executed through sl-Io PS Taruka Mirpurkhas who shail arrest trre apperant and retu'n him to Central Prison Hyderabacl io serve olrt the r.ernai.cier of his sentence. A Copy of this Judgment shal be sent to ssp Mirpurkhas who srra]l

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Put up his compliance report before the Acrditional Registrar of this court within 4 weeks of the date of this Judgment.

15.The appeal is disposed of in the above terms.

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IUYGE '0.)