SHAHID ISRAN S/O DEEDAR ALI (Appellant) VS THE STATE (Respondent)

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CERTITICATF OF THt COURT IN REG ARD TO REPORTING L,t. h. 3\z

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HIG H COURT OF SINDH

Composition of Be nch s./D. B.

NIr. Justice Mohammad Karim Khan Agha, n4". J *r,{*.- Z*ly1* Ali S^*t' Date(s) of Hearing:

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Decide on: ?-l - tl -20L9

(a)Judgment approved for reporting: Yes

CERTIFICATE

principle of Certified that the judgment'/order is based upon or enunciates a law r/ decides a question of law which is of first impression / distinguishes / over- rules / reverses / exPlains a previous decision' r Strike out whichever is not applicable'

N E (i This slip is only to be used when some action is to be taken' first

ii)lf the siip is used, the Reader must attach it to the top of the page of the judgment.

(iii)*.Ia"r rui, ask the Judge writing the ludgment whether the Judgment is aoproved for reportlnE be deleted (iv)' Tho-se directions which are not to be used should t

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SHAHID ISRAN S/O DEEDAR ALI < L,, " I

R/O Ldrkono , . ,!|{ia.{r\t u**.r Prcsently eonfined in Centrol P son, Korqchi --.--------------------------- Apt'e(n"r\ 3tqo

VURSUS

heStdte thoughProsecutorGenerql-------------,---------- Respondent Session Cqse 290/2072 FIR No.48/2O12 u/s 3o2ft4 of PPc_

P.S FRER KARACHI.

CRMINAL APPEAL UNDER SECTION 410 OF CRIMINAL

PROCEDURE CODE

:e"J a aggrieved and dis-satisfied with the impugned Judgment dated 30- ': :.i:sed by Learned Additional Session Judge 5i South Karachi, in the :=: N0290/2012 (The State V/S Shahid lsran & Others ), wherc by >=; :' .rudge convicted and Scntenced the Appellant /accused wilh death -,- '. pay 1000000 (Rupees Ten Lac) as cr.rmpensation to the legal rlB;\:.- ,rd rn the default: appe lanl has to suffer stx mortths simple --E --jarned Addrtonal Sess on Judge acquilted co-accused namely It=:<- /-':r rn lle same (:ase

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INIEE COURI OLV AODLols,TBrL ' d: GE SOUTH KARACHI

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The Assislant Rcqi5trar. (Crinrinal) LLsn ble Hjgh C,4rrt qf Sjodh-KaEgbi.

5UB:- REFERINCE FOR CONFIRMATION OF DEATH SENTNCr AWARDED TO ACCUSED SHAHID ISRAN S/O DEEDAR Ai] i rN scssroNs CASE No;290/2012. FIR No. 4A/2OL2 u/s 30213{PPc !5: EEEBE

it is re5ir.(riL lli' sL,lllllrtied tl]al tlrrolr(lll iLl(lrlrrrerrl l)3!'i'.r sub1ect Sr',5Lon! [a''t'rn ]0 0!i,-:-010 JLc r',ecl Sl,rrritl lrrl l' Ali has been ar.,,rtl.,ii ,leetlr l)cnalty as Tazir urrdct 5e.L r)rl .j1..l. ill l:i

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IN THE HIGII COURT OF SINDH AT KARACHI

Criminal Appeal No.3,l3 of 2016 ConJ. Case No,08 of 2016

Prcsent

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,,\pprI arlt Shahid lsran S/o. Deedar Ali through N,tr Jehangir Rahuio, Advo(ate

Cornplainanl Aziz Ilussain tfuough Mr. Muharrmad Akbar KIan. Advocale.

For St.ltc l\,k. Muhammad lqbal Awan, DcPut, l'rosecutor General.

Date ot hearirg: 07.11 ?019

fratc of announcemcnt :1.1l.2r)19

IU DCMENT

Mohammad Karim Khan Agha, J.' Appellant Shahid Isran s/o Decdar Ali has prefcred this Criminal APPeal against the irrpugne(l judgment datcd 30.09.2016 passeLl b}' the learned A(lditional sessions Jutlgc'V, Karachi (South) in Scssions Case No 290 of 2012, [.l R No'48 ol

2012 a/s 302/34 Prc ftgistered at P.S. lrrere, Karachi i{'hercbv the appellant has bccn corvicted and sentencerl to death as Tazir for causilrg Qatl-e-Amd oi dcceased Mussarat Hussaln subiect to confirlnation ['v this .ourt. I'hc' aPPcllani was also penalized t() Pav 'omPcnsation ('l an amounl ol Rs.10,(10000/- (Rupees tcn lac onl)') to be Paid to thc legal heir s of the de.cased as provided undcr section 54'1-A Cr.P.C. In case o{ failure to pay such compensation he v\'as ordercd to underSo S.l tol six nlonths'

2.I he briel facts o{ the (asc are that ort 20.04 2012 at about ]310 hours FIR wirs lod8ed at P()llcc Station Frer. $'hercbY statcment of comPlainarrt Aziz Hussain l','as incorPoratcd u'ho stated that he along with his brother Mussarat Hussain tvere residing al FIat \o.A"902, Bond Vista APartnlent BIock-ll. Clitton, Karachi. On 19.04.2012 he aiong \^'ith his tirother deacascd lvlussarat Hussain and driver Bashir on their insistence took thek guests ac.used lramelv Sl'uhir'l and Shaman in their Car No ARK-367, rnake (-'orolla and prurecded towards lrus StoP Taj ComPIcx Io! droPPing

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off Shahicl and Shaman. It is hrrth.I stated by thc comPlainant that it was 3:00 l'M on 19.04.2012 and en routt'whcn they rc-achccl at Khayaban+ lqbal, oPPosiE tm building, ac(used Shahid suddenly took out his Pistol and maele file upon his brothcr namely Mussarat Hussain who \'!'as o.cupving the seat on the left si(le ol drivers seal, which brrllet hit on the riSht sidc of the neck of Mussarat Hussain, r'herealicr accused Shahitl and Shaur.rn cscaped as the (at stoPPed. It is further statod that thereafter iniurcd Mussarat Hussain was t.rkell to Ziauddii I lospital for lrcahnent and was admitte in Surgical TheatPr ICU \'v'here s.ri'l i'1,ured Mussarat Hussail,) died on 20.0'1.2012 at 6i50 a.m.

3.Alter rcgistration of thc above FIR. investiEatiol was carriecl out and thc lnvcstiSation Officer thcn submitted rePort under section 173 Cr.P.C. beiore learnecl Judicial Magistrate against accuscd Persons Shahid Istan anll Sluman which \t?s acccPted and the case !'!as:icnt uP for trial to Scssions Judge, Karachi.

4.'lhc charge was [ramed against the aPPellants on 07022012 to which thcy both pleaded not guilty a.d 'laimed for trial'

5.'fhe Proseculion kr Prove the charge exanrirrcd 09 PW's who exhibited various rlocuments and othcl items in suPPort ot the 'fhe 5342 prosecution case wherc afte! the Prosctution closed its side Cr.rc stalcnEnts of accused Shahid lsran and Shanran rvere recorded in which thcy denied the allcgations levelcd against thcm by the Prosecution on witncsses and claimed that they ha(l bPen falsely irnPlicated in this 'asc account of a maEimonial dispute. Neither oJ thc accured examined themselves on oath nor producetl any defence wihess' Ho$'ever' during

his stalcmcnt the aPPEllant Shahid isran produccrJ a lirense for his recovered Pistol h'hich has been exhibitcd

6.l-earnc.l Adtlititrnal Scssions Judgc-V, Kara'hi South dltcr hearinS available the lealned (ounsel lor the Parties and assessment o[ evidence and on rccord, vide the imPugned judgment datcd 30'09'2('16' convictecl sentcnced thc appellant Shahid lsran as stated above' whcrcas the other

accused Sl'uman was acquitted t')'extending him the bcnefit of doubt'

hence this appeal has been tiled bv Shahid Isran aS,ainst his (ulviction'

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7.l-he laats r)l the .ase as t\'ell as ctl(lcnc'r ProLlu'cLi Lx'tor! thc tri'l1 cotrrt tin(l an clabornle ntcrrliorr rn the rlrrpullnud juLlgrnetrt' therelore' the s,r t are n,,t r'eprodLtcccl ht're so as trr rrt'icl cluPlicatii'n 'rrttl untlecessarv r(Petiti('n

8.I-earnccl counscl for flle appcllant hits .ontenLled lhat lhe sole eYe h'itness Ls a fakc and Put uP $itncss; thlt therc was a 22 hour rlelay in lodtiing the FIR which has lead to thc case being cooked up against fhc appellant; that there was also a 4 to 6 hour delay tn conducting the P('st mortenr which agnin suPPorts hi$ coitention that this was a cookecl up .ase; that the reaovery made lrom tlle ra! is of rro evirlentiary value because it was seized after lhe.ar had been rlriven art'und for about 23 hoursi that no motive has been assigned to the aPPcllantj thal star eyc wihress Aziz who lvas the b(,ther of tlre deccased failed to Elve evidun(e so an advcrsr. inferenee rnay be drawn against hirn untler A 129 (g) Quarroon -e- Shahadat Clder 1984 that he tvould not hdvc suPP('rt'id the

prosecution casc; that adnriHedly there was enmity bctween the deccds'-(l and thl. comPlaillant ovcr another nlurder casc pcndrlrg in Larkana and as such for any ()( the.bove reasons the aPpcllant should be acquitted trom the charge by extending to him the benelit o( the (ioubt' ln suPport oi his contentions he has placetl reliancc olr Muhammad Sharifan Bibi V'

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Muhanrmad Yasin (2012 SCMR u2) Muhammad Asif V he State (2017 SCMR 486), l'arman Ahmed V Muhammad Inayat (2007 SCMI{ lti25)' Zafar V The State (2018 SCMR 326), Khalid @Khalidi V The State (?i112

SCMR 327), Muhammad taved V The Stdte (201b SJMlt 2021) alttl Akhtar Ali V Thc State (200t1 AC 432).

9.Learned DPC [or the State has contcnded that there are no iegal ir irmities in the imPuSlred jurJgnrent which should bc uPheld by this court. In particular he has contcrded that thcre was no'delay in lt'rdging thc eve the FIR which has narncd the aPPellant with a sPecific rolel that witncss is reliable, trust!9l)rtlrv and confidencc insPiriflg and that we may convict on his evtlence alone; that thc eye witness cvidence is corloboraterl bt_ the medical €vi.lencc, the rccovery cr( the 'mPty lrom the car, the recovery oI the lrom thc aPPellant and a Positive FSI rt'port Pistol anrl as such since the Prosecution has Proved its case against the afPellatrt bcyond a reasonable doubt the appeal shorrld bc dismissetl and thc sclltcrcc mainldlnr'(l lnsrlPPorl ol hl\ (ontenl rol $ he has 1'lar ed reh'rn' r'

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on Muhammad Ehsan v The State (2005 SCMR 1857) and Nizamuddin V The Statc (2010 {l{R 1752).

10.kamed counsel for thc.omPlainant has adoPted the contenti(lns of thc DPG and has emphasized that the e)'e ivitncss evidence and the medical evidence iull)' Prove the guilt of thc aPPellant ln suPPort oJ his contentions he has placed relianae on the same cases as the DI)C'

11.We have heard the arguments of the learned counsel for the partics' gone through the entire cvidence which has been rea(l out by the appellant and the impugred iudgment with their able assistance and have considered the relcvant la\4'including that cited at the bar' '12. ln our view after our reassessment clf the evidence based on thc evidence of ihe Pw eye r'itness' Pw N,It-o's' p('st lllortem rePolt and other medical evidencc, PW police witncsses and lO alonS ra ith the Positive FSL and the car in \"'hich the dcccaseJ l^'as shot with a bullct hole we are satisfied that the prosccutt)n has proved beyond a reasonable doubt that oi 19.O1.2012 at about 3Pm at main Khayaban-e-lqbal Road, opPositc I5O building Musarrat Flussain (the deceased) whist betr8 drivefl in n car was shot by Iirearm in the neck and was taken to hosPital lvhcre he later die'l on ?{}.lLl.2l,l9 on aL(('unt ol hls rirearnl iniLlrl.

13.The only issuc therefore, in our view? left before us is whether it was the apPcllant or some other third Party who shot the dEre'ased by firearm which lead to his death.

'14. In our view after oirr Eas$essment of the evidence we find thal tht' prosecution has Proved its case a€iainst the aPPcllanl beyond a reasonable judgme^t for doubt and hcreby uphold the .onviclions in the imput'ned the following reasonsi

ia) ln r)dr ric!1 tlrere hds bcen no lenglhv unPrPIaineJ dcl'r\ llr ioJpuLo tlte flR. fhrs is bccJusP strright aftPr thc Irrrdcrrt thL'fl

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aairr-Ahme.l .lrir cr .ri rhe tlc' ca'ctl \^ h(' lvds ;rt thc rnr with lrirn at thc lime he was shot bv the aPPcllant register€d a comPlaint witll the police at E)( 32 45 minutes after lhe incident i hi'h in a nut shcll sht;s the salne facts as were latel incorP('rated in the FIR althouljh thu comDlain.rnt was l.iter Jcnied bl hrm. lhus the incidcnt itlelf was reor'rrte,i to the Foll, e \,[rv promPll) dnd thcre h'ns no timc lLJr t.rrrr;trnttrt'<-rn rn thp IIR Evpn olh(rwrse the (lclav ol l,rdgin11 rh' lll{ b," 22 hours hrs been c\plainoJ.rs whclr thc Jec(a\eJ lva' sht't rrr thri c.rr hc di(l rLrl .lic imm,'(lr,ttely itr<trrdd lrc rv"s scriuusll

\o3 injurerl ancl as su(h the first Prioritv of the driver and his brotLer Aziz who was in the car with hinl was k) take his brotlrer to hospital rvhich they did for keatmcnt. The deccased ivas scrrously ;niurcd wltcn hc reach('d thc h.'sPital nnd thus hc w'rs (IPerdted orr a;J thpn LakenloanICU r+ar,i rvhorche.li((l rl\ nr'\t Jav The flR rvas lodged immediatel, aiter the expiry of the deceascd b'''.llis Lrrother .izrz h'ho w'as also in the car.1t the timc whclr lhe 'llPclla)rt shot the dereased and 8iv.s the sPeciiic rol(' to shahi(l of shooting his brother in thc neck;hilst his brother was sittinB in the hont of the (ar an(l hc vvas sittirrg in the back seat lvith Shahitt'

(b)The key wiLncss in this case in ollr view is cye witness Plv l bashir Ahmed who u'as the drivcr of thc ci-'ccased' He hatl been driver of the dLreased foi about tl years and thus r'as a natural u'itness and was not a chance witfless- ,_lc ra'as dlso an indePclrdcnt wilness as he had no famil) rciationship with the dcccased and he had no ieason to falself implicate the aPpellant' Ile knew the appellant rr'ho h,as reiatecl to the deceased antl u'ho had earlier treen nreeting with him at his house and was cirivinl', the tleceased, his brother (Aziz) anLl the aPPellant a)1d hrs co-accused to the bus stnp located at Taj comPlex. During this iourr,e)'he ga!'e evideNc thni thc appcllant \.ho laas sitting in th€ back ol ihe (ar shot'Ih' ihc rloceasecl wh,, was sittilrg in the lront of the car in the ncck ar,Dcllant nrd his,.u_aicusc.l e.\JPCJ whelr lhe "rr stoppc'l an'J lr< thin .lrt,r', the Jcrcaseri 1., hoipital lor he.rttn' nr al'tn{ wrlh Azrl' I he de{eascd aiter treatment at the hosPital and being placed in thc ICU died the ncxt day at about 060oam on 20'04'2012 It was r\zi7 IrtR on thc expiry o[ the {the deceascd's brother) who registerecl the jrreased. tle was Prescnt wfien tl're emFty lvas tecovercd from th" car and lvas r.tothi. f,,r its re.over). llc was cross examinell 'rt length and was not shake^ in his evidence we consider him to bc a reiiablc, trust lvorthy and confidence insPiring witness whose eT'iclcnce we belicv;. ln this rcsP€ct reli'rnce is placetl on Muhammad Ehsan's .ase (suPra)

(c)thc evide,lce oi evc h'rtness PW 3 Bashir Ahmed is 'rlso i.,rrotoratc.l by tlte meLlical evidcnce' 'lhc Dr'ziauddin Hospital (where the .'l, cea.c.t was initidll) a.lmrrlc'l) 5ur)lI. al recr)rJ dt P i15 of the pdP('r bool show. that thc Jeteased wd' ddlnitt'd tr' rh' hospitai tm 19.04 2012 on ac€ount of a firea'm iniury to the ne(k witir blackening strroundinB the wound !/hi'h would indicate that not onlv rvas the deceased shot in the neck as allcged by P\4' 3 Baslir Ahmed but hc was also shot frorn close ranSe which is consistent lvith his ef idence from bci'1g shot fronr behin(j at 'l')sc ranse whilst srttin[ in tlrc rar. The iater lvlL()'s cvr'lcncr'(PW: O. ,"ft,tut Ifozrat ) dnll rep(,rt did tiul L'ontarn the wor'l ''1ta. kcnrrrg'' as thc w'rrrnJ hacl alrea'ly hc'n stih hcd up aller rhr ,le,cas,.l eipired.rn.l lrc v\',rs,llrltcd lroIn lJr'Ziandtirn HosPrtal to JPMC r,rher; his Posl nlortem wa5 carried out

fdl thal th. empt\ *1,n'h 1v.1' rs,ar'vqru.l from lhc 'ar Inak heJ wlth it p,'t"l * t,n t' rvai tLtovcr erl trl'm the aPl'L Ilant '11 the tirne ul lu\ " whr( h pistol bclongeJ to hrnr' arrest

(e)Il1at nll the P!\"s are (onsisle nt in the their evidencc and evet il rhrr. a.e \onrc eontra,littitns in their evidence we oonsider thesc

4c\ (ontradiclions as rninor in naturc aod nol malcrial and cenainly nol of such malerialily so as 1(l e,lbct the prosecuti()n case and thc con!illion ol' the appellant. In this respect relianc€ is placed on zakir Khan v stlte (1995 SCMI{ 1791). Their evidencc providcs a conoborated chairr ol e\,ents lionr the murder of thc deceascd in lhe car to lhe a.resl o[ lhe app(llant.

(f)Diary sheet datcd 06-012013 which is a part c'f the rrial courfs record also records the aPPellant .rdmitting tus invol\'emcnt in the crime.

(t,'Ihat lherc was some cnmity between the Parties duc to thc court case in Larkana and tis such the appellant had some enmity with the appellants and vice versa.

(h)The defcnse has grcatly emPhasized the failure of Aziz the other star eyc $'itness to liive evidcn(e in this case and that an inlcrenrc should be made against him that he would not havc suppQrted lhe prosecution (asc. lYe nL,te however tlut we cdn still convict if he fiml onlv one eye witness to be a reljable, rrust lvorthy and conJidence inspiring witness whose evidence we believe as tve have foumi in the case of PW 3 Bashir Ahmed if it is corroborated by nedical evidence as it has been as allrrdetl to earlier in this judgment. Even otherhise the Prosecution has exPlai cd Aziz's failure to give evidcnce as he had bcen declarecl a P.O in thc criminal case pto.eedilrg in larkana. Although we do not fin(l favour rvith this explanation in oLrr view it is not enough to detract from the cvidence ol PtV 3 ltashir Aluned and tlle cL'rrobolatory medicat cvidpn.e and (ither supPortive cvidencc even if we make such an advetse injerence.

15.fhus, for the reasons mentioncd above we Iind that the Prosecutiul has proved its case aSainst the aPFellant for the offense lor vr'hich he has been charged and thus uPhold his conviction in the imPugned iudgment'

76.The next issue i3 of sentencinS lve are of ihe view that the prosecLrtion has neither allcged any motive agajnst thc aPPellant nor has it ploven any motive against the aPpellant for his murderinli thc decease'l Cenerall] it has been accePted by the suPerior courts that t' the proseclrtion fails kT prove the motive for the murclt:r the 'ourts are justified ir imPosing the alternate senten(c of li[e imPrist)nment as opposed to the dcath Penalty. tleliance in this resPect is Pla'ed on lhe case of Amjad Shah v State (PLD SC 2017 P.152) where it was held as undcr at Ir 15Li P.r r.1 !,;

" Notlt ill:f.lrn.li gthallhepfl itiptlLion ol thc nPPellattt tn tls La/,ntissit)t1 ofoffence $ luly .stablished, jlis i le litltl, gnttv ti tl ot rcltt'e h' tonu l lhr +tn* ryrtains ihrol;llerl in nryslerv ani ts tlltftfore, ury)rol'P . lrt such

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lik? cas?s arhctc thc fitotiae is ttot ptoted or is not dleged bq the ptoseruli') , th. Court |nt thc saLc oI safi rdninistration ol juili{e nlolts .auliort d tl tteats tlrc lacl, o/ ttlotiL'. as a Dtitigatiry circu $la cc fot relucitlS thP quarttutt of sulettc auatlei to n cottvic!. Rtlitc ca $ ntufu ta Zeeshan Afz@t 1). Thc State Q013 scrrR 1602)." (bol.l ad(l('d) 17- ln our vierv taking into account the fact that no motive has been proved against the apPellant and that thcre may be s<)rlre doLrbts in the proseaution case alb€it insufficient to l.ad to an acquittal su'h as the disputed Ex 32 as discuss€d abo!'e whilst exercising iudicial cautiolr by takinS guidance from tlte SuPreme Court authorit.v of Ghulam Mohyuddin V Strte (2014 SCMII 1034) where it was stressi'd as under whilst dealing with serttcncing in a murder case in the fol]owing temrsi 'A singte nllti8dting .irctrmst.n(e, avaiiaLrle tn a parti.ular c.1se, would be sufficicnt to Put orl Suard thc Judge not to ar'ird the Pen.rltY of dcath but litt imptisonmerrt. No clear gutlcline, in this rcgard call be lrrJ (loLvn b(i,ruse l.cts dn(l . rrcu rtsi.rr'ces ,'[ .'r"' .a*' dilfcr [rrrm thc crther, ho$'ever, it becomes the cstt'ntial obli8ation of thc Judge in alvarding one or the othcr senlcnle to apply lus judicial mincl \t'ith a dt'eP thoughl to the fd.ts o[ a tarti(ular .as€- If the Judge/Judgcs entertain some doulrt, albeit rlot suffi.ient for acquiital, iudiriil caurion must Ite exer.ised to award lest the alternative scntence of life imprisonment, .ln innocent person mitht nol be sent to the gallows. So it is better to recpe(t the human life, as far as possible, rather to put il at end, by assessing thc evidencc, fa.ts and circum6tances of a paticular murder <ase, undet which it was (ommittcd. (bolLl aritierl)

18.We hercby uphold thc conviction in thc imPugned iudgment a8airist the apPcllant but redlrce lris sentence to that of imPrisonment for life with the conlinnation referencc being answer€d in the negahve' APart From the above variation in sentence all othe. fines, Penalties etc imPosed upon thc aPPellant in the imPugned iudgment shall remain in tart 'l hc appellant shall have the benefit of 5.382 (B) Cr'rc'

19.The apPeal stands disPose(l of in the aL'ove terms

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