MURSHID S/O WASIM AHMED (Appellant) VS THE STATE (Respondent)

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CERTIFICATE OF THE COUR T IN REGARD TO REPORTING

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M*re L'J VJ iL <.t.-lL

HIGH COURT OF SINDH

Composition of Bench: ffi./D. B

Mr. Justice Mohammad Karim Khan Agha, r,\,.L-s,h * Z'-lbf ^l;6re Date(s) of Hearin$ ?L - t I -l\

Decide on: oq - iZ -2019

(a)Judgment approved for reporting Yes ) t,

CERTIFICATE

Certified that the judgment'/order is based upon or enunciates a principle of law i/ decides a question of law which is of first impression / distinguishes / over- rules / reverses / explains a previous decision.

+ Strike out whichever is not applicable

NOTE (i) This slip is only to be used when some action is to be taken (ii) lf the slip is used, the Reader must attach it to the top of the first page of the ludgment.

(iir) Reader must ask the Judge writing the Judgment whether the Judgment is approved for reporting.

(iv)Those directions which are not to be used should be deleted.

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IN THE HIGH COURT OF SINDH AT

KARAC H I

,l' Crl. Jail Appeal No.

tt of 2018.

Murshid son of Wasi Ahmed Muslim, adult, currentlv /k Conlined in Cenlral prison, i(arachi Appellant in person.

Vcrs u s Tl-rc state ...............Rcsponclenl Sessions Case /20t4, i NO.& Sections & :i24 Pt,(l I FIR No 0 1,1 DE lqbirl M;r rkct, L Kilrachi West APPEAL UNDER S ECTION 41O CR.P .c. 1 . Being aggrieved and dissatisfied with impugncd judgement dated 18.01.2O18, passed by Mr. Khalid Hussain Shatrani, Honour.able District Sessions Juclge, Disrrict West Karachi, il_r Scssions Case No. 1453/2Ol4,.Re: State Vs. Murshict son of Wasi Ahmed, being outcome r:I FIR number rlentioned above , Police Slation Iqbal Market, I(arachi West, under section 3O2,324 PPC. Whereby convicting and sentencing the Appellant/ and awarding him death sentence as Tazir and line<l Rs.50O,0OO/ in clefault to undergo S.l. for six mon*r under section 302 (b) ppct.

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ol.f lcn o THII DISl'RI C I' & SESSIONS .II; K,, \lrACI r!\\'ESl No. OSJ/W/01/2018 l(arachi. tho l8'r'Januan. 2018 'Iir l

Thc Additional Registrar, Honoumble IIigh Court ot Sindh, ot Karachi.

la,.-*

Subject:- RIFERFNCE LINDEII SECTION ]74 CR.B C, IN SESSIO \\ CASE__X!. 145li 20_E._llILlf HE slATE VERSlrs iVIURSHID). U,/S i02 & 324 PPC. CRIlvfE No. 5l/2014. P is lOB..\L MARKE'I. KARACHI-$'EST.

Accuscd Murshid son of Wa-si Ahnred has bcen convicted by rhis Cor.rn on l8thJanuary,2018 and sentenced to dcath in rllr abovc Sessions case as uncler:

l. For otTence under section 102(b) P.P.C. to death as Tazir, he be hanged b),neck iill he is dead and under section 544-A C..P.C. fine ofRs.5,O0,000i'-'(Rupeer Iivc Lac Only). il the anrounl is depositcd by the accused, the samo be paid ro dre lcgal hcirs of thc deceascd Mst. Minhas. as cornlensation. In clcfault of paymcnl ol'fine, the ar:cused shall suffer S.l tbr Six Nlonrhs.

2.For offence under scclion 324 P.P.C. to sufl-er rigorous imprisonmerrt lor 05 years, as weil as tbr oll'ence under seuion 137- \ 0F F(i) PPC, rigorous imprisonniunt for 0l ycar ard to piry l)$man of .r1 Rs.50,0t)0/- to iniured lvlst. Shahecn. In clse oldel'aull ol pn,,-nrent. he shall sul'lcr S.l for 0l nronth. fhe cornict r lnil serrlcnces shall run concurrenrly witll bencllt ol'scctiLrn i3l-B I). ( .

'l he origjnal record and proceedings in 0! pans iuhnrirlcd hcrc\.irh duly paged aiongwith inrlex iu pLrrsuancc ofsecritin -174 i).C lirr cLrnlilrration ofdealh sentence. awarded to thu accused/convioi illlL$l r8 (lil, {l-l I) llllSS.\I\ Sll.\ll:\\l) Scssitrns .lurlgc lr,:r rachi-\\/est 'rs"/ A8r. p ol Set ioa ca'c *.t41r',/!,ry u,;* t ptlr ?At\ I ot N-l s{xEf ,(lr. rr)t(t +o rrc).

41a

IN THE HIGH COURT OF SINDH AT KAITACHI

Criminal Jail Appeal No.51 of 2018.

Conf. Case No.01 of 2018

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App€llant: NluIshi(I 5/ o. tvasi Ahmed through N'lr lrshad Ahmed Jatoi, Advocale.

F([ Stnte: Mr. Muhammad lqbal Awan. DePutY P.osecutor Gcneral.

Datc o[ hearing: 26.112019

Date of announcemsit 09.12.2019

D (i I\{ NT

Mohammad Karim Khan Agha, J.- APPeUant Murshid S/o' \fasi Ahmerl has preferred this Criminal fail APPcal against the imPugneil judgment dated 18.01 2017 Passed by thc learned Sessions ludge Karachi West in Sessions Case No.1453 of 2014, F.t.R. No.51/2014 U/s' 302 and 324 PPC rcgistered at P.S. tqbal Matket, Karachi-West whercbv the appellalrt has bcelr convicted and sentencerl to death for offence under section 302(b) PI'C subie(t to conJirmation by this court with finc oI Rs.5,00,000/-, i[ the amount is dePosited by the accusecl, the carne to be paid to the lcgal heirs ol the deceased Mst Minhas as (omPensation' In default oI Paymentof fine, the accused was ordcred to sufler S I lor six months more. The appellant was also sentenced to sufier R l' for 05 years under section 324 Prc as rvell as R.l. for 01 year under S 337-F(i) Prc and to pay r)aman of I1s.50,000/- to iniured M,ct Sluhcen ln case of defaull of payment he shall sufter S.l. for 01 month more' The culviction and s€ntences were ordered to run c(mcurrently with the benefit of section

382-8 Cr P.C being given to the accLrsed.

2.fhe brief facts ari5ing from the FIR lodg,ed by one Eiaz Atuned Khan c,n 21"tMaNh,2014 are thai on 20th March,2014 he rvas availablc at the housc oi tus sister, at about 1200 noon, he heard Ioud shoutinli Hc

came out and noriced a nrsh of PeoPIe at the outer door of his house Hc

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went therc and lbund his rtife Shaheen Bibi antl younger sister Mehnnz lying in injured condition having sustained churri iniuries caused by Nlurshid. the husband of his sistcr Mehnaa besidcs Murshid having sustained self-suflcred injurv. As such he immediately shiftcd the iniured through ambulanccs to hosPital for medical assistance and rePortcd the matter to policc. t he Police a$ived at his house and .rrested thc accusccl Murshid who had been hitling himself in an almirah 8nd rc(overed thc crime weapon viz. churri/knife from him Consequently the case was legistered intcr alia on ihe above facts

3.On receiPt of call, ASI Ashil Ali Panhra'ar ttent io the venue ol occurrence, arested the accused along with c lne weaPon viz knife/chlrli, shilted the iniurcd t{) hosPital and insPected the corPse of deceased Mst. Mehnaz. Hc PrePaEd such nremo and inquest rePort, Iodged the !'IR and sub$equently the investigation was cntrusted to SIP Muhanrmad Riaz. After usual investigatio he submitted the report under scction Cr.P.C. agalrlst the accused.

4.The chalge was framcd against the accused to lvhich the accused pleaded not guilty and claimed trial.

5.The prosecution to Prove thc .harge examiIlc.l 09 PW's who exhibited various tirruments and other itcms in suPPort o[ the prosecution case where after thc Prosecution closed its side. The appellant/accused recorded his statement under section 342 Cr'f'L- whereby hc claimcd talse imPlication in the case and blamcd the murder on his brother Ayaz. [Ie neither cxamined hinlself on Oath nor callcd anv witness in supPort of his defcnse case.

6.Learned s!'ssions ,udge Karachi'west after hearing the Icarned counsel lor the parties and assessment oI evidence available on tecord, vide the impugned iudgment dated 1'8 0'1.2(1L7, convicted and sentenced the appellant as stated above, hence this apPeal has been filed by the appellant against his conviction

7.Thc facts of the case as lvell a$ evidencP Produced beiore the trial court tind an claborate inention in the imPugrcd judgment, thetefore' thc

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eame are not reproduced heie so as to avoid duplication and unnecessarv !epetition.

8.Learned counsel for thc aPPellant has contendcd that the FIII was lodged after an unexplained ,Jelay of '26 hours rvhich lead to the case being concocted against the aPPellani bv the police and thc comPlainant, that the PW eve witnesses arc not reliable; that thcre are contradictions between the evidence oI thc PW's $'hich also makes it unsaJe to rel]'o'1 their evidence; that the medical evidcncc does not accord with the oral cvidence and for all of the aboYe &asons the aPPcllant be acquitted of thc charge based on him being extended the bcnetit oI the doubt' In suPPort of his contentions he has Placed rcliance on Saeed Ahrned Vs. The State (2015 SCMR 710) and Amin Ali and another V3. The State (2011 SCMR 12iJ

9.On tl're other hand learned DIIC ha3 contended that the del.f ir lod8ing thc FIR has been exPlainedi that the e!.' witncsses $'er(' trustworthy, reliable and conJidencc inspiring and that they are sllPPorted by the medical eviderce and re(overy of the murder weaPon from the accused and as such the Prosecution has Provcd its casc bcyond a reasonable doubt and tllat the imPugned iudgment should not be interfered with and the death sentence should be maintained ln suPPort of his contentions he placed reliance on Khatid Mahmood V State (2017 s(lMR 201) and Ali Nawaz alirs B;rba v State (20'19 P.Ct LJ 1775)

10.Ihe complainant was seryed notice which was duly sen-ed arrd receivcd by him however he did not Put in an aPPearance and as such his intercsts have been protected bY iearned DPG

11.We have heard the arguments of the lcarned counsel for thc Pafiies, gone through the entire evidence which has bcen read out by thc appellant and the impugned judgment r'"'ith their able assistance and have considercd the relcvant law including that cited at the bar.

12- ln our vie6, after our reassessmcnt of the evidence based on the evidence of ihe PW's including the PW Ml.O, post mortem rcPort and other evidence on record we are satisfied that the Prosecution has prt*ed beyond a reasonable doubt that on 2G03-2014 at about 12 noon at I l(rust' No.KMC-/8U. street J5, n,'ar A.lam Kirvana stl,re Ms Mehnaz (tht-

decease(l) was murdered b1'churri and lust shah"-n Bibi was injurcd Lrv churri

13.Ihe oily issue therefore, in our vicw, l.ft beiore us is h'hether the appellant h'as the PeNon who murdered the deceasetl by cl,urri ancl iniurcd Mst Shaheen Bibi bv churri which lead to their resPective (leath and injurv.

1.1 ln our view after out reassessment of thc evidence we find that the prosecution has Proved its case a8ainst the aPPellant beyond a reasonable doubt for the following reasonsj

(a)'Ihat althou8h the FIR has lodged after a dclaY on 26 hours based on the Particular facts and circr[rrstances of this casc r4'e do rrot find such Jelay in lodgrng the FIR to be fatal to the Pros€(uti{)n ease This is because such detay in lodging the FII{ has betT adequatety explained in the evidence by the need of thc .,rurplui",int t,, take his iniured ivife to hosPital, attend the fuieral of the deceased the next dav who lvas also a close relative being his sister and his o\.Erall shock after the inciclent. Furrhermore, since thc accused was alresicd on the sPot by the Police thcre was rro question i)i any false case being cooked uP bv the Police in collusion with the conlplainant.

(b)In this (ase there are two eye wihresscs to the murdei and stabbinli of lvls Shahecn IIr our vle$'the casc will mainly turn on whether \ae iir)d the evidencc ot the eye n'itnesses to be reliable, trtstworthy and co.Jidcnce insPiring. Eyc ra'ilncss PW 2 is Shahecn *ho was i.,, stabbcd by the accused- She gives direct evidence of thc accused comin,j into her house ri'hcre her sister (the de( eased) and her daughter PW 4 Urooi F,jaz were having breaktast and she witnessecl the acauscd causing churri blows to the deceased r^'hictr caused her death about five nlinutes Iater at the housc. She tried to inlcrvene in order to savc he! sister and also reccive(l churri blows Irom the deceased whit'h caused her injurf in front of her daughter PW,1 Urooj Eiaz. Due to their cries the accused hide himsell in thc cupboard rvlrcre hc rvas afiested by the Potice with the churri (murder weapon), El!' u'itncsses fW 4 Urooi Ejaz also witncssed the murder oi the clereased by the accused with a churri at her house and saw the accuseri injure her motller lvith a chu'ri and in her evidence corrob(,rates eye ra'itness IrlV 2 shahecn in all nratcrial rcspe.ts. Both ol fhem are natural wilr\esscs as ofPosed to 'hrn(e r^ itnesues as lhc rncidcnt haPFPnerl in therr hou<c. Neither of thtm hacl any enmity or ill will tou'ards th€ accuse(l' Neither o[ them despite lengthrcross cxamination \4'as danlaged at all and we have no reason io tlisbelieve their evidence '!r'hich we corrsider 10 be relable, trustworthy and confidence insPidng and wc can convicl the accused based on this evitience provided it is corroborated by some suPPortive evidence. In tlus resPect relance is placed on Muhrnlmad Ehsrn v. The Stllc (2006 SCNIR I857)

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(c)PW I Ejaz who is lhe complainant who nished to lhc house when h( heard lhe cries also conobomtcs thc evidence ofthe eye witnesses vis a ris the deoerse{ bcing dead in lhe house and Mst Shaheen bt'ing irjur!'d by chu,ri in lhc house and tlte acaused b(ing arrested on the spot by tlre police ak:ng with the churri. I'W 3 Sarfraz who also arrived at the iouse tully coroborated the evidencc of l'M Ejaz'PW 4 Ayaz Ahmed Khan alsrr camc to the house h'hen hc heard the (omnroti()n and dlso coroborates about the arrcst oI tllc accused on the sP()t b] thc pr)lice in thc house. PW 6 Ashiq Ali who was ASI at 15 qbal Market tho also reached the house aJter being directed to lio their via inJormation re.eived from"15" iust aftcr thc in(ident in his evidence states that he saw PW 2 l,4st Shatreen in iojurdd condition !J)d the decerNed in critical condition and thal hc afieslerl fle cccused al lhe spot alona with Churri and also corroborates PW I Ejaz, PlV 3 Sarfraz, PW 4 Ayaz Ah,ne(l Khan and the eye witness PW's in so far as their eviclcnce letates to the injuries to the dcceased and Mst Shahetn and the arrcst of the accused and the ret'overy of thc chufii on thc spot' as this lvas a Gl) That there is no questiur oi any rrusidentification day timc incident, the accused raas known by the PIV eye witnesscs who were his close relativcs and he was arrested on thc sPot

(e)At the time of the arrest the murder weaPon ((hurri) was rccovcred lorm the accused.

(0 The medical evidence suPPorts the eye witne$.s oral eYidencc in tiut the clcreasecl diecl as a rcsult o[ stab wound and the injured Mst Shaheen also re.eived incised wounds.

(g)lhat the PW's are all corroborative o[ each other and that therc aie no major contradiclions in their evidcnce which wouLl adverselv impact (,n the proseculion case. Admittedly mosl of the PW's are poli.c r'!'itnesses or relate(l to the 'lereased and thc accused. flowever it is well settled by now that a poli.c witness or a relatcd witnc'ss is as Sood a5 anv other witness Provi(led that no ill rvill, ennritv, malallde or Personal interest is Proven agnrnst hinl vis a vis the appellant, ln this resPect reliancP is Placed on Riaz Ahmad V State (2004 SCMR 988), zdar v State (2U18 {MR 1251) and Abbas v Slate (2o0tl SCMR 108).ln this case therc was none and lhe cye witncsses and the Police PIV'S had no reason to falscly imPlicat€' the appellant in lhis case. No such enmify, ill x'ill, malalide or personal inlerest was even suggested to the Police witnesses

(h)[ven it drere arc any contradiclions in the evidence ol the PW's wc consiiler these con(adi;tions as minor in nature and nol material and ccnair y not of such material ily so as to aflect lhc prosecution case al]d lhe convicliofi of th€ appellanl. In this rcsPcct rcliance i3 placed on 7'!kir Kh{n v Starr (1995 SCMR 1793)

(i)That the P(xecution evidence Provides a believnblc 'hain of evidcnce froir thc time of the ac.used entering the house, to hi'n murderinll the deceased and injr.rring Mst Shaheen and beinli auested on the sPot ia'ith the murder *'eaPon (churri) lvhich is corroboratcd by the cye witaesses and other PW's which is suDDorled by the medlcalevidence.

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(j)Although it is for the Prosecution to Prove its (asc blyond a reasonablJdoubt and it is not for the accused to prove his innocencc we do not find the defense of the aPPellant t'elievable and regard it as an after thought in an attempt to save his skin Namely' ac(orJin)l to his aefcnse he blamed the murrler on PW 5 Alaz h,rwever-when he cross examined him he Put no su' h suS,lcsllon to him.

(k)We also consider that any thurri wound rvhich thc a(cr'rsed ieceived r.r'as selJ inllicted whilst he lvas attacking thc deceased and Mst Shahecn and suPPort for tlus can b€ drawn frorn PW 9 IJt Srichand who eramln.d the accuscd .nd nok}(l that he had becn brought 10 the hosPital \aith a history of sclf inJlicted u/ound as Per p(,lice Ietter.

15.The next issue is of scntenaing. ln our view the crinrc lacks the essential brutality to iustify the death sentence as it appears that thc deceased and the iniurcd did not receive many churri blo$'s and IIV 4 Urooi Ejaz who was also in the house at the ti,ne of the attack was sPared rvhilst hea mother was o y injured because she wcnt to intrervenc in an attcmpt to save ttre lite of the deceased. Ir addition it has becn accePt€d norv by the suPerior court courts that iJ the Prosecution has neither alleged al,ly motivc against the aPPellant nor has it Proven any motive against the aPPcllant for his Inurdering the dB:cascd rve arc iustified in exercising our sentencing discretion in imPosing ihe alternate senience ol iife imprisomenl as oPPosed to the death scntcnce Reliance in this resp€ct is plaed on the case of Amjad Shah V State (PLD tr 2017 I''152) where it was held as unde! at P 156 Para 9;

Nt loilhstandory tlnt the lrtlicipalal al lhe alPellinl n lhe Lt)ttntission ol off. 4 is dul! cslnblishe'l, ]tis i tt lwn, ! tln ,,ttnJ t t.'ttt'r h' '-)n ttl lht et\c rcmat s i,, ntisttnt n lFttt llotu k frorr .I ctuh Iikc cases ulgte the notitte is ot Prooe'l or is t'ot "trorud.t alleged by th" Prosecution, tlll". Coutt fot th! sake of suf; ddmfuisttuttion of i1stice, ado?ts tautio't tt d circun$laxf for leducitry the qua,ttum o/ sdt?nce aoarilcl to a co uict Rcfercfit: i\ findt lo Zeeshan Afz'tt 1r. The Stite QA|S SCMR 1602) " (bold adLled)

16.Thus, rve hereby LrPhold all the (onvictions in the irnpugned judgment against the aPPellant antl all the other sentertces in the impugned iudgment in tcliis of imPrisonment fi es. penalties etc exccPt that the sentcncc unclcr 5302 (b) Pl'C for nlurder is leduced lrom the

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dcath scntence to that o{ lile imprisonmcnt with the conJirmation reference being answered in the negative. The sentences for implisonment shall run concurrently and the appellant shall have the benefit of 5.382 B Ci.PC. Apart from the above moditication in sentence the aPPeals are dismissed.

17.The appeals and confirmation relerencc stand disPosed of in the above terms.

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