NAZAKAT ALI S/O MAQSOOD AKHTAR RAJPUTE (Appellant) VS THE SATE (Respondent)

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, ST{DH I]ICII COURT

C c'nt Dcnch \l -l**'l X'^';' Kc** t|*J M'/ ,''!-L" ---w!24- U.- / ri, ..J ,'-, / *,.,'.' fi'* '

Dates 0[ hearj!8: 6?-ro r( Dcc(lcll ,Jn l:l 01- I s - l(7

Ycs Y] ) (,r) Judgnrent aPProvcd f<rr repor(iDg. E

CP,ITTIFICATIi

princi.p-lc Ccrtihecl tha! the judSnrent r/Or'lcr is bascd upon or cnurciatc'$-e ';,,iiiiirr or ta'v ortcri-ii oi fiist irrrprcssion / distiogrtishcs / t";''';l;::.il;'a "t ,,*ilrrr.,i-,,'r"ir..t'r'xplains a pr':virus decision' +Strikc (,ul wiricltevct is not appliclblc

NOTII.:-(i) Thil slip is only to bo Iscd whetr 6ornc actjon is to bc tak'n' {iil If tltc sliD is uscd, thc llcadcr must otlacll it to thc top of thc 0rst pa8e ot ihc judSmcnt,

(iiil Rcrder lllnst 8sk the Judgc writirtg thc JudSrncnt wbcthcr thc Judgnlent ls approYcd :or reportlng (ivl 'l'hosc dircctions wlLich arc not to bc uscd should bc dolct'd' SCP., Kar.-.-L (iii) 1459-5,ffD- 6 93--T s S

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I\-.IIII IIIGH CoURT OF SINDII A'I KARACIII Special AfA Appeat No. ()f2016 \zrla t Ali !t of \l3q5uod ,,\khtxr Ra.ipute, /7,4 r{.dim. ad u ll, resirlent of H,rrle \0. ,1,.12, Street No.2, \lrioom Sh h Ctolony, Chaoccr Coth, hr rach i.

Presentlv Corlinc(l in Judicial Custody, at ( entral Prisofl. Kargchi..,.

..........A ppclliln I

The State......,, Rc!pondcn I

FIR \o. l3{ of20l3 t7s.102 PPC tU\l' 7(i) (,),\'r'A, lrr)7 PS. l'rccd}., K.rrnchi.

APPEAL tjNt)EIt SI:t-CJtgN 2s Crf. AYr.t-TERrrORtsl\t ACr.. lee7.

R/W SICTTON ;lt0 Cr.t).C

Llcing aggrievcd and dis_satisfied rvith the Judgntent nn(t or(ter.

date(l 18.{)6,20t6 passed Lr ttrc lc:rrrfell Jrrtlge. Anii_1 crlurisrri ( ouir_lll.

Karachi in Spccirt C se No.2? (ltI.) ot.20l3 l.l:he Sratc y/s Naz knl Ali)..

convicting the nppellant aboYe nanrecl Llo(lcr Scc(ion 7 (i) (

) ATA 1997,

rend rrith sectioo .102 (lr) trl,C ald seulencing .l hinr lo detth, lrc rppellaut nbole nallrcd begs (o prefcr this xl)pritl anrongst othcrs. oI thc follotring llcts and grounds d pr:r) lxt this H()n,blo lligh Cr)url rrr] be plcascd to admit this aptrcrl flnd after calling for lhc rccord utld procecdings of thc above saitr Specirrl c:rse fr.onr re reirrnrtr 'r'r.iur corrr.t .od hearing the p rties, b! furlhcr ptcnsc(l to xllotr this npl)0tl nnrl s(,t .ride the.rudgnlcnt and Ortlel d tc(l 2fi-U6_20l6 rnd acquit (he Nppcll nt ir tr the nbo!e sai(l cuse nd/ ot.psss ltny such ollter or(lcr ns rtlllv be lust rrd plopcl under lhc cirruntsttrrces ol.thc casc. ,(crtilicd 'l'rue copy ol the.,u(lgm,,nt lnrl Or<lcr d tcd 28_(i(r_2016 is rr.h(,rl h(,rcwilh a|ld nl:trkcd its Anncxnre,,A,-) t* r..

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leaion and c COURT I.iO. III KARAC !{ ] h a /2076, KARACHI DATED _r0 06.2A16

ar<'l ,.r/77)^ Registrar:, b.L e Higil Co I: SinCh,

.TEFERENCE U/S 374 CR.P.C. ]N SPECIAL

CASE I.IO.

2l (rrr)/2013, FrR NO. 134/2013 , s/s. 3e5_A/,4 pPC, READ tIITH SECTror,r 7(a) OF ATA 1997, p.S.

I PB.EEDY (THE STATE VERSUS NAZAKAT AII

r":Ae sooD AKHTAR]

SON OF

Ic is submitted that the aforesaid case has beei ?:-::r on 28.06-ZOL6 and accused Nazakat Afi son of i-::: - I .:.khtar has been found guilty u/s 265.H(il) Cr.p.C f :::::-:e punishable u/s 7(1) (a) ]rta read with sectio:. l: ;::. He has been convicted and senEenced to death, t:::=:.:e u/s 374 Cr,p.C for: confirmation of sentence is c;-:::C accordingly.

1'he R&p of aforesaid case is submitted herewith I ::,---::rance with provlsion of Section 23(2) ot. l': ::: :onfirmation of death sentence of above ATA 199?, accused.

Kindly acknowledge the recej-pt of the same. l:-: -:-s above (634 Sheets) .

..'-\;{c.1 t-.

(Syed Shakeel Hydd .i t JUDGE I r rERRoRrsM count lr I III

KARACHI

., 2(t

IN THE HIGH COURT O[ SINDH AT KARACHI

Spe.ial Cr. Antr-Terrorism Appeal No.1t{3 of 2016 Corfirmation Case No.09 of 2016

I'resent:

,1L-. I,/s,rr1 r\I(, hlrtnal Kari Khnn l,thi l\1r. lustii Kht ditlt Hussoht Tuttto.

Appellarrt: Nazakat Ali through IVlr. Mahrnood A. Qureslt Advocate

Complainant: Mr. Riaz Ahrncci Phrrlpoto, A(lvocate

For State: lvlr. Ali tlaicler Saleem, Deputv Prosecutor Ccneral Date oI hearing: 01.10.2019

Datc of aMoun&ment 0910.2r)19

IUDGMENT

Mohammad Karim Khan Atha, J.- Appellant Nizakat AIi S/o. Maqsood Akhtar Rajput has preferred this appeal against the impugned judgment dateci 21i.06.2016 passed bv thc leamed Iudge Anti-Terrorism Court No.lll, Karachi in spc.ial Casc No.27(lll) of 2013, F.l.R. No.13rl2013 u/s. 302 PPC !/w scction 7(i)(a) of ATA, 1997, registered at Preedy police station, Karachi ii'hercbr, the appellant has bcen c!,nvicted an.l scntenced to death under Section 7(1)(a) of Anti-Terrorism Act, 1997 r / \r. 302 (b) I'rc su bject to roifirmat ion by thic .ourt. The prope ies of the accused/appellant 'were also oldered to be conliscated to the CLTvcrnment U/S 7(2) of Anti-Terrorism Act, 1997.

2.The brief lacts of the case as per FIR No.'134/2013 registered at Precdy police station are tlut on 10.4.2013 at 12.30 a.m. 01i8ht), stntement of the complainnnt Agha Mashrxque Ali was recorded U/s. 154 Cr.P.C. rrhcrein hc stated that he r,r,as serving in Policc Department as A5l in Investigahon Branch al Police Station Preedy. C)n 09.4.2013 at about 9.35 p.m. hi6 friend Muzarrunil entluired from him through a cell phone call that i,!'ho owned Car No.KC-469, $,hereupon he replied that it r^,as of his brother Agha AsadLrllah Khan, whereupon he disclosed that the police officer present tr the car has been fircd upon, \4'hereupon the complainant asked him to let hinr to talk with the Police official prcsent thcre. P.lV. Muzammil through his cell Phone got the.

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.omplainant to talk with the con.$tablc NizakaL u,ho informed him that SHO sahib has sustaincd fire arm iniun,. Hc ii'as further inJormecl that the injured was being taken to the Civil Hoepital Karachi tfuough police mobile. Complainant came at the Civil Hospital, Ka-rachi wherc he camc to knol{' that his brother had sustahed fire arm injury over his head and during teatment his brother passed away- It is statcd tttat complainant cnquired from thc rc Nizakat as Lo what l,appenerl and he felt that PC Nizakat was ertremely confused and could not give rationale reply. He made enquiry from police mobile olficer SuElnspectt,r Saqlain and came to know that his brother Agha Asadullah Khan being SHO of P.S. Preedy with his Gunman PC Nizakat was patrolling in the alea in his car No.KCJ67 and at about 9.30 p.m. when thcl'reached at Daltood-Pota Road at crossing of Shahrah-e-lraq neal Murshid Bazar, some unkrown persons attacked Iris brother and his brother was injured and his car wcnt out of control and coilided i{'ith a traffic signal. He complained that some unknowr persons i.rr some unknovv-n reasons have murdererl his brother Agha Asadullah Khan rn discharging his official duties. Statement U/5. 154 Cr.lr.C. was trnnscribed in the Fll{ bv SIP Chulam Mustafa and investigations \a'cre startcd. The investi8ations connected the accused h'ith thc felony of murtler of SH() Agha Asaclullah Khan whereupon he was arrested and arraigncd to face his trial for above said oflencc.

3.A formal charge was framed against the accused to $'hich he pleadcd not guilt) and claimed his kial.

4.ln order to plove its case the ploscrution examincd 13 l'W's who t xhibiterl various tlcruments and other items in support of thc Prosccution case rvhere after the prosecution closed its side. The appellant/accused rccorded his $tatement under 5.342 Cr.PC and desired to examine himself on oath and to ptoduce [x- Ranjendcr Kumar in his defence. He was examined U/s.3a0 (2) Cr.P(. D14 Dr. Ranjencler Kumar was also examinetl as D!\'2. lhe accuscd claimetl his false implication in the case antl claimed he had also reccived a firearm injurr- at the time of the incident and he called DW 2 who was an MI-O in support of fus defense.

5.l-eamed Judge, Anti-TeEorism Court-ll, Karachi, aJter hearing the iearned aounscl for ihe parties and assessment ol evidence availablc on rccord, vidc the

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impugned judgment dated 28.6.2016, convictecl and scntenced the appellant as stated above, hcnce this appeal has bccn filed.

6, The iacts of the case as well as eyidence produced belore the EiaI court find an elaborate mention in the inpugned judgrnent, therefore, lhe same are rol reprodrrced herc so as to dvoid duplication and unnecessarv repctition.

7.L€arned counsel fo! the appellant mainly contended that the appellant was innocent and had been falselv implicated in this case; that although it was a admitted position that the accused was in the car with the deceased at the tinre he was killecl the prosecution had not actually proved that the accused was the pcrson \^,ho killcd the deceased and that the deceascd hatl been killed by sonrc other pe.son rvho had fircd at him from outside the car which he was driving, that there vvas no eye witness to the murder; that any conJession which had becn made beforc the police had no value in the eyes ol the lawi that the mcdical evidence did not support the prosecution case and that the pros€cution had not cxplained the bullet jacket Iound in the deceased's car and that for one or all th. above reasons the accused was entitled to be acquittcd from the charge bascd on the bcnefit of the doubt. ln support of his contentions he placed reliance o|r "Iirearms in Ciiminal Investigations and Trials" (34 Ed.) by Dr.B.R.Sham1a, and " A I'ext Book of nrcdical lurispruclenr.'c and Toxicologr/' (24u' Ed) by Modi.

L On the other hanrl, leamcd DI! and learned counscl for the complainant have fully supported the impugned judgment. In particular, the,y.ontende(l that the eve witnes".,cs had conJirmcd the incidcnti that the medical ef idence supported the prosecution case; that thc murder u,eapon and bullcts were i*sued to the accused being a police constable; that the empties wcre recovered from thc scene of the inci(lent; that the FSL reports and chemical reports are positivei the CCTV'footage fully supports the prosecution case and so does the hct that the vehicle only rcceived one bullet in the window screen. Since this was a verv brutal murder thq/ prayed that the death scntence handed down to the accused bc maintained and the appeai be dismissed.

9.We have heard the arguments of the learned counsel fot the Parties, gone through the entire evidence which has been read out by the aPPellant, the impugned judgmcnt with thetu able assistancc and have considered the relevant lar-r' v

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10.Irrom the evidencc in our view it seems to be an undisputed position and indeed admitted position by both parties, as suppoded b.v both ocular and medical evidence, that the deceased was shot by lire ar.m and died on account ol the lirearm injury which he receive,.l at around 2100 hours on 09{.1-2013 whilst he was driving his private car dresscd in police uniform while on official duh on patrol at Dawoodpota Road crossing Shahrah-e-lran near Mu$had Bazar lvhilsl the accused was seated in thc back of the car.

1t. The issue before us tl,crefore based on the evidence on record is who shot antl murdered the deccased?

12.ln our view the prosccution has proved its case againsl the aPPellant bevond a reamnable doubt and as such the conviction in the imPugned )udgment is upheld for the lollowing leasons;

(a)lt is an admitted position that thc appellant who was thc gun man of lhe decease(l rsho u'as SHO Preedy was sittinB in the back of the car ra'hcn the deaeased was shot. His prcsen e at the sLenc at the timc of tht] shooting has thereforc not been disputed.

(b)That the FIR was registcred by thc complainant without delay and (luite fairiy did not nominate the.lccu5ed as at that time it r\iould havt bcen unclear to the complainant who wirs the brctther o{ the cleceascd anrl iras not present at the time of the incident what had actually happened in connection with the deceased receivirg a fircatm injury Thus, there n'as no time to aoncoct or cook up a story against the acaused.

(c)I hat three witnesses (PW tt Muzamal Khan, PW 10 Ghanni-ur-Rehman and PW 12 Khurshed Ahmed) all gave evidence that they he.ud one shot and then lvithin a minute il other shots which ties in \^rith thc Prosecutiorr story. That these threc witnesses were not ahance lvitnesses and had no cnmitl' or relationship l,lith the accused as to make theni interestcd witrlesses and thus there was no reason for them to not tell the truth. 'lherc storv is also admitted br'the accused ancl is corroborated by the rccovered CCTV footage. PW 10 Ghanni-urJtehman in his cvidence and S.l& statcment alsLr states that he is sure that the ac.userl [irecl on the deceased irom within the ca!.

(d)That the accused was issued with an olficial Police SMC and lrrrllets (P!V 4 N{uhamrned Anljad) $'hich $'ere both rc{overed from him shortly after thc incident which has also not been disputed by the accused.

(c)That one SMG empty was lound in the rear of the car (scc evidence of PW 3 Muharnmed Saqlian, PW 7 Sir Sahib an.l PW 13 Muhammed F,r)\'az) an(l { oulsldc the car r.r'htch ties In !1ith the prosetutlon cd5e L,l lhe deceased being shot from within the car and thc gunman then leaving the car and liring 4 further shots from his SMG. This also ties in with thc evidcnce of the witnesses who heard the shots and the CCTV footage

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(f)That the FSl, report \4'as positive in rcspect of the rccovercd e/eapon and emFties and bullcts lvhich again has not been disputcd by the accusecl

(g)That the chemical aeport in rcspect of human blcod was als() positi!,e and which agaii has not becn disputed b.v the accused.

(h)That as pcr the CCTV Iootage as per the cvidencc oI lrw 2 Agha Masooq Ali the accused came out of the ca! 50 seconds after the incident hom the rear seat and canre to the deceased veiy calrnly and glanced at thc bocly of the deccased and remained therc without any action and after a feu'seconds conducted aerial firing. Such conduct of the accused does not tallv with his account of the events rvherebl. he imDrcdiatelv got dou'n Irom thc car and started aerial fting and tends to indicate that the accuserl \tas involved in the murder as his actions do not equate to the coflduct of a person who ivanted to save the deccase(l liie antl thought that he rvas unde! attack by some unJ<norrn persons especiallv as at that time the deceased l{as still alive according to evidcnce ol other r)l\"s who reacl'red the scr,nc and at the hospital lvhcre he lvas operatell ,rn betorc he r,lied. lt also does not appeal to reason that if the car had been shot at, his boss seriouslv injured, and there lvas emineflt danger whlr the accused (iid not ladio for aasistance.

(i)[J the accused stor,\' ol the shot rvhich killerl the deceaser,l corning from outsidc the car u,as lrue then thele h,ould have bcen glass froor the rvindor,r,screen which had a hole in it from the bullet inside the ca! but the poli.e did not find any glass inside the cai. Thus. both logically and as a natter of cornmonsense the bullet had to have come from lvithin the car as this would have meant that the broken Slass lell outside thc car and hcnce |ro broken glass was tound insicle tl'lc car.

(i)l'he oral tcstimonv of the Pw's which rve fintl to be reliabie. trustl^'orthy and confidencc inspiring \,ho saw bod) ol the de.case(l ih thcir evidence in our vier4'ha\,e confirnrcd the tact thilt the de.cased r1?s shot lrom the bchind in the back of the head. For instance Pl4' 3 Muharnmed Saqlain who rcached the sccne oi the incident saw the tleccasetl in the driving seat and later founcl, "some part crI brain and other fiscal matcrial lying in front of the driving seat". l-ogically and from a common sense point o, view if the deceascd had been shot frotl the front of his head this brain and other material would have been found in the back oi tlre (ar.'lhc fact that this brain and other material was lounLl at the lront of thc car is a clear indication that the dt'ceased u'as shot in the back of his heacl and thus the brain and other material went forw'ard to ihe fr( t of the.ar and not backwaids. According to PW 5 shah Akhtar u,ho sa , the deceaser.l in the vchicle at the saene, "one evc had come out of his socket" $,hiclr again is consistent h.ith the deceased being hit lrom the back and not thc frurl of the hcad. PW 7 Sir Sahitr rvht) wcnt inhr the opcratinll theatre r,"-hen ihe.le.eased $'as thcre stated that., "he was having a bullet iniury at his head with entrance wound at the bncksidc <rf the head and exit wound from the front Eide of lhe head and hc lvas bleedhg". This is (lear eye witne8s eviden.e that the decensed's entry wound was at lhe ba(k of his head and not the front. When this PIV latt'r returned to the scenc of rerdat he stated in his evidence,"at fronl seat piece of lrain and skull bone la'as lying at foot test in front of the driving

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seat" which as mentioned above corroborates what he satv in the hospital operaling theatre that the shot hit the deceased Ittrm the back of the head.I'Jltr' 13 Muharnmed Fayyaz rvho was the IO of the case whilst inspe.ting the r^,ar(lal states in his evirlcnce that, "During inspection of the car I found blood of the de.eased al thc driving seat one piece of broken skull was lying at the foot rect of the driving seat along with piece of human brain lying on the dashboard."Again, if part of thc brain i{as lJ,irlg oD the dashboard wlich is in the flont of the drive! it is e\trcmclv unlikel]-, almost impossible ior the bullet to have hit thc front ol thc heatl oI the cleceasetl as opposed r!, it hitling him on the back of tire head. in our vicn'this above ocular evidenfc crntclusively plovcs that thc deceased !,!'as shot from the back of his hc.rd.

(k)Significantly the mcdical evidence of PW 1.1 Qamar Almed who u,as thc MI-O who examined the de(eased statcs in his evidence thaf the deceasecl received one fircarm injury in the head.rnd rvhilst clariff ing certain queries about the wounds received by the deceased gave evider]ce as underj

1.On gorrrg tltlo;tgh lhe ,nedirnl etdminntiotl .tnd retir,lr of tlp Jrndings in ie1t, of ftWts froit Delfilrficnt of Nturtt Surgery Ciril Hosltittl, Karaclu. I an of the opinio that the Iirc aqeare.l to be frofil back to the frofit of skull at safie leoel.

2.The ratge was close shot lgice the.lifference bet oee efitry afld eit tuolfiils i91Jery flafioat'.

3.Tle tonliltotr of tht ltioutuls of splllshlltg of lh? bntin nittar autsidp of @ountls trldicalt g lhal the u)oun,ls appealed to be d.ue to high oelocity bullet,

4.As the diectiorl of bullet ftom backuard to foflrar.l dt sa te leoel lurce llvre is o (t'iie cc lo st$&est for acndenl l irpn7".(bolLt added)

In our view thi!t medical evidence corroborates the oallar accounl that the decensed was hit by a bullet in the back of the head and not in the fronl.Thc fact that the shot w.rs fircd ironr.losc range alsr) fits in n'ith the prosecution .ase that the accusetl lireci the bullet at the back of the deceascd's head u,hilst sitting in the rcar of the car q,here the SNIG empty h'as also rccovered from. Ihe lact that the medical repo has concluded tlut thc wound appeared to be caused by a high vclocity bullet also [its jn !\'ith the proser-uti.,n evidence that thc deceascd was kilied by a bullet fuom an SIUG which $'as the weapon which had been issued to thc accused.

The direction oI the bullet, "bcing at thc same level" indicates th:rt it !^'as fired straight at the deceased (not from either an upward, dow'nward or sideways traicctory) and jndicates that the shot lvas fired by the accused !,ho h'as sitting clirectly behind the deceased. For this shot to have been fired by anv other pcrson outside the c.u that person $'ould have had to have bcen straight il1 front of thc car and in a squatting position close to thc moying car (as the bullet hit the accuscd from ciose range according to the medical evidence) la

2:!o u'hich seems extrcmel) unlikclJ- if not impossible espcciallv as n., onc ivas scen making such tire. It rtoes not aPPeal to reason that in makinS such fire b) !!a)'of alr alleged target killin8 that the persorl firin8 thc bullet ra,ould onl) take one shot from a SMG as opposerl to a sniper rifle. Even then only probabl)' a trained malksnun could have made such a shot as onl-v the hcarl and shoulders oi the I tJriver would have been visible in a moving vehicle at night hrne when therc was no source of light and if any light only being thc cars headlights moving towards fum an(l shining in his face which is not conducive to an accurate shot. Furthermorc, in such type of cases crl target killing usually it is pcrformed by a numbet trf pcrsons on motor bikes h'ho fire numerous bullets at thc ta!8('t belore escaping from lhc sccnc.

It is tlue that there is a slight contradiction in the medical evidence in that medical legal certjficate did not fird that the entry $,ound of lhe bullet !4'as at the back of the head and no buming, tattooing for blackening r.vas obsen'ed on the u'ound which r,r'oukl have becn expectecl from a close rangc shot. In any event it is \,ell scttled by now that o(ular evidence rvill prevail over mcdical evidencc when there is some conllict behveen the tv''o.'Ihus, wc are of the 'j,ielv that this discrepancy is not in and oI itself sulficient to extend the benefit of the doubt to the accused as in such cases oculat evidence provided it is trust worthy, reliable and confidence insPiring ehall take precedence ovcr corroborative and support evidence such as medical eviden(e as in this casc il the tlvo arc to a certain extent contra(liclorv. ln this respect rcliance is Placcd on thc ca$c of Muharnmed Riaz V Muhammed Zaman (PLD 2005 S(',184) where it was held that elen il the eye witness evidcnce slightly diifered from ihe medical eviclence this was no ground to disbelieve th€ eye witness eviderre in thc follc,i'ing tcnrE at P.491 "Wc hooittg exanipd tle ertidtttu in detorl .fintl lhdl tlu rcdsolas git'tn by tltt High Cafit.for disbeliefitlg llv prcsrtlce tt t'itlles.4s al lle slot uere higltly spec ntite, flitttsy anl niificial. llu tatltl sio, tlfit lhe itjuriet ofl tlk rersott of d?censed ltv/e llE tesull ol one shot 'hi.h aus probubly nol Ji*tl .[rotrl ltottl in nrcdiul et irlence :l]as i cotlsislrnt to lhe ocular i.count al eye' !'ilnpsses ns als4 not bnsed ott sound rensons. llu slah'rfient ol doclor lo lhe e/li(t tllol lle iniiies terc lhe rtsull of singLt' sltot, beiry anly nn oFilior ttlti[h nay or rry fial ht corteel and .l,orrltl not be sumLie l to liscari tht thred r:r'iierre onl suiie\l thc r1tlt, lrcse .. of eye-lrihtes*s al llt. sPoI. The conllict of rfledidtl eoiile ce u,ith odtlat act:ount h1 rcspcct ol tlufiber a d ahie of inilies ,fi|! be plettalt to ascertain the role of an itldiui.lual accusc-d ifl tre occlttrore b t this is flot a |'alid grotord to disbelicue tt,? eye-tLlihrers?s and ctclude their et)ideflce frufi cansidcfitio . We mall olrsen'e that et'et if it .t oulil be dssu ed ttttt ifljuiesl.Lterc result ol single shot, still i4 the l.tcts ol tlc present cdse, it uoull be difficslt to suggest tl'lnt .oitflesses werc fiot truthltl or the resportleflts uere not resporsible/or fltc cniae." (bold added) Like wise in thc casc of Muhammed Hanif v. The State (PLD 1993 5c 895) il was hc[l as rjnder.rt P.8q9, t/

"The etpcrt's eoiilence rnay it be, nc.lical ot thtt of B&llistic Lxpert, is ?nlir.lv t the niltre ol con.linrfilory or .:tpl utlar! of lie.t ar ollut cit(urfisltlttitl ctidptrce, but if there is direct flide ce as i the instant case, ?ohich is deliflite, trustltlorth* the coltfiftnatoty e|ti.lerDc is rlot o.f fiufh significa ce. l afi! case, il cannot outueigh the iircct J cz:iderce " (bold adtieei)

Again in the case of Amir Khan v. The State (2U)0 SClvlR 1885), in temls of ocuiar elidcncp outweighirg co[oborativc/suppofiive cvidence such as medical eviclence it \a?s hcld as under at P.1888;

"ll hns time a d ogai been held W tlv supeior courts tlgt if a bakl statenent ol a ftcdical exql is ollposed to lle prot)ed nnd aLlntitled co lideh& itspiitg dnl reliille utou l of the eye- u'ttttessls or olher naleidl and trusntlorlhy a,ide c. on retn l, thcn tlp lnltet ir. to he prckrrcd a&nifisl the lbrfiet."

An idcntical vieu, $irs also takcn in the recent hrdian suprrrme court case of Bal\Iir V State of Madhya I'radesh (lated 19 02-2019 r,!'hen there lvas a slight ctiffcrerce beth,een the ocular evidencc and the medi.al evidence at Para's 26 arrd 27 in thr- follo\^'ing tcrms;

"26. lt is .oell settle.l that tht oral et'i.lerce l&s to get priflacy sitrce flrcdicol et'iilcnce is basically opi ionatioe, ln Ilomnand yndar o. Prabhu Nath lha and otherc (2003) 12 5(:C 606, thc Suprcr ? Court hel.l as Md?t:- "77. So Iot as tle alleged adrinn.e befioee n@ilical eriile cc at oculat etli.lcfice is coxcerrled, it is ttitc lntr tltdt orul cLtidence has to get pifiBcy ntd nedic4l e.,idtfice is basically opifiioflatizte. It * only when tfu ntdicnl eddente speciJictlly nLles o,lt lllt injury as is .lai rcd to hnpe bcLrl hilictetl ds pcr tl:r" oral ttsli anv, lhen o ly in d git)e anse the tourl hts lo drnttt ddr'?rie irrlirrnrr".(boltl addecl) 'l'le sane pn ciple tL,as leiterated n State of U.P, u. Kishfla Gopal afid qflothel (1988) 4 SCC 302, tr:Ltere the Suptp?ttt Courl lultl "tlult eypttitn?ssest ncLoufit auld require n urcfitl indrpendenl assessretll oki toohtntio lor tltpit Lredibililv lphtch shouli tk he adrcrsely preiudged flnkitll anv othet eztiietlce, rttLluding neiical d,idefi.e, ds tlu solc toucllstone lot tht test of such crcdibility".

-lhe 2/' itro'nsistenaes Foolted out in lhe eL'uiente of eyc- l,it psses otter saltld tlp nll?B{.l inaofislsteides ltcllrcot tlt eudtnLe o.f eve4ottnetses and llnt ol lb me{lical a'itle c( itt fiinor .otiraiictions md they do ttot shake lh. prose.\ ton cnse. The eaiie ce of ele &it csseg are the eyes a d ears of justice. The cofisistett oersion oJ Pws v

2, 3 arul 13 canrot he deci.le.l ott the to cltstohe of nedicul e dence", (bold aLldecl)

ln anv pvent the medical evidence mainly (orroborates and suPports lhe prose(ution case rpnrt from a slight inconsislency.

I (l) That none of thc PW's have atrv erunitv u,ith the accused ancl thcreforc would have no reason to falsely impli(ate him.

(m)That none of the PW's are interested witncsses and as such hale no reason to falsely implicate the accuscd.

(n)Ihat the evidence of the I,W's is consistent and conliclence inspirirS in all mateial respccts and none ol them werc damaged lct alone shattered during cross examination.

(o)That there are no maior contradictions in the evidcnce of the PW's and we have no reason to disbelieve their evidence especially as in such type cases thc police very often rvould look to protcct thcir own colleague and place the blame on some othcr peGon betwcen thcm.

(p)I'he prosecution eYidence provides a consistent al]d believablc unbroken .hain of events which fulll, tit into its case againsl the acaused

(q)Although it is for the prosecution to prove its case beyond a reasonable doubt agairLst the accused and the accused does not have te plove his innocence in <-rur view the an$B,ers k) the questions tt the accused 5.342 Cr.[t statement and evirlence under oath of tlre accus€d did not appear to ring true or insplre conJidence when faced $,ith the over whelming el,idence whi.h the proseaution has produced. For example. the accused in fus evidence stated that at the time of the incident he had also received a fire arm injury but his oi'n witncss DW 2 Rarendar Kumar wh(r was an MLO denied this as being the case. fhu$, it appears that the accused was untruthJul il1 his evidence. His storv- about the shot conring from outside the car in our vieu'also does not appcal to reason. For etample, he does not sav that hc saw anvone make anv fire from outsicle the car from a motor bike o! otherra,ise rvhich appears to be a highlv unlikely scenario keeping in view that the shot was fired from close range if the accused ivas telling the tluth. It is also quite telling that only one shot 1a'as fired at the c;rr whi.h or lr hit thc \aindow screen and no other part oI the car. Usually in such cases a number of shots are fircd by a number of diffelent PeoPle.

13.Thus, having found that the prosecution has proved its case beyond a reasonable doubt and having up held the conviction of the accused for the reasons mentioned above the next issue is conceins the appropdate sentence.

l1 Brnh the DPG and thc c(' plainant have contendc(l that ihis is a case r^,hich 1\,arrants the death pcnalh,.

L,

q

15 fve are of the vieh,however that the prosecution has neithcr allegecl any motivc against thc accused nor has it proven ant'motive against the accused Ior his murdering the dcreased. Gencrally it has b(]en a.cepted b1.the superior courts that il the prosecution fails to prove the motive for thc murder the courts are iustiJied in imposing the altematc sentcnce of lile imprisonmcnt as opposed to thc death penalty. Relian.e in this rcspect is placed on the case of Amjad Shah V State (PLD 5C 20]7 P.152) where it was held as under at P.'156 Para 9;

"\!(l1t'ithslnt?ing thnt llu l,articiptttiotl of lhe nfi]ellant i the .orrrlissrorT ol offen.c is iuly eslablisltcd, ltis ttl/,ntio , guillV nintl ar moltrc lo rcnn it th? aatte rcfi lfis slltot/lel rrt rnuslery nid is llvre.forr, unprotei. l such like cascs wherc the r otine is not ptooe.l or is hot olleged ba the prosec tio , the Court /or the sake of saJe a.lfltifiistratiofi ol justice, adopts coutiot nfid tfeAts the lack .tf fiotioc as a ,flitigatitg .:ircwnstaficp Jot reducing the quontwn of sertlefie au'a led to e cofi|tict. Il,eftrene is finde lo Zecsha Alzal 1,, the State (2073 SCMR 1602)." (bold added)

16.In our view taking into account the fact that no motivc has been proved against the appcllant and that there mat'be some doubts in the prosecution cas€ albeit insuFficient to lead to an acquittal such as the sliBhtly conflicting nledical eviden.e whilst exercising iudicial caution by taking guidancc from the supreme .out authority of Ghulam Mohyuddin (supra) r^,hcre it was shessed as uncler rvlulst dealing u,ith sentencing in a mLrrder cas€ in the following terrls;

"A singlc miligating cir(umstance. available in a p.uticular case, rvoulil be sulficient to put on guar(i the ]udge not to a$'ard thc penaltl oi death but lile imprisonmcnt. No clear guideline, in this regarci can be laicl dora'n bccause facts and circumstaiccs ol one case differ irom the other, hoh,ever, it becomes the essential obligation of the Judge in alvarding onc or the other sentence to apply lis jucticial nind with a deep thc,ught to the facts of a partic.rlar casc. If the Judge/Judgcs ente ain some doubt, albeit not suffi(ient fo! acqqittal, iudi(ial caution must be excrcised to award the alternntive sentence of life imprisonment, lest an inaoaent pergon might tlot be sent to the galtows. So it is better to respe.t the human life, as far as possible, rather to put it at end, by assessing the eviden(e, faats and circumstan(es of a particular murder ca5e, under which it was committert. (Bold aclLlett)

'17. lve hercby uphold the conviction in the impugned iudgment aSainst the appellant but reduce his sentence to that of implisonment foi life with the confi.nnation reference being answered in the negative. Apart from the above, l(r

variation in sentence all other fines, penalties etc imposed upon the appellant in the impugned judgment shall remain in tact. The appellant shall have the benefit oI 3.382 (B) Cr.PC.

18.t hc appeal stantls disposed of in the ahnvc terrns.

l r .r/r, l,,t .>-se)

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