UMAIR ASHRAF S/O MUHAMMAD ASHRAF (Appellant) VS The State (Respondent)

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IN THE HIGH COURT OF SINDH, KARACHI

CRIMINAL APPEAL NO.334 OF 2O1O

Ptesefif Mr, Iustice Mohon ntad Karim Khat Agha Mr, Iustice Khaditfi Hussai', Tunio,

Appellantl Umair Asfuaf S/o. Muhammad Ashraf through Syed lunaid Alam, Advocate, llespondent: The State through Mr. Abrar Ali Khichi, Additional Prosecutor General, Complainant: Muhammad Qatuar through Mr.

Jamal Almed Mufti, Advocate.

Criminal Rev, Application No.78 of 2010.

Applicant: Muhammad Qaisat tfuough Mr.

JarEal Ahmed Mufti, Advocate.

Though Mr. Abrat Ali Khi(hi, State: Additional Pro6ecutor General.

Respondent: Umair Ashraf Vo. Muhammad Ashraf through SYed Junaid Atam, Advocate.

Date of hearinS: 78,m,2022.

Date of Announcement: 26.O7.2022.

UDG MENT

N't AD (lH - The appellant Umai! Asbaf S,/o judgment dated Muhammad Ashraf has preferred the instant aPPeal against the 13.05.2010 passed by tearnetl IVth Additional Sessions rudge' Karachi South in

Spc<ial Case No 555 oI 20Ol arising out of Crime No 9,/2004 u/ s' 302/380 PPC was arvarcled registered at P.S. Arti.llery MaidarL Karachi whereby the appellant R.I for 10 ycars along with fine of Rs.$000/- ln default of payment oI fine he has

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to under8o further S.l for 06 montlr more The benefit of section also filcd a has also been extended to the apPeltant' The complainant has

Revision Application No.78 of 2m0 for snhancement of sentence awarded to the accused/appellant.

2.The brief facts of the case as naEated in the F.I.R. todged by the complainant Muhamrnad Qaisar are that he resides in Peshawar ard runs his private school. On 08.08.2004 Fazal-e-Rabbi who resides in Hina Palace Karachi from Telcphone No.5683533 inlormed him that at about 6.30Pm the b'rother of the complainant Bashir working in customs as custolns officer and residing in Hina Palace was murdered in his flat by an unknown person. TlLat person who comrnitted the murder of the brother of the comPlainart according to the statement oI the lyatch-Inan came with the deceas€d to the deceased's flat and murtlered the complainant's brother due to unknown enmity and according to the watchman the Person who murdered the comPlainant's brother also stolc the car No.ED{67 maker Mitsubishi Lancer of the deceased which was Parked in Railway Compound in front of Hina Palace. On checking of the flat, the briefcase in which precious articles and cash were lying along with Rado wrist watch and mobite phone was also found missing. According to the statement of tie watchman of Hina Palace that Person who had cornmitted the murder was about 21/22 years old ard wearing Pant and shirt.

3.After completion of investigation of the case, the I.O submitted the charge sheet atainst the accused Pergon to which he pleaded not Suilty and claimed bial-

4.The prosecution in order to prove its case examined 27 witncsses as well as 02 CWs and exhibited vadous document6 and other items The statement o' the accused was recorded under Section 342 Cr.P.C in which he denied all the allegations leveled against him and claimed false implication by the police' He neither examined himsell on oath nor produced any witness in support of his defence case.

5.AIter appreciating the evitlence on record the trial court convicted the appellant and sentenced him as set out above, hence, the appellant has liled this appeal against conviction. As mentioned earlier in this iudgment the complainant has already filed a criminal revision application for enhancement oI the appe llant's sentencc

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6.The facts oI the case as well as evidence produced before the trial court Iind an elaborate mcntion in tie imPutned iudgment dated 13.05.2010 passed by the hial court and, therefore, the 6ame rnay not be reproduced here so as to avoid duplication and unneces.sary repetition.

7.t €amed counsel for the appellant has contcnded that the aPPellant is completely innocent and that he has been falsely implicated in this case by the police who have let off the real culPrits because he refused to Pay them a bdbe; that there are no eye witnesses to the murder; that thele is no laat seen eJidence to the murder; that the identity of the accused as being the actual Person who committed the murder has not been established; that there are maior contradictions in the evidence of the PW's especially in relation to the Place of the arrest of the accus€d; that no murder weapon has been recovered from the accusetl and ttlat Ior any or all the above reasons the aPpellant should be acquitted of the charge by extending him the benefit oI the doubt and as such there is no question of any enlancement in sentence' In suPPort of his contentions, he has placed reliance on the cases oI Ghulam Qadir and 2 others

v. The State (2008 f5C (Crl ) 691), Hashlm Qaeim and another v' The State (2017 SCMR ), Fayyaz Ahmad v. The State (2017 SCMR 2026)' Imran alias Dutly and another v. The State and others (2015 SCMR 155)' Shahbaz v' The State (2m6 SCMR 1763), Muhammad Ishaq and another v' The State (1997

SCMR 5!b), Qaddan and otheE v. The State (20u SCMR 148)' Imtiaz alias Tai

v. The State and others (2018 SCMR 3'14) ard Altaf Huseatn v' Fakhar Hussain and another (2008 I5C (Ctl.) 5R).

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8.On the other hand learnetl Additionat Prosecutor General appearing the lindings in the behalf oI the State and the complairunt have futly suPPorted lead by the impugned judgment however bas€d on the charge and the evidence convicted prosecution they have contendetl that the aPPellant should have been of imPrisonment under 5.302 (b) PPC and 8€ntenced to lite imPrisonment instead for only 10 years under S.302 (c) Prc based on the particular facts and

circurrrstancesofthecaseandtheevidenceonrecord.Inparticulartheyhave contendedthatbas€donthelastseenevidence,therecoveryolthestoleniterrrs accuscd whilst from the house of the accused on his Pointatio$ the arrcst of the murdeling him sittint in the deceased car which he stole from the deceased alter he was in the car, and robbing valuable items from his aPartmen! the fact that

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when it had a road accidcnt and he was taken to the police station where he compromiscd the accident claim and Iater gave the ca! to his friend PW Shiraz for repairs and as such the prosecution had proved its case beyond a reasonable doutrt and the appeal should be dismissed and the conviction and sentence to be rnodified to murder under 5.302 (b) Prc and the accused be handed down a sentence oI lile imprisonment. In support of their contentions they have placed reliance on the cases of Muhammad Aelam v The State (PLD 2W g: n4, Farmkh Sayyar v Chairman NAB, Islamabad (2004 SCMR l), Meem Bahadar v The State (2013 P Cr. L J 1490), Mian Khan v The State (PLD 2014 Peshawar 127), Fnsd Aleem v The State (PLD 2010 SC 1080), Sultan Allmed v Addl' Sessione Judge-I, Mianwali (PLD 2004 SC 758), Syed Hamid Mukhtar Shah v Muhammad Azam (2005 SCMR 424, Muham ad Ishaq v The State (2009 SCMR 135), Mst. Sabeeha v Ibt.r (2012 SCMR 74), Khurshid v. The State (PLD 1996 gupreme Court 305), Talib Hueeain v. The State (1995 SCMR 1538) and J Ifttkhar Ahmad v. The State (20-19 SCMR 1224).

9.We have heard the arguments of the learned counsel for the appellant as well as learned AIJG and the complainant gone tfuough the entte evidence which has been read out by learned counsel for the appellaat along with the irnpugned iudgrnent who have ably assisted us and have coneidered the r€levant law including tlrc case law cited at th€ bar.

10.At the outEet we find that based on our aralysis of the evidence the appetlant could not have been convicted Ior an offence under 3.302 @ PI'jC but only for an offence under 5.302 (b) Prc and as such iI we find that the prosecution has proved its case against the appellant beyond a reasonable doubt he would need to be convicted u/s 302 (b) and sentenced either to life imprisonment or death as per the enhancement aPPlication filed by the complainant.

11.Based on our reassessment of the evidence of the PW's, medical evidence and recovery of btqod at the ecenc, we find that the prosecution has provcd beyond a reasonable doubt that on 08.09.2004 inside flat No.M17 Hina Palace, Civil Lines, Karachi Muhammed Bashir (the deceased) was murdeted b)'blunt iniuries and had stolen from him a brief case, a licmsed pistol ,cash, VCD, mobile phone car bearing registration No.ED4667.

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12.The only qucstion left betorc us therefore is who murdercd the deceased and stole the aforesaid iterns at the said time, date and location?

13.After our reassessment of the evidence we find that the Pros€cution has NOT prov€d beyond a reasonable doubt the charge against the appellant for which he was convicted and has also not Proved the offence under 5.302 (b) PPC against the appellant fo! the following reasons;

(a)That although the FIR was lod8ed a day after the incident we do not Iind thjs dclay to be fatal to the prosecution case as the delay has been explained by the complainant having to travel fiom Peshawar to Karachi and thc complainant has not tried to falsely imPlicate the aPPellant in the case as the FIR was lodged agai$t unknowr Pe6ons.

O) That there is no eye witness to the murder of the deceased.

(c)That there is no reliable last seen evidencc to the murder' According to the evidence of PW 3 Muhammcd Qasim who was watchman in the bungalow of officer of Railway colony arld performed his duties as chowkiJar arourd the clock ard knew the deceased on 07.08,2&4 at 12.15 rnidnight he woke uP on the horn of the deceased <ar which hc let in for Parking. Thc deceased was with a young boy who was carrying a brief case whiist the deceased was carrying a shopping bag AIte; p;king the car they both Proceeded towards the flal and neither of them spoke ti him. On the next day which was 08.08 20O{ at about 5 30Pm he saw the same boy holding the same brief case enter the ParkinB area who told him that the deceas--ed was coming. He did not know if the boy was injured.

This witneos did not know the accused and ordy got fleeting glances of him at night when it was dark and later one evening He could not see whether ie was injuretl (which apparently he was according to other PW's), he did not give any hulia of the boy in tus 5161 Cr'PC statement' h" *a" .t,rt b.ougf,t b"for. any identification Parade to rdentily the bo1' and could not coifidently id;tify him in court and in his evidence could not even say whether the acc,rsed *ho *as Present during the-recording of his 5.164 CI.PC statcment before the magistrate (the original of which was missing)was the same boy who he saw with the deceased and as such we {ind thal we carurot safely rely on his evidencc that the accused was the boy who war last seen with the deceased Furthermore' no witness saw t(e accused enter the flat with the accused which included PW Muhammed Qasim who conceded in his evidence that from within the boundary wall-s ol the bungalow he could not evcn see the flats lYhere the actual deceased'lives and did noieven see him leave the parking lot' The chowki(lar of the flats PW 8 Dil<lar did not see the boy enter the flats with tt* d"."urud or leave. Thus, so fa-r as last seen evidence is concemed the no one 5aw the boy enter the flat with the deceased or leave from deceased flat wt ere the deceased was found dead the next day in the evening as such we find that we cannot safely rely on the eviden'e of this

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witness that it was the accused who entered flat with t}|c dcceased on the night of 07.08.04 or it was the same pe6on who he again saw in the paiking lot the next day and even otherwise most of thc legal requirements for a conviction in last seen evidence cases has not been made out as laid down in the cases of Fayyaz Ahm€d V State (2017 SCMR 2026) and Muhammed Abid V State (PLD 2018 SC 813).

(d)That a number of PW's who were playing cricket outside the flats gave evidence that they saw a pelson trying to drive a car which later was established belonged to the deceased and that they took him to hospital for treatment for a hand injury (which injury PW 3 Muhammed Qasim did not s€e) and who dropped them off an hour later after receiving heatment. None of these witnesses gavc any hulia of the accused as bciog the iniured person in the car in very belated 5.161 Cr.PC statements, they wcre not taken before an identilication parade to identify the accuscd ag the injured person driving the car and only one of these witnesaes were able to identily the accured in coult (in court identification ha,' been deprecated by t}lc Supreme Cout on numerous occasions)which in our view heavily breaks the linkage o{ the accused to the stolen car of the deceased which the accused was allegedly driving.

(e)That the place of the arrest arld recovery of the accused and the stolen vehicle a-re also in doubt. According to PW 2 Muhammed Aijaz on 19.08.2004 PW 3 chowkidar Muhammed Qasim had Pointed out the car and the accused to the police near Bombay Hotel where t}te accused was arreated aid car recovered on PW 3 Muhammecl Qasim's Pointation whose name appears on the memo of arrest and le\covery. Ho$'eve, according to the evidence of PW 3 chowkidar Muhammed Qalim he was not present at the time of arest and recovery and did not sign anl' memo of arrest and recovery and according to CW 2 RaJique Juneio the accused was arrccted from his hou.se. This is a maior contradiction which castes doubt on the evidence oI all these PW's

(0 That the accused confessed before tl-re police numerous times that he mwdered the deceased howcver a confessior before thc Police is inadmissible in evidence. What we do find cusPicious however is that the accuscd was PrePared to confess to all and sundry and yet hc was not talen before a iudicial magistlate to tecqrd his confession. It has even come in evidence that one IO was Prevented by his superiors ftom having the iudicial confession of the accused recorded. This begs the question why? Perhaps the answer lies in the fact that the accused maintained that police officers were involved in the clime and he was falsely implicated. lt has also come in evidence that even the relatives of the deceased were of the view that the accuscd miSht not be the real culprit and the real culp ts were being shielded by the police and hence the [O was changed twice and generally the record showe indications of a shoddy and Potentiali)' unfair investigation by the policc and it is in this light that the recoveries allegedly made Irom the home of the accused on his Pointation have become doubtful especially as it does not aPpeal to reason, logic and common that the accused would keep all the stolen items unhidden at his house where anybody could find them.

( g) That no murder weaPon was lecovered from the accused.,

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(h)That according to the char8e and the case of tie Prosecution the deceased was stabbed however this is not supported by the medical evidence which notes that the iniuries wete caused by a blunt in$trumetlt not a shaip instrument.

(i)That when the accused was taken for medical examination it aPPearc that he had ar incision iniury on his arm which might have suPPorted him being the iniured pelson secn by thc PW's who allegedly took the accused to ho€pital. Howeve! he had at least 7 other bruise tyPe injuries most Iikely caused through beatings whilst in police custody (who-the police-might even have caused the in.ised iniury on him) which is an indication that the police miSht have been trying to beat a confession oLrt of him and Ialsely imPticate him in this case in order to hide their own wrong doings.

0)That the prosc{ution has asserted no motive as to why the accused would murder the deceased or if th€y evcn knew each other.

(k)That it appears Irorn the evidence that at some time or other the accused might have been driving the stolen vehicle as it was involved in a crash that was teported to the concelned I'S arld the accused allegcdly comprornised the;laim and he even lrray have attemPted to get a fdend , Pw i4 MulEmmed Shiraz to rePair it o! was it Pw 14 Muhammed Shiraz who committed the murder ani stote the .a! as suggested by the accused especiaity as they were of similar ages?

(l)This is a case baeed Purcly on ctucurnstantial evidence lt was held as under in Fayyaz ehmed V siate (2017 SCMR 2026) at I''2030 Para's 5 ancl 6 which are-reproduced as under with regard to the gr€at deal of care and caution which must be taken be{ore the courts can rely on circumstantial evidence in order to convict an accused;

"To bellete ot rcly ofl circq^stLntiLl eaidetce' the uell seftled and deeply n*enched PrlnctPle i5, that it is imperatiue for the'Proeeflrtion to protide all links in chai aa'unbrokia oae, whue onc entl oI the sa'ne touchlg the dea,, body atd thc othct the heck o/ the fuccused' .The Present ux is of iuch o natwe uh*e many links ate missing irl lhe cl&in' To.am contiction on a ca7itnl charye it is cssenlial tlut courl' n^e i *rpty scrutitliz? lhe circumstantial n'tdtnce because labrtcatlng'il such eoidence ls ttot u cofirnon as oe 'notictd haue i io^" ,ot"t thus, wry 'fli'tste and nanou iaminqtion ol the safie ls ecessary to s?cure the etds oJ, and fhai tlz Pror.rulion lus to establish tlr cns beyo d iustice 'nll rensonable doubls' resling on ctr mslantiol eridance' "Reasonable Doubt" d.Es not naan dn! doubl hul-il tttus,l be, accomrynid by such reasons, suf ienl to persunde n Jutttdnt nind lor ptaaig reliane on i!. lf it is short of.such standatd' it is'b*ier to-discattl the sLfie so thqt sn it'noce'tt Petson iiiht rct be sent to Sallous' To dt@w 4n infeteace of- gvilt tuim such aldetce' t-he Coult has to apply its iudictal mind 'wilh deep thought a\d .olth e*ra cate anil caution anil wheneoer lhere 4r? ote or sotflz lhdicatiots' showittg thet

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de\ign of the Prcsecstion ol nahufactuing *rtd PrcFaratiol ol a case, the Courts hate to show rcluct4nce to belieae it unless it is iuilicially sstislleil *bout the Suilt ol acc'vsed pefion aad the requirc.l chain is msde out toithout flissifl{ linl, otherutke at rundom reliance on sueh aoiilance wortld result in fsilure oI lustic4'

It oy aLo be kzpt in ,nind that sonetines the inoestigating agency albcts circ:,ttrsta tial e.)idence see s aryarehtl! beliertable lnweoer, tl the strict stendatds of scrutity are opplied therc wodd aPPeN flaty cracks dnil doubts in the sofle .ohich ate tlways ifihereflt thercifl qttd in that case Courts haoe to discord snd disbetieoe the same'" @ok1 added)

ln t}re case o{ Azeem Khan V Mujahtd Khan (2016 SCMR 274) the following was reiterated with resPect to the care and caution which nceded to be taken by the court before convicting in a case of circumstantial evidence at P.290 as underi

"Itt cftses of citclrnstantial eoidetce, the Courts are to toke exttlotdifi4ry cate urtd ctution beJorc relying ot the .safie' Circuntstnnti;l ertidence, met if supporbd by deftcnw or irudcquate eL,idcntE, ct fiot be made basis lor conviction on o ctPital clarge Morc porticulatly, rohen theie are indications of design t th? lrPrynhon oI.a 'clse or inioducinS any piece oJ t'abicated eridance, the Court. should alttays fu mindlul to take eatriodfinry Prccaultotls' so ,thal lhe p*t"it;tity o7 it A"i"g detiberotely mrsled inio folse u/ere ce and Patr-n.lly iurong ciniusion i"-to be ruled iut, thetelore had andlost tubs slauld be appliid fur carefully tnd nanouly exaniirung r:.rcumstantial e dPfi'P tfi surl, cascs betause chanccs ol lobriating such (eiderAe dre aluays llPte To ,,stily tht hlercflce ol Suilt ol an accused .P"oon' .!,h," circrtttrsiintiel eTridence ,ntst be oJ a quality to be l'tconPa?ible .oith the lnnoc.nce ol the accused. If such ciTcuttstarttial-euidefice is not of that stand;nt and qtality, it tDosl't be -htghlV *'S:'!!" to rely upon the same by atoirdifli caPltal Punishnent' .The be,tter ind *oulil ie lot to rily upon it ln sec ring the e'tds of "L7"' "rur"e jtletice:'

Thus based on the above rea$ons we find that prosecution has failed to provide all linkc in chain an urbroken one, where one end of the same iouches ttre dead body and the other the neck of the accused and in fact there are many broten ttn-ts in the prosecution evidence in,so far as its aead body and the ne(k of the accused and as such we .t uin too"t is unaafe to convict the accused on the basia of the find that it""inu .ircunotantial evidence ploduced by th€ Plooecudon in this caae' 14, That the Prqs€cution must prove its cas€ agairst the accused beyond a accused by way oI reasonable doubt and that the beneiit of doubt must go to the on the case o{ rightas oPPosed to concessiolL In this resp€ct reliance is Placed

Tariq Pervez V/s. The State (1995 SCMR 1345), wherein the SuPreme Court has obscrved as follows:-

"It is etlbd taa' ttut it is fiot teessary that there slnuld be nufly citcurrstsnces matitg doubls, lf there is a single citcumshne, uthich creales reasoasble doubt in n prudent fltifld abo the guilt of the acaced, llen lhr a.tused uill fu enlitled to the beneft not as a flntler of gracc and ancession bvtos dnntt ofight."

15.For the reasons discussed above by extending the benefit o( the doubt to the appellant he ia acquitted o( the chai8e, the imPugned iudgment is set aside, his appeal is a.llowed, the ciminal revision aPPlication i3 dismissed and the appellant shall be released unless wanted in ary other custody case'

76.The appeal and criminal revision aPPlication stand disPosed of in the a I above terms.

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