DAD DUL S/O ZAR GUL (Appellant) VS THE STATE (Respondent)

e-tA

IN THE HIGH COURT OF SINDH AT KARACHI

Present;

1\1t.lus tice Nloha 1r, I tlstice Khadln Httssttin Tunio E3IMINAL4!!E4!Xo.ff c-sf 2q!9

CONFIRMATION CASE NO.27 OF 2M9

Appellant: Dad Gul son o{ Zar Gul through tr4r' Muhammad Farooq, Advocate-

Ile6pondent: The State through Mr Mohammad Iqbal Awan, Addl. Pr6ecutor Ccneral Sndh

CRTMINAL ACOUIfiAL APPEAL NO.585 OF 2019 Appcllant Awal Khan son of Haii Ghani though Mr Mahmood t Iabibullah, Advocate'

Rcspondent No 1 The State tttough Mr. Mohanrmad lqbal Awan, Addl. Prosecutor Gcneral Sindh' Respondcnt Nos.2 & 3l Sher Ali son of Haii SheI Muhammad and Muhammad Naeem son of Sheen Khai' throu8h Mr. ftikhat Ahmed ShalL Advocate Date of hearing: 17.02.2022

Date of aimouncemenf: 24.0270D.

UD ENl' Magha son of Moham.urad Karim Khan Agha, J'- APPe[ant Dad Grl @ Za! Gul was convicted by the learned l Additional District & Se6sions

ludge/Model C minal T o.l Court O'Ialir) Katachi in Session Case No.1464 of 2014 arising out of FtR No389 ot2014.u/s 302/1@/34Prc sentenccd to vide judgment dated 0709.2019 u/s 261H(i) CI'PC and of Rs 02 million to be death subiect to coolirmation by tfus coutt with fine 514-A Cr'trC and in paid to the legal heirs of the deceased undet s€ction case of default in Payment he shalt further undergo S l of 0'6 months'

l

"r2

2.lhe brief facts of the Prosccution case as Pel Fm are that on 22.11.2014 at 1020 hours OPP: Hasnat Masjid Quetta Town Scheme No 33

Ma.lk Katachi the Ples€nt ac.used Dad Cul @ Magtu along with already

convicted accused namely Muhamrnadullah and absconding accused Rehmatulah, on the instructions of Sher Ali and MulEmmad Nac€m in armed lieu of head moncy camc at Quetta'fown on two motorcycles being with pistols and thereafter in furtheFnce of corunon intention the accused Da<1 Gul lted uPon thc son of complainant namelv Dost and the Muhammad son o{ Awal Khan who died due to such iniuries abetted the murder of accused nameiy Sher Ali and Naeem consPiled and dcteased Dost Muhammad and Paid Rs 10,O0'OO0/- (Ien lac) as head Rehmatullah money of Dost Muhammad to accused Mutu$madullah' and Dad Gul @ Magha, hence this FIR

3.Aftet usual invesHsation this case was challaned bcfore the guilty to the charge .oncemed Eial cout where the aPPetlant Pl€aded not and claimed trial.

08 Pw's who

4.In order to Prove its case'the Prosecution examrned of its cas€ The exhibited various docurtents atrd other iterns in suPport wherein he apPellant recorded his statement utder s€ction 342 C!'PC admitted all ihe allegations which hsd been rnade against him He did not o{ hig defence caBe' give evidence on oath or call any witsress in suPPo* on rc{ord

5.Afte! hearing the Parties and aPpreciating the evidence the aPPellant the tearned Judge of the hial court convicted and sentenced aPPellaat has filed this as set-out eallie! in this judgflent Helce the appeal against his conviction. Howeve! the accu5ed/resPondents Sher Ali son of Sheen Khai son of Haii Sher Muharnmad and Muhammad Naeem and the were acquitted by the trial court through the idtPugned iudgment comPtainant has filed an aPPeal again8t their acquittal' before the trial

6.The facts oI the case a8 well as evidence Produced by the court find an elaboEte mention in the imPuSfled iudgment Passed here so as to trial court an4 therefore, the same may not be reProduced avoid duPlication and unneaessa4' rePetition'

b ^w

7.Learned coulscl for the aPPellant aontended that the eye witnesses being relatcd to the each othel were not reliable and as such their evidence was shoultl be ignored; that the magisbate whom the judicial con-tes'sion confession recorded before did not give evidenc€ and as such the iudicial carried no weiSht; that the €mPties at the scene were s€nt to FSL 2 veals after thek recovery and as such the FSL report could not be uPon 'elied and based on any or all of the above reasons the accused should be he acquitted by extending hi-trl the benefit oi the doubt ln the alternative this court submitted that iI the conviction o( the appellant wa$ uPheld by then the s€ntence should be reduced to life imPrisonment

8.On the other hand, learned Additional Plosecutol Ceneral Sindh thc and leamed cor.rnsel lor the comPlainant have fully suPPorted the eye impugrcd judgment. In Particular they have contended that who filed on witneas€s have corr€ctly identified the accused as the Person and murdeted Dost Muhammad and that there evidence is trust wo hy medical and confidence insPiring and can be safely rctied uPon; that the conl6sed evidence suPPorted the eye witness evidence; that the accused statement and his guilt both b€fore a magisEate and in his S 342 Cr'PC counsel for that the aPpeal should be dismissed ln particular the learned be uPheld due the complainant contended that the death Penalty should to the murder of to the bruta.l natue of the PIe Plarmed attack which Iead relied on the cas€ the deceased. In guPPort of thet contentions they have of Naeir M€hmood V State (2015 SCMR 423)

9.The State did not file any aPPeal agaiist the acquittal of the against the lespondents. The comPlainant however moved an aPPeal and his acquittal of the re8Pondents who had allegedly Paid the aPPellant co-accused to mulder Dost Muharnrned He ha6 relied on the iudicial who had directly confcssion and s.342 cr.I'C Statemert of the apPellant head money for impticated the (€sPondents as the PeNons teho paid the lcarned counsel for the murder of Dost Muhammed On the other hand even iI the lespondents has contended that the iudi'ial conlession used against the co- admissible is exculPatory in nature and cannot be b€ uged against the, accused and even the 5 312 Cr'rc statement cannot

rcspondcntB unless it is corrotlorated from some indePendent source of

evidence of which there is none in this case and cven otherwise having

been acqllitted by the Eial court the resPondente enjoyed a double prerumption of innocerrce and as such the aPPeal against the acquittai of the r$pondents should be dismissed. ln suPPort of his contentions he placed reliance on the case of Khalid Javed v state (2m3 scMR 1419) '10. We have heard the arguments of the lealned counsel for the Parties' gone through the entite evidence which hag been read out by leamed

couisel for the aPPellant, and the imPugned judgment with thei' able case law a*sistance and have considered the relevant law including the cited at the bar.

11.Based on oul reassessment oJ the evidence ol the PW's' esPecially rePorts' recovery PW eye witnesses, the other witnesses including medical that the of human blood and emPties at the scene of the incident we find prosecution has Proved beyond a reasonable doubt that Dost Muhammed

(the deceased), on 2211.2014 at lom hours oPPosite Hasnat Masiid Quetta Toren Scheme 33 Malir was shot and lilled by persons who came on him' moto! bikes and oPened fire on him with intenhofl to murdo The only question left Hore us therclore is who carried out the

7L

attack by fuearm on the deceased which lead to the murde! of the date and lGation?

deceased on account of firearm injuries at the said time' 13, AJter our reass€ssment of the evidence we Iind *lat the Prosecution the aPPellant has proved beyond a reasonable doubt the chajge against for which he was convicted for the following Easons;

ral That the FIR was lodged with reasonable PromPtitude bein87 iiours aJter the incldent whereb,v the appellant is naned FIK in the as comin8 on motor bikeg with other named per5ons and lrrmg on there was ii. a*""La ty f:r.*- which caused hit death Even iI exPlained FIR.this-is ..*,a"*a to bc a slight 'lclay in lodging the taking his de(cascd bv the fact that the <-omplainant was busy in tor sin first to Patel Hospitai and thm to Abbasi Shaheed HosPital pi.i -.*- u"r"* if,re body was relcased and therealter the the

FIR

FIR

was lodsed. With respcct to an exPlained delay in lodging thc casc not bein"g tatal to the bros€(ution casr- reliance is Placcd.on .irtl"ii'.-"a N.a"im alias Deemi v The state (2u1 SCMR 872)' l

.v7

(b)In our view rhc Plo3ecution's cate rests on the evidence of the eye witnesses to the murder of the deceased whose evrdence we shall consider in detail below;

(i)Eve witne€e PW I Awal. He is the complainant in thc case ind is the lather oI the deceaEed. Acc('rding to his evidcnce on 2?.11.2m4 at about 1030 hours the deceased left hiB hou6e when he saw two moto! cyc.les coming to Hasnat Masjid He saw that on one motor c/cle three Persons wcre sitting whilst on the other two P€rsons we.e sitting They all started firing on the deceas€d aJter whi'h the deceased fcll down' One" of the motor cyclists also got injured named Muharunedullah. H; identified the aPPellant Muhammedullah and Rehmattullah as the Persons who fired on his son. He took the deceased who was dead on ar val and the accus€d Muharnmedullah to Patel hosPital' He was a natural witness and not a chance witness and had no enmity or ill will whlch would lead him to falsely imDlicate the accused. It was a day tiSht incident and he knlw the accused and 8ot a good look at him from relatively close dirtance. ff" nai.O nlm in the FIR which was filed with promPtitllde as one of the persons who fired at his son with; ho;rs of the attack and ai such there was no need for an identification parade He identiJied the accused on his arrest on 20.03.20i8 at the PS after the trial and conviction of accused Muhamrnedullah in resPect o( the safie oflence He has madc no material imProvemcnts in his evidence Irom that oI the FIR. Two of the PeBons named in the FIR Naeent and tlabib Khan gave eye witness evidence at the earlier trial of the injured accused Muharnmedullah who was of the convicted by th; concemed trial court Prior to the trial accuscd.

Adrnittedly the eye witness was rclated to the deceased who was his real *n ho*","t it is well s€ttled by now that evitlence oI related hitncsscs cannot be discarded unless there is some ill will or enmiry between the eye witnesses and the accused which has noi been provcn in this ca* bv anv reliable cvidencc. ln this resFxt reliance is Placed on the ca;es of Ijaz Ahmed v Th€ state (2u09 SCMR 99 -rya1l Iqbal aliar NaBra and another v. The State (2fl6 scMR we Iind that the eyewitness Save his eviden'e in a skaight forward and naturil manner and was not challenged by thc accused on any asPect of his evidence dudng cross examination

Thua, for the reasons mentioned above we find the evidence oI the eyewiheBs to be retiable, truatworthy and confidencc inspiring and we believe the same esPe(ially with regard to

4c\

the corre(t tdentifi.ation of the aPPetlant a0 one of the p€rEon3 who fued at thc deceased and caused tus death ifuoush firearm iniuries and can convict on the cvidence of thl,, Jve witness alone provided that there is somc corrobirative/ supPortive evidence ln this re6Pect reliance is ola(ed on the iascs of Muhamnrad Ehsan v The State r20k SCMR 1854. ns also found in the caces of Farooq i<han v. The Stati {2008 SCMR 914 and Niaz-ud-Din and arolher v. The Staie and another (2011 SCMR 725) That what is of sisnilicance is the quality of thc evidence and not its uuanlitv and in thig case wc find the evidence oI this b" oI good q,"litY "y"riitn"sito

(ii)Eye witne$ PW 2 Bahadut Khan" He is the brothc! of ihc iomnta,nant who was name(l in the Fllt aq an eve witness. AccordinB lo his evidence on 2?1t 2014 he was standing at the gaL of his house when he heard firing' He *- t|i." poJ* sitting on one motor cycle and two o"rsons on utl of ihom were firing on the deccased' e tfuee "noth".

persons he taw on onc bike who were firing on the ;;"; i't" identified as the apPellant' Muhammedullah iiJ n"H".t. He knew the appetiant and thefurther attack took i" U.ora 4., liqht not far'from him He staled "i*.

lhat both the a"<"oia u,,a injured Person wcre taken to hosoital. He coEoboratcs eye wiErss PW I Awal in au material respects The same considerations aPPIy to him.as iw r e*uri He was not challcnged on any aspect of his evi.Ience during crcs examindtion and wa5 a natural as .pf a" , *im"s" and as such we believe his "tJ eii'.lence especlally in conncction with the correct "Lnc" identification of the appellarlt as being one of the.Persons wio fir.d at the ,lc<eased and which caused his death' /iiil Eee witnes. Pw 4 Abduu'IL He is the brother of the iompiarnant Accor.ling to hi'evidence on 22'11 2014 hc wa' o.esint insi.ie Masiid-elHasnat when hc saw {ive Perqons on all u -oio. .r.t"t io^e there' According to his evidencc v'rho iir. o.r**'on the motor biles fired on the deceased ar#in"a fir*"ta injuties and also onc of the motoronebike JJ"* i"ii a.*" r,! sustained a rirearm iniury ftom and o( f.it He and PW I Awa'l took the tleceasetl "..o.nrti.o irri**Jtii* a p""f f,osprtal where the deceased died and ttr'e Jice anestea tne injured ri'ler named Muhammedullah .fr"i i"",-"nt. Hu.ottt'borates eye wimess PW t Awal anJ eve wimess PW 2 Bahadur Khan in a'll material resPccts' Thc i}ne considerations aPPly to him as to eye witness Pw I e*ut -.f *lt""tt'Pw 2 Buhod" Khan and we believe "y" his evidence especially in terms of the correct identification of the acculted.

we have no 'rii"isuch bas€d on the eye witness evidenceidentified they' As aourr irt" PW eye wimeeies have correctly

appellant as beint one of the Pe$ons who shol the deceased by fiilarm which leid to his deaih especially as the appellant does not even deny his presence at the scene of the incident eithcr 'examination duling cross oI the PW's or in his S 342 Cr'rc state;nL In fact in his 5.342 C!.rc shtement he admits his full par*icipation in the murdcr of the deceased.

Thus, based on out believlng the evidence of the P.w' eye witnesgee and their correat idelrtification of the aPPellant what other supPortivdcorroborative materiat ls thelr '8aitut the appellanti'Keeping in view the legal Position that such evidence is oJv a r,.rlc of iariion/prudence in thc face of reliable and trust *.,irh, witness eviience especially as in this case there are "r" rfrree ivitLees€s who we have forlnd to share such attnbutes and have corectly idenlrJied the aPPelant ae firing uPon and causing the death of Ge dcceased. ln this respect reliance is Placed on the case of Muhammad Afzal v The State (2003 SCMR 1678)

(c)That Fw 3 Dr.Abtd Haroon wss MLO at Abbassi Shahced ii.oii on the dav of the incident gave evidence that accuscd "t Muhammedullah was Produced before him in iniured condition as r""trt, of,ni" n.ia""i which injury he tound to lrave been causcd "by hrearm whxh cofioborates/suPPorts atl the e)'e witness Muhammedultah fire'l it the dcceased was iniured "iia""..,rt", Uafi.eam ana was then taken to hosPital where hc was afiested after treatment,

(d)That co-actused Muhammedullah was arrestd on the <Pot Ifrf., fti, co-accused (including-forthe the aPPeUa^t) atlsco-nded' same offence tefore U"fr"dtra"arff was convicted "f, ...ii.iiiuf .o*t t"6ed on similal evidence and sentenced to life irnprisonment for his role in murdcring the deceased by fireatm

re) I hat althouEh no post mortcm wa!' exhibiled the memorandum ).i-a-s.-#".t1"" of dead lody and rePort of unnntural,death wiih the;ormer quoting lhe post mortem rePort carried out by the MLo that the causc of Jeath was by tirearm and it is note'l that thP deceased was hit by numerous bullets corloborates the eyc witness ."iJ"i." tft", the rieceased was shot and killed by firearm which suPPods issue has not been disputed As sLrch the medical evidence the ocular evidence.

I0 That thc aoDellant gave a conJession beforc a judicial magistlate' ii't" was iot called to Bive evidcnce and as such we ^."ltttjti cannot 6 surc that the required procedural safe guards were given Furthermore' the iudlcul betore recording the iudicial confe5'ion to be exculpatory in nature by attemPting to .onlo"lon "ppo:ars co_accused and or y admitting his Presence blame the a;Eellant's it' th" *"n"'oirJ ,. ,.rch wc place little, iI any' reliance on "t Ipl LlkP wise the positive FSL,eport is uf no assistance in ProvinB iio fi.ed at th; deceascd as no Pistol or other weaPon was

z.\

t/ /-

recoverd from the appellant. The fact tiat no recovery was made iroi the appellant ie not relevant ats the aPPellant wT :rrested a number of'v'ears after the incident and as such he would not have l . *p*La ft re the same freaq rlrith him which he would most probably " have dGPosed of.

{hl That what ls however of eignlficance is thc aPp€llanfs 5 3{2 Li.rc statement *here in he admiLs to the mtiie Prosecution case' ror of ,"f*en<u tl,e 5.342 Cr.f'C statement o{ the aPPcllant is ""s"bclow for ease of reference;

sct oul

o.7: ll i5 atk&d lt/,t ofl 2211 2014 at aboul 1030 hnurs Wu i**i oi", or**d Muhammadullah and Rzhnatullah in iiit inr" if "7n 'iorit ,ou, ," nan intention cnm? in Jrunt-of .Masiia-. Dosl Quaio"ro"n Kanchi and then W acclrd firc'l on Muhin;ld, ftsulling lhefti ha dird, l{'hnl you haoe lo \ay '' Ans. We wefi hlte \efiofls uho cornfiittcil the mstder' The 'io o".u""d wi" unknou'n ond I ilo not knotD their nqn?s' O.2: tt is fud4r oll2ged that dwin| this finS ot? ol-tlY @ol. iatsed nawlv Muhaninodrllhh 'as aleo inlufld fon fnng aca:rced khnit antl arrested on spot by Vubhc' u'hat W llcw to ssYT

atls. lt is cofiect' Q.3: l'l|at Dosl Mthamndd dizd un atwal dralh on accounl of jrc-atm injurics, tolwt you hme lo say?

Atts. It is coneaL A.4: Thal' on 2O-O3 2Ol8 yo1l \'ere arresleil in thts $'e bV ASI. judnai irlara' i"i,iia and viu made confession tufore. Maelslrqle'lv Mrht on 26-03-2018 llat you along utlh Kefimdr on,t" Muhanmod.ullah had. kitled Dosl Muhamnad aler lahng hts afld sher AIi' ii "*"q' iii.to,oo,o0o/' (Ten Lac) fton Noe'n hnt lou hcD. to saY?

le4m"t An$. It is coficct, but du' to fefi I itid not illsclose Magistrate thLt @e werc fhtc acotsed peteons' arc ile7osi S a*tilsl you?

Q.5r Wy tpitncsses All are dzqoslrl| truth.

d'fense?

Q.6: Do W uant to eaafiiie anl roil/,ess in Wr Q,7: Do you rdant lo er\rnil| yourself ofl oathT Aa- Q.8: HaTeYouto Y nnltlinS el52?

ArLs. lt wai ii uear 2074 I w.,s sitttfiS outsi'Lc hoBe of Muhammadullahl M?anuhilc Rehmat ako ca'ne there' 'iii- tn" ,rct*cil u)ho arc Pftsent n colrt nanetlt 'i"""-""iiil $me theri' At th":re shn Ali and 'irrarr ,"i'ii, itt "lso :u,ith ny lriend Muhammadullah *." iti""i;g

I

"-Y

about tturder ol Dost Muhtfimad nrc coflttac't ol killiflS of Dost Muhornm\d u)as liaed at Rs'10,00,00V' and it u'as stated by Sher Ali a d Naeem th4t be caftIul thls timc becouse iarliet they had paid anil assigncd task ol ki,Iling Dost Muhafiflrad io Stulhl boys, btt they hstead o/ hirn kltled his btother Naieebullah, Afto lhtee dols I dlong toith Muharnnidsltah, Rehrndt \rrd hto unknoufl Perso'E went Otetla Toun uhcre at \bout IOOO /1030 hours we took out iu. rlstots and salo that lrlhcr of Dost Mrhafi'nad wos also aming ltom bPhtnd we kitled Dost Muha"tfiad i Quetta'roii in ftont of Mosiid. h this i'tciilent ilue to o7 iry ninna*tah Muhonmadullah obo 'sustiiria oi ltiea fiaig ryte lniarlf',, Thefl u'2 tef't Muhrn'iadullah ooet theft ihen I'atong ttith Reh,natullah \nd 02 othet pe,{,ons le/t fton thlte' tia's riding blke uhet Rehmdtullah talted Nieem that tN haoP.onllet?d thc task' At lflltts (Tm Lac)' Ploza NA1.fi anl Shcr Ati galtc us Rs'10,00,00U' Accused Naeen tttil Sher Aii ptesent itt court ore satte uho pait us Ri,1O,N,OW'(Ten Lac) Oold added) 'fhis is a clea! admis-sion by the aPPellant that he fted on the a*"r..a ulo.n with otheri and intentionally and delib€ratelv mu..t*r"a nm:] tp supreme coutt in the (as€ of Narir Mehmood icunra) has held that. 5.342 Ct.fC.t"t"*enl is mote believable it r'n J-(r statement under 5.164 Cr'fC in the following "..,r""a terms at P.{28:

"ln Azhor lqbat t). State (2013 SC 'fR 383) thjs Court has , .ilt.uttu h"t,t that Etatement of an accused recordedrn ,'.racr seciion 3'12, C!.PC has to be accePtcd or rejected to ic er.*ety and where Plos''cution's e\'idence w?s foundwas be reliable and the exculPatory Patt of such statement established to be falre and excluded from considelation' read in then the inculPatoll Part of such statement miSht be support of Prosecu tion's evidence. In l",lDhn tnni Azntn 1, @ Boola t'. TIa T__1BE QO09 SCMR 1232), Abdul Rehmarl II 51!l! (2011 SCMR i4), (2002 SCMR 1869), Slubbir Ahrr,ci !.'ne SIat' (PLD 1995 SC i43), 1d K)urr (1991 SCMR 61) a ^d

this court has held Ahttcd u Allah Wdsalto Q004 SCMR 1808) that statement oI an accuse rI recorded under section 342, or Cr.P.C has to be read in its entitetv and has to be accePted rclec ted as a whole. The statements of accused recorded under s€ction 342, C!.P.C. iI believed in entiletv also find cuoDort Irom the prosecution e! idencc Even otherwile' thc or recordcd under section 3'12' Cr'P c' "dt!i.", isioie reliabte"" "i.u"ed than comPared to the stateEient recorded ,tra"i 164, cr.P'i which i5 re(orded when the *a't*a"""ti"" f" in Police austod, as before submiseion ofa ..na"t's".tion 173, Ci'P C' the "'used as "i"tl".t irecatrtion eers a chance to record his statement before thc it4acistrate." ln the instant cat€ the aPPellants were aff;ded fult oPportunity to get lecorded their statement8

under geation 34i1, C!.P'C without any duteaa or coetcion. Even .t trial when the appellante wele duly tePre6ented no question of duress or coercion arose. The aPPellants did not deny the occurre ce in which 3ix Persons lost their lives but have pteaded thet the hcident had not t.ken pleae ln the manne. narrtted by the Pr@eaution."(bold added)

We note that the appellant's 5.342 Cr.rc statement fits in with the cntiJety of the plosecution case and fully corrobotates/suPPorts the evidence of thc eye witn€ss€s and we believe the same and place reliance on it.

(i)That all the PW's are consistent in their evidence and even if ih"re *u coatsadictions in their eyidence we considd lhese "o^n conkadictions as minor in nature and not material and certainly nol of $uch nutedality so as to eIlect the Prosecution case/evidence and the conviction of the aPPellant- ln this rBPect leliance i5 Placed on the cases of Zaklr Xhan V State (1995 SCMR 1793) and Iftadim Hs6aaln v. The stat€ (PLD 2Ol0 SuPreme Court 669)'The cvidence of the PW's provides -the a believable corobo6ted unbloken .tEin of events from eye fitnesse6 se€ing five P€lsons (iflduding the appellant) on two separate motor bikee shooting widl fiteaIm_s at the deceased which shots hit the deceased and caused his death to cqaccused Muhammedullah being injured in the firing and being taken in injured condition to hosPital to the arrest of the apPellant to his coaJes6ion bclole the rnagistrate-

li) That the police PW's had no enrnity or ill will towards the appellanl und had no rcason to fa.lsel) imPlicate him in lhis case ani in such citcumstances it has bcen held that the evidence of the police Pw's can be fully relied uPon. [n lhis resPect reliance is placed on Mushtaq Ahored V The State (2020 SCMR 474)'

(k)That it does not apPeal to logic, commons€nse o! leason that a iaiher would let the ;d murderer of his son get away scott free and falsely impticate an innfient Person by way oI substitution ln this respect reliance is placed on the case of Muhammed Adhraf v State (2021 sCMR 758)

(1)Undoubtedly it i5 for the Prosecution to Prove it8 case against ihe accused beyond a reasonable doubt but we have also consilered the defence case to s€€ iJ it at all can caste doubt on or dent the Prosecution case The aPPellant has not Put uP any meaningful defence case No PW was challenged during cross examination, the appellant Eude a conlession befo'c the magistrate and the appellant ;dmitted his rolc in the murde. of the deceased in his S.3i2 CI.PC statement and as such in the face ol reliable, trust u,orthy and conlidence iispiring eye witness evidence of the appellant being involved in the firing and muider of thc deceased ,ni othe. sL-fiportive/corroborative eviJcnce we bclieve thc t0

defence case in so far as it is fully suPPortive of the evidence lead by the prosecution.

74.Thus, based on the above disoresion esPecially in the face oI leliable, tfirst worthy and conlidence irupiring eye wihess eviderrce and other aocoborative/BuPPoltive evidence mentioned ak)ve we have no doubt that the proscrution has Proved its case against the aPPellant beyond a leasonable doubt for the olfence for which he has been convicted and hereby maintain the aPPellant's conviction'

15.With regard to sentencing we note that it is uruleir as !o who fued the fatal shot which killed the deteased as accordinS to the eye witnesses all five motor bike riders filed on the deceased and the medical evidencc rcveals that the deceased received numercus fi'earrir iniuries There i5 a

plethora of SuPreme Court authorities that in such cilcudrstanccs the the death pcnalty fiIay bc reduced to life imPrisonment' FurtherYnore' 'o- was Eieti earlis and seParately who accused Muha$medullah who played the same tole a5 the aPPellant in the murder of the decea'sed and was convicted on similar evidence was also or y sentenced to Iife imprisonfuent au opposed to the death Penalty Thus, k€€ping in vie$' the death these two factors the sentence of the aPPcllant is reduced from penalty to RI ior LiIe with a]l othe! fines, comPensation etc in the the impu8ned iudgment remaining in tact. The aPPellant shall have benefit of 5.342 Cr-rc and any remi$ion available to hirn under the law'

16.With regard to the aPPeal again8t acquittal of the resPondents who his co' were aIIeBcd to have been paid head money to the aPPellant and judgment an accused to murder the deceased as mentioned earlier in this appeal against acquittal as a matter oI law has a verv natow scope and in the accused acquires a double presumption of innocence ln this resPect the recent SuPreme Court casc of Muhammed Shafi v State (2019 fMR 1045) it was held as under at P.1047;

"ll is by nou well sctlted tlut acquitlal cafties 1t'ith il dotlble ,r"ru.ilto of in oatncP; tl t6 Pwrsad only t'lmt fi'uad fringes ol titPu\tibiltt! and 'blatantiy pei,sc, rcsti^g upon resutttig ;nto n*mtttige ol iusite lt c'11' ct b'' ! asile/

a al

np/elv on lle oosstbititu ol a can|a iew. Tht Hrylt Cnurt has *roqilra furi sftba iiiciptes ol ltu' and thu\ d?pafiN d@s nol knnenl sa| a'ilh aryrcoal." @kl added\

17.The complatunt in his appeal against acquittal in respcct of the responilents who allegedly Paid head money to the aPPellant and other co'accused to murde! the deceased has placed reliance on the iudicial we have confession of the accused however fo! leasons discussed above aB it is placed little, iJ any, relian e on such a iudicial conlession esPecially his exculpatory in nature and airlls to exonerate the a'cused and imPlicate co-accused. Such conlessioru whiah camot be used against their rnaker was held in the cannot be us€d against the Pelsons referred to ther€in as at P 1455' casc oI Khalld ]aved (SuPra) in the following terrns "ln lis con?,at anolhar asqct requiing exan,nlin tooull tE u,h"i,h", *nf"rrronol sl/lkm?nl can L'e 1$'ed a4amj rc aaused y.t*tia nii. iuffire il lo &*nP tlal confrsri,onal \tttlctnPnt Lrh PE undet Arlict"'43 of lt@ Qanuna'Shahadat A t' 'En oroof apainst ttu pew:is noking i ond lh' iisn-*i"tii'rfra, tttt rynrytafu 'iiti ' such conf?1sion ; circum'titt!t": '1ld'ne aiiinst .u,h other pttsn Thcrclore, wth rcleren'e lo lhe iattdnl in ,n nn of the oqinion thal il conlessiontl stik' Pnl L)ih t'L *"nit i iia oroifu tB mat.lt'nanPly aPpetta" 1t'"n1 al.'nd'. it cannol fu equilly uszd as or mstanti1l edletrcr 'r;'l nsl i'/ulrl' laoed."

16.The only other piece of admissiblc evi(lcnce against the ho!"'ever it is respondents is the 5.342 C!.PC statement oI the aPfclliit another co_ well settled by now that a statement of one co-accuse(l allninst by accused is insufficient to lead to theii conviction unlcss suPPoned some unimpeachable indePndmt coroboBtivc l'ircc of t'vidence of rvluch lhere is none in this case bar onl)' a few' l'li\ anll Pieces of is placed on the inadmisBible heareay evidence. In this respect reli;rnce FSC r'l) Thus based on case of Arif Nawaz Khan V The State (PLD 1991

the legal PGition regalding the requiiements tor an 'rppeal against

conviction to sucteed when Placed in ju'ta Positi(rr] i\'ith tltc available evidence agait[et the respondents the aPPea] againsl nc'lr'jlttal is found to

be without merit and is dismisscd,

19.Thus, for the reasons mentioned aLlove' in suD) n'lr 1' ll

AL

+z

(a)We dismiss the appeal against convictiol ;r;rd uphold the conviction in the imPugned holal'\'"' u't: reduce the iudgrnent sentence of death to one of RI for Life. ,\ll other fines, comPensation in the imPugned iudgnentshall rr"niin in tact The

apFllant shal have the benefit of s.382 (l]) Cr'PC and any remissions available to him under the law lvillr the conJirriation refer€nce beinS answeled in the negative'

O) The aPPeal against acquittal is dismissed'

20.The aPPeals and conlirmation reference stanJ 'li:oose'l of in the ll