MUHAMMAD QASIM S/O GHULAM MUHAMMAD (Appellant) VS THE STATE (Respondent)

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IN THE HIGH COURT OF SI NDH, KARACHI

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r\lr. /rs-licr' lftrhUttttuul K/Jrh|a Klrrrrl rlgftrr it lr, /rslft'r' Khtrlfurr lfussrrlr llrrftr

CltlNllNAL Jr\lL AII'[iAL NO.23 Of 2022 CONI;lRt\l r\TION CASI NO.072020

A1rpr.'llant: Nluhanrm,rd Qaelm S/o Ghul.rrn IVlohluddln through tvlr. tflikhar Ahnrcd Shah, Advoc.rtc.

llt.spondgnl, The State through lvlr. Nluh,rmnr,rrl Iqb.rl Arvan, Additlon,rl Prosecu lor General Slndh.

Complainont: Through Mr. Ghulam Rasool, Advocate

Date of Hearing: 30.03.2023

Date of Announcement. 05.04.2023

TUDGMENT

itlohanunnd Kariu Khan Aghn, I:- The appellant Muhaurnratl Q.rsinr strrr oI Ghulam Mohiuddin h,as tried by the Court of lst Additional Sr'ssi(rrrs ludge / Model Criminal Trial Court (Malir) Karachi in St'ssion C.rse No.2000 of 2019 under Crime No.695/2019 u/s.302/3{ PPC lorlged at 15 Shah Latif Town, Karachi and virle jurlgnreut (lated 27.01.2020 hc \'.rs convicted for an oflence puuishablc u/s.302 PPC anrl lrr'.rr,.lt'rl r,I.'.rtlt scntcnce as Tazir u,/s.302(b) PPC subjc'ct to confirmation [rY this ctrutt. l-le was aleo ordcrcd to pay fine of Rs.l5,00,000/- to th!. l!'B.rl lrtirs rr[ the decc,ascd undcr scctiolr 5.1.1-A Cr.l'.C. nntl ln cnsc. of rrtrn-[r.r]'urr,'ttt rri finc appellant shall ,rlso suflcr inlprisonnlrrrt Ior six nroulhs rnorr'.

2.The bric.f facts of thu prosucutir)r'l crlsc flrLt th,rt virl,.' Scction I5-t Cr.P.C. statcmctrt cotnplainant Klrtrrranr Shuhzart re portl\l th.rt he, rr,.rs .rt Abdullah Goth when lrr: recr'ivcrl iulormation that to(lay i.e..02.11.2019 .rt 1850 hours accused Qasint in conuivance rvith ncctrsed Unrcr. harl firr'rl and injured his brothcr Nluhamnrarl Farooq anrt nepherv Nluhanrnr.r,.t Haris and when he reached at hospital he found their ti..atl bodies. l-lc

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furtlrer submitted that some time ago dlsputc arose between deceased anci accuscd Qaslur ovcr thcft of Wifl routcr lor which accused easim inrltlicnted Alnau Rntl cven on thnt lssuc accused Qasim took out pistol nn(l rcsultarrtly cotrrplnhront along wlth cleceasccl person movcd npplicntlon for protectlon at P.P. Khulttabad, Thus FIR was lodgetl untler Sr.ction 302/34 PPC ngnlnst thc accuscd persons,

3.After usual investigation charge was framed against the appellanr to rvhich the appetlant pteaded not guilty and claimed trial.

4.The prosecution in order to prove its case examined 10 witnesses antl exhibited various documents and other items. The statement of accused was recorded under Section 3.42 Cr.p.C in which he denied the allegations Ievelled agairut him. The appellant did not examine himself on oath nor ploduce any DW in his defence.

5.After hearing the parties and appreciating the evidence on record, the Eial court convicted the appellant and sentenced him as set out earlier in this judgmenU hence, the appellant has filed this appea.l againsr his conviction.

6.The facts of the case as well as evidence produced before the trial court 6nd an elaborate mention in the impugned judgment clated 27.01.2U20 passed by the trial court and, therefore, the same may not Lrr.

reproduced here so as to avoid duplication and unnecessary repetition.

7.Al the very outset learned counsel for the appellant untler instructions of the appcllant did not prcss the appeal on merits anrl rlirl not conteEt his guilt and only sought a rcrluction in sentencc fronr the death penalty to that of life lnrprisonnrent based on the fact that thc Prosecution had failed to asscrt antl provc a motive for thc nrtrrttr'rs rr,hich was a ground which the Supremo Court ofton reliecl on to pernrit such a rcduction. ln support of his contcntions, hc placed relianct on the cases o[ Hag Nawaz v The State (2018 SCMR 21), Nadeem Rarnzan v The State (2018 SCMR 149), Ali Bux v The State (2018 SCMR 354) and Ch. Muhammad Yaqoob v The State (1992 SCMR 1983).

8.On the other hand Mr. Muhammad Iqbal Awan Additional Prosecutor General Sindh suPPorted by learned counsel for the

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(\rnlFloln[ttl r\lr]r'tr(L\l thirl llrt' Irosr{ullon hotl tmfh lrssr.rh'rl .rtr(l v pnrtt'r.l lhr' nrtrlltt (or llrt nrurrlt rs rr,hlch rvt,rt' brulnl ln nntrrrt' ,urrl th,rl tho s!.nh'llr\ o[ dc;rlh N. rrrnlntrrlntrl. ln support of lhclr contt'ntions, tlrc| fl,rtrrl n'llrrnrr. (rn on unn lrrrlorl lutlllllt'rrl of Suprcnrt Corrrt o[ Ir,rklslall p.rssr{ ln lhr'c,rst trf lnrr,rn Ntchnroorl v Thc Sl,rlo ln Cr. Appcnl No.tt2 rrt Itlll rl.rhrl 13.02.202.1.

9.\Vo lrirvt hr..rnl thc nrgunltnts ol the lcornctl counscl ,or llx, np1'cll.tnl, ltlrnrtd r\rfulltlonnl Prosr'culur Ccncrol Slndh ns rvcll .rs le,rrncrl ('ouns(.I t'or thl' ctrrrurlnlrrnnt nntl hnvc. nlso gonc through tht, cntirc ('\'i(l(rtt('t On Rtr)Rl.

10.Thot nlthough the appcllnnt h0s rrot contcstcd his guitt .rnrl h.rs clnll souglrt a reduction in sentence lvLr har1,g found from thr,, cvidcnct, on rNord tltat the trvo deceased both died fron fire.rrm injuries.rs per rhu nredical evidence antl post morteltr reports rvlfctr accorcls rvith thc or.rl evirlence and as sucir died unnahrral tleaths; thnt the FIR rvas lodgcd rr.ith Promptitude rvhich gave no tinrc to cook up a falsc case against thr,, appellant rvho rvas nanrerl in the FIR $,ith tlre specific role of shooting both the deceased rvith a firearnr; that pW 2 Anaan rvho rvas .rn t\.c t witness to the incident and sarv the appellant Iire upon both the dece.rsetl outside his house from relatively close range in reasonable light.tnd wh(., knerv the appellant fronr before,rnr.l as such there is no casr, of nrist.rk(,n identity and no need for an identification paracle. He gove his $,ction tot Cr.PC statement rvith promptitutle nanring the appellant.rnr,l tht' rr.rlt' assigned to lrim and hc did not makc nn), urateriol inprovtnrmts to thc same durlng the course of his evh,lcncr.'. Ht gove his rrv i(L.ncr' in n tr.rtrrr.rl and straight forwartl ntnnnc.r nntl rrtts ltot d!'nt(l r,lurim crr,rs:. cxaminatlon and lhus wc. find hls !.\'l(lctlc!'to br. rellnbtt', trltst worth\.in(l conlidenca lnsplrlng arrrl bt'llovu thL. saurr' csptri lty in tcrrrrs r,rt t[.' correcl ldentlflcatlon of ths nppr,'llrrnt rvho shot the dl\urs(l rir,'.rr.l. His cvidence at least to the presenca of tlre rppcllnnt wlth a firtrnu nt Lhr. scene of the ehootlng of the rlcct',rsctl is tr:rroborntetl by P\{ 5 Sh.r[.,.rn.r Saced and PW 6 Nahced rvhosc prcsL.ncl' ls nlso corroboratt'rl by pW + Shabana Bibi. The medlcal evide'ncc also supports/ corroboratcs thc prosecution case as does the blood ond olnptles recovered at the crinl(.

scene. We have no reason to doubt the police evidence who h.rtl no ill rviI ntatglls

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\tt or enmity with the appellant and had no reason to implicate the appellant in a false case and thus rve ploce rcliance on their evldence; there are no nraterial contradictions ln the Prosccution evldence whlch is corroborativc in all nraterlnl rcspcrts nntl ns such whcn thc abovc evldence is taken toliethe'r rvc find thnt tht' prosccution has proved its casc against thc appr.'llarrt lrcyoutl n rt'asotrablc rloutrt attrl upltold hls conviction.

ll. lVith rr'gartl to scntcncing thc appcllant sccks a rctluction in s('nher\ce fronr that of the denth penalty to that of life imprisonment tlLtruse the Prosecution has failed to asscrt and Prove any motive for thc rnurder against the accused and thus we shall consider this aspect in somc detail.

Did the prosecution prove the motive for the murder?

(a)Our staring point is the FIR which as mentioned earlier rvas lodged with promptirude. The final few lines alter naming the accused in the double murder reads as under....... ."1 hereby rePort tltdt abott 2/3 tttotrtls ago zue hsd subnitted n corrtPlaittt against Qasinr (the appeltant) at police Post Khulilabail, Qutidnbnd that

Qasim (tlc appettant) heing baiseil towards us nrurderctl nry L brother anil uephew by openitg fire at tlrcrtt il connivance rvith Umer".

(b)Thus, it is asserted in the FIR that the appellant murileretl the deceased because they made a complaint against him to the Policc.

The question arises as to what lvas this complaint. The complaint was exhibited as No,12 during thc evidence of PW 1 Khttrrtrtrt Shahzade who stated as uncler in his evidence in mate'rial prart itr respect of this aspect of thc case;

"......Aborrt 04 nto lrc ngo nccttsed Qnsirtt nrrrl Lltra'r ltrt,L arrl younger ncyhett Anann it Mnlir Nakli and nnltrealcd ltittt ott llt,' ground llml he hnd slolen lluir WlFl Rorrler. tVly decr'oscil lrrollrr'r' lold lhenr llnl if nry soa hnd slolen rouler tlrcu Ii rt'ill Sirt' 02 roulers os liue, evet ott sttclt occasion Qnsilr scrr/Jlerl rlill rrry brolher, Eueu accuse Qashn ruent hls honre tnd brouglrt ylstol, but Mohallct ycrsorrs htentenecl tnd rcsohed the lssue. TheL I Harls nud Farooq ue to P,P. Khnldabad nnd gme oppllcatlou ouer tlrcre, tohich I proiluce nt E.r.12." (bolrt added)

(c)Exhibit 12 is the complaint which states as under;,

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\no Tlrc Itrclnrgc ,,Ex,N0.12

Dnte d: 10.07.2019 7 Police Post Klnidnbnd PS Slmh Lntif Touur Mnlir, Karnchi

IVSit,

"lt is sultri,itLed tlutt the npplicnttls Krurram Slrckznd, Muhatnnrl Faroog ttrtrl Multn,tnnd Harris throngh this applicnlion subruit thnt lorlny lpc tlcrc prcsctt fit oLtr hause ruhcrt sott Muhattnnd l'lnnnat hrt'rtt8 nrrited tt lnnc irrfornrcrl lhnt Muhnwnmd Qasim son of Chnlnnt Motriurlditr, toln resitlcs in our neigltltorhood, hns sltpped nt: nnd nil yott haoe slolen nry ntifL roulcr tuhom I told llnt I lnue nll slzlett irrylhitts but lrc insists that I am tlrc thicl at uhiclr ny brother Mtrhannrad Forcoq awl ,tcplrcLu Haris cfine ottt of thc house so Qnsim utas stawlitg otttsirle zohom brotlrcr Muhauttnd asked tolry he sloppe rl rrty son Hawrct, He told fity brother that he has stolen my ruifi rotttct'tt zahich nry brothu sairt if ury sort turued out to be the tltief of yotr rotfter, I zuitl briry you ttuo t outcrs. At this a uerbal spLtt ensuccl so l, nry brother otd teplrcu also slapped M nnmntl Qasin at zolrich, tltc qrea residents itteraercd tlrcn Qnsim totttt honrc and brotgltt the pistol tnrl tlreatened thttt I will l;ill you but the area residents got tlrc nfitter settled regarditg u'hiclt tot sfunitted the application to tlrc police post /or our protectiotr. Legnl nction nny be tnken".(Bold adLletl) st/ Applicntrt Kurran Sltt:ltztd son of Muhnnmntl Siddiq 0i45-4545929

(d)Learned counsel for the appellant has contended that this complaint is a fake as it bears no police stamp or any other Prooi that it was lodged at any PS and has been managed by Lhc complainant parly in order to create a false motive for the murder. This contention might have had sonre weight however it is completely slrattarad by Lhe evidence of PW 7 Saeed Ahrned who was the police officer who leceived the application (conplaint) who had no enmity or ill will or arly reason whatsoever to creale a false motive in his evidence whereby he states as under;

"On 10,07.2019 I runs posterl ns PC nt P,P. Kttldtbnd of P.S Slnlr Latif Torun. On such date, Khurrnm Shnhznd, M wwnnrl Fnrooq md Haris cinrc tlwre and gnae one application thnt they hnd ona quarrel with one Qasim in their Mohalln. They gntte suclt application nt nbotrt 2330 hours, Only duty offcer toas nuailable itt Nt.\!o?5

.-t$ \ P.P tohile lnclnrge wns in nren pntrolliug, I silnply recefued the opplicntion lor prescnlnlion bctore lnclnrgc, howcuer tu tht uornhry nt 7000 holrs l{utrram Shahzad agalu cane an rllscloseil thnt nppllcntlou uay be retunrcd slnce Mohalln

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pcrsous hnil resolacl thc lssttc, see Ex. 72 ls sauc appllcntlou,

C,oss ,o h4r. Irfnu Ahnul Nnrc o Adaocnte lor accusul Onsirr.

It is cotroct thnt thcrc Is no rccciving stamP on thc applicntion. Sccond porty was cven not called in resPonse t(, such .lPplication. Thc conrpromlee rcached aftcr making of appllcatlon".(bold nddcd)

(c') His evidcnce is reinforced by thc evidence of PW 10 Shazado Khan who was the IO of the case who in his evldcncc statcs as under in material part in respect of this aspec! of the case;

"Duing inacsligntiotr, contplninant disclosed llnt lhere uns tlispute on thc WiFi Router ruith nca,rcetl Qasinr ancl due to suclt rlisputc nccuxtl Multanunad Qasim hnd broughl tlrc pistol. TherenJter due lo interfcrcnce of Molnlln Persolls tttatter N s setlled but pnor to this thc conrplninnnt hnd moued nn npplicntion nt P.P. Kltuldnbntl of P.S. Shnh Lntif Toutn ngainst the acarsed Mr nnnnnd Qtsitu. After scttletnent the sanrc applicatiott uas rctunrcd back by thc conrplahnnt, I lnil confinted tlrc applicatiott attil wett to P,P. I(hulilabad uhere I recorded the statetrreri of conccrtrcd PC Saeeil Alnred and ttlso got copy ol such application." (bold added)

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(f)Fu*her evidence oI the motive for the appellant murdering thc deceased because of the dispute over the router which comPlaint was todged with the police is found in the evidence of PW 2 Aanan who states in his evidence in respect of this asPect of the casc irr material part as under;

"Accuscd hnd coun lttc nunlu because earlicr they letn'lul allcgnttous ol thclt ol WlFl llotter o,t ,,rc, El,e dccusul Qnslt,t thrcfltclcd tttc ttt llolit Nnildl md uhet I htl'ornrul uty lnther nccnscd Qnslu olso unltrented lti,/ aul uhttr Hsrlc alco unltreate Qasln, accused brousht plstol Irotn hls honse, Eaen ryplicnliotr wns gfuen nt P.P. but the ,,tnller lr)rrs rcsohed by llu i cnrntiotr ol Molnlla persous. Af tr:r co,rtptottrlse uc Toltfulrnzo o r npptlcntlol," (bold adcled)

(g)PW a Shahbana Bibi also suPPorts the motive for the nrurtlcr being the dispute over the routcr which is set out as under in her evidence in mate rial Part.,..9

v "About 03/04 utouths ago both accused leaeled fnlse nllcgatlotrs of rofit tlrctt on nry sort Alrta and thrcatcnerl hlu. When uy lnsbnnd enqulrcil lrom Qasln, he fiot ottlY llnlficntcd hln bnt hc nlso poltted plstol on hlu. Haris runs nlso therc, Atler FIR police also reconlerl ty slnle rc l. Accused prcsenl itt courl fie stnrc Qtrsim nnd Umer Fnrooq."(bold added)

(h)Even the appcllant hnd this to say about the router and thc disputc in his Section 342 Cr.PC statcrllcrlt which disputc is not denietl by hinr and is set out in relevant part below;

Q,3 Thnt in the wonth ol luly, 2019 you ncansed nmtle allegntiotts ngninst son of tlectnsett nanely Mulnnmnd Ainan regnrding lltclt of Wif Router on zthich you nlso nnltreated Ainnn, rulml you lmtL' lo say?

Arts, lt is coftect. Tlrcre zoas theft oJ router and they nalfieated ne.

Q.4: Thnt on llls rcarc ulrcn deceased Siddiqre enquired from you, then you becmne nngry and sarfied took plnce ruliclt rutts resobed by MulnIIn person nnd thereafier yolt ttent your honst nnd brought pistol and issucd tlrenls of murder to decensed ntul contplnhtnnt, uhnt you lmue to sny?

Ans. lt toss a ntittor cxchmtge of harsh uords nncl it .r conchded on spot,

Q. 5: Tlrnt suclt conplahi ns zuell ns npplication for protection rus nlso giaen by conrylninnnt nt P.P. Kluklnbnd on 10.07.20'19 nt 2300 lours, ttlnt you hnae to sny?

Arc, Neitler I knoztt nbout this nor I lntl been cntled by the poliu.

Q, 6: Thnt strch contplninl wns lnter on u,illtlrnu'n by tln' complninant on the oery next dny in morning on nccount o[ contpronrise behleen yo nnd contplninnnt side, what you lmte lo sny?

Ans. I carmot say abo t rcturtt of aPplicntiot but it is fnct tlqt our lss c r.ons rcsolacd.

Q, 7: Thnt tlue to tltis dispule eacn yow preuiorrs lnndlord got recoaered his premises nnd tlrcrent'ter you sltiJted itr llrc preruisas ol- l)ner Fnrooq ns lennnt h tlrc uonth ol lttly,2019, tllnt you lntt, to sny?

Ans. It is correct. I was already ultimatum by the previous landlord and when issue of router took place I had partlally shifted my articles in the property of Umer Farooq. (bold added)u

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12.As such based on our analysis of the evidence mentioned above l,hcu rvc toke a holistic view of the same whlch was made by many rvitrrcsses bottr olficial ond Prlvate we IInd that the prosecution both asscrted and proved the motlve beliind the appellant murdering thc tlcceaserl Muhnmmed Farooq and Muhammed Harris which was the disputc over the router.

13.Eveu other wise It is not always necessary to prove a motive for the rleilth penalty to be upheld as each case must be judged on its own pnrticular facts and circumstances including for lngtance, aggravating factors. For example, a professional target killer may have no personal nrotive for murdering a Person but is simply acting on the orders of his organization/ group/ party yet he has carried out a pre meditated cold bloodied murder. Why under such circumstances should he be spared the death penalty if no mitigating factors are present and only aggravating ones simply because he lacks a personal motive to murder and because he is acting on the orders of others as sometimes occurs in l(arachi.

14.In tl'tis case two innocent Persons were murdered over a Petty dispute through a cold btoodied Pre mediated murder in front of the A deceased house in virtual broad day light where his relatives including their wife and mother were close by where one of the deceased even received three separate fire shot iniuries which lead to his death anel as such we do not consider, based on the Particular facts and circumstances of this case, that the aPPeltant deserves any leniency in sentencing especially as there are no mitigating circumstances and only aggravating factors and that a deterrent sentence is tlle more aPProPriate one to deter such brutal crimes and as such the appeal is dismissecl anti the conJirmation reference is answered in the affirmative' 15 The appeal and conJirmation reference are disposed of in the above terms.

JU E .os D1 I

JUDGE