SUMMAIR S/O MUHAMMAD HANIF (Appellant) VS THE STATE & ANOTHER (Respondent)

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C' ERTIFICATE OF THE I-IIGII COI.JITT OIT SINDII KAITACITI

Criminal Appeal NO. 248 of 2021 Confirmation Case No. 09 of 2021

Summair S/o Muhammad Hanif r .,::':,j

Vs

'l'he State

H]GH COLIRI-OI] SINDII

Compobition o Bench. D.B.

Mr, Justice Muhammad Karim Khan Agha Mr. Justice Zulfiqar Ali Sangi

Date(s)ofhearing: 22-08-2022 Decided on : 26-08-2022

Judgment approved for l{eporting

1rj.,ill:irii1 CER TIFICATE.

iCertifieu,{hatlthe judgment */Order is based upon or enunciates a principle ol'lari' */decideS a qtestion of la$, rvhich is of first impression/distinguishes,'. OVet -rtt lcs reverses/explains a previotts decision.

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* Strike out rvhichcver is not applicable

NOTL: - lil..lJris slip is onll ttl bc tLser-l u hctt sttl't.lc ltcliotl i5 1') hc lirl\e ll' /t

(ii)Ilthe slip is used. thc llcntler lllLlst attitcll it 10 thc top ol the lltsl page of the judgntent

I ,l iiii) Reader ulttst ask the Judge uriting the .ltrclgnrcnt u'hether tire .lurl!nrcnl i< ltPpror t.l l,rr 5L'1','11i11"

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' ':;r':'(i\i) ihose rlir.'ctions uhich are not lo hc r:st'tl slttrttltl l'c'rlclct..d rr f (r' : r, t,;

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I]i THE HIGH COURT OF SINDH AT o

KARACHI

(Criminal Appellate.lurisdiclion) :p.:f ??L*:f,?r 2h0 - ('rim inal Appell Numbcr , -----Zl2g21 y Rcua3trar (Judt.

iommair son of lluhammad llanil' \luslim adult residenl 0f I louse No 256, Scctor .18-E, Korangi No 2ll12 tetl L-IRACHI presentlv Confined in Centrll prison .lt Karachi .. Appellflnf

Vers trs

I. l hc Strte 1 The Court of l'i Additional Sessions Judge lModelCriminal'lrialOourt)Karachi_--___--- .Respondents l'tR No: 6i7lt20l0 U lS ; 302t397 t396t302/34 ppc PS : Korangi Indusirial Aren l!

CRTMINAL APPEAL UND ER SECTION

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t. 410 OF CRINT INA L PROCED URE CODE t

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I Being aggrievetl and dissaristletl with the judgnenr dared 03 April 2021 I passed by lear.ned Firsr Additional and Disrrict Session Judge Karachi East

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Karachi in session case No l,ll0/2010 whercbv convicring the appellant herein undet sectiol I9l/--l971lq(rll02, j4 ppC senteuced l.]inl to as fbllor,vs a convicted urrder section i92 read ivirh secrion i97 ppc for com,ritting robbery dull' arnretl riith deadlv u,eapon. theretbre . he is sentence rigorous inrprisonurent lbr ten years and fine Rs 50.000i- (RLrpees fitty thousancl onlv)

b. Conv'cted under sectiun i02 (b) pp('a,cl sentencecr o death . Accused srralr be hanged bl,neck rill he is death. He is also directed lo pay conrmendation to legal heils ot're deceased ro rhc rune ofRs 10,00.000/- (Rupees ten lac only) as required under secrion 544-4 Cr p>C .

c Convicted and sentenced under sectiou 314 ppc for causing firearnr injLrry to conrplainant and sentenced hinr rigorous iurprisonnrent for seven years with tlne lbl anrounr of'\Rs 50.000- to be paid to the complainant as compensation as prescribed Lrnder section 545 Cr. P.C lbr injury causecl to the complainant All sentences are dilected to [un collcrlrrentlv .

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IN THE HIGH COqRT Of SINDH, KABAEH] a

PRESENI

Mr. lustice NlolnmnuC Karim Klnn Agltu Mr. lusticc Zulfiqar Ali Sangi

CRIMINAL APPEAL N0.248 OF 2021

Confirmation Case No.09 of 2021

,dppellant: Summair S/o Muhamrnad Hanif through Mr. Qadir Hussain Khan, Advocate.

Respondent: The State through Mr. Muhammacl Iqbal .dwan, Additional Prosectr tor' General Sindh.

Date of Hearing: 22.08.2022

Date of Judgment: 26.08.20?2.

GNIENT

MOFIAMM AD I(AI(IM KHAN AGHA, I:. A ppellant Summail S/o Muhammad Hanif was tried before the Model Criminal Trial C-ourt/ l't Additional District & Sessions Ju,lge (East), Karachi in Sessiotr (last' No.810/2020, FIR No.637/2020 registered at l'olice Station K'l A urrelcr Section 3921397/396/302/34 PPC vide iudgment dated 03()42021; whereby he was convicted and sentenced as under:-

i)Accused Summair '*'as convicted uncler section 392 rt:'rtl with Section 397 for committing robbery duly armecl n'ith cleadly weapon, therefore, he was sentenced rigorous imprisonment for ten vears and fine of Rs.50000/ -'

ii)Accused Summair r.r'as also convictetl uncler sectioll 3{)2(b1 PPC and sentenced to death subiect to confirmatit'r1 l'\' thi'' court. He was also tlirectecl to Pay (omPensatrou ttr le1"al heirs of the deceased to tht' tune of Rs 10,00.000/- (l(ttpt't'' Ten [,ac Only) as requirecl u/s 5il4-A Cr.PC'

iii)Accused Summair was also convicted under section 32'1 Pl,C for causing firearm injury to complainant and sentenced hinr to rigorous imprisonment for seven vears witlr iirrc irl Rs.50000/- to be paid to the complainant as comPensittittrt ns prescribecl under section 544-A Cr.PC. for injurv causcd t() the complainant.

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I i All sentences were directed to run concurrently and the appellarrt was granted the benefit of Section 382-8 Cr.I'.C'

2.The brief facts of the prosecution case as per the complainant arc that he used to work at a scraP shop situated at Plot No A-12 Sector tl/A' w'ith Gali No.1, Hazrat Bilal Colonv. On 29 06'2010 the corrtplainant along hie brother Ejaz (deceased) was Present at his scrap shop at at.rout 140() hours taking lunch lvith other employees Meanwhile, two Pt:rs()lrs entered the shoP, one of them was duly armeci with weaport' ll.tcv

snatched amount of Rs.25000/30000 and two mobile phones fronr tlrt' Rs 1000/ - 'r rrtl deceasecl, Rs,2500, mobile phone from the complainant' mobile from Bilal and Rs.300 to Rs'400/ from another employee 1 arir1

After committing robbery one of the accused, who was hotding piskrl fired at the deceased on his face and tried to slip away The cornplainant at th(' chased the culprit on his motorcycle on which the culprit again fireci complainant, which hit him on lris left leg, but he apprehetllletl lrirl' Meanwhile, mohallah people gathered ancl apprehencled the ;rtntL'tl accused. In the meantime, police party came and apPrehen(led tlr(' accused who disclosed his name as Sumair son of Muhammad llanil From his possession one pistol 30 bore with three live rounds antl rrttt'

Nokia Mobile was recovered. The deceased was shifted to hospital lor treatment and the cornplainant recorded his statement uncler section l5'l

Cr.PC on the spot which was ir-rcorporated in the aforesaid FIR'

3.After thorough investitiation the matter was challanetl 'ln'"I thc appellant was sent uP to face trial. He pleaded not guilty and claimeel trial.

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4.The Prosecution in orrler to Prove its case examinetl 09 [)Ws exhibited various rlocuments ancl other items The statement of accust'tl person was recorded under Section 342 Cr'P C in which he deniec'l all tht'

allegations leveled against him. He did not give evidence on oath or call

any DW in support of his defence case.

5.Aftir appreciatillS the evidence on record the trial court convictell the appellant and sentencecl him as set out earlier in this juclgment l lcncc'

the appellant has filed this appeal against his conviction, M^(/Ps Page 2 ol 12

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i 61, The facts of the case as well as evidence produced before tlrr' tlial C0trrt find an elaborate melltion in the impugned t judt''nrent clatL:tl

03104.2021 passed by the tlial court and, therefore, the same ma1' uot [rt'

leprocluced here so as to avoid duplication ancl unnecessary rePetition :vl.

7;' Learned counsel for the appellant has contentlet{ that ht' ir' ldrnpletEly innocenti that the sole eye witness cannot be safely relietl rrporr

as he chased the wrong Person on his motorbike; that the metlic'rl evidence does not suPPort the ocular evidence; that there art' matcrial contradictions in the evidence of the PW's which renclers thcir evitle trct' unreliable; that the pistol which was allegedlv recovereel frot.n I l.tt' appeltant was foisted on him by the police; that no Post nlortcnr r('[)()) t

was carried out on the deceased and as such for any or all of tht'abovt' bt' reasons the aPPellant by being extended the benefit of the cloubt shoultl acquitted o{ the charge antl the conlirmation reference answel'o(l itl tll( negative. In support oi his contentions he placed reliance on the cascs rrl Riaz Ahmad v The State (2016 P Cr. I- J 114), Muhammad Nawaz v l'he State (PLD 2005 SC 40), Dost Muhammad v The State (PI-J 1982 Cr t Karachi -201), Naseeb ur Rehman v Muqarab Khan (2013 N'll D U3(')' Hakeem v The State (2017 SCMR 1546), I{halid Javed v The State (2001 SCMR 1419), Abdul Ghafoor v The State (2013 P Cr'L J 11t15) and lshtiaq Ahmed V The State (2020 P. Cr. L J Note 43).

8.On the other hantl, learned Addl Prosecutor General Sintlh ltat fully supported the impugned iudgment and has in particular contendt-ti that the sole eye witness has correctly identified the appellant as beitrg thtr person who fired on and murdered the deceased and also firecl on autl injurecl himself; that the appellant was arrested on the spot from which a pistol was recovered from him which lead to a positive FSL report wherr matched with the empties recovered at the scene; that tlre metlical eviclence supported the prosecutiou casc; that there was uo tlr'rtt'rial contradictions in the prosecution evidence and as such the prosecution had ptoved its case against the appellant beyond a reasonable tloulrt lli' contended that the death sentence shoulcl also be upheld as tlris u'a: 'r brutal murder during a robbery with no mitigating circumstances ltr support of his contentions he placed reliance on the cases of Muharnmad,

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Mansha v The State (2001 SCMR 199), Maihi v The State (1970 SCN4li a 331), Noor Muhammad v The State (1999 SCMR 2722), Farooq Khan v The State 92008 SCMR 917), Abdul Maieed v The State'92008 SCN'IR 7228), Lijaz Nawaz alias Baba v The State (2019 P Cr'L l 1775)' Muhammad Ilyas v The State (2011 SCNIR 460), Dadullah v The Statc (2015 SCMR 856), Sikandar v The State (2006 SCMIr Ijaz Ahntecl r The state (2009 scMR 99) ancl Nasir lqbal v The state (2010 SCI Nlli 2l5l) 9, We have heard the argrrments of the learned counsel for thL' appellant as well as learned Additional I'rosecutor Uenelal and h'l\'('11!)rr( through the entire evidence which has been read out by lealne(l c()r-lllsel for the appellant, and the impugned iudgment with the able assistance ttt learneci counsel and have considered the relevant law including thc cast'- Iaws cited at the bar.

10.Before proceeding further we would like to deal lvitlr a procedtrral issue which arose during the hearing oI this appeal Originallr tlrt appellant was charged on 25.11.2010 in open court to which he l'lca'l n'ri guilty. Before any evidence coulti be recorded however otre ol tlrt' absconcling co-accused Muhammed Mubeen was arrcstecl which lc'r''l t" an amended charge being framed on 17.08.2016 in the same terms but Lrnlr against Muhammed Mubeen the newly arrested co-accused which chargt' did not include the appellant in this case which it ought to have clone httt it aPpears that the appellant's name was omitted fronr the "rurentlt:.l charge by mistake by the trial court. It aPPears thert thc appellarrt u"ts convicted on account of the amentletl charge, This court tltert,fot e ptitlr.r facie had the option oI remanding back the whole case for a cr.rtlplctt' retrial of the appellant or hearing the appeal,

11.In our view the main obiect of the charge is to put the accust'tl otr notice of the offences for which he must defend himself so that ho is not taken by surprise at the trial and is therefore not preiudiced in his abilitv to defend himself .

72.In the section of the Cr.PC which deals at Chapter XLV of irregular proceedings we note that Section.535 provides as under;

"5.535. Effect of Omission to prepare charge

(1)No finding or sentence pronounced or nassetl 't MArvPs Page 4 of 12

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ghalt be deemed invalid r.nerely on the grourrcl that no a charge was framed, unless, in the opinion of tl.re Coutt O{ apPeal or revision failure of iustice has in fact boen occas,ioned therebY.

(2)lf the Court oi appeal or revisiou thinks that a failure of justice has been occasionecl b1' at.t omission to Irame a charge, it shall order that a elrargo be framed and that the trial be recommenced fro.m the polnt immediately after the framing of the rhl chatge"(bold added).

tO. li. r:rr tf# , r:Socdon 635 Cr.PC seems to indicate that even if no charge is fr''rrlr"l ffi1 r.' !h.

B8eeoe.w{Il not be remanded unless such failure has occasioned a failtrrc .i of justice

14.In this case the chdrge was read out to the accused beforc it lr'a: amended and the amended charge n'as roughly in the sarne tertns atrtl ,ts such the accused had full, notice of the offences which he had to cicfend himself against. The accused fully participated in the trial bv ctoss examining all the PW's uJd giring his statement uncler S 342 Cr'.PC .rrr.l thus in our view taking guidance from 5.535 Cr.PC no failure of iustice has occurrecl on account of thi! irregularity as no prejudice hati been c.llrsc(l t(\ the accused in terms of his right to a fair trial. Furthermt)re, th(' aeellst'(l had already sPent 11 years behincl bars and we were of the view that it would not meet the ends of justice to remancl the case back for a retri.rl after the charge nas again framed against the accusecl which trial rnil;ht take a number of years ancl still lead to the same result which lve considered would be more of a prejudice to him when the case coltltl [.'.' decided now and the acclsed could then move on after the iudgnrent irr this case. In addition both learned counsel for the appellant antl tht' learned APG when asked whether they wanted the case remanclctl for a fresh trial both stated that they did not and would rather argue the rnatter before this court as a remand in their vien'would only further pott'ntiallt' preiudice the accused by keeping him in jail even longer. As such ktropinp:' in view the above considerations and being guided by 5.535 Cr.PC rvt' have proceeded to hear and decide the case on merits.

15.Based on our reassessment of the evidence of the PW's especiallr ottrer medic al,reports, recovery of empties at tl.rt' of,the,plstol from the accused on his

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f Si doubt ' arrest we find that"tfulgroaecration has proved beyond a reasonable t by firearm on 29'06 2011') inu, ulu' (the decearej) was ahot and murdered in Plot No A/12 gali No'1 at about 1400 hours at hi8 iur& shop situated Sector 8/A Hazrat Biial Coloney' KIA Karachi during the course o[ th'' complainant lvas shot rthilst hL' robbery of his shop and that thereafter the tried to apprehend one of the robbers whilst giving chase outsidc the iunl"

Bhop.

p"rrt ir.r tht'

16.The only question left before us therefore is who took rgbbery of the shop, murdered the deceased by lirearm at the sarll tinle' by firearm iust outsiLle th(' date and loeation 3nd iniured the complainant thereaf ter?

said location on the sarne date a few moments

17.After our reasgessment of the evidence we find that the Prosccutitrri charge against the appellant has proved beyond a reasonable doubt the criminal case must bt' forthe following reasons keeping in view that each decided on its own particular facts and circumstances;

(a)That the 5'154 Cr'PC statement of the after cornplainaut.u'hich the incitlent as became the FIR was recort-led,ust 10 minutes antl apprehendetl it'," .o-ptuinunt had chased down the appellant and rnutdt'r him with members of the public iust after the robbery Cr'PC on the sPot of the deceased. The poliie t"toid"d his S'154 and thus the FlIl tvas and formal FIR was ltdged one hour later lodeed with iromptitude ancl left no time for tht' .li"iili""., a"*,,"*" cook up a false case against the accused in lt''rgu.'

with the Police or anY one else'

rests ott. thc soie

(b)We find that the prosecution's case primarily the deceased anti irr iy" *lt,u", to the roltery and murdei of ds the l.'.ttto''' Darticular his correct iden[ification of the appellant ffi;;;k p"i, * trt" robbery(i^of the shop' who,shot andthemur.'lt'tt'tl accr"tst'tl the deceased and also when he apprehended 'hot evidenct' u't' with the assistance of members of the public whose shall consider in detail below;

(i)Eye witness PW 2 Muhammed Sailad' He is the owner and brother of the of tne scraf shop which was robbe-d he on 29 06 2010 deceased Eiaz' According to his evidence was aL his shop with iis brother Ejaz when at about 145/2pm t-o f""on' entered the shop Onc *.l:

llT"..l r()Dlr(,(l whilst the othei was unarmed. The unarmed Pers(Jn the arnletl them of tt'eir- casft ancl mobile phones whilst person kepithem covered with his pistol' The empty har.rtlecl the tull.*h',ltt th" u"'"d ['"""" ;;;;;" leit the shop withthem while the unarmed persotr pointed his pistoi at orr which th'' iscaped The i"t"u'ud tried to come forward , Pagc 6 of 12

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arrned..F@fscln shot him (Ejaz) in the face and tl-ren trictl ttr a escape,.lhe eye witness chasetl the armed person on his motprbike and hit the armed person who fell down an''l as he grabbed hinr he shot the eye nitness irr hii krre'' ait''" which the mohalla people grabbed holtl of the Person 1\'h(r fired at him and started beating him. The police arrivecl ar-rtl arrested the Person who shot at him and his pistol r"as handed over to the police who searched the accused. He rvas mashir of rnemo of arrest antl recovery and recorcled his 5.154 Cr.PC statement before the police on the spot.

The witness was not a chance witness as he was tl-rc owtlt'r of the shop which was robbed and as such lvas a natur'rl witnes6. It is true that he is the brother of the tleet:'lsctl however since he had no enmity or ill will ton'artls the accused we have no reason to discount his evidence ln this reepect reliance is placed on the cases of Nasir lqbal (SupLat and ljaz Ahrned (Supra). It was a daylight robben' antl murder and the accused was standing 3 feet an'ay frotn tht' accueed in the shop whilst the robbery was taking place. fhe robbery took about 10 to 15 minutes and as such he wtrultl have got a good look at the accused from close range in gootl light over a sustained period of time. LIe also sarv thc accused shoot his bother in the Iace. He chased the accusecl who shot him in the leg after he knocked him down a sht'rt distance from the shop who \4'as then beaten by the nloh.rl.r people before being arrested by the police on the spot. As such we have no doubt that the accusecl was thc trrt'rsr.rtl rvllrr robbed the shop by firearm and shot and murelerecl Lijaz antl also shot the comPlainant. The complainant's evitlenc.' ts corroborated by PW 5 Ghulam Ali who according k) l)is evidence whilst on patrol on 29.06.2010 at about 2ptn wht'tr he reached Bilal Colony, Sector 8 KIA he heard tho shttLtt rrl Daku Daku frorn the public. On hearing such comntotiotr lrr.' went to that place and found the public beating up a Pers(rn who was the accusecl who he rescued from the public. P!\/2 Sajjad was also there who had sustained a fire arm iniulr and narrated his 5.154 Cr.PC statement o11 thc sPOt concerning the accusecl's robbery of his shop and mutdct ol his brother by firearm. The S.154 Cr.PC staternent \^'as n()l materially improved on from the eye witnesses evitlence .rt trial and the eye witness hacl no reason to falsely implicatt' the accused as he had no enrnity or ill will tou'arcls him. I'\\ 7 Dileep Katri who was the MLO who examined tht'accusLrtl also found that when he exarnined the accused his irrjuliu. were consistent with him being beaten by the public rvhich further corroborates PW2 Saljad's eye witness evidcncc,'rrrtl the evidence of PW 5 Ghulam Ali about the accuset{ L;r:rttri beaten by members of the public. PW 1 Abdul Ilazzak r^,'hir was the MLO who examined the iniured eye wihress S.rjiad also stated in his evidence that Sajjatl had been shot in his knee which corroborates the evidence of PW 2 eye n,ittrt'ss Sajjad and of PW 5 Ghulam AIi who was the officer rvho arrested the accused on the spot where he also sau t'\'t' witness Sajjad's inf urv to his knee. The eye witness relnainetl Page 7 of 12

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a undented in his evidence desPite Ali ^ ,aand l"-,nq:nl,' """ as such u'e I-i**J""'itue wise P* 5 Ghulim of the sole eye witness as to'llrt'robberv ili;il;;"idence uttu'ei tris brother which leatl bv the accused, tttu 'ttooting the eve witnt'ss while :J#fi;il;Jiitth"t"""'"Jtt'"otilg h;l;; t<"r"ttti ielentif ierl tht' (tts.''tl 't'' trving to flee and *ho *u. arrested on the lfot as the'person n'ho rotlntitl..'rl the deceased an(l shot th' the robberY, shot and tnuiat'ua eye witness'

above wc find thc t'virlcttcL' Thus, for the reasons mentioned ancl corrlicle:rcL' of the evewitness to be reliable' trustworth)' with resord to :ili;,il;;;;i"rwu tt.'* same especiallv as the person ,^r,J."ri"., ldentification of the appellant and shot 'rnd who robbed tfte 'rtop *iii a co-iicused who shot and injured the eye murdered the deceased and evicience of thi's stllt' c'r'e witness and can to""iti o" the be of assistance bv wa\' ()l *,a""r, "f""a though it would suPPortive evideucl' caution if there is some corroborative/ on the caies of Muhammad In this respect '"tiuntu i' ptut"d thl Ehsan v. rhe State tzoOl iG"ln

ti-als:^lountl Ni'rz-

(2008 SCMR.917)'

cases of Fatoog Khan v' Tht S'ut" another-(20l I S('\41( ud-Din and another v' The State and State (2017 SCIvi R 7l l)

725)and Muhamrnad i'rn"it "'' The fiJ,;;r; il;i;^iii*"t" is tl're qualitv .f tht'c''itlotti'' 'rtt'l ula in ittit tu'" *u fini the erritlcucc .l tl.tr:

q"^"ti,l' tltt' s;'ttrtt ".ii,, ,"f"-LyJ *i*"ts to be oi good quality lltl !.",1i"):" ideutif icatior-r o[ tht' especially in terms of in" tot'"ti the accused who robbed tl-tt 'hop' fired on and. murelered a"."ut"a and fired on and iniured the comPlainant' of the PW eyewitt'tt'ss Thus, based on our believine the evidence esoeciallv in terms of him cirrectly identifying the appellant as r.J arong with his co-accused' ;5;'l;";;;;il 't'op iniured him bv fircatnt *irJ"J'in.'i"..u,"a uy firearm and material is. there against the what other sqpportlve/coroiot'iiu" is onlv 'r rult' rrr :ffi;"H ilffi;; ;'"d thut 'o"obo'ution cautionandnotaruleottaw,Inthisrespect'relianceisplaccdt,n

(2008 SCMR 784)

if," ."t" vf"ftammad Waris v The State "l as tliscussed lc\ That the medical evidence and medical rePorts e,idcncc lr :'J"i:";*; *d;; '1't "u"-*it"*s/ prosecution neck' iarv t''t' .."fit-t ,i" tli" .1eceas"d was hit atpotitiot'intoeither least that stated bv th(' face by firealm which are in sitilu' erre witness, that the u..,"ud iniuries were on account of beitrg iniurv rvas c;tust'.l I't 1 il:#U ;";b;;unaiil'"mplainant's settled that ocul'rr' il;;;;;", to his knee' ln any euettt it is well evicleuce which is tlttlt trf 't evidence takes Preference over'medical corroboratory nature and tun o^fy tell you tlre place of iniurt arrtl ir'e culprit The fact that n(r ;H;;;;6u'"d un'l .'ot iaentuv decease'l in the light oi tlr'' .oost mortem was carried cr"i clrr 'ft" is of no assistance to tht' #;;'";;;i;; ur,a .nuai'ui-euidenceis placed on the case of Sikander appellant. In this respect (Supra) , "liuntu

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(d)That tl,n decused was arrested on the spot antl a firearnr rvas a recoveled fronr him which when matcheti l^,'ith the etnprtit's recovered at the scene of the murder lead to a positive iSL repttl l

(e)In deciding qriminal cases we must also consider thu environment in which we live and the associated ground realities and consider the same with commonsense' For exarnple, in Pakistan it is quite coturon for members of the public to grab hold of robbers before the police come and beat them up and e\/on potentiallv try to beat them to death unless restrainecl by thc polict' as happenetl ln this case. In this case there were onlv tn'o possiblt persons for the public to gralr holtl of . Either the persorr bt'ir.r1', chased or the Persan running au'a)' w'lrcl was brought to thc grtrtttl..l and shot the other in order to escaPe. ln such circumstances it u'as only natural that the public grabbed hold of the accuseLl r'r'ho n'its the cul.prit in their eyes.

(0 That it does not appeal to logic, commonsense or reason tllirt 'r real brother would tet the real murderer of his real brother get away scott free and falsely irnplicate an innocent person by wal'ol substitution, In this respect reliance is placed on the c.rse of Muhammed Ashraf V State (2021 SCMR 758)

a (g) That the police PW's had no enmity or ill will torn'irt'cls tlrr.' appellant and had no reasou to falsely irnplicate him in this c,rs'"' tur instance by foisting a pistol on him and in such circumstanccs it has been held that the evidence of the police PW's can be fLLllv rclrctl upon and as such we rely on the police evidence. llr tl.tis t'cspr:ct reliance is placed on Mushtaq dhmed V The State (2020 SCI\41(

(h)That all the PW's are consistent in their evidence anel t'r't'tr il there are some contradictions in their evidence we consitier tllssi' contradictions as minor in nature and not material and cortuilrl\ not of such materiality so as to effect the prosecution ca'tst' aud th.' conviction of the appellant. Irr this respect reliance is placed on tht' cases of Zakir Khan V State (1995 SCMR 1793) antl l(hadint Hussain v. The State (PLD 2010 Supreme Court 669).The evidt'ttct' of the PW's provides a believable corroborated unbrokerr ch.rin i'l events from the accused robbing the shop u'ith his co-accused t(r him shooting the deceased to the recovery ol emPties at the st ctr,.' it ' the accused being caught red llanded on tl.re spot bv tht comPlainant who he shot in order to escaPe to the accuseLl being beaten by the public before being arrested bv the police from wlrrrtrr a pistol was recovered which empties recovered at the sccnt' matched the recovered pistol through a positive FSL report

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(i)The fact that the aPpellant's co-accused was acquitted is of tro assistance to the appellant as their cases are on a completeh' different footing in that the only evidence against the co-accusetl was that the appellant had implicated him in this case.

(j)ft f not without significance that w'heu the accust'tl tilrt recorded his 5.342 Cr.PC statement before this case was remantltLl

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he made the'dollowing reply to question 3 which is procluceti as a under for eaae of reference;

Ques 3: It has also come in the exidence that on tllre stlllr,, L1tlv complainant utas chnsing you on his ntotorcyclc nttrl rtltott seeifig yott the complainant hit rtotorcycle on your lcg tnd lnt'Ll to catch you but you made a fire shot upon hiru and tlt bttlltl uas hit on the left leg of complainant. Wnt yot.t lntte tLt say?

Ans: iir, it ruas lunch time utd I u,as uorkrng tln'ra ttt comryny and I came cross the road and tle complainnnl htl tnc motorcycle and 8/10 persons uho beaten me arul tlren I bacotnt unconscious and u,hen I regained in senses I founrl ntlstll ut Police Station.

He also stated as under on oath as follow's:-

"It ruas one -1 p.rn. on 28.06.2010, I tr,tts tuttrking itt lrtlitttti Garments Ftctory sihnted al VITA Cltotornngt, kotittt5r Industrial area and after lunch break I came out from the litttttnl for haoing a lunch and crossed tlv road one peTson wln cfi ott motorcycle and lit me .'tle $/10 Persons Tlito tlso beaten tft' ttt l I becnme unconscious, tohen I regain my senses and fourtd rtrtlsL'll tl 1 Police Station and then I inquired front the policc rnl llu'r informed me that I hnte comruitted nntrder tnd lltctl dcrtrrrttiL',l two lacs from me for my reLease. I could not pav tfu nutnrv to tll,' police and I uas inuobed in tlds murder case" .

Thus, at the initial trial before remand in both his 5.342 Cr.l'( statement and his evidence under oath he admits beir-rg hit br' ,r bike and being got hold of by the public before being hautlr'rl or r'r to the police (as is the prosecution case) but ol1 rerrail(i conveniently he kept mum on this aspect of the case.

(k)Undoubtedly it is for the prosecution to plove its cast'.rppirrsl the accused beyond a reasonable doubt but we lravt' als,, considered the defence case to see if it at all can caste rloulrt,rn i,l dent the prosecution case. The defence case is sirnpll' onr ()l ldls(' implication by the police. The appellant did not give eviclcnct- on oath after remand of the case and did not produce anv l)tr,V in supPort of his defence case or procluce any other eviclence which could dent the prosecution case. Thus, for the reasons rtentiour'ti above we disbelieve the defense case as an afterthought in tht' Lrct: of a reliable, trust worthy and confidence inspiring eve n,itness antl other corroborative /supportive eviclence against the appellant which has not at all dented the prosecution case'.

18.. Thus, , we have no doubt that the prosecution has provecl its casc against the appellant beyond a reasonable doubt for the offences for which he has b6en convicted and hereby maintain his convictions in tht' impugned iudgment.,

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{ I "19. With regard to sentencing the motive for the murder was that tl.ru deceased tried to resist rJuring a robbery of his shop wh'ith lea.l tt, thr' appellant shooting him dead in cold blood without a thought for his life, his family or how his family would suffer following his death in tcrms t)l the love oI a husband/father and the financial securitv of his famill. llL' also did not hesitate to shoot the complainant in his attempi to escapr'.

20, Today in Karachi we either read or see nearly every cltry in eitlrt'r the print or electronic media about a robbery escalatinpl into murdcr ,,n resistance to such an extent that it appears that a human life lre it rrran women or child, young or old, is of no more value than a rnobile phont'. lrr such caseg deterrent sentences are warranted in order to plotect the'pulrlie and dissuade would be robbers from robbery in the first place let alone shooting victims on resisting such robbery. As was held in the case of Dadullah (Supra);

"I)eath scttenct in n uturLlu ca.sc Ls a qsunal ytnnl!ry tttl the Courts ruhile diacrting totuords lcsser seutenct shotrltl hare to giac ictoila reasons. 'fha ultpcllurtts lrrri'r' contnrittcd tlrc murr.ler o.f ttoo irutoct,trt titizrns trtd tlsrt looted tlre bnnk in rt zt)a tolt, crucl and callous nn n(r. l\oit' a darls the ctime in the socie,trl has rcschcd ttn ilanuil1 situation and the rnuttal proptnsittl t<ttt'trds !ltt comtnissiort of tlrc crine ruith irnpunitrl is lncrt,rl-sirr.r;. .Sr,lsl of fear ir the mind o.f a crinrinal beforc embarkitry upon its t:ottrtttission could onltl be inculcotLzd tttltctt hc is ct,ttLtitt t,t its prnishtncttt proztided by lau and it is onhl than that tht purpose anrl object of prutishnrcnt couhl bc nssidrutttslq achiat'ed. If tr Court o.f Laut ot anq slage re[r.r-e.s ils grip, tltt hardenctl crirnhnl zLtould tukc the soL'it'lt1 ttn tlrc stltt plgt, allowitrg the habitual reciditist to rult rRotttl sr ut-.\'rtr rtr zuitlr punishment not comftrcr$ rott u'itlt tlrc propositiott ol. crinrc, bringing tha administration of critnintrl iustitr lo riii.culc ttrtl cofitempt, Courts couhl not socriJict sutlr deterrence and retributiott in the rutnte o.f uttt'tl ttni cxpedicncy. Sparing tlrc at'.cnsod rt'ith deatlt s?,!f?,,l"r rs causing a gratte mtscarriagc of justice and in ordcr to n'slorc its suprcmacll, sentence of death should bt itnltostd on llt crtlprits uthere tlrc case luts been proacd.

10.This Court in Noor Muhirmmar.l r,. Statc (1999 SCN\'llt 2722) htts also adverterl to this a,rpcct ()f thc mattr'r an,l lr,r'. oliscn'c.l as u nclcr:--

"Houerurr, tot mny ohsen,c thnt tlttt people irc Lost g l llt in tlre dispcnsation of crimiru ltstice by tln, orlinanl

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crininel Courts.lor lhe rnsttn tltrtt tlu't1 t'itlrr n:rltril tlt'' I accl,t*.d llcrsotts trtt ltrtJttttLrt/ Sn.,tltds or lnl'( tt k'ttiL'tll t'it't!

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in au'artling sentenrt. lt is higlt tine lhnl t/ri' (irrrrir should realize tlutt they tttoa duttl to tlk'lcgnl ltrrs/rtlnlrtttt' of the victins nnd tlso to ii te soclctrT. Scnturces duarde'l should be such TDhich should act as n .Ietctrcttt to tltt: commissiott of of/ences. Ont' of us (Ajnral Mian, ( L as he then was) has highlightec-l this aspect, inter ali'r in the cast: of Statt' through the Ad v octltt'-Ccncr.ri Sinrlh, Karachi r,, Falman Ilussain and otlrors (l)l l) 1995 SC 1), relevant portion rvhc'reof at pag,c l9 rcatl' as frrllows:--

(3)tt is a matter of public knowleclge tllat i11 Sinllh, "rr account of kitlnapping for rttnsotn, cottttlrissiotr 'rl dacoities and other ttffcttccs, thc peopit' .1r(' lr't'lllrll insccurcd. Jhe lcarr.rctl trial Court h;rs tlilatcti u1'r'rr thesc aspects in tletail, I atu itrcliued kl sul:rscribt' t" the view found favour rvitlr it. Tht'approach of tlr.' Court in matters like the cast' in hirrrtl shotrl.i l', dynanric ancl if tlre Court is satisfieti that thc olit'nci' has been committetl in the manner irl lvhich it has been allegecl bv the prosccution thc techn ic.r liti,.'s shoulcl be overlookecl witlrout causittg itll\ miscatriage of iusticc. "

27.Thus, all the sentences hanclecl down to the appcllarlt a rL maintained and the confirmation reference is answered in the affilrrl;tivt.

22.The appeal and confirmation reference are disposecl of in thc.rbovr' terms.

W,,ulz).:-

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