JUMAN S/O RANO (Appellant) VS THE STATE A (Respondent)

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IN THE HIGH COURT OF SINDH, KARACHI

Prcsenh Mr, Justlce Mohaunmd Karlm Klnn Agha Mr, lustlco lQtailhrt Hussaln Tunlo,

CRIMINAL APPEAL NO.538 OF 2022,

CRIMINAL JAIL AppEAL NO.583 OF 2022.

CONFIRMATION CASE NO.1O OF 2022,

Appellant: Juman S/o. Rano through Syed Ghazanfar Ali Shah, Advocate.

Respondent: The State ttrough Mr. Ali Haider Saleem, Additional Prosecutor General.

Date of Hearing: 71..04.2023

Date of Announcement: -t4.04.2023

TUDGMENT

Mohammail Karinr Khat Agha, j!- Appellant Juman S/o. Rano was hied before the Additional Sessions Judge-I/Model Criminal Trial Court, Thath in Sessions Case No.1.r14 of. 2079 arising out of Crime No.30 of 2018 U/s.302 PPC registered at Police Station fhoke Sharil and vide judgment dated 07.09.2022 appellant |uman S/o. Rano was awarded death sentence subject to confirmation by tl.rts court. The appellant/accused was also ordered to pay an amount of Rs,1,0O000/- to the legal heirs of the deceased as compensation in terms of Section 544-4 CI.P.C. Such compensafion shall be r.ecoverable as alreals of land levenue.

2.It is asserted by the prosecution that by having the background of incident of accident allegedly caused by deceased Ali Anwar Chandio with accused fumman Chandio in connection with a motor cycle for which a separate FIR was already registered against the deceased on account of this enmity the accused murdered the deceased. The brief facts of the prosecution case are that on 01,10.2018 at 0700 hours in front of hotel of Haji Soomro situated in Abral Town, Taluka Mirpur Bathoro,.

Dishict Sujawal ln preserrce of complainant AIi Nawaz Chandio and PWs Muhammad Umer Chorrc'llo and Bahawal Dln Chandlo, accused Jumman Chanclio corre there hovirrg double barrel gun in his hand. He hackled the deceased Ali Anwar ollos Punhoon Chandio that he will not spare him and on saying so, accused Junrman Chsndio made fire a skaight shot to him fronr his double bancl gun which hlt him on left side of the chest and due to such fire shot injuly he fell down and died instantaneously, hence the instant FIR was lodged.

3.After completion of investigation I.O. submitted charge sheet against the arrested appellant Juman to which he pleaded not guilty and claimed trial.

4, The prosecution in order to prove its case examined 07 witnesses and edribited various documents and other items. The statement of the appellant/accused was recorded under Section ?l2 Cr.P.C in which he denied all the allegations levelled against him and claimed his false implication in the case. He however did not give evidence on oath or call any DW in support of his defence case.

5.After hearing the parties and appreciating the evidence on record, the trial court convicted the appellant and sentenced him as set out earlier in this judgmentl hence, the appellant has filed these appeals against his conviction.

6.The facts of the case as well as evidencb produced before the trial court find an elaborate mention in the impugned judgment dated 07.09,2022 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and umecessary repetition,

7.Learned counsel for the appellant has contended that the appellant is completely innocent and has been falsely implicated by the complainan! that the charge was defective as it mentioned the time of the incident re 7700 hours as opposed to 7 am in the FIR; that there was a delay in lodging the FIR which gave the complainant party the time to cook up a false case against the appellant in league with the police; that an imPortant witness being the hotel owner outside whose hotel the deceased was shot was not examined and as such it can be assumed that

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he would not have supported the prosecudon case; that the ocular evidence was not supported by the medtcal evidencei that the so called recovered shot gun was foisted on the appellant and that f.or any or all of ttre above rtasorrs the appellant should be acqultted of ttle charge by being e.xtended the benefit of the doubt. In support of trls contenHons, he placed reliance on the cases of Pathon v. The Stote (2015 SCMR 315), Tartq Pervez v. The State (1995 SCMR 1345), Muhammad Aehraf allae Acchu v' The State (2m9 SCMR 652), Akhtar AIt and other v. The State (2008 SCMR 6), Rlasat All v. The State (2013 YLR 272), Abdtll Raehid v. The State (1997 SCMR 373), Hashim Qasim and another v. llhe State (2077 SC\,IR 985), Muharnmad Astf v. The State (2017 SCMR 486), Muhammad Rafique v. The State (2m4 SCMR 1698), Muhammad ]aved v. The State (2016 SCMR 20Zl), Muhammad Ali v. The State (2077 SC,lvI8 746)' Munawar AIam Khan and another v. The State (2015 P Cr.LJ 459) and Mst. Zahida v. The State (7996M1-D 476).

8.On the other hand leamed Additional Proeecutor General has contended that the prosecution has proved its case beyond a reasonable doubt and has fully supported the impugned judgment. In particular, he contended that the evidence of the eye witnesses to the murder could be safely relied upon; that the medical evidence supported the ocular evidence; that the murder weapon was recovered on the poinlation of the appellant whidr lead to a posidve FSL report wherr matched with the empty recovered at the scene of the rrurder; that the prosecution had both asserted and proved the motive behind the murder namely the ctiminal case which was proceeding between the appellant and the deceased over a motor cycle accident and as such the appeal be dismissed and the confirmation reference answered in the alfirrrative as it was a cold bloodied premedltated murder. In support oI his contentions, he placed reliance on the case of Nlaz-ud-din and another v. The State and another (2011 SCMR 725), Muhammad Ehsan v, The State (2006 SCI\4R 1854, Dadullah and another v. The State (2015 SCMR 856), Roohullah and othere v. The State and othere (2022 SCMR 888), Azhar Hussain and another v. The State and others (2022 SCI\rIR 7907), liaz Ahmad v. The State (2009 SCMR 99) and Qaetm Shahzad and another v. The State and othere (2023 SCIT4R 1t7).

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9, We have heard the argumenB of the learned counsel for the appellant and learned Additional Prosecutor General Slndh and gone tluough the enHre evidence whlch has been read out by the learned counsel for the appellant, and the impugned .ludgment with their able assistance ond have conslderrcd the relevant law lncludlng the case law cited at the bar.

10.It is to be noted that learned counsel for the complainant was called absent without intimation desptte hls name appearlng in the cause list but he preferred to remain absent and as such we have proceeded to decide dris appml in l'rls absence as hls lnterert can be looked att*by the Ieamed

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11.Based on our reassessment of the evidence of the PW's, especially the medical evidence, the blood stained earth and empty recovetred at the scene of the criure we find that the prosecution has proved beyond a reasonable doubt that on 01.10.2018 at about 7am in front of hotel Haii Soomro situate at Abral city, Taluka Mirpur Bathoro, Diskict Suiawal Ali Anwar @ Panhoon (the deceased) was murdered by firea:rn and died on the spot on account of his lnjuries.

72- The only guetion left before us therefore is whether it was the appellant who murdered the deceased by firearrr at the said time, date and location?

73.After our reassessment of the evidence we find that the proseortion has proved beyond a reasonable doubt the charge agairut the appellant for which he was convicted and eentenced keeptng in view that each crimlnal case must be declded on its own particular facb and circumstancee for the followlng reasons,i

(a)That the FIR was lodged wlthln a day of the incident. This slight delay in lodglng the FIR we flnd based on the particular facts and circumstancee of thle caee has been fully explained. This is because the complalnant first had to take hls deceasecl brother to the PS where legal formalltles were carried out before a post nortenr was performed at the hospital on the dead body which was then hken home and prepared for burial and then the burial took place and therealbr the complalnant tmmedtately returnd to the I€ and lodged the FIR. It has also come in evidence that the police came to the hospital and were aware of the tnctdent much before the FIR was lodged as the complainant had taken the dead body of the deceased to the IIS so that a medical Ietter could be arranged,

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Legal formalt6eo were also carled out by the police at the I€ and the dead body of the deceased was taken by the complainant to dre hospibl accompanled by a pollce offlcq and as such based on the pardcular facb and clrcumshnces of thle case we do not find that the delay tn lodglng the FIR le fatal to the prosecuHon case. In this rcspect reliance ls placrd on the case oI Muhammad Nadeem alias Deenrl V The State (2011 SCMR 872).

O) Wu find it inconsequenHal that the charge shtes the incident took place at 1700 hous ae opposed to TarnThls ls because the drargp odrerwise made lt absolutely clear the ollence for which the appellant had to defend hlmself tndudlng date and location which he did at trial through lengthy ooss examlnation of the wltsresses. The time of 1700 hrs as opposed to 7 asr ts etmply a typo which the appellant did not complain about at tsial ae he knew the details of the offence which he had to defend himself agairut and as such the appdlant has not been prejudiced by thi" minor defect in the charge.

(c)We flnd that the prosecudonls caee primarily rests on the evidence of the eye witnese to the murder of the deceased and whether we believe their evidence especially in connection with the cortect ldmtification of the appellant whose evidence we shall coruider ln detail below;

Q) Eye witness PI4r1 AIt Nawaz He ie the complainant and was the brother of the deceaeed. According to his evidence on 01.102018 at about 7am he was available in the vegetable shop of his cousln PW Muhammed Umer who was also prs€nt He saw the accused harirg a double ba:rel gun come there and tell his brother who was standlng in front oI hoEl of lilaji Soomro that he would not escape death. He then eaw the appellant fire a straight strot at his brother from his shot gun who fell dorrn" The accueed then escaped He went to hls brother and formd that he had died. He arranged a pick up and got the dead body taken to I€ Ihoke Sharif and inJorrred the police about the incident who examined the dead body in front of the mashirs which was thm taken to the hospital for post morteur.

From the evldence lt hanspkes that this witsress is related to the deceaeed howeverno enmity or dispute has hen proven between the eye wltnees and the appellant although there were differences between the deceaeed and the appellant and thus hls merc reladonship to the deceased is no reason to dlscard his evidence whlch has to be judged on its own worth. In thls respect rellance is placed on the cases of Amal Sherln v The State (PLD 2004 SC 3n), Dlldar Hussain v Muhammad Afzaal allae Chala (PLD 2004 SC 663).

This eye witress lcnew the appellant before the incident whidr occurred at about Tasr in the morning ln broad day light close to where the eye witness was standing. The incident went on for a few mlnuteo and the eye wlkress was close to the incident and would have got a Bood look at the,

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aPPe[ant who he already knew, Thus, there ls no case of mlstaken tdenHty and no need to hold an idendficadon ( parade in order ho determine the ldentlty of the appellant. His presence at the scene of the lncldent ls corroborated by PW Mulunrmed Umer whose shop he was at and who were also present at the Bme of the lnddent.

This eye witness was not a chance wltness ae he ie related to the owner of the shop and the deceased and livlng ln the same area and had every reaeon to be wlth PW Muhammed Unrar at lrls shop, Ae noted earller based on the parHcular facts and cirtumstancee of the case, he lodged hts FIR with relaHve promptitude where named ttre appellant as the p$son who he saw shoot the deceased and his FIR was not matertally improved on durlng his evidence. He gave his evidence in a natural manner and was not dented at all during a l*gthy cross examination and as zudr we find his evidence to be reliable, trust worthy and confldence inspiring and believe the same qectally in repect of the identity of the appellant who murdered the deceased. As in the FIR he also grves the motive for the murder namely the enmfry betrueen the appellant and flre deceased over the motorcycle accident which was now ttre subject of criminal proceedings.

We can convict on the evidence of this eye witness alone though it would be of assistance by way of caution if there ls some corroborative/ supportive evidence. In this respect -i reliance ls placed on the case of Muhammad Ehsan v. The State (2006 SCMR 1854. As also found in the cases of Farooq Khan v. The gtare (2008 SqvIR 917), Niaz-ud-Din and another v. The State and another (2011 SCMR 725) and Muhammad Ismall ve. The State (2017 SCMR Z3). That what is of significance is the qraltty of the evidsrce and not ib quantity and in this caae we find the evidence of this eye witness to be of good quality and believe the same. In this case however there is more than one eye witness.

(ii)Eye wltnees PW 2 Muhamned Umer. He ls also related to the deceaeed. His evidence corroborates that of PW 1 AIi Nawaz in all materlal respects. He knew the appellant from before the incident whlch was tn day light and he saw the appellant fire on the deceased from a short dlstance so would have been easlly able to recognlze him. He is named aB an eye witnese ln tlre FIR. He has no relatlonship or enmlty wlth the appellant and had no reason to lmplicate the appellant ln a false caoe. He gave his Section 161 Cr.PC statement one day after the incident which was not materially improved upon durlng the course of his evldence. He wae aleo not a chance wifress as it was his vegetable shop oublde which the incident took place and as such it was only natural that he was present at his ehop ln the moming preparing for work Hie evldence was not dented despite a lengthy cro$ examinadon and tn his evidence he also corroborates PW 1 Ali Nawaz in resPect of the rhotiy

7 si o for the murder. We believe hle evldence in respect of the lncldent and ln parttcular the corect ldentificatlon of the appellant as the person who ehot the deceased. fire same consideraHons apply to hle evldence as the evidence of PW 1 All Nawaz.

At this point we would llke to mentlon that wlth two rellable eye wihesses we do not flnd lt relevant that the owner of the hotel was not called to gtve evidence on behalf of the prosecution .Thls ls because there le no evldence to suggest that the hotel owner waa even an eye witness as hls hotel was dosed at the time of the incident

Thus, based on our believing the evidence of the 2 eyewitneeses what other evldenc{material supporHve/corroborative or other wlse ls there agalnst the appdlant? It belng noted that corroboration tc only a rule of cauHon and not a rule of law. In thls respect rellance le pl,aced on the case of Muhammad Warls v The State (2008 SC\4R 784)

(d)That apart ftom the actual murder tlre evldence of the eye witnesse is fuIly corroborated by the mashir of all the relevant docurrents PW 5 Khan Muhammed which induded inspection of the wardat, recpvery of blood and emptSr at wardat, memo of arrest and memo of recovery of the ehot gun on the poinhdon of the acrused.

(e)That tt does not appeal to logic, commonserute or reason that a real relative would let the real murderer of his real relative get away scott free and faleely implicate an innocent person by way of substitution- In fhis respect reliance is placed on the case of Muhaurmad Ashraf V State (2021 SCMR 758)

(0 That tl're medical evldence and medical reporb fully support the eye-witness/ proseution evidence ln that the deceased received pellet injurle from a fireaur which was the cause of his death" As nohd by MLO PW 4 Dr.Abdul Qadir a good number of thee pellets hit the chest of the deceased as uftls also observed by the eye witness in theh evidence. Pell+ inlurtes are also caused on ac@unt of shot gun fire. Ttrere was also no blackening around the pellet wounds which indicates that the dlshnce of the .6re was as mentioned in the evidence oI the eye witnesses i.e beyond 3 feet.

(g)That the murder weapon namely the Shot gun was recovered by the appellant on hle polntation wNch was hidden in bushes at a place wlriclr only he would have known about and as such could not have been foisted on him.

(h)That the empfy which were recovered from the crime scene when maEhed with the ahotgun recovered by the appellant lead to a posidve FSL report tn that the recovered ernpty was fired from the recovered Shot gun which was also found to be in worldng order,

(i)That it has not been proven tluough evidence that any particular police wlkress had any enmity or ill will towards the

appellant and had any reason to falsely impllcate him ln this case for instance by foisting the Shotgun on him and In such circumstances lt has been held that the evldence of the police witnesses can be fut5, relled upon and as such we rely on the pollce evidence. In this respect rellance ls placed on the case of Muehtaq Ahmed V The Stnte (2020 SCMR 474). Two of the pollce offlcers (SIP Allah Dino and ASI Karlm All) who were lnvolved ln the case and prepared nrashlrnama's dled during the course of the hlal as is evidenced fronr the record however theL'slgnatures on the relevant docunrents u'ere all recognlzed by a person who was well aware of their hand writing aud signatures. Namely, 8re last IO PW 6 Bahadur Ali

O That all the PW's are consistent in their evidence and even if tlrere are some conhadictions in their evidence we consider these contradictions as minor in nature and not material and certainly not of such materiality so as to affect the p,rosecuHon case and the conviction of tl're appellant Ia this respect reliance is placed on the cases of Zakir lCran V State (1995 SCMR 7793) and Khadim Hussain v. The State (PLD 2010 Supreme Court 669).The evidence of the PW's provides a believable corroborated unbroken chain of events from the time the deceased a:rived outside the hotel to the appellant also ariving there and shooting him with a shot gun whidr lead to his death on the spot to the appellant making his escape good to the arrest of the appellant to the appellant leading the police to the murder weapon which lead to a positive FSL report when matched with the empty recovered at the crime scene.

(k)Ihat the motive for the murder has been asserM in the FIR and has been proven throughout in the evidence which is the dispute which the appellant and ttre deceased had over a motorcyde accident which lead to criminal proceedings involving therr which has even been admitted to by the appellant in his 5.342 Cr.PCsFatement.

0)Undoubtedly it is for the prosecution to prove its case agairut the accused beyond a reasonable doubt but we have also considered the defence case to see if it at all can caet doubt on or dent the proseortion case. The defence case ls simply false implicaHon on the basis of enmity. The appellant, however, did not examine himself on oath and dtd not catl any DW or even produce a shred of evldence in support of hls defence case. Thus, for the reasons mentioned above we dlebelieve the defence case of false implication as an after tlrought ln the face of reliable, hust worthy and con-fidence insplring eye witnese and other corroborative /supporHve evidence against the appellant which has not at all dented the prosecution case.

74.Thus, based on the above discussion we have no doubt that the prosecutiort has proved its case against the appellant beyond a reasonable doubt for the offence for which he has been convicted and hereby maintain his conviction.

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15.With regard to sentenclng we note that the modve for the murder of the deceasecl has been proven ae being on account of the appellant/deceased dispute over a motor cycle accldent which had landed up in court, that the crime was premedltated and a parHcularly brutal one I carried out in broad day light whereby the appellant flred on the deceased in ftont of his relatives and murdered him in cold bloo4 that there are absolutely no mitigating factors rather only aggravating ones and thus based on the reasons menkioned above and the particular facts and circumstance of this case we find thls a flt case to hand down the death senrence by *uy of deterrence and as sudr uphold the death sentence handd down to the appellant in the impugned judgment.

L6. As such tl're appeal is dismissed and the confirmation reference is answered in the affirmative however ttre appellant shall have the benefit of S.382 @) Cr.PC.

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JUDGE