MUHAMMAD WAQAS S/O MUHAMMAD SADIQ (Appellant) VS THE STATE (Respondent)

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THE HIGH COURT OF SINDH, KARACHI

Presett:

Mr. lttstice Mohammad Karim Khan Agha Mr* lustice Kausar Sultana Hussain

CRIMINAL IAIL APPEAL NO. 202 OF 2020

CONFIRMATION CASE NO. 05 OF 2O2O

Appellant Muhammad Waqas through Mr' Iftikhar Ahmed Shah, Advocate

Respondent The State through Mr. Mohammad Iqbal Awan, Additional Prosecutor General Date of hearing: 20.1.0.2021

Date of announcement 26.1.0.2021

T UDGMENT

MOHAMMAD KARIM KH AN AG HA, I-A ppellant Muhammad appeal against Waqas son of Muhammad Sadiq has preferred the instant the impugned judgment dated 28'01"2020' passed by learned Ist

Karachi East in Additional Sessions Judge (Model Criminal Trial Court) Waqas) arising out of Session Case No.1926 of 201.6(State Vs' Muhammad

302 PPC

FIR No.81/2016 for an offence punishable under Section full-dressed trial' the registered at PS Korangi Karachi, whereby' after and sentenced to death appellant was convicted under Section 302(b) PPC was also directed to pay subject to conJirmation by this court' Appellant Only) to the legal heirs compensation of Rs.2,00,000/- (Rupees Two Lacs he was of cleceased. In case of default in payment of compensation' ordered to further undergo S'l' for six months' FIR lodged by

2.The brief facts of the prosecution case as Per are that on19'02'2016 complainant Inayatullah son of Muhammad Iqbal he was present at Malir Cantonment Karachi in his Unit when he received Ramzan that Mst' Samina inJormation through telephone from his brother waskilleclbylrerhusbanrlMuhammadWaqasbystabbing.onthesame of FIR because he could date he could not proceed to PS for registration (

not get leave from his unit. On20.02.201.6 he proceeded to PS Korangi and lodged FIR at 1130 of the incident against accused Muhammad Waqas for stabbing Ms Samina to death.

3.During investigation the I.O. visited place of incident, prepared site inspection memo and took photographs of the place of the incident. The Investigation Officer arrested the accused on 21,.02.201'6. The accused confessed his guilt and shown willingness to get recovered the crime weapon which was recovered on his pointation' After completion of usual investigation charge sheet was submitted against the accused for offence punishable u/ s.302 PPC to which the accused plead not guilty and claimed trial.

4.The prosecution in order to Prove its case examined 07 witnesses and exhibited various documents and other items. The statement of the accused was recorded under Section 342Cr.P.C in which he denied all the prosecution allegations and claimed false implication. The accused did not examine himself on oath and did not lead any evidence in his defence'

5.After appreciating the evidence on record the trial court convicted the appellant and sentenced him as set out earlier in this judgment' Hence, the appellant has filed this appeal against his conviction'

6.The evidence produced before the trial court finds an elaborate mention in the impugned judgment dated 28-01'.2020 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

7.Learned counsel for the appellant has contended that there was an unexplained delay of one day in lodging the FIR which lead to a false case being concoctect by the complainant in league with the police against the accused; that the eye witness was not present and he was a planted witness; that the accused conJession before the judicial magistrate cannot be safely relied upon as it was not made voluntariiy and was extracted through torture in addition to procedural safe guards being violated; that there were material contradictions in the prosecution evidence which made it unreiiable; that the churri harl been foisted upon the accused by. t

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the police and that for any of the above reasons the appellant should be acquitted by extending him the benefit of the doubt' In the alternalive he submitted that even if we upheld the conviction of the accused the sentence should be reduced to one of life imprisonment instead of the death penalty. In support of his contentions he has placed reliance on the cases reported as Haji Muhammad Sadiq V. Liaquat Ali and others (2014 SCMR 1034), Nazir Ahmed V. The State (2018 SCMR 787), Muhammad Mansha V. The State (2013 P Cr.L.J. 1674), Sartai V. The State (2021 MLD 963), Muhammad Azhar Hussain and another V, The State (PLD 2019 Supreme Court 595). Noor Ahmed and 2 others V' The State (2017 YLR 515),SajjadAliand3othersV.TheState(PLD2005Karachi213), Muhammad Ashraf V' The State (2016 YLR 1543), Muhammad Kashif Iqbal V. The State (2021 YLR Note 102), Muhammad Pervaiz V' The State (PLD 20195C592).

8.On the other hand Learned Additional Prosecutor General appearing on behalf of the State has fully supported the impugned judgment. In particuiar he has contended that any delay in lodging the FlRhasbeenfullyexplained;thattheeyewitnessevidenceisreliable' trustworthyandconfidenceinspiringwhichfullyimplicatedtheaccused in the murder of his wife; that the accused confession was made voluntarily with all procedural safe guards being observed and as such canbesafeiyrelieduPontoconvicttheaccused;thattherearenomaterial contradictions in the prosecution evidence and as such the prosecution doubt and had proved its case against the appellant beyond a reasonable as such the appeal should be dismissed' In support of his contentions' he

placed reliance on Abdul Majeed V' The State (2008 SCMR Ehsan V' Muhammad Ishaq V' The State ( 2009 PSC (Cr1')1)' Muhammad V' The State The State (2006 SCMR 1857), Khan Muhammad and others

SCMR 1394)'

(1999 SCMR 1818), Shamshad Ali V' The State (2011 Muhammad Imran V. The State (2021 SCMR 69)' Muhammad Amin V'

The State (PLD 2006 Supreme Court 219)

order to give g. The complainant was reluctant to aPPear at trial in he eventualiy evidence as is shown byP.229 of the paper book although dirJ give evidence as referred to earlier in this judgment' AttemPts werT

made to serve the complainant in this appeal however his whereabouts coulcl not be traced out and as such we Proceeded to hear this appeal to avoid any further delay which was causing prejudice to the appellant who remained locked up behind bars without his appeal being heard on account of the complainant's conduct. Instead the learned APG represented the interests of the complainant during this appeal'

10.we have heard the arguments of the learned counsel for the appellant as well as learned Additional Prosecutor General and gone through the entire evidence which has been read out by the appellant and the impugned judgment with their able assistance and have considered the relevant law including the case law cited at the bar'

11.Based on our reassessment of the evidence especialiy of the PW eye witness, the other PW witnesses, PW 3 Dr.Noorun Nisa WMLO at ]PMC and the medical reports including the post mortem of the deceased, we find that tl-re prosecution has provecl beyond a reasonable doubt that Ms Samina(thedeceased)wasstabbedtodeathon1.9.02.2o16atabout1500 hours inside House No.54 Gali No.4, sector 32/ ALabout square Korangi Karachi

1.2. The only question left before us therefore is who stabbed the deceased with a churri which lead to her death (murder) at the said time,

date and location?

13.After our reassessment of the evidence we find that the prosecution has proved beyond a reasonable doubt the charge against the appellant

for which he was convicted for the following reasons;

(a)That the FIR was lodged within- 24 .hours of the incident' i(at any delay in lodginf the FIR has been explained by the cousin compiainant PW 7 Inayitullal-r in his evidence who was the of the deceased. According to his evidence he was a soldier based had at Malir Cant and was infJrmed by telephone that the accused murderecl the cleceased by stabbing on the day of the incident however he was not granted leave on that day but was^ only granted leave the next- day whereupon he went to the f5 and from I';g;J the FIR and collected the dead body of his cousin andthe chiipa mortuary. The accused is named by him in the FIR he nua upp^."r,t enmity with the accused and thus had no reason

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to implicate him in a false case. Furthermore, during this delay the prosecution obtained no benefit.

(b)In our view the prosecution's case rests on the evidence of the eye witness to the murder and the confession made by the accused before the judicial rnagistrate both of which we will consider in cletail below;

(i)Eye witness PW 5 Muhammed Yaqoob' The accused is his elder brother. According to his evidence the accused and the deceased who was his wife were initially living in the Punjab and only came to Karachi 15 days prior to the incident which has not been disputed' According to his evidence the accused and the deceased did not maintain a good relationship and used to quarrel a, lot' He was Present in his house aiong with the accused and the deceased when the incident hui occu.red Since the accused and the deceased were not getting along well he had brought them train tickets to trave'i to ttre Punjab where they could resolve theirclifficulties.Heexhibitedthetraintickets.onthedayof scuffle the inciclent at 1500 to 1530 hours he saw the accused with the deceased. The accused pushed him over and he saw the accused take a churri and stab the deceased with it inherheartwhothenfelldownandaccordingtothepost mortem report died instantaneously' there He knew the accused as he was his brother and as such is no case of misidentification and no needincident for an identification parade especially as it was a day light and he witnessed the aitack i'o* u short distance' He was not a chance witness as the incident took place in higio-us1 wheretheaccusedandthecleceasedwerestaying'Hehad no enmity or ill wiil with the accused and had no reason to implicate him in a false case He gave his 5'161 Cr'PC eye named the witness statement on the same day whereby he concoct a false case' accused and thus there was no time to His evidence contained no material improvements from his 5.161 Cr.PC statement and his evidence was not dented despite a probing cross examination' His Presence at the witness is scene was not ciallengeel Although the eye related to the deceased it is weli settled that his evidence unless some cannot be simply discarded on this basis alone 'o. ,"u,o" to falsely implicate the appellant enmity, ill wiil has come on has come on record and nothing of the kind o1 record in this case' In this resPect reiiance is placed liaz V The State (2009 SiNfn 99) and Nasir Iqbal alias Ahmed 2152)' In fact in Nasra and another v' The State (2016 SCMR some cases the superior courts have held that based on the particular facts incl circumstance of the case related *itn"rr., may be more reliable as they want to see justice correct person is done for their relatives by ensuring that the held to account,

z3l It would also be highly unlikely for him to falsely implicate his real brother in the'murder and enable the real culprit of his relativc to go free.

He gave his evidence in a natural and straight forward rnur.i", and we have no reason to disbelieve the same' We find his evidence to be reliable, trust worthy and conlidence inspiring and we believe the same especially in terms of his correct identification of the appellant and can convict on this evidence provided that there is some corroborative / supportive evidence. In this respect reliance is placed on M.rirammad Ehsan v. The State (2006 SCMR 1857)' As also found in Farooq Khan v. The State (2008 SCMR 917) and Niaz-ud-Din V The State (2011 SCMR zZSl' what is of significance is the quality of the evidence and not its quantity and in this .ur" *L find the evidence of this eye witness to be of good quality.

Thus, based on our believing the evidence of the PW eye witness and his correct identificai-ion of the appellant what other supportive/corroborative material is their against the appellant?

(c)The appellant confessed his guilt to .the crime before PW his Zohatb Ahmed who was the ludicial magistrate who recorded 5.164 Cr.PC statement in the following terms;

"CONFESSION OFA CCUSED PE RSON U NDER SEC TION 164 OF

THE CODE O F CRIMIN AL PROCEDURE IN THE COURT

OF

IUDICIALM AGISTRATE

Q. Wl-rat have you to saY?

Answer. Sir I tried to counsel her a lot but the victim She used to (Samina) never rePented from her wrongdoings go or, of thu hooi" in night for hours' ] Tt9. ig ask her' but Jh" ,r"d to quarrel wilh me and while lifting her shirt i;;;i"g her private hairs of private part) used to sav' yo, i,urr" plugged off my private-hairs of private part". I have told the same thing to my Mlmoo (Khokhar "'Whettre"r ii.asoola), Imran (son of my mamo), her. (victims') mother her brother in law 6aqo rilUi; , her elder sister (Rakhmat), Mother-in-law (Haqo iUr*,u, - Behnoi). However my exwho were inJormed via iiiUil u.,a ex-sister-in-1aw (Rakhmat) with phone instead of counseling the victim rather fought '-" or". the phone. And my Mamoo (Khokhar Rasoola)' Imran (son of my mamo) advised me to come to Khushab where ihey will iry to resolve the dispute' I booked tickets Cantt to ont8.O2.20tO at 09b0 pm of 19'02'2016 from Karachi Sargodha for reaching Khushab ln the night I went to my fatlier and showed hi* ti.k.tt to people (including my father, landlord and neighbours)' At l'1:00- am the victim went out of house. I called her brother in law (Mumtaz - Behnoi) and talked to him and her elder sister (Rakhmat) l and its inforrned them that she is not at house since 1l':00 am

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02:00 pm- she was not come back. Then her brother in law (Mumtaz - Behnoi) called me about at about 2:00 pm to whom I said, "I will kill her as soon as I find her". -But he said just come to Khushab one time they will resolve the matter, Then I found the victim at Chamra Chowrangi at 04:45 pm and took her to home. When we reached home she again tifted her shirt (showing her private hairs of private part) and said, "Whether you have plugged off my private hairs of private patl".l grabbed knife and stabbed in her body. This is all what I have to say. I am illiterate person." (bold added)

It is settiecl by now that even a retracted judicial conJession can be relied upon if it is found to be voluntary and is truthful and fits in with the prosecution case. In this respect reliance is placed on the case of Muhammed Amin (Supra). In this case the appellant has claimed that his confession wai not voluntary and was a result of torture and coercion. No mention of this was made at the time of recording the confession before the magistrate and such questions *,"r" ,roi",r"n Put to the magistrate during cross examination' This issue of torture and coercion orrly arose during the recording of the 5.342 Cr.PC statement of the appellant which we consider to be an after thought.

With regard to the procedure followed in recording the appellant's confessi,on before PW 2Zohatb Ahmed we find that in his evidence and through the written proscribed pro forma all the necessary procedural"safeguards for making a confession were followed and is such we find the confession to be voluntary, truthful and fully fitting in with the prosecution case and as such rely on the appeilant's conJession against himself which is corroboratecl by the eye witness evidence discussed above'

(d)That PW 6 Muhammed Sadiq rvho was the father of the accused was initially declared hostile however during cross examination he admitted the tnatrimonial dispute between the accused and his wife who was the deceased, thit the accused and the deceased had been advisecl to return to the Punjab to settle their differences and that train tickets for them had been bought for that purpose and that when he returned to the house he saw the accused with churri in his hand and the deceaseci in dead condition' His evidence during cross examination tends to corroborate/ support thq proselution case and thus we give it some weight in terms of -Siaiq value. ln this corroborative/ supportive respect reliance is placed on Muhammea V Muhammed Sarwar (PLD'1973 SCMR

214)and The State V Abdul Ghaffar (1996 SCMR 678)

(e)That the medical evidence and reports as discussed above fuliy support the eye-witness/ prosecution evidence' It confirms that the .lecease,l was b.ought to ihe hospitai suffering from a stab wound to the chest and that she died on account of the stab wound to the chest as evidenced by the post mortem and death certificate'

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(f)That tl're appellant on his arrest lead the police to the murder weapon i.e churri on his pointation.

(g)That all the PW's are consistent in their evidence and even if there are some contradictions in their evidence we consider these contradictions as minor in nature and not material and certainly not of such materiality so as to effect the prosecution case and the conviction of the appellant. In this respect reliance is placed on Zakir Khan V State (1995 SCMR L793) and Khadim Hussain v. The State (PLD 2010 Supreme Court 669).The evidence of the PW's provicles a believable corroborated unbroken chain of events from the matrimonial disharmony between the accused and the deceased to the accused stabbing the deceased in her chest to the deceased being taken to hospital to the accused arrest by the police and leading the police to the murder weaPon on his pointation to the confesiion o] the accused before the judicial magistrate and the death of the deceased by stab wound as confirmed by the medical evidence.

(h)That the police PW's had no proven enmity or ill will towards ihe appellani and no reason to falsely implicate him in this case by for eiample making up his arrest or foisting the churri on him and in such iircumstances it has been held that the evidence of the police PW's can be fully retied upon' In this respect reliance is placed on Mustaq Ahmed V The State (2020 SCMR 474)'

(i)Undoubtedly it is for the prosecution to prove its case against ihe accrrsed beyond a reasonable doubt but we have also considered the dlfence case to see if it at all can caste doubt on or dent the prosecution case. The defence case is simply one of false implication for which the appellant has given no cogent reason. The appellant did not give evidence under oath and did not call any d"ienc" witness in support of his defence' Thus, for the reasons mentioned above we disbelieve the de{ense case as an afterthought in the face of reliable, trust worthy and conJidence inspiring eye witness evidence ancl the appellant's own confession before a juclicial magistrate and as trrih thu appellant's case has not at all dented the prosecution case'

1'4.Thus,basedontheabovediscussionespeciallyinthefaceof reliable, trust worthy and confidence inspiring eye witness evidence and other corroborative,/ supportive evidence mentioned above including the appellant's own conlession before a judicial magistrate which we have already found was made voluntarily, was truthful and fitted in with the -ra prosecution case which we have believed and relied uPon we have no cloubt that the prosecution 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

15.Witl-r regard to sentencing the rnotive for the murder has been proved by the appellant's own confession. Although we find the murder of a young lady of 18 years of age to be quite shocking we have noted a few discrepancies in the Prosecution case which although not of any material significance have persuaded us to follow the case of Ghulam Mohy-ud-din V State (2014 SCMR 1034) whereby by way of abundant caution it is better in such type of cases to Preserve life and award the lesser sentence of life imprisonment. Thus we hereby reduce the appellant's sentence from cleath to that of RI for Life with ail other compensation and fines in the impugned judgment remaining in place with the confirmation reference being answered in the negative'

16.As such the appeal is dismissed, the conviction is maintained but the sentence is modified from death to RI for life along with all other compensation and fines imposed in the impugned judgment with the confirmation reference being answered in the negative' 17 The appeal and confirmation reference stand disposed of in the above terms

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