MUHAMMAD DANISH @ PUNCHI @ FAIZAN S/O M.YOUSUF (Appellant) VS THE STATE (Respondent)

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THE HIGH C OURT O F SINDH K AR AC r{l cRrNilNAI. JAIt APTUAL NO. 914 Ou 2019 coNIIRr\,tn]'loN c^sli No. 4l oI 2019

I'rcsclrll , Mn lrtstict ltlttluruunu Karlm Khm Aglttr /t'lr. /rslicr' lrcfuul All Slurlr

Appellant Darrislr C0 f)an,r tlrrouSlr Mr' Moltattltrratl F'arootl ntlvocatc

Resporrclent Thc Statc tlrrough Mr. Moltamtlad lqtral Awan. Artlitiona'i Prosccutor Gcncral Compiainant throtrgh Mustatlttc Jnhanghiri Atlvocate.

Date of hearing: 02.09.2021

Date of announcerrent 07.09,2021

IUDGMENT

MOH AMMAD I(ARIM I(HAN AGHA, I- Muhammad Danish @ Punchi @ Faizan appellant has preferred the instant aPPeal against the impugnetl judgment dated 09.11.2019, passed by learned MC[C/ I-Ariditionat Sessions Judge, Karachi East in S.C.No. 277 of' 2077 (State Vs. Muhammad Danisl'r @ Punchi@ Faizan and another) arising out of FIR No. 't93/2016, for offences punishable untier Sections 1931397 1302134 PPC registerctl at PS Brigade, Karachi, whereby, after full-clressed trial, the .rppel[nll1 rvas convictr.'d uncier Section 302(b) PPC and sentenced to death, subjcct to thc'corilirmation by thls court. Appellant was also directed to pay compcnsation of Rs. 200,000/- to the legal heirs of tleccaseri os recptirecl uncler Section 544-4 Cr.P.C. ln case of default, he was orderc,d to suffer s.l for six months more, However, learned trial court acquittetl co. accusctl syed subhan Ali @ Lola of the chnrges by extending him benefit of cloubt.

2.Precisely the facts of thc prosecution case as narrated in the FIR are that conrplainant was serving as superintenrlent l{angers whereas his sorr Hashinr Younus (now deceasr'd) nged about 30 years was scrvin8 flr/

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lnspector SPD. On 06.08.2016, the complainant and his son, after maintenance of vehicle, were going back to their home, when at about 8.30pm they reached at M.A. f innah Road, opposite Taj Complex, their car stoPPed. They atighted from the car and started checking it, Suddenly one I boy agecl about 20 years riding on motorcycle appeared there and clemanded cell phone from his son, who resisted, upon which, accused fireci at his son which hit on his gluttonous and traverse to left side' Accuseti macle his escape good. Complainant shifted his son to Civil Hospital by rickshaw for treatment, where on 73.08.2016, his son succumbec'l to his injuries, as such FIR was lodged by the complainant .lgainst unknown accused.

3.Investigation was conducted by SIP Shoukat Ali, who alter receiving relevant papers, visited place of incident and recorded section L61 Cr.P.C statements of P.Ws. On 10'09.2016, the FIR was disposed of uncler "A" Class. However, on 08.11.2016, SIP Shoukat Ali arrested appeltant and recovered from him one 30 bore pistol loaded with magazine containing three live bullets in Presence of mashirs and such memo was prepared at the spot. During interrogation, appellant confessed his involvement in the Present case. On 09'11.2016, I'O submitted application before the concerned Magistrate for re-opening of investigation and for conducting identification parade of the appellant through the complainant. On 10.11.2016 concerned Magistrate conducted the identification parade wherein the complainant identified the appellant as perpetrator of the crime. LO also sent Pistol to FSL for examination and producec{ report wherein it was opined that the empty earlier sent by ASI Riaz Jut has matched with the pistol sent by the I.O, After completing usual investigation, the LO submitted the report u/s 173 Cr.P,C. before the competent Court of Law. On 15.03.2017, police suested co-accused Syecl Subhan Ali and produced him before the concerned trial court. Upon indictment, accused did not plead guilty and claimed their hia[.

4.The prosecution in order to prove its case examined 0g witnesses ancl exhibited various documents and other items. The statement of the appellanr was recorded twice under section 342 Cr.p.c in which he denied all the prosecution allegations and claimed fatse imptication at the S.ann€d wr$ CamSEnner

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hancls of the rangers. The appellant gave his statement under oath of whereby he proclaimed his innocence and called 2 witnesses in support his defence case.

convicted t 5. After appreciating the evidence on record the trial court whilst his and sentenced the appellant as set out earlier in this judgment co-accused was acquitted by being extended the benefit of the doubt

whose case both legally and factually was on a completely different footing to that of the appellant. Hence, the appellant has fited this appeal against his conviction.

6.Learned counsel for the appellant has contended that the appellant at the is completely innocent and has been falsely implicated in this case behest of the Pakistan Rangers; that the identification of the appellant at

the identification parade cannot be safely relied uPon as the complainant was not gave no hulia of the appellant in his FIR; that the appellant was arrested on the spof that the pistol recovered from the appellant was foisteci upon him by the police and that no post mortem rePort carried out on the clead body of the deceased and that for any of the above of reasons the appellant should be acquitted by extending him the benefit the doubt. In support of his contentions he has placed reliance on the cases ofMianSohailAhmedVTheState(2019scMR956),ImranAshrafV TheState(2001SCMR424),|avedKhanaliasBachaVTheState(2017 SCMR524),AbdulWahabAfghanialiasKhalidaliaslameelVTheState (2007 P Cr.LJ 850), Sajid Mumtaz V Basharat (2006 SCMR 231) and I(anwar Anwar Ali (PLD 2019 SC 488)'

7, On the other hand learned Additional Prosecutor General appearing on behalf of the State and learned counsel for the complainant have fully supported the impugned iudgment. He has contended that the complainant eye witness' evidence was trustworthy reliable and confidence inspiring and that he has correctly ldentified the appellant as the person who attempted to rob his son and on his son's resistance shot his son following an identification parade which was caried out timely ancl in accordance with the law; that the medical evidence suPPorts the

prosecution's case as do the recovery of the pistol on the appellant's arrest which matched with the emPty recovered at the scene through a Posi|jvey' Scanned wilh CamScann€r

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its case beyond a FSL report ancl as such the prosecution had proved reasonable doubt and the appeal should be dismissed and the of their confirmation reference answered in the affirrnative'In support V The State contentions, they placed reliance on the cases of Niaz'ud-Din ) (2011 SCMR 725), Muhammad Ehsan V The State (2006

SCMR 1854'

Baba V The Sikanclar V The State (2006 SCMR 7786\, AiiazNawaz alias

(PLD 2004

State (2019 P Cr. LJ 1775), Asim and another V The State Amal Sherin V Quetta 123), Ijaz Ahmad V The State (2009 SCMR 99)'

(2008 SCMR

The State (PLD 2OO4 SC 371) and Abdul Maieed V The State

8.We have heard the arguments of the learned counsel for the learned appellant as well as learned Additional Prosecutor General and which has counsel for the complainant, gone through the entire evidence been read out by learned counsel for the appellant along with the the impugned judgment who have ably assisted us and have considered relevant law including the case law cited at the bar' g. Based on our reassessment of the evidence of the PW's' especially

PW 1 eye witness Younis Nazar, the other PW witnesses' PW 7 Dr' Abdul

Ctraffar ancl PW 6 Dr'Mubarak (who stated in their evidence and Hasham producecl rePorts resPectively that the injured (later deceased) younas arrived ht civil hospital with a gun shot wound and on account of this gunshot wound he later expired) lecovery of empty at the scene we

find that the prosecution has Proved beyond a reasonable doubt that Hasham Younas (the deceased) during a botched robbery was shot by firearm at about 20.30pm on 06.08.2016 at M.A.Jinnah Road opposite side of Taj Complex Lines area Karachi whereby he was seriously iniured and latcr clied on account of the serlous firearm iniury which he sustainet{ during thc course of the botchcrl robbery on 13.08.2016 at civil hospltal Karachi. The fact that no blood was recovetetl from the scene lve find as inconsequential and in this respect rellance ls placed on the case of Abdul Majeed (SuPra),

10.The onty question left before us therefore is who attempted to rob the deceased and who seriously injured the deceased by {irearm whrch,

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lcacl to l.ris rlcath (murder) a few days later at the said time' date and

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11.After our reassessment of the eviclence we find that the prosecution against the appellant t has provecl beyoncl a reasonable doubt the charge Ior n,hich he was convictecl for the following reasons;

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(n)That the FIR was lodged with Prgm.PtiTd: being of,the deceased ';l;;;" and shooting hours after tlre attemPted ioUUtty as any delay which lead to his death.If be seen lu:

lhit that in been explained by the .o'rnpfuinunt in his evidence the scene of the irrmecliately after the i^.id;;;'il ;;k his son from for treatrnent' inciclent to hospital, who was in a serious conditiory undthu,""ft.,hereco,dedhisFlR.Thisgavethecomplainant.no time to cook up a false *t"'"gui"it the ippeltant with the police the appellant and especially as the complain".', i?a rr" ""''ry'with in his evidence had no reason to impticate him in a lalse case' Even he had no enmity with,the under oath the appellant aimits ttrat appellant ."rrpr"i"^.t. rf tn'e'co*prainiit had any enmity with. thehim in this l're would have namecl i,itn in tttt FIR'in order to- fix the FIR was fot," .",u lrowever since he did not know the appellant against an unknown Person.

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(b)ln our view the prosecution's case rests on the evidence evidence we loi. uy. witness to the robbery and murder whose shall consider in detail below;

(i)Eye witness PW 1 Younus Nazeer' He was also the i6rnpt"inun, in the case and the lather of the deceased' Rccdraing to his evidence on 06'08'2015 he was with the rleceasecl'in his car when at about 2015 hours his car broke clown.He and the deceased alighted from the car to see what was wrong with it' He then saw a Person wearing a. pant shirt on i motor bike without a helmet demand the cleceased's mobile phone on gun point' His son resisted and he saw the person shoot his son and then flee' He took his injured son by rickshaw to civil hospital where his son remaincd under emergency treatment. When the police reached the hospital he rccorded hls 5'154 Cr,PC along with his 5,161 Cr.PC eye witness statement on the same day. His son dled tn the ICU on 13,08'2016. On 10'11.16 he attendetl an lclentificatlon parade whlch was held two days after the arrest of the appellant whereby he ptckecl out the appellant as thc person who attempted to rob and shot hls son with a speclfii role. His evldence regarding the correct idcrrtlllcation oI the appellnnt at the ldentilication parade is corroboraterl by PW a Zohalb Ahmed Who was the iudicial magistrate who carried out the ldentification parade rvhich we find to have been carried out in accordance with law.

Although the complainant did not know the appellant it was+ . ---'-a+ Scanned w lh Camscaoner

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only 8.30pm at night and it has come in evidence that there lveie lights on t[e busy M'A'Jinnah Road' The -incident regardiig the attempt to grab the mobile phone from the cle-ceased ancl the cliceased's resistance and the appellant shooting the deceased woulcl have given the appellant I suliicieit time within the then prevailing light to correctly identify the appellant especially as the complainant was ctose tL the deceased u, thuy *.r. working on his broken clown car and the appellant would have been relatively close to him with an unrnuffled lace as he wore no motor bike helmet. He gave a brief hulia of the unknown accused at that time in his FIR which was lodged with promptitude based on the particular facts and circuistances of th" tase' We find no irregularities in the identification parade which was carried iut 2 days alter the arrest of the appellant. and 3 months after the incident and thus we find that the eye as witness complainant has correctly identified the appellant the person who attempted to iob the deceased and then fatally shot him.

He is not a chance witness as he was going home in his car with the deceased who was his son after they had both been to the repair shop and thus had every reason to be with his son. His presen& at the scene was not challenged during cross examination and his version of taking his son to hospital after he was shot has been corroborated by PW 7 Dr. Abdul Ghaffar who was MLO at civil hospital who specifically states that the complainant brought the injured liter deceased to the civil hospital with one firearm injury which ties in with the evidence of the complainant' Furthermore, although the eye witness is closely related to the deceased it is well settled that his evidence cannot be simply discarded on this basis alone unless some enmity, ill wili oi reason to falsely implicate the appellant has come on record and nothing oI the kind has come on record in this case. In fact during his evidence under oath the appellant stated that he had no enmity with the complainant. In this respect reliance is placed on Ijaz Ahmed V The State (2009 SCMR 99) and Nasir tqbal alias Nasra and another v. The State (2016 SCMR 2152)

In fact in some cases the superior courts have held that based on the particular facts and circumstance of the case related witnesses may be more reliable as they want to see justlce done for their relatives by ensuting that the correct person is held to account.

He lodged his FIR and recorded his 5.161 Cr.PC eye witness statement on the same day which left no roorn for concoction, His evidence reflects that of his FIR and 5.161 Cr.PC statement and there have been no significant improvements in the same during his evidence so as lol Sc€.ned \dafi Camsc8nn€.

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rcn(lur hi$ evidcnce unrcliable. l-lis evidcncc was not dcntcd tlc.spite lcngthy cross examination. Hc gave his evir,lencc in a natural and straightforrvard manner. He rvas an olficer in tlte Pakistan rangers and as such kept his composure during thc incident and acted according to the situation based on his military training which adds further weight to the fact \ that he w<rulcl not misidentily the appellant. You are unlikely to forgct the face of the person who murderccl your son before your cycs. In this respect reliance is placed on thc. casc ol Mian Sohail Ahmed (Supra), He could not intervenc in the attack otherwise he would also have been shot. As his car w.rs broken he took his injurecl son to hospital by rickshaw which was his priority as he wantcd to save his son's life and was the fastest way under the circumstances espccially givcn the busy traflic on M.A Jinnah Road at this time of night and the fact that his own car had broken down. Ile did not waste his time calling for an ambulance as his son was seriously injured and time was of the essence. 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 Muhammad Ehsan v. The State (2006 SCMR 1857). As also found in Farooq Khan v, The State (2008 SCMR 917) and Niazuddin's case (Supra), what is of significance is the quality of the evidence and not its quantity and in this case we (ind the evidence of this eye witness to be of good quality.

Thus, based on our believing the evidence of the IrW eye witness what other supportive/corroborative material is their against the appellant?

(c)That the medical evidence and reports as discussed above fully support the eye-witness/ prosecution evidence. It conJirms that the deceased was brought to the hospital suffering from one gunshot wound as stated in the evidence of the eye witness where he died a few days later on account of the gunshot wound as evidenced by his death certificate. In the face of the medical evidence and medical reports already referred to above and the eye witness evidence which we believe we find that although no post mortem was carried out based on the particular facts and circumstances of the case and the medical evidence referred to and the eye witness evidence its absent cannot caste any doubt on the cause of death and weapon used to murder the deceased and as such its absence is inconsequential, In this respect reliance is placed on the cases of Aijaz Nawaz (Supra) and Sikandar (Supra).

(d)Although the appellant was not arrested on the spot he was arrested a few months later and at the time of his arrest i pistol was recovered from him by the Rolice,

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(e ) That the empty recovered at the wardat which was sent earlier for FSL matched with the later recovered pistol from the appellant and lead to a positive FSL report.

(i)That all the PW's are consistent in their evidence and even if there are some contradictions in their evidence we consider these conkadictions 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 1793) 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 attempt to rob and shooting of the deceased by the appellant to the deceased being taken to hospital by his father to recovery of the empty at the scene to the death of the deceased on account of the gunshot wound to the medical evidence and medical reports to the arrest of the appellant from whom a pistol was recovered which lead to a positive FSL report in respect of the recovered emPty to the correct identification of the appellant by the complainant at the identif ication parade.

(g)That the police PW's had no enmity or ill will towards the appellant as admitted by the appellant himself in his evidence under oath and had no reason to falsely implicate him in this case by for example making up his arrest or foisting the pistot on him and in such circumstances it has been held that the evidence of the police PW's can be fully relied upon. In this respect reliance is placed on Mustaq Ahmed V The State (2020 SCMR 474)'

(h)That it does not appeal to reasory logic or colrunonsense that a father \ /ho was an eye witness to the murder of his son would let the real murderer of his son go scot free by substituting him with an innocent Person (the appellant),In this respect reliance is placed on Allah Ditta V State (PLD 2002sc52).

(i)In a kidnapping for ransom case in order to deter such crimes, as is tl, e need to deter robberies which turn into murders (like in this case), the supreme Court held that courts need to take a dynamic approach in assessing the evidence. ln the case of Advocate General Sindh, Katachi v. Farman Hussain and others (PLD 1995 SC 1), in a kidnapping for ransom case it was observed as under:-

" It is a matter of public knowledge that in Sindh, on account of kidnapping for ransom, commission of dacoities and other offences, the people are feeling unsecured. The learned trial court has dilated upon these aspects in detail. I am inclined to subscribe to the view found favour with it. The approach of the Court in matters like the case in hand should be dynamic and if the Court is satisfied that the offence has been committed in the manner in which it has been alleged by the prosecution the technicalities shouldT scanned wilh Camscann€r

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be overlooked rvithout causlng any miscarriage of lustlce".

(bold ,rdderl).

(j)Untloubtedly it is for the prosecution to prove its case against the nccuse'd beyond a rcasonablt' doubt but ri.e have also considerer'l the defence case to see il it at all can caste tloubt on or dent the prosecution case. The defence case is simply one of false D implication at the behest of the rangers rvho had allegedly kept him in illega,l detention before han<t however the appellant did not state this during his evidence under oath where he ldmitted that he had no enmity with either the police or the complainant. He also arlmitted that he had also been bookerl in another criminal case. His defcnce witnesses were both neighbors who gave evidence that hc was taken arvay by the rangers liom his house. They are close frientls of the appellant and did not report this incident to the police at the time, come forward to give a 5.161 Cr.PC statement in this case and did not make any written complaint to any person or institution about the accused alleged abduction by the rangers and as such we place no reliance on their evidence. Thus, for the reasons mentioned above we disbelieve the defense case as an afterthought in the face of a reliable, trust worthy and conlidence inspiring eye witness and other corroborative /supportive evidence against the appellant which has not at all dented the prosecution case.

72.Thus, based on the above discussion especially in the face of reliable, trust worthy and confidence inspiring eye witness evidence and

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other corroborative/supportive evidence mentioned above 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'

13.With regard to sentencing the motive for the murder has been proved which was the attempted robbery of the deceased of his mobile phone and when the deceased refused to hand over the phone the appellant had no hesitation in shooting him in cold blood which Sunshot wouncl lead to his death a few days later. As we have noted before street crimes such as robbery and murdering those who resist are on the rise in Karachi and such crimes need to be dealt with by an iron hand and as such we are of the view that a deterrent sentence is an appropriate one, In this respect reliance is placed on the case of Dadullah and another v. The Slate (201s SCMR 8s6) which held as under;-

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"10. This Cottrt irr Noor Mulnnrntnd t' Stnte (lggg SCMR 2722) hns nlso ndt erted to lhis nspect of the nntter antl lns obserued as underr "Hotpeoer, tw ,,ntt obxnte tlnt tle people are tosing fnilh in th.e dispensntii'on o1 cirinA ittstice by ilrc'ordinnry ciminnl Coutts. for tlwunro,i tlrnt llcy either ncquit the ncased Persons.on 'tccluricnl sent3yce,' lt,,is- grorrni, on ttnki n lenient aietp in monrtlins high tirne'thnt tlt C.ourts slould renlize thnt ltrcy owe duty to.lle le-gnl twirs/relntions of lhe oictinrs nnil nlso to tlrc society' Seutences atparded shoitd be such tuhich should act ns a cleterrent to tlrc conmission of offences",

1{. As such the appeal is dismissed, the conviction and sentences are maintained and the confirmation reference is answered in the affirmative'

15.The appeal ancl confirmation reference stand disposed of in the above terms.

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