JAHANZEB KHAN S/O NAIMAT KHAN (Appellant) VS THE STATE (Respondent)

IIL

THE HIGH COU RT OF SIN DHATK ARACHI

Criminal APPeal No.368 of 2019 Conf. Case No. 14 o12019

Present:

Mr. fustice Mohammad Karim KhanAgha Ivlr, Iustice lrshad Ali Shah

Appellant: Jehanzeb Khan son of Naimat Khan itto"gn M/s. Mehmood A' Qureshi' Irfan Ahmei Memon and Jamshed Iqbal Advocates.

Respondent The State through Zafar Ahmed Khan' Additional Prosecutor General'

Complainant Rabnawaz son of Khuda Bux Awan Through M/s. Ahmed A1i Dewan and Shuhabuddin Channa, Advocates'

Date of hearing: 07.09.2021..

Date of Judgment 1.4.09.2027.

T UDG M ENT

AG HA, T.- Appellant Jehanzeb Khan has

MOH AMMAD KARIM KH

dated 22'06'2019 preferred this appeal against the impugned judgment Karachi Central passed by the learned Additional Sessions Judge/MCTC' 2013' registered at IrS in S.C.No.170 of 2013, arising out of FIR No'36 of Khawaja Ajmer Nagri, Karachi, for offences punishable under Sections Khan was 3021324/34 PPC. After full-dressed trial' appellant lehanzeb PPC subject to the awarded death sentence under Section 302(b)/34 directed to Pay con-firmation by this Court' Appellant was also deceased Malik Saeed compensation of Rs.10,00,000/- to the legal heirs of of default he was Awan as required under Section 544-4 Cr'P'C' In case appellant was also ordered to suffer R'I. for five months more' The to suffer R'I' for five convicted under section 324/34PPC and sentenced years and to Pay fine of Rs'50,000/- and in case of default appellant was

directed to suffer R.I' for one month more

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\\n this appcal against carlicr irr this iutlg,mcrrt hctrcc thc appcllant hns filcd his cotrvictitttr,

that there was an 6, Lcartlctl counsel for thc appellant contendecl to the FIR which was fatal

the r.rrru'x;rloincr.l tlelay of '1 hours in loctging wns not Prcscnt at thc sccnc of thu ptrrsectttitrtt's casc; thnt thc nppcllant

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uP ones; that even if the wihrcsscs are Put i'rcirlcrrt a*tl that the cyc .

cye witness eviclence the inciclent the irppcllnnt was Prcsent at the sccnc of eviclence is neither truth worthy' catrtrol bc safclv lelictl rrPon as their in inspiring as there has bcen major improvements re'liablc or confitlencc the iniuries to the cornplainant have not been proved the samu'; that FSL re;iort whereby the empties through any nrcdical certificatei that the not be relied upon as the *,rrich uratcrrcrr rvith the rccoverctr pistor courd the particular FSL report rocovcry of thc pistol has uot been proven and whilst recording r*ith rcgarel to the emptics was not put to the appellant excluded from his S.3{2 Cr.PC statement therefore same had to be consicleratiorr ancl for any of the above reasons the appellant shoulcl be doubt or in the acrluitted o[ the chnrge" by exterltling him tlie benefit of the alternative his sentence shoulcl be reduceci from death to life reliance on the irnprisorrment. In support of his contentions he has placed cases of Naveed Asghar and two others v. The state (A recent unreported

SrrprenreJudgmentin]ailPetitionNo.147of2015dated07.12.2020), Inrran Ashraf and 7 others v. The State (2001 SCMR 424), Abdul Rehman and others v. The State (1983 SCMR 958), Mst' Sabeeha v' Ibrar and others (2012 SCMR 74), Mir Muhammad atias Miro v. The State (2009 SCNIR 1188) anci Ghulam Mohy'ud-din alias Haii Babu and others v'

Tlre state (2014 scMR 1034)

Z. On the other hand leamed Addl, Prosecutor Generai for the State antl learnecl counsel for the complainant fully supported the impugnecl judgnrcnt arrcl contenr.led that the eviclence of the three eye witnesses to the incictcnt was rcliablc, trustworthy and confidence inspiring and it hati ful11, inrplicatcd thc appcllant in tfic murder of the dcceased one of rvSonr ivas an iniurr-'tl cye witncss whosc presencc at thc scene coulcl not bt' lo cloubtccl anel for who'r the appellant had been charged with attempting murder; tlrat the cye wltnesses were corroborated by tlre nredical Scanned w(h CamscanDe,

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evidence; that the appellant was arrested with the murder weapon (pistol) in another separate case under the Sindh Arms Act 2013; that the FSL report matched empties when fired from the recovered pistol and as such the prosecution had proved its case beyond a reasonable doubt against the appellant and as such his appeal should be dismissed and his conviction ancl sentence maintained. In particular they stressed that due to the cold blooded murder of the deceased by the appeliant the death sentence was fully attracted in this case' In support of their contentions they have placed reliance on the cases of Malik Amir Muhammad Khan through L.Rs. and others v' Muzaff.at Jan alias Muzaffar Khanum and others (2008 SCMR 705), Muhammad Waris v' The State (2008 SCMR 784)' Takdir Samsuddin Sheikh v' State of Guiarat and another (2012 SCMR 1869), Muhammad Nadeem alias Deemi v. The State (2011 SCMR 872),Zakit Khan and others v' The State (1995 SCMR 1793)' Haii Khan and 2 others v. The State and others and (1'991' P'Cr'Lj 2"Ll'0 Federal Shariat Court),Khizar Hayat v. The State (2011 SCMR 429)' Muhammad Ehsan v. The State (2006 SCMR 1857), Khadim Hussain v' The State (2010 SCMR 1090), Ashfaq Ahmed v. The State (2007 SCMR 641)' Muhammad Mansha v. The State (2001 SCMR 199) and Sikandar Ali Lashari & another v. The State (SBLR 2020 Sindh 981)' S.Wehaveheardthearg.umentsofthelearnedcounselfortheparties' gone through the entire evidence which has been read out by the appellant's counsel, the impugned judgment with their able assistance and have considered the relevant law including that cited at the bar'

9.Based on our reassessment of the evidence of the PW's' especially the PW eye witnesses, PW 8 Dr. Zahoor Ahmed, PW 10 Dr'A1iaz Ahmed of post mortem, other medical rePorts, death certificate of Saeed and MLC Rab Nawaz and recovery of empty and blood stained earth at the scene which lead to both positive FSL reports and chemical rePort we find that the prosecution has provecl beyond a reasonable doubt that Malik Saeed Awan (the deceased) was murdered by firearm at about 1800hours on 0?.02.2013 inside street near Milk shop, Shah Medical store' Shahnawaz Bhutto Coloney, Sector 1-A/4 North Karachi and that firearm shots werT

nrildu on Rab Nawaz tvith intention to kilt him at the same time, datc anrl \\[ Iocntiou,

10' The only question left bcforc us therefore is who rnurtlered the deceasttl by fircarnr antl attc.mptetl to commit the murder of Rab Nawaz b1' firu.anrr at thc snicl tinrc, tlatc and location?

'i 11. Aftcr our reassessment of the cviclence wc fincl that the Prosecution Itas provctl bcyorrd a reasonablc doubt the charge against the appellant (or rvhic)r he rvas convictc'd for tire following reasons;

(a)That the FIR rvas loclgecl with promptitude within^4-l:-Yjt "t the mttrcler anr'l attempt to commit .u'JL' based on. tht ry:'lt*:tne pertoo facts anrl circumstances of thr. case' During this along cot'uplaitrant rvho rvas iniurecl hacl been taken to- the hospital at rvith thc tlect'ase',..l rvhurc ltis S.154 Cr'.PC Statcment was recorclct.l the hospital otr thc arrival of the police ancl therealter his FIR was lor.lge'rl antl thus thcrc'rvas no unexplained delay in the lodglng of tne ftn rvhich would give the oppbrtunity to the complainant or the police to cook up a ialse case against the appellant for which the proiecution gaiuecl rro advantagelln this respect reliance is placed olr the case of Mttharnnred Nideem (Supra)'Even otherwise no specific/proven ennrity has cotne on record between the appellant aircl the courplaitraut which woulcl rnotivate him to lodge a false case against the appellant.

(b)The appellant is named in tlre FIR with a specific role along rvith tis at sconaing co-accusetl anc'l other PW eye witnesses by the cot.nplainant *l.ro ,.,nr also injr.rred at the scene of the incident by firearm q,hich FlR as cliscussecl above was filecl with promptitucie.

(c)In our view the prosecution's case rests on the eye witnesses to iliu mrrrder whose evidence we shall consider in detail below;

(i)Eve rvitness PW 1 Rab Nawaz. He is the complairrant lrl it'," .or" ancl was also injured at the scene at the time rvhen 0n tl"re cleceased rvas murdered. According to his evidence OZIO2ZOII at about 1745 hours he was Present at the scene

others when a quarrel/altercation took place ^fr,*-*f,f.

;;;-.2";- tl',. o..,rr".1 and the deceased. H" on't othl1lt'' intervenecl ancl patched up the quarrel however when wa:"- lvas stancling asking the deceased, what the quarrel about he saiv a white car enter the sheet and stoP,b)'."'l brothers of the accuse: l:;".

accuseci rvhereuPon the trvo rvitlt a pistol ancl Farootl (who was also a policer"tnl,tll.,..l rerreate,r catrre'out of the car' He heart'l the accusetl ltll]".rni txril,',ii an,l Farooq that the deceased ltad fought *"5

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bullet accused) fire upon the deceased who sustained ir,;*ri.r'U" also sustained a bullet injury-on his righthand una .igtt, thigh on account of the firing' Dr'Saleem' put him Snunn#r, ani laved witnessed this incident who the deceased and the deceased in a car which took him and being treated in to Abbassi Shaheed Hospital' Whilst he was il;;fu""y during his treatment he came to know that the deceased had died.

incident and he He knew the appellant, it was a day light deceased so *"" rrot fu. a*uy when the appellant shot theneed to hold there is no case of mistaken identity and-no period of two years ia""rifi.rtion parade even after a in

;;;i;iit "t he named the accused he with specific role the toagua FIR' The fact that could see the incident ;il;il the other eye clearlv was corroborated by the evidence- of ;;ft:'ffi';;'h;;i; appeuant sh.9o.t fhe deceased ';*iheit wai a day light incident as ;; ,;'t; ."*plainant' Since *u.'tio,."aearlierandthecomplainant.andothereye would have had no witnesses knew the appellant thly the,attack went on Jiiil."fty in identifying-him especially as to the appellant at ;;;;;;; moments an-d they *"tu "iotu the time of the shooting' to the deceased who Admittedly the eye witness- was related settled by now that was his cousin tlo*"t'"' it is well be discarded unless evidence of related witnusses cannot witnesses in"." L some ill will or enmity between the.eyein this case by and the accused which has ,,oi b""., Ploven Ijaz Ahmed V ^i** evidence' any reliable n"iiu""" is plaied-on ii" 12009 scMR ;;j r'rutii lqbal alias Nasra and another v. The state lZOro scMR 215i) and Ashfaq Ahmed (Supra) He lived in the The complainant is not a chance witness and other eye deceased same mohalla as the accused and so he had every reason to witnesses and all knew each other be where he was at the time o{ the incident' He was also shot which is corroborated at the scene at the time oi-tt* "tt"d"t duly-exhibited and ;;;,r";;;ical certificJte-*r'l'n was even PW 4 Sarfraz who other medicaf tr"utm"titecord and was a police otfit"t -flo t"t"t'"a the dead body to Jawaid and saw this eye *it'''"" admitted in hospital and being treated and as such we have no doubt that he was Present at As mentioned earlier he the scene at the time of in" 't'"otittg' -and named the other eye i;;;;J htt FIR with promotitude accused. with a specific witnesses in the FIR "i""i *itf' the explained by role, Any delay in '"gi'i"?lt'g th-e-rlR i: -flllvreflects that of the complainant it' rris evid"n"t"' Hi' evidence improvements in his FIR and there f'u'" i""t' no significant unreliable' He had no the same so as to t"tta"t nit evide"nce hid no reason to ,t"".. ."t lty wittr the appeltant of'."1 the deceased or even iJ;i;';;i;Jte trim in the murder

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was not of his own shooting at the scene' His evidence did not He ;;;.;; despite te.t[tny cross examination'unarmed and i.r*.r"r," i.t tt e altack because he was had already wounded and the accused and his co-accused soldier and *ra" ,tt"i" "tcape good by car' He was a.{orm;r his evidence ili;;;;t"t"t" ur,itn" utt"uty and quality ofevidence to be ;;;; ii" professional training' We find.his and- we i"fiuUf", trust worthy ancl co'nfidettce inspiring alone' L"f i"""'tft" same and we can convict on his evidence Ehsan v' i., ,ni, respect reliance is placed 9" y"h?TTad it " i,*u tzooo scrlln rasf ' es*nutalso found in.Farooq Khan ;,;i; il"i" (2008 SCMR oizl' is of significance is the not its quantity and in this case ;;lit;i the evidence and to be of good we find the evidence oi tt'it eye witne;s Mansah oualitv. As was held in the tase of Muhammed and72' 1b"ptu) at P.205 PatasT

A bare perusal uould reoeal that the language as is any from ,*pti,y,ea'in tlrc said Articte 17(1)(b) free The is required' ambiguity ona no'"noio'ly interpretation Article of the said proutsions o' np'oau"a"hereinaboae 'r,,rui|**rw ,, it':ar that particular number of ruitnesses 'la'"il"'ty no'i-i'' for il'e proof of any 't'a2t 'nou 'lquired can ie prou.ed o.nly by a single meaning thereby that n fait has been committed ttitness "it is not't"'ii"l* o 'i*' ':n''' toitness' leyinS aside those in the presenc' oJ o"1y '"' occurrence' zuhere cases tohiclt flre not of uncommon - on circumstantial determinntion i"ii' ip'na' entire'ly eridence.

'f If the ietgnslature tvere to instst ^ypon..Plu*lit,y' 'ruirnrurr,',os' only the testimony of n single tuitness could be oooitoii'- i' p*o1 oi [1" 'uh'i"' cime' toould 8o unpunished. lt is here tlwt the discretion of the Ptesiding thu-s must depend upon come into pl'ay' The matter Judge the circumsta""t and the.. quality of the 'oit' 'outrthose, test^i-mony has to be eaidence o1 ne sin/t' 'ui'"tt "1 a.testi.mony u found by' either accepted o' )'elected' If such n a'-'t"ii'ay is teliable' thcre no legal the Court impediment toti of the accused oerson on such 'onlui'iiitn o'ccused per.son nay be proued ,' *' i''iiif 'n proof ' Eoen th.e innocence of an by the testtmo"y "'i o ti"g4' u'itne-ss' of a accused p"'o' *h"a'' '?'oarct"d on -the-testimony number of single toitnes'"'i''"" tio"gi *"tiaer,able ruitnesses *oy a' p':t"n'oii'ig t: testifu to the truth of the

case for tlrc pros;elution' Thi Court is concerned roith the of the ett,idence necessary aunlitrt and not toith the quantity Digest of Tiii,,fr aiii'p"l1i1-7"t''"' ftnn'i'p.t,,s and tiir'irri'rie"iaen'ce "' ay ti' tt'tonir' page 1458'

place to here that she Para 72' It may not be out of sustained bullet'"iniuies is' a result _of firing made by, 'mention and thus' her presenu at Muhammad tuto''tio'1'pp'Ilant) Tpas neuer otheruise , the spot cannot be douhted ruhich tle,.are conscious of challenged au'ing'"ii;-'-iayinatio,l, betng mjuted and such the fact that "the fact of toitness

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I of injuries not self-suffered is not b!^-'l:lf^i"dicatbe in the ,,r\tuu, hauing iold"truth" ' (1951' SCMR 795) but case in hand the statemeni of Mst' Razia has not been tal<en sustained into consideration merely oi the ground that 1he material had come on iilun"t but suficient iiciminating ,'*rO ,|ou'iny that the alleged fing.trtas.made by none weighty else but by Mihammad Uaisha-lappillant)'.Hotrt be and up to the stateient of an injured u'itness sho.uld upon the what extent it can ie relied upon depends corroboration ,iorr*rtonrrc of each case' lt' hozpetter' lends the place of i the Tact m iJ p"'ui" of injured.witness,at or*rirru ond'i| 'oo" iorroboratory and confitmatory discarded'!

material is aaailable such statement cannot be ' is the brother

(ii)Eye witness PW 2 Shahnawaz Awan' He evidence on02'02'2013 of PW 1 Rab Nawaz. According to his about 15 to 20 feet ui S.+S t heard cries from the"main street " down the accused away where he went and tried to calm when he saw at and deceased. He returned to the chowk ;;";;;; ; white color car in the street' He sawof Farooq the car' ;;i;;iJ"i and Javecl with a rePeater q"t :Yt ;ily;ti;;;" u.*'"a who had quarreled with him and PW he Eye witness 1 saw the accused Point out the deieased' Rab Nawaz -u, ,lro standing there' They stated not to sPare he saw all three inu a"."ur"a and Rab NawJ where upon and PW L Rab Nawaz ;;;;;; .P"n fire on the deceased 1 Rab i;;;.;i 1o7rs reet' Both the deceased and PW of such Nawaz sustained fire arm injuries on account good whilst he shots.The culprits made there escaPe ;;qrd; saleim ar,.l Juw"d to take the injured to hospital' HewenthomeandlaterPWSarfrazbroughtthedeadbody where he the wardat to his house. He took IO Randhawa to and cartridges) and acted as mashir when the empties (pistol evidence corroborates blood stained earth was collected' Ais He is named in the PW 1 Rab Nawaz in all material respects' and gave his ;iR ;t ; eye witness shortiy after ihe incidentwhich left no 5.161 Cr.PC eye witness statement promptly been any significant room for concoction and there has not it doubtful and i*frou"*"nts in his evidenceso as to render as to Ft y' 1 Rab the same considerations apply to him police lock up iil*;;t" also identified the accused in the of ;;;;;;;";dy knew roito*it'g his arrest after two vears absconsion.

brother of PW 1 Rab

(iii)Eye witness PW 3 Jawaid' He is the Nawaz. He corroborates eye witnesses PW 1 Rab Nawaz and 'all materiai respects' He even PW 2 Shahnawaz in the injured to the corroborates Shahnawaz that he took and n"rp*"i*r."re Rab Nawaz was admitted inasemergency eye witness itr"i...ur.a died. He is named in the FIR an Cr'PC eye gave tt.P'61 rn."fy-"i*t the incident and tihlth witness statement promptly l"It no room forn

l)o

concoctionandtherehasnotbeenanysls{f.ican1 it doubtful and i.nf.ou"*".ts in his evidence so as to render as to PW 1 Rab Nawaz the same considerations apply to him and PW 2 Shahnawaz' we find that the Having believed the eye-witness evidence arry assistance to little' authorities cited by the appellant are of .if ' in terms of sentencing' iir. ;i^." they mainly "iuit to mitigation it was held in w,fl t"!"ta io .otroto*tive/suppiitiv:::ld""t" 786 para 4 as under;

atP the case of Muhammed Waris (Suptu) not a rule of lattt "Corroboration is only a rule of caution and.is reliable and trust oni y tn, ,y, u'iiii' is fo1n! to be "'ouni to lLok for any corroborution" a,orthy there is tu'iiy a'y "'a (Supra) it as held as Like wise in the case of Sikandar Ali Lashari under at P."tO26Pata4;

,,Eachciminalcasehasitsoulnpeculiarfacts.lfeyetoitness is account found ;;";;;';;iv then' there is hardty anv need for corroboration"

the evidence, of the 3 PW eye '-oi'-'ai"auttt Thus, based on out believing what other caution witnesses by *uy the appellant?

r"ppld"Z.;irouo."ii""**aterial is their against is.corroborated by PW-

(d)That the evidence of the 3 eye-witnesses that two of 4 Sarfrazwho was a police ofiicer who was informed his relatives ftua r,,tuit'"i fire arm injuries-by the accused' Farooq eUUutsi Shaheed Hospitai and Jawed and as ,"tft tt"- t"tn"a to treated in emergency and where he saw PW f nui-N*" being saw the clead body oi tri" i"t"ut"a wttictt was handed over to him' pw 5 Muhamm"d sh";;;-;;; was an independent witness also corroborates Pw q lia-'t'uJ ' evidence' itt addition PW 5 MuhammedShabbirstatesthathesawthegunshotwoundsonthe deceased body which ti"s in *itt' the PW eye witness evidence' He was also mashir t" tr"'"ifZ+ C''fC t"pott und states that some of whiist others were in" g""rf-r", wouuds *"r" """"d Uy Uutlets caused by pellets *hith ;t ;

*itn tn" Memo of examination of He.also recorded his 5'161 dead body of rn'hich it" *u' *utnir' whictr left no room for concoction Cr.PC statement on tfte Ja*e day the appellant according to the and also corroborates ,i*--ir.i ir-l" eye witnesses firea o" ii" J"t"u"a with i pistol as opposed to a repeater

and post -'"ppotts

(e)That the medical evidence mortem.report of PW 8 Dr' ;jhoJ.'ei*"a r,uy the eye-wilness/ prosecution the deceased inquest rePort was *ia""." as he conf irms ihat which he received from him in the carried out by PW Z fufoftiU efi mollem of the deceased and hospital prior to carrying out the post his evidence that he was '"""'ll*"' PW 7 Mohaib Ali has t'ot ot'ty stated.in of gun shot wounds to thet .afiea to the hospitai

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I deceased and Rab Nawaz but has also exhibited such enlry in respect of the same.

In his evidence PW 8 Dr Zahoor Ahmed gave the following evidence in material Part;

"Surface injuries:- intterted margin' Firearm wounil of entry of 0'5 cm iliameter' oaer left upper chest tat,raiiy, no !lac.\e7.iyS' !,t .i.s^lonesPondinr teft side if umbitical/teft tumber anterior' ;;;;;i ,l;;i; orter u Firearm roound of entry wer ePigastic region, tPith its corresPonding ruound of exit wer umbilical region'

size' left the thigh with tll, Firearm punctured tpound 4 x 3 cm in bullet recooet from no zlounds of exit, ho*'i", the crtme left thigh medial.

Firearm roound of entry oaer left etbottt lateially wer left arm

medially

of uere from 2 to All iniuies are ante mortem' duration .injuries '3 ;;ii':: ;;;,;;;,"''la'"'n*i'i'tsi;o 2 to 3'hours' suggestitte of death oca.Lrred sPon taneouslY " '

referring to size of entry The significance of this evidence by was hit by at least one wounds is that it p,o'"' that the declased the appellant was seen ;;11"; il pellets^ and it is relevant that witness which indicates firing a pistol at *n" a"t"ut"J by the eye such corroborates the as that his pistol shot trit the deceased and the fact that no prosecution eyu wittte's "'ia"t"u' Likewise the wounds supports the tlackening was found uto""a any of ;;l-,"i;ffi".asu tnut ;;s not made from a verv close il;i;s range was recovered (0 that on his arrest apProx ? V9u'-t 1uttt,1,P^':tol pistol emoties which were from the accused which match"a *itn if it is disputed recovered at the scene cli in"-tti*" Even otherwise was held in Muhammed that the pistol was not''"to*ttd it N"a""*" ."se (supra) as under atP'875; in a criminal "Epen othertoise , the recolvry of a cime-tPeaoon piece of suyporting cnse is not at all mateial"ti'i-"'iia"' lni case (as in this case) it is not 'ett'i'de'nce'U other eoidence goes to^p'"" essential at alt"@old added)

clothes recovered at the wardat and

(g)That the blood stained earth sent for chemical examination recovered from the OutJu'"J *"te at the scene and on the which report found the"l;llo '"t*"t"d clothes tobe human blood',

l>>

7 and even if

(h)That all the PW's are consistent in their evidence we consider these there are some contradictions in their evidence and certainly contradictions as minor in nature and not material case and the not of such *ut".iufiif 'o as to effect the prosecution is placed on conviction of the apiellant ln this respect reliance Hussain v' Zakir Khan v stat'e 1rOo5 SCMR 17%l and' Khadim the PW's of The State (PLD 201;S;preme Court 669)'The evidence from of events prorla., a t eilerratte J"oborated unbroken chainby the- appellart the shooting of tn" i"."*"d and PW 1 Ran Nawaz being taken to the and the aUsco.ratico-utt""a to the deceased being treated at the hospital where he'".pit"J ""a yl T1** FIR to the arrest i-,"tiri"l for gun ,noi ti'ound' to the lodging of the weapon and of the appellant io thu tttot' ety of the murder matching FSL rePort'

(i)That the police PW's had no enmity or ill will towards the case by appellant and had ;;;; it falsely implicate him in thisnt*.T1 for example *utit'g-; his arrest or foisting the pistol,on the evidence ol the in such .ir.u -'tu'ic"-s' it has been held that resPect reliance is police PW's *" U" 1"fiy relied upon' ln this

(2020 SCMR 474)'

placed on Mustaq nft*"a V The Siate for over two years' He did

(j)The appellant remained an absconder arrested in another criminal not surrender himself for trial and was case before U"i"g rik"j^to it'i' tu'" which is not the conduct of an innocent man.

to Drove its case against

(k)Undoubtedly it is for the prosecution but we have also the accusecl b"y;;;-; '"a'onubt"it doubt at all can caste doubt on or considered tn" a"i"""u case to see if case as set out by the dent the prosecution case' The defence' was that of alibi which oath appellant during ;;;Jil;"t"-under rtit wife and a friend who he stayed could have u""" cross examined on this with howeve' "fp*i"Juy "c,t'J'i;';;""h"-pw't-"o.t point but his alibi ;ti";;;h'ch included his wife did not give evidence i.,,.'ppoti'oiii' auf"ttt"' otherwise his defence is one oI dispute over a plot of land and a false implicatiot' ott the basis of a for which the appellant telecom tower Ueing'to"ttt"tt"a theieon no document has been was receiving t""*Ii payment however. case' His own brother of the brought o,', tuto'a'to-ploie ttris aspect believable that he could be was a serving porit""t"riit"t^'o it'"ot for over two years and was victimized. fn" f"tiift"t h" ub"to"d"d not support his -*o"ittgrut"hi also does arrested i., ut'ot#'t""'lrr innocence ot ufiui'of u*uy from Karachi' We find his -i-n"j"*tu prosecution defence .rr. *h"" ;d; iosition with the Thus' in the case to uu u,t ur'"t'tt5'!rit*t"i *" atiu"rieve the same' and confidence inspiring eye face of three reliab'l"e]?"J **thy witnesses the defence case (which we disbelieve) has not at all dented the Prosecution case'

especially in the face of

12.Thus, basecl on the above discussion inspiring eye witness evidence and'- reliable, trust worthy and confidence

t>3

r above we have no other corroborative/ supportive evidence mentioned against the appellant doubt that the prosecution has proved its case beyond a reasonable doubt for the offences for which he has been

convicted and hereby maintain his convictions' asserted and has

13.With regard to sentencing the prosecution has not motive for the appellant not been able to prove through evidence'the also murdering the deceased or attempting to murder Rab Nawaz and it is shot which caused the fatal unclear whether it was the appellant's pistol death and in such type of cases wound on the deceased which caused his penalty to life imprisonment' usually the superior courts reduce the death circumstances of the case we As such based on the particular facts and PPC but reduce the sentence hereby uphold the sentence under 5'324 to one of life imprisonment' under 5.302 (b) PPC from the death sentence in place' The sentences All other fines and compensation shall remain (b) shall have the benefit of 3'382 shall run concurrently and the appellant Cr.PC above modification in 1,4. The appeal stands dismissed subject to the reference is answered in the terms of sentencing and the confirmation negative

,rrlrr/L

iUDGE