MUHAMMAD NADEEM S/O MUHAMMAD NASIR JAMAL (Appellant) VS THE STATE (Respondent)

IN THE HIGH COURT O F SINDH, KARACHI

Present:

M r,l ustice Mohammad Kaim Khan Agha l M r. ustice lrshail Ali Shah,

Criminal Appeal No.338 of 2079 Confirmation Case No.13 of 2019

Appellant: Muhammad Nadeem S/o' Muhammad Nasir ]amal through Mr. Ali Abbas Khan, Advocate

Complainant: Rashid Ali through Mr. Nazar Iqbal, Advocate'

For State: Mr. Muhammad Iqbal Awan, Additional Prosecutor General,

Date of hearing 21.09.2021

Date of Announcement 28.09.202-1,

I UDGMENT

MOHAMMAD KARIM KH AN AG HA. Tr The a ppellant Muhammad

I

Nadeem in the instant appeal has assailed the judgment dated 29'05'201'9 passed by Learned Additional District & sessions Judge-I, Karachi East in a sessions Case No.1394 of 2009 arising out of Crime No.419 of 2009 u /s.

302/34 PPC P.S, Awami Colony, Karachi whereby the appellant was convicted under Section 302(b) PPC and sentenced to death subiect to confirmation by this court. The appellant was aiso directed to pay compensation amount of Rs.500,000/- to the legal heirs of the deceased Farooq as required under section 544-A Cr.P'C and in default of payment he has to undergo simple imprisonment for six months'

2.The brief facts of the prosecution case are that complainant Rashid Ali son of Ali Sher (complainant) registered FIR at PS Awami Colony' stating therein that on 22'08.2009, he and his brother Farooq were going to Abid Garments Factory behind Habib Bank Korangi No 4' and he called his friend Muhammad Faizan Ali where at about 10 o'clock two Persons young age came on motorcycle to rob his brother Farooq' One of them alighted from the motorcycle came near his brother Farooq and during a scuffle opened fire on him due to which his brother was injured seriously -

/6r and they all remained silent due to fear.The person who fired upon his brother put his hand in the pocket of his brother and took out all the things and escaped away, thereafter, he informed his brother Asif at home and when he reached at the spot, he saw that his brother had sustained injury upon abdomen. They took their injured brother to Sindh Government Hospital Korangi No.5, where doctors referred them with the injurecl to Jinnah Hospital flPMC). As such they took the injured through ambulance to JPMC however the injured succumbed to his injuries en route to JPMC. After reaching JPMC he took his brother's dead body to his home without any proceedings, thereafter the SHO Police Station Awami Colony came at their home and asked for conducting postmortem and the dead body was taken through ambulance back to JPMC and after completing all the legal formalities the dead body of the deceased was handecl over to his brother, hence such FIR was lodged against the above named accused.

3.After completion of the usual investigation the appellant was challoned and charge was framed against accused him on 06.03.2010 to which he denied the allegations and claimed to be tried.

4.The prosecution in order to prove its case examined 09 witnesses and exhibited various documents and other items. The statement of accused was recorded under Section 342 Cr.P.C in which he deniecl all the allegations leveled against him. He did not examine himself on oath however he called his brother as a DW in support of his defence.

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

6.The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment dated 25.09.2079 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 the appellant is completely innocent and has been falsely implicated in this case by the complainant in collusion with the police; that the identification of the M hannad AiJ t

appellant by the eye witnesses cannot be safely relied upon especially as there was no identification parade; that there are material contradictions in the evidence of the eye witnesses which makes their evidence unreliable; that the pistol was foisted upon the appellant by the police and that for any of the above teasons the appellant should be acquitted by extending him the benefit of the doubt. In support of his contentions he has placed reliance on the cases reported as Muhammad Imran v. The State (2020 SCMR 854) and Abdul jabbar alias jabbari v. The State (2017 scMR 1155).

8.On the other hand learned Aclditional Prosecutor General appearing on behalf of the State and learned counsel for the complainant have fully supported the impugned judgment. Tl-rey have contended that the prosecution eye witness' evidence was trustworthy, reliable and conficlence inspiring and that they have correctly identified the appellant as the person who shot the deceased during the course of robbery by the appellant; that basecl on the particular facts and circumstances of the case no iclentification parade was required; that the medical evidence suPPorts the ptosecution's case as do the recovery of the pistol on the appellant's arrest which matched with the empties recovered at the scene through a positive FSL report and as such the prosecution had proved its case beyond a reasonable doubt against the appellant and the appeal should be dismissed and the confirmation reference be answered in the affirmative. In support of their contentions, they placed reliance on the cases reported as The State/ANF v. Muhammad Arshad (2017 SCMR 283), Muhammad Ilyas and others v. The State (2011 SCMR 460), Ghazanfar Ali @ Pappu and another v. The State (2012 SCMR 215), Asim and another v' The State (PLD 2004 Quetta 123)., Muhamm ad Afzal and another v' The State (1982 SCMR 129), I(anwar Anwaar Ali, Special Judicial Magrstrate: in the matter of Criminal Miscellaneous Application No'183 of 2019 in Criminal Appeal No.259 of 2018 (PLD 2019 Supreme Court 488), Mian Sohail Ahmed and others v. The State and oth€rs (2019 SCMR 956) and Jehangir Khan v. The State (1986 SCMR 156).

g. We have heard the arguments of the learned counsel for the appellant as well as learned Adclitional Prosecutor General and learned counsel for the complainant, gone through the entire evidence which has " laJu "-d"""r.a;

t63 been read out by learned counsel for the appellant along with the irnpugneci judgment who have ably assisted us and have considered the relet,ant law including the case law cited at the bar 10 Based on our leassessment of the evidence especially of the PW eye wltnesses, the other PW witnesses, PW 2 MLO Dr.Dilip Khatrr and the medical reports including the post mortem of the deceased, recovery of empties and blood stainec-l earth at the scene of the offence we find that the prosecution has proved beyond a reasonable doubt that Muhammed Farooq (the deceasecl) during a robbely was shot by firearm at about 1Oam on 2208.2009 behincl Habib Bank Korangi No 4 in Abid Garment Factory Korangt whereby he r.t'as seriously iniured and later died en route to JPMC on the saue da1' on account of the serious firearm injury whrch he

sustained during the course of the robbery,

11 The only question left before us therefore is who senously injured the cleceased cluring the course of robbery by firearm whrch lead to hrs death (murder)?

12.After our reassessment of the eviclence we find that the Plosecutlon

I

has provecl beyond a leasonable cloubt the charge against the appellant for whrch he was convicted for the following reasons;

(u)That the FIR was lotlged with promptitude being 6 hours after the robbery ancl shootrng of the deceased which leac1 to his cleath. If this can be seen as any delay based on the particular facts and crrcumstances of this case thrs delay has been explained by the complainant in his evidence in that immediately after the lncident the deceasecl was taken to Korangi Hospital for treatment who then referrecl hrm to JPMC.rlue to his serious rnjuries where he died on en route. The body af ter initially being taken home was then returnecl to JPMC for legal formalities where af ter the complainant who was the brother of the deceased lodged the FIR This gave the complainant no time to cook up a false case against the appellant rvitli the police especrally as the complainant had no enmity with the appeiant and had no reason to implicate him in a false case' Even tt't his 5.342 Cr.PC statement the appellant has admrtted that he has no enmity with any of the eye witnesses Furthermore' cluring this stight delay the Prosecutlon obtained no benefit

(b)In our view the prosecutron's case rests on the evidence of the eye wltnesses to the iobbery ancl murder whose evrdence we shall \ consider rn detail below;

(i)Eye witness PW 1 Rashid Ali. He was also the L " yured 6a rerrousl/

l6tl complainant in the case and the brother of the deceased. According to his evidence at 9.45arn on 22.08.2009 he was with the deceased when they went to the Carment factory situated at Korangi for some personal work. His brother was standing near the gate of the factory and he and Faizan were 10 paces away when two persons came on motor bike' One of the accused dismounted and took out his pistol which he pointed at the deceased's abdomen in order to snatch the cleceased's mobile phone where upon he fired upon the deceased who fell down n here af ter the accused took out all the things in his front pocket. He then took his injured brother to Korangi Hospital and then JPMC where he had already died. Later in the evening he was calied to the PS where he, his brother Shahid and Fizian identified the appellant who had robbed and fired upon the deceased. The FIR was then loclged by the complainant who named the appellant in the FIR with a specific role as he had identified him at the PS. No hulia was given in the FIR as he had already identified the appellant 8 hours after the incident just before he lodged the FIR. Although the complainant did not know the appellant it was a day light incident at 10am in the morning and he was only ten paces from the appellant at the tirne of the robberY and shooting and as the incident lasted a few moments he would have got a good look at the appeltant wl-ro he recognized in the police lock up only 8 hours after the incident and thus under these circumstances we find that we can rely on the correct identification of the appellant by the complainant especially as he had no reason \ to falsely implicate him in this case. It is true that generally when an unknown person is an accused an identification paracle would be the preferred course to Prove identification however based on the palticular facts and circumstances of this case as mentioned above e.g closeness to accused (10 paces), daylight incident, long close look at the appellant, no enmity with the appellant and his identification within 8 hours of the incident we find that an identification parade was not mandatory and that we can safely rely on the correct identification of the appellant by the complainant. In this respect reliance is placecl on Ghazanfar Ali v. State (2012 SCMR 215) where it was held at P.224Para 13 as under;

" Et:ren othenpise tlu holding of identtfication parade is not mandatory and it is ruerely n corroboratiue piece of eoidence ' lf tlrc statemeni of a roitness qun the identify of an accused euen in Court inspires confidence, if he is consistent on all material particulars and tlwre is nothing in ettidence to suggest thnt he is deposing falsely, 'fatal the nbsence if holding of identifcation pnrade toould not be io tlrc proseuttion. ln Harbnian Singh a. State qf- lammu nnd Kaslryjr (1575) 4 Suprenre C-aurt Cnses 480), The Court upheld the conuiction tttlrcre no identifcation parade had been held and obsenred thnt tlrc failure to hold identification parade uott ld not be v fntal in cnses rohere enough corroboratitte and conclusiue euidence roas nuailable, A similnr uietp ruas tnken in Iadunath 5in htt State of U.P (1970) 3 Supreme Court Cnses 5-18) .r.r"uO ru"rba"ly

t6{ In support of the above posttlon reliance is also placed on the cases of Asim (Supra) and Muhammed Afzal (Supra) He is not a chance witness as he was going to the garment factory with is brother. His presence at the scene was not challenged during cross examination and his versron of events has been corroborated by lwo other PW's whose evidence we rvill reassess below.

Furthermore, although the eye witness ts closelv related to the deceased it is well settled that his evidence cannot be simplv discarded on this basis alone unless some enmrty, rll will or reason to falselv implicate tlre appellant has come on record ancl notl-ring of the krnd has come on record rn this case. On the contrary the appellant has admrtted in his 5.342 Cr.PC statement that he has no enmity with any of the eye witnesses including the complainant. In thrs respect rehance is placed on Ijaz Ahmed V The State (2009 SCMR 99) and Nasir Iqbal alias Nasra and another v. The State (2016 scMR 2152)

In fact in some cases the superior coults have l-reld that based on the partrcular facts and crrcumstance of the case relatecl witnesses may be more reliable as they want to see justice clone for their relatives by ensuring that the correct person is held to account.

He lodgecl his FIR and recordecl his S 161 Cr PC eye wltness \ statement on the same day whrch left no room for coucoction His eviclence reflects that of his FIR ancl 5.161 Cr.PC statement and there have been no srgnrfrcant improvements in the same during his evidence so as to render hrs e'n,iclence unreliable. His evidence was not clented despite lengthy cross examination. He gave his evidence in a natural and straightforward mamer You are unlikely to forget the face of the person who murdered your brother before your eyes. In thrs respect reliance is placed on the case of Mian Sohail Ahmed (Supra). He coulc{ not intervene rn the attack othqrwise he would also have been shot. He arrangecl for his brother to be taken to hosprtal at the earliest which was his priority rather than chasrng the accused who hacl already escaped on a motor brke, We find his evidence to be reliable, trust vvorthy and confidence rnspirrng and we believe the same especially in terms of hrs correct rder-rtification of the appellant and can convlct on this evrclence provided that there is some corroborative/ supportive e'r,idence. 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 Niaz-ud-Din V The State (2011 SCMR 725), (Supra), what is of significance ls the quality of the evidence \ and not its quantity and in thrs case we find the evirlence of this eye wituess to be of good quality,

- r""ud "u"aq"i

t(6

(ii)Eye witness pW 7 Muhammed t11.'""-AIi' According ro his evidence r,u ,,".,r"1^'"::::1:" Faizan *l*j*ii:+J I i:sawj:ther r:*,,:,*.andjllPWtrj::*i; cJeceased r saw two persons n"rr.la.ii"

* I ilTii**itrlt'x ir#flfiT [r }*t ru,ooq r,o'.n ffiT[ i:::T:';'.J,'n,:t id,",, paces which abdomen. He and ar.."ririr.ilurrthe an employee of the ,r.'"-rr.'oi,"i. ';? lo* Muhammetl saeed) took'F;;.q];

an independent wirness chance ;il";.rJ", and noi a sa rmen t tra d e henc:" tr:|.:::: #,i",i: j,".,"fl:T#"ll:

factorl, on trrat ciay.

Herecor;ffi;

sta tement on the same da y andi."rul."r" there witness Cr.pC impro v ement, r.,11."_ named as an eye witness :,*"in;.,.I.,; the iil.,, ein-_f,*n, t"-fl ,";

J"1'." "

wi ttr prornpri tude fhg1. *;"-;';;r;;T Xn,"r;,T:": t l#;I,'i',1i5"ffT in his s roithe il'"pc^]iu,".,,"nt or the custody within B n"i--t:t:.'i1'."d. appelluttt i., pori." o, the incident and before n,, ,.r,0, C..oC j;r* f," gr"" impJicate,n",*,,".'lili,!J,1#i,::.111?.,::"?j:?l from 10 to 15 paces-in period of time whitst t-"a J"y"ffi?oi,., the, scufflJ r"? ;;; "o.,ria"rrut" shooting place. He also icienrified { ,f,. u..rrua'it.ii" pori." Iocktook up ,n ( Ii.Jiili,ffi'.Tu'ljff't''o*' w;;d ;'*'tl be a .eriabre, the parricular fo.t. ,"1t1:-"-inspiring witness who based on 1y"ir11"J,r,""rr",,i.l'*lll:,::"jilffi alter the incidenr ,ra rl""."

identification paracie.

"1ff ;:n;.;,.:,.*:

,i.iu';;,;.r"""d for an

!iii].Efe wirness pW d Muhammed Saeed, He, in the Garmenrs fa*ory.at independent and natuial the time *ir""rr.

ffiXf;;::l,lf a person who he later a*..ar", ,",,nO evidence roiro*"J,; ;" ild; 6Ti,jirlily,#'_*: *:::,# IJ: shots on the <leceasecil other missed. He alono oir",nr, ni-I^;",ffi;"" while the ,rurl jixl ,f *.x..u,.gi;;;;;ffi He recorded hls s.r6r "T*iil::^,:1::,'":,lf cr.r,c day. He was 6 feer way"y";l;;"r; .ljii"n, o. ,n" 3am9 rncldent took place and from the ,;;;;;; when the r

1;,*31al"i;;,d;:ff and ff i:::?,i..,?J:'*',::s ",'j::J:ffi;,rness'il, was a completely independent leason to falsely imolicate had no the accused. n _", ,.,

lengrh.v cross examination.

He " ;i a dented

wrtness as he worked chance at the facrorf have reason to disbelieve his evidence ,i,a";;*" ";;.il;e l"f r.r" no

we find his evidence to be reliable, truthful ancl in" ,u*" ,, however we give,his ia""ui."riJ^ confidence LTlll,.,lg werght as he only identified. lril"n." i".r", tt.," u..r**iri"o'rriT,rnorgn ooes stre.gthen the idenrifi.rti.";;i;;;" ;;; ,, witness

."qse%U.,

lL1 PW 1 Rashid AIi and eye witness PW 7 Muhammed Faizan Ali.

Thus, based on our believing the evidence of the FW eye witnesses and their correct identification of the appellant what other supportive/corroborative material is their against the appellant?

(c)That tl.re medical evicience and reports as discussed above fully support the eye-witness/ prosecution evidence. It confirms that the deceased was brought to the hospital suffering from one gunshot wound to the abdomen and he died on account of the gunshot wound as evidenced by his post mortem and death certificate. That there was also blackening surrounding the wound which supports the prosecution case that the deceased put up resistance to the robbery and was thus shot at close range during the struggle.

(d)Although the appellant was not arrested on the spot he was arrested a few hours later in a separate robbery case and at the time of l-ris arrest a pistol was recovered from him by the police. (e ) That the empties recovered at the warclat which were sent for FSL matched with the recovered pistol from the appellant and lead to a positive FSL report.

(f Significantly, on his arrest in the other case of robbery a few hours later the CNIC of the cleceased was recovered from the possession of the appellant. This is also mentioned in the FIR.

(g)That accorcling to the appellants own defense witness who was his bother the bike recovered from the appellant at the time of his arrest belonged to the defence witness who in evidence admitted that the appellant (his brother) often took his bike without his permission. The documents of the bike were also recovered from the appellant on his arrest along with the bike which recovery also links him clirectly to the offense as he came on his brothers motor bike to rob the deceased which escalated to him shooting and murdering the deceased when the cleceased put up resistance to the robbery.

(h)That all tl-re PW's are consistent in their evidence and even if there are some contradictions in their eviclence we consitier 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 1793) and Khadim Hussain v. The State (PLD 2010 Supreme Court 669).'l'he evidence of the PW's provides a believable corroborated unbroken chain of events from the robbery and shooting of the deceased by the appellant to the deceased being taken to hospital to recovery of the empties and bloocl 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 recovereci along with the CNIC belonging to the robbed deceased which lead to a positrve FSL report in respect of the recovered empty to the correct iclentification of the appellant by the eye witnesses 8 hours after the robberv and shootins.

, uled 6a serrorrsl/

tLg

(i)That the police PW's had no proven enmity or ill will towards the appellant and no reason to falsely implicate him in this case by for example rnaking up his arrest or foisting the pistol on him ancl in such circurnstances 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).

0 That it does not appeal to reason, Iogic or commonsense that a brother who was an eye witness to the murder of his own bloo<l brother would let the real murderer of tris blood brother go scot free by substituting him with an innocent person (the appellant).ln tl-ris respect reliance is placed on Allah Ditta V State (PLD 2002 SC

(k)In a kidnapping for ransom case in order to deter such crimes, as is the need to deter robberies which escalate into murders (like in this case), the supreme Court heicl that courts need to take a dynamic approach in assessing the evidence. In the case of Advocate General Sindh, Karachi 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 learnetl trial court has dilatecl 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 I 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 should be overlooked without causing any miscarriage of iustice". (bold added).

(l)Undoubtedly it is for the prosecution to prove its case against the accused beyond a reasonable cloubt but we have also considerecl the defence case to see if it at all can caste doubt on or dent the prosecution case. The defence case is simply one of false irnplication at the behest of the police who wanted to implicate the appellant in a narcotics case but instead implicated him in this case. The appellant clid not give evidence under oath whose only DW is his brother who in effect states that the appellant was a drug adclict arrd had been falsely implicated in this case by the police without giving any cogent reasolr for such false implication and as such we find his evidence not to be particularly relevant. Thus, for the reasons mentioned above we disbelieve the defense case as an afterthought in the face of a reliable, trust worthy and confidence inspiring eye witness and other corroborative /supportive evidence against the appellant which has not at all dented the prosecution case.

13.Thus, based on the above discussion especially in the face of reliable, trust worthy and confidence inspiring eye witnesses evidence and ,*"ud "u"ro,rr]/

t0 .

other corroborative/supportive evidence mentionecl doubt that the prosecution above we have no has proved i beyoncl u ."uro,-,u'," convicted and hereby doubt for ,.,. o,un.tj maintain his conviction.

;:"ffiiT:rHT 74' with regard to sentencing the motive for the murder proved which was has been

;:1'::,T::: j*lffi iT:'":H,il::::T:*::; to his death virfuary on the spot. As we have noted before stueet cri murdering rhose who need to be clealt with resist are on the rise ;?":H :.:l1T::::

by an iron hand and as such we are of the a deterrent sentence view that pracecr on the case.,

which held as under;

r:;;"T::"rt::j"_

ilil",ff;;ffi;;

"10. Tlds Cou Noor Muhntrmad u. ntso adperted,o tlts-in s.tate (1ggg scMR 2722) ,.1.1, ,spect of the matter nnd lws obserued ,', hns is ,nir,1., "Hou,euer,. tle nt:y obserue that the people are losing in the disp.ens.r,i, il ,i*i*t,futrro faith I criminal by the ordinnnt lyts for ,il ,rrr"r-inlri they eittrcr acquit tli ii'lil;ll:;:::1n teclnic( sro;;;''?, take a tenietnt uieru lt is high time that the c"";;t';;:;;; ,roti* tn !,1!-ntence' ,,i,ti*,,na'f,{..ii'::,::",0,,:ir,,,;,f suclt uhiclt should nct

E:,X,;:1,::,;:f ,'iri"rlrrri", u aercrrent to tlte commission f:i;,f, offences". '4LL 'tt of

15.As such the appeal is dismissed, the convicfion maintained and the confirmation and sentence is reference is answered in the affirmative.

1'6' The appear and confirmation reference stand disposed above terms. of in the

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