2023 P Cr (PLP)

ABDUL MOBEEN LAKHO, J.

Ali Jan, appellant has impugned the judgment dated 05.09.2019 passed by VIII-Additional Sessions Judge, (MCTC), Karachi West, in Sessions Case No.428 of 2012, whereby the appellant was convicted under section 302(b), P.P.C. and sentenced to death as Tazir. Appellant was further ordered to pay compensation of Rs.200,000/- to the legal heirs of deceased as provided under section 544-A, Cr.P.C. In case of default, he was ordered to undergo 06 months' S.I. Trial Court has also made reference to this Court for confirmation of death as required under section 374, Cr.P.C.

2. The brief facts of the prosecution case are that ASI Amanullah recorded statement of complainant Ahmed Shah at Abbasi Shaheed Hospital on 15.04.2012, wherein complainant has stated that on 14.04.2012 at night a quarrel took place between his son Farooq Ahmed (deceased) and accused Ali Jan. On the day of incident i.e. 15.04.2012 at 08:30 in the morning, complainant went to his shop situated at Banaras where he received information that accused Ali Jan had injured Farooq Ahmed by causing churri blows and has been taken to Abbasi Shaheed Hospital. Complainant along with other neighbourers went to the hospital, where he found his son dead whose corpse was lying in the mortuary. ASI Irfanullah came at Abbasi Shaheed Hospital and recorded statement of complainant under section 154, Cr.P.C. FIR was recorded vide Crime No. 185/2012 under section 302, P.P.C. at Police Station Site-A, Karachi.

3. On 15.04.2012, SIP Muhammad Aslam Baloch received FIR and other documents for investigation. On the same day, he visited place of incident where he prepared sketch and also took photographs and prepared the mashirnama in presence of mashirs. I.O. recorded statements of P.Ws. On 17.05.2012, and arrested accused from Rehmani Masjid street in presence of mashirs, prepared mashirnama of arrest. On 22.04.2012 the accused agreed to produce the crime weapon i.e. the dagger and led the police party to Kachra Kundi, Gharo Chowk Pathan Colony and from where he produced one dagger which was sealed on spot and I.O. prepared such mashirnama in presence of mashirs. Thereafter, he came back to police station where he lodged FIR under section 13(e) of Arms Ordinance against accused. On 23.04.2012 eye-witnesses Kamran and Mehrab Shah were produced before concerned Judicial Magistrate where their statements under section 164, Cr.P.C. were recorded. On 26.04.2012 I.O. sent blood stained clothes of deceased to the chemical examiner and received positive report. After completion of investigation, challan was submitted against accused under section 302, P.P.C.

4. Trial Court framed charge against accused at Ex.02, to which he opted to contest and pleaded not guilty.

5. At trial, prosecution examined Wazir Khan (PW-01) at Ex.3 who produced memo of inspection at Ex.3/A, Mehrab Shah (PW-02) at Ex.5 who produced 164, Cr.P.C. statement at Ex.5/A, Kamran (PW-03) at Ex.6, who produced 164, Cr.P.C. statement at Ex.6/A, Siraj Gul (PW-04) at Ex.8, who produced memo of arrest of accused at Ex.8/A and memo of recovery at Ex.8/B, SIP Muhammad Aslam Baloch (PW-05) at Ex.9, who produced sketch of site, photographs of scene and churri, chemical examiner report at Ex.9/A, 9/B and 9/D, ASI Amanullah (PW-06) at Ex.11, who produced entry No.12, letter to MLO, memo of inspection of dead body, inquest report, Rahadari Certificate, statement under section 154, Cr.P.C, FIR No.185/2012 and entry No.16 dated 15.4.2012 at Ex.11/A to 11/H, Muhammad Rasheed (PW-07) at Ex.12, Mr. Mir Asadullah Rashidi, Judicial Magistrate (PW-08) at Ex.16, Dr. Muhammad Nadeemuddin MLO (PW-09) at Ex.17, who produced postmortem report and Medical Certificate of cause of death at Ex.17/A and 17/B. Thereafter, prosecution side was closed vide Statement at Ex.18.

6. The statement of accused under section 342, Cr.P.C. was recorded, he has denied the case against him and pleaded his innocence. However, neither, he examined himself on oath as provided under section 340(2), Cr.P.C. in disproof of the prosecution allegations nor led any evidence in his defense.

7. The learned trial court vide its judgment dated 05.09.2019, found the appellant guilty, convicted and sentenced him as mentioned above and made reference to this court for confirmation of death sentence as required by the law. Hence, this appeal.

8. By this single judgment, we intend to decide above criminal appeal as well as confirmation reference made by the trial Court being bound by a common thread.

9. Learned counsel for the appellant argued that the appellant has falsely been implicated in this case by the complainant, it was an unseen occurrence; that the witnesses being closely related to the deceased are interested witnesses and they have falsely deposed against the appellant; that there was no independent witness with the prosecution to support its version though the alleged incident took place in a thickly populated area; that there are material contradictions in the evidence of the prosecution witnesses; that the alleged recovery of dagger at the instance of the appellant was doubtful; learned defence counsel has contended that names of the eye-witnesses are not mentioned in the FIR; that the motive alleged by the prosecution could not be established; learned defence counsel has argued that prosecution failed to establish the safe custody and safe transmission of the weapon at police station before the trial court; that the prosecution has miserably failed to prove the case against the present accused beyond shadow of reasonable doubt and prayed for the acceptance of this appeal.

10. Conversely, learned Deputy Prosecutor General vehemently opposed the contentions raised by learned counsel for the appellant and maintained that it is a day time incident in presence of the eye-witnesses; that it was cold blooded murder due to quarrel which took place between the appellant and the deceased; that accused is also resident of the same neighbourhood, thus there is no chance of mistaken identification or substitution; that the eye-witnesses have not made any dishonest improvements rather they have explained the manner of incident; that the ocular account is corroborated by the medical evidence; that the prosecution case against the appellant is further corroborated by the recovery of dagger, which was produced by the appellant; that the motive has also been proved by the prosecution; that no question with regard to tampering with the weapon at police station or during transmission was put to the witness; that according to report of chemical examiner he had received sealed parcels; that case against the accused under section 13(e) of the Arms Ordinance, 1965, was registered against the appellant on behalf of the State, the same was proceeded before the concerned Judicial Magistrate and the appellant was convicted in that case vide judgment dated 08.05.2017, but the appellant did not prefer any appeal against the said judgment which position has not been controverted by the Defence counsel; that the prosecution has fully proved its' case against the appellant beyond any reasonable doubt; that this appeal may be dismissed and Murder Reference be answered in the affirmative.

11. We have heard the learned counsel for the appellant as well as learned Deputy Prosecutor General and have carefully scanned the record with their able assistance.

12. In order to prove unnatural death of deceased Muhammad Farooq prosecution examined Dr. Muhammad Nadeemuddin (PW-09), who deposed that Dr. Zafar Shah Khan, who conducted postmortem of deceased Farooq Ahmed, after retirement has shifted to USA. He further deposed that he was well conversant with the handwriting and signatures of Dr. Zafar Shah Khan and had worked with him for 2/3 years. In the postmortem report, the cause of death was opined as Cardio Respiratory failure secondary to irreversible Hemorrhage shock due to acute traumatic chest injury by sharp edged weapon. Unnatural death of deceased Farooq Ahmed has not been disputed or challenged by the defence counsel and thus we hold that deceased Farooq Ahmed died an unnatural death due to chest injury caused by sharp edged weapon. Findings of the trial Court, to this effect does not require any interference.

13. Now the question arises whether appellant had committed the murder of deceased in front of his house as alleged by prosecution? In order to substantiate the same, prosecution has examined 09 witnesses. Direct evidence is furnished by Mehrab Shah (PW-02) and Kamran (PW-03), who furnished the ocular account of the occurrence.

14. Mehrab Shah (PW-02) disclosed the episode of the murder of deceased Farooq Ahmed as under: "On 15.04.2012 I was available at outside my house along with deceased grandson namely Farooq Ahmed. Where the present accused being armed with dagger and stabbed the dagger on his stomach. Whereafter, we took my grandson in rickshaw to the Walika Hospital, where they refused to admit injured, thereafter, we proceeded to the Abbasi Shaheed Hospital. Meanwhile he died on the way. Where police arrived and recorded my 161, Cr.P.C. statement. Accused present in Court is same. After arrest of accused Judicial Magistrate Karachi West recorded my 164, Cr.P.C. statement before the accused." During cross-examination nothing favourable to the accused could be brought on record.

15. Kamran (PW-03) is another eye-witness of the incident and has depicted in the following words: "On 14.04.2012 at evening time accused Ali Jan selling charas in front the house of deceased Farooq my maternal cousin. Whereupon deceased Farooq Ahmed restrained him for not selling charas in front of his house. Whereupon both quarreled with each other. The mohallah people arrived and separated them and then both went to their houses. On 15.04.2012 at about 8:15 a.m., accused Ali Jan arrived in front the house of deceased Farooq and started abuses to the deceased Farooq. Meanwhile accused started dagger blows to the Farooq Ahmed who received severe injuries on the right side of the chest. The mohallah people gathered there and we took him towards hospital situated at Nazimabad No.2 but meanwhile on the way accused succumbed the injuries and expired. I do not know whether police recorded my statement or not, however, police produced me before Judicial Magistrate Karachi West where my 164, Cr.P.C. statement was recorded on 23.04.2012. I produce the same as Ex: 6-A. It is same correct and bear my signature. The accused present in Court is same." During his cross-examination, he denied the suggestion that he himself did not see the accused while causing dagger blows to the accused.

16. Wazeer Khan (PW-01) deposed that on 15.04.2012 at 8:00 or 8:15 a.m. he was present at his house, adjacent to the place of incident when he heard voices, he went outside and mohallah people informed that Ali Jan had injured Farooq Ahmed with dagger/churri and injured had been taken to Abbasi Shaheed Hospital. He went to Abbasi Shaheed Hospital, where he found the dead body of Farooq Ahmed in mortuary. First Information Report was lodged by father of deceased Farooq Ahmed namely Ahmed Shah, who has expired. Police came at 3:30 p.m. and inspected the site and prepared such memo in his presence. During cross-examination he denied the suggestion that he was deposing falsely being related to the deceased and the complainant.

17. Siraj Gul (PW-04) deposed that on 17.04.2012 at 2:30 p.m. accused Ali Jan was arrested by the police from street of Rehmani Masjid in his presence and prepared such mashirnama. On 22.04.2012, police also recovered one dagger on the pointation of accused sealed the same in his presence and prepared such mashirnama. In cross-examination he denied the suggestion that he saw accused first time in the police station.

18. SIP Muhammad Aslam Baloch (PW-05) Investigation Officer deposed that on 15.04.2012, he received FIR and other documents for investigation. On the same day, he visited place of incident where he prepared sketch and also took photographs and prepared such mashirnama in presence of mashirs. I.O. recorded statements of P.Ws. On 17.05.2012, he arrested accused from Rehmani Masjid street in presence of mashirs and prepared mashirnama of arrest. On 22.04.2012 agreed to produce the crime weapon i.e. dagger and led the police party to Kachra kundi, Gharo Chowk Pathan Colony and from where he produced one dagger which was sealed on spot and I.O prepared such mashirnama in presence of mashirs. Thereafter, he came back to police station where he lodged FIR under section 13(e) of Arms Ordinance against accused. On 23.04.2012 eye-witnesses Kamran and Mehrab Shah were produced before concerned Judicial Magistrate where their statements under section 164, Cr.P.C. were recorded. On 26.04.2012 I.O. sent blood stained clothes to the chemical examiner and received positive report. After completion of investigation, challan was submitted against accused under section 302, P.P.C. During cross-examination, he denied the suggestion that at the instance of complainant he falsely implicated the accused.

19. ASI Amanullah (PW-06) deposed that on 15.04.2012 at 1000 hours, MLO Abbasi Shaheed Hospital reported through police control that one person Farooq Ahmed murdered with dagger blows. ASI made entry No.12 in the Roznamcha and went to Abbasi Shaheed Hospital and inspected the dead body in presence of mashirs and prepared such mashirnama. ASI Amanullahh recorded statement of complainant Ahmed Shah under section 154, Cr.P.C. and thereafter, he came to police station and lodged FIR No.185/2012 and thereafter, handed over the same to SIO Muhammad Aslam Baloch for further investigation, who recorded his statement. In cross-examination, ASI Amanullah denied the suggestion that he was deposing falsely.

20. Muhammad Rasheed (PW-07) deposed that on 15.04.2012 he went to hospital and found the dead body of Farooq Ahmed lying on stretcher. Police came at the hospital, inspected the dead body and prepared such mashirnama in his presence. During cross-examination he denied the suggestion that he did not go to the hospital.

21. Mr. Mir Asadullah Rashidi (PW-08) Judicial Magistrate deposed that on 21.04.2012 SIP Muhammad Aslam Baloch of Police Station SITE-A Karachi submitted application for recording statements under section 164, Cr.P.C. of P.Ws Mehrab Shah and Kamran. On 23.04.2012 he recorded the 164, Cr.P.C. statements of both the P.Ws in presence of accused. In cross-examination he stated that he recorded 164, Cr.P.C. statements of P.Ws during working hours.

22. This was the entire prosecution evidence. Evidence of complainant could not be recorded as he had expired his natural death on 07.10.2014 before recording of the prosecution evidence.

23. Prosecution heavily relied upon the evidence of (PW-2) Mehrab and (PW-3) Kamran both the prosecution witnesses had no enmity or motive with the appellant to falsely implicate him in this case. Both the witnesses were examined by the prosecution as eye-witness of the incident. They have also fully supported the case of the prosecution and PW-3 categorically stated that within his sight the appellant had committed the murder of the deceased. First Information Report of the incident was lodged within three hours and delay in lodging of the FIR has plausibly been explained. Presence of PWs Mehrab and Kamran is not questionable and was not challenged as both the witnesses are natural witnesses. Medical Officer Dr. Muhammad Nademuddin has also deposed that deceased sustained three injuries at his vital parts by means of sharp edged weapon. According to Doctor, time between death and postmortem was about 03 to 04 hours. This also clearly supports the ocular account. Appellant was arrested on 17.04.2012 and led the police party during interrogation and produced dagger. Recovery was effected and sealed in presence of the mashirs. After four days of the recovery, weapon was dispatched to the chemical examiner. Report of the chemical examiner was positive.

24. Prosecution has succeeded to prove its' case against the appellant for the reasons that it was daytime incident; grandfather of the deceased was one of the eye-witnesses of the incident, whose presence at the door of the house was natural. It is very unfortunate that grandson was murdered by the appellant in presence of his grandfather at 08:15 a.m. So far the motive of the commission of the offence is concerned, the deceased being a young man had restrained the appellant from selling the charas in front of his house, which caused annoyance to the appellant, which happened a day earlier to the day of incident. On the day of incident, the appellant came to the house of the deceased and at the door of his house, the appellant gave three dagger blows to the deceased in presence of his grandfather.

25. After having an in depth scrutiny of the ocular account furnished by Mehrab Shah (PW-02) and Kamran (PW-03), it can be inferred safely that they were trustworthy and their statements have rightly been relied upon by the learned trial Court. It is worth-mentioning here that they have highlighted each and every aspect of the tragic incident and stood firm to the test of cross-examination and nothing advantageous could be elicited rendering any help to the case of appellant. There are neither any glaring contradictions in their statements nor any dishonest exaggeration, omission or concealment found. It is an admitted position that with the passage of time the minor contradictions creep in which can be ignored safely. The inter-se relationship of Mehrab Shah (PW-02) and Kamran (PW-03) is not disputed but merely on the basis of inter-se relationship the statements of eye-witnesses cannot be discarded because it is not the relationship but the intrinsic value of the evidence which matters. It is well-settled by now that interested witness is one who has a motive to falsely implicate an accused or has some rancor or enmity which was never alleged seriously. Corroboration is only rule of caution and not a rule of law and if the eye-witness account is found reliable and trustworthy then there is hardly any need to look for any corroboration. Reliance is placed on the case reported as Muhammad Waris v. The State (2008 SCMR 784). However, in the present case the ocular account is in line with the medical evidence as the injuries attributed to the appellant caused by sharp edged weapon as reflected in the postmortem examination of deceased Farooq Ahmed. Occurrence had taken place in day light and FIR in respect of same offence had been lodged on the same date wherein appellant has been mentioned as accused. It was cold-blooded premeditated murder of young person.

26. There is no cavil, that in such like criminal cases, the whole fate depends on the authenticity of the ocular account and in the instant case, both the eye-witnesses have given a straightforward account of the occurrence which took place in daytime. Furthermore, it is not expected from such close relatives i.e. grandfather and cousin of the deceased that they would let the real culprit of their near and dear to go scot-free and would falsely implicate the present appellant. During their statements before the learned trial court, both the eye-witnesses remained firm on their statements and they successfully faced rigor of cross-examination by the defence. Hence the evidence of Mehrab Shah (PW-02) and Kamran (PW-03) are sufficiently reliable and cannot be discredited in any manner as they remained straightforward, trustworthy, cogent and confidence inspiring having no malice against the appellant.

27. Learned counsel for the appellant doubted the veracity of the eye- witnesses being interested as closely related to the deceased. The close relationship of the witnesses with the deceased has no bearing to discard their testimony, if they are not inimical or interested to falsely implicate the appellant, who was also closely related to them. Reliance is placed upon the case reported as Sheeraz Tufail v. The State (2007 SCMR 518) wherein, the honourable Supreme Court has held as under: "It is also a settled law that mere relationship is not sufficient to discard the statement of the interested witnesses as law laid down by this Court is Roshin's case PLD 1977 SC 557."

28. Similarly, in the case reported as Khair Muhammad and another v. State (2007 SCMR 158), the Honourable Supreme Court has held mere relationship is not sufficient to hold a witness interested or discard his evidence. The relevant portion is reproduced as under: "The contention of the learned counsel that witnesses being closely related to the deceased, were interested and not reliable, was without any substance as mere relationship is not sufficient to hold a witness interested or discard his evidence."

29. The prosecution case is further corroborated by the evidence of recovery of chhuri/dagger on the pointation of the appellant. Appellant had led the police party for recovery of said Chhuri/dagger buried into a garbage dump in Pathan Colony. We are of the view that the place from where the Chhuri/dagger was recovered, was in the exclusive knowledge of the appellant. It was recovered in presence of mashirs. The sealed parcel containing the churri/dagger was sent to chemical examiner, its report was positive, prosecution had succeeded to prove safe custody of crime weapon before trial Court.

30. Motive as set up in the FIR regarding murder of the deceased was a quarrel which took place in the night of 14.04.2012 between the deceased and appellant over selling of charas by the appellant in front of the house of deceased. Upon our independent examination of evidence, we have also come to the conclusion that motive asserted by the prosecution in the FIR has been established at trial by eye-witnesses Mehrab Shah (PW-02), Kamran (PW-03). Complainant died before his evidence. Appellant had committed cold-blooded murder of a young man by causing multiple blows on vital parts of the body of the deceased, thus, he deserves no sympathy in the matter of his sentence. The normal penalty of a crime of murder is death and in the peculiar circumstances of this case the appellant deserves no less.

31. We have carefully heard the arguments for the learned counsel for the parties and perused the entire, evidence available on record. Prosecution has succeeded to prove its case against the appellant beyond reasonable doubt that he caused multiple blows to the deceased and it was the preplanned murder. A young person, aged about 22/23 years has been murdered by the appellant, that too, in presence of his grandfather at the door of the house of the deceased. There are no mitigating circumstances in the instant case. The conduct and the act of the appellant showed recklessness and callous. In the circumstances, we find no reason to interfere with the imposition of death sentence as held in the cases of Rashid Ali v. The State (2011 SCMR 1037) and Muhammad Javed v. The State (2015 SCMR 864). Trial court has rightly appreciated the evidence brought on record by the prosecution. Impugned judgment is well reasoned and requires no interference. The appeal is dismissed. Confirmation Reference made by the trial court is answered in 'AFFIRMATIVE'.

32. In the view of above, this Appeal and Confirmation Reference are disposed of in the above terms. JK/A-50/Sindh Appeal dismissed.