MUHAMMAD SALEEM JESSAR, J. Through instant Criminal Jail Appeal the appellant has challenged the Judgment dated 28.08.2019 passed by learned Additional District and Sessions Judge-8 and Additional Model Criminal Trial Court, Karachi West in Sessions Case No.113 of 2012 (re-State v.
Kashif and another), emanating from FIR No.254/ 2011, registered at Police Station Shershah, under sections 353/324/392/ 397/302/34, P.P.C., whereby he convicted accused Kashif son of Mohammad Hussain Takhar for the offence punishable under section 397, P.P.C. read with section 34, P.P.C. and sentenced him to suffer rigorous imprisonment for seven (7) years for committing robbery by show of weapons. Appellant was also convicted for the offence punishable under section 302(b), P.P.C. read with section 34, P.P.C. and was sentenced to suffer rigorous imprisonment for life for committing murder/Qatl-e-Amd of complainant's brother namely Mohammad Yousnus and to pay compensation of Rs.2,00,000/- (Rupees Two Lacs only) in terms of section 544-A, Cr.P.C. to be paid to the legal heirs of deceased and in case of default in payment of compensation, he was ordered to undergo S.1. for six months more. The appellant/convict Kashif alias Moj has assailed his conviction and sentence through instant criminal appeal. By the same judgment, the trial Court acquitted co-accused Habibullah son of Allah Dad from the charge while extending him benefit of doubt, holding that his case is hit by Articles 38/39 of Qanun-e-Shahadat, 1984 as no identification parade was held by the police after his arrest.
2. Concisely, the facts of the prosecution case are that on 28.12.2011, complainant namely Zulfiqar alias Allah Rakha son of Anwer Ali Kathyawari Memon lodged FIR stating therein that he is residing in House No.206, situated in Street No.9, Block-B. Urdu Bazzar, Shershah, Karachi along with his parents and has a Pan shop. On 18.12.2011 at 04:45 pm he along with his brother Muhammad Younus was standing outside of his house near his motorcycle No. KAK-0089, Honda CD-70.
Meanwhile, two boys, who seemed to be Baloch, came there and aimed weapons towards them and asked them to take out whatever they had. Due to fear of weapons they raised their hands up and accused persons took out Rs.25000/- from the pocket of brother of complainant namely, Muhammad Younus, so also two mobile phones of Nokia Company. They also took out Rs.200/-, CNIC and Driving License from the pocket of complainant. They also snatched motorcycle No.KAK 0089 from the complainant party and runaway from the spot. The complainant raised cries of 'Dakoo Dakoo' . He also called Mohallah people for help. The complainant along with his brother and Mohallah people chased accused persons on motorcycles and on foot. When they reached at Shaheen Hotel, near Miranaka Road and came near accused persons, one of the culprits sitting on the back side of the motorcycle started firing, with the result one fire-shot hit complainant's brother in his chest who become injured.
On hearing the fire shots, police also reached there who also fired in retaliation. One dacoit, who had injured his brother by firing, was apprehended on the spot by one police official namely Mehboob with the help of other people, whereas other accused made his escape good while firing.
On personal search of apprehended dacoit police recovered one TT Pistol with loaded magazine containing one live bullet, Rs.200/-, one motorcycle and one mobile phone of Nokia company.
Police took away the apprehended accused at PS and they brought injured Mohammad Younus at Civil Hospital, Karachi for treatment, however, he succumbed to his injuries during treatment.
The appellant / accused got injured due to falling down on the road at the time of his arrest; therefore, he was medically examined. During the investigation of the case, accused Habibullah was arrested on the pointation of appellant Kashif from Raees Goth near Muach Goth and one T.T pistol of .30 bore and live bullets were also received from his possession. After completion of investigation, the Investigating Officer SIP Arshad Tanoli submitted final challan against the accused persons on 17.01.2012.
3. A formal charge was framed against the accused vide Ex.02 to which both the accused pleaded not guilty and claimed to be tried vide their Pleas Ex.2/A and 2/B.
4. In order to prove its case, prosecution examined PW-I, SIP Naseer Muhammad at Ex.3, who produced entry No.10 recorded at 1750 hours regarding message received at Police Control as Ex.3/A, letter written to MLO as Ex.3/B, memo of inspection of dead body as Ex.3/C, inquest report as Ex.3/D, letter to MLO regarding cause of death as Ex.3/E, statement of complainant under section 154, Cr.P.C. as Ex.3/F, receipt of handing over the dead body as Ex.3/G and FIR as Ex.3/H. PW-2 PC Khan Muhammad was examined at Ex.4, who produced memo of arrest of accused Habibullah as Ex.4/A. The ADPP gave up HC Banaras Khan vide statement Ex.5.
PW-3 HC Mehboob Khan examined as Ex.6, who produced memo of arrest and recovery of accused Kashif as Ex.6/A. CW-1 SIP Muhammad Ramazan was examined at Ex.7 who was entrusted the NBWs of accused Kashif son of Muhammad Hussain Takhar for execution but he returned the same as unexecuted with his report that the accused had gone underground due to fear of his arrest and there is no possibility of his arrest in near future. He produced his report as Ex.7/A, the statement of two persons of the locality along with their CNIC as Ex.7/B, 7/B(1) and 7/B(2) and unexecuted NBWs as Ex.7/C. However, subsequently accused Kashif was arrested by the police and was produced before trial Court on 02/7/2019 and he was remanded to jail.
PW-4 Complainant Zulfiqar Ali was examined at Ex.8, who produced Mashirnama of place of incident as Ex.8/A along with Naqsha Nazri. PW-5 Javed Hussain was examined at Ex.9, who produced memo of place of incident/place of arrest as Ex.9/A. Learned ADPP gave up PW Malik Azhar vide his statement Ex/10. PW-6, Dr. Mubarak Ali was examined at Ex.11, who produced Medico Legal Certificate of deceased Muhammad Younis as Exh.11/A. The ADPP gave up PWs Wazeer Sultan and Dr. Qarar vide his statement Ex.12. CW-2 SIP Arshad Tanoli was examined at Ex.13, who was entrusted the BWs of PW namely Adnan son of Muhammad Rafiq for execution but he returned the same as unexecuted with his report that PW Adnan has left his residence at the said address and had gone to some unknown place and his whereabouts were not known to anybody. He produced his report as Ex.13/A. unexecuted BWs as Ex.13/B, statements of two persons of the locality as Ex.13/C, along with their CNICs at Ex.13/D and 13/E. PW-7 SIP Arshad Tanoli, who investigated the case, was examined at Ex.14, who produced entry No. 15 recorded at 2210 hours as Ex.14/A, sketch as Ex.14/B, photographs of deceased as Ex.14/C, arrival entry at PS as Exh.14/D, memo of arrest of accused Kashif as Exh.14/E, letter to MLO for examination of accused Kashif as Ex.14/F, receipt of Civil Hospital as Ex.14/G, Medico Legal Certificate of accused Kashif as Ex.14/H, letter written to SSP as Ex.14/I, entry No.7 recorded at 1500 hours dated 21.12.2011 regarding interrogation to accused Kashif at Ex.14/J, entry No.27 recorded at 1620 hours dated 21.12.2011 regarding search of co-accused as Ex.14/K, entry No.19 recorded at 1845 hours dated 21.12.2011 regarding arrest of accused Habibullah as Ex.14/L, letter for CRO report as Ex.14/M, letter to AIG Ex.14/N, FSL report as Ex.14/0. Thereafter, learned ADPP, appearing for the State closed the side of prosecution vide Ex.15.
5. Thereafter, Statements of accused under section 342, Cr.P.C. were recorded vide Exhs.16 and 17, wherein they denied prosecution allegations and claimed to be innocent. They stated that they have been falsely implicated in the case by the complainant at the instance of police.
However, neither they got themselves examined on oath, nor produced any witness in their, defence. Accused Habibullah produced certified true copy of judgment dated 19.10.2018 as Ex.17/A. passed by 9th Judicial Magistrate, Karachi West in Case No.283/ 2012, under section 13(d) Arms Ordinance 1965, whereby he was acquitted from said charge.
6. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing counsel for the parties, trial Court vide impugned judgment convicted and sentenced appellant Kashif and acquitted co-accused Habibullah, as stated above. Against said judgment appellant Kashif has preferred instant Criminal Jail Appeal.
7. I have heard learned counsel for the appellant as well as learned D.P.G. appearing for the State and perused the material available on the record.
8. Learned counsel for the pauper appellant submitted that the appellant is innocent and has falsely been implicated in instant case. According to him, the evidence adduced by the prosecution before learned trial Court was defective and was full of contradictions, therefore, the impugned judgment does suffer from many illegalities, as well as infirmities, hence, is liable to be set aside. Learned counsel further submitted that appellant along with co-accused had allegedly robbed away motorcycle as well as cash amount from the complainant, yet nothing has been secured from his possession at the time of his arrest, although he has been shown to have been captured by the police with the help of large number of people. He further submitted that according to prosecution case, appellant and co-accused, who after snatching motorcycle from the complainant had attempted to decamp from the scene of offence, were intercepted and apprehended by the police, yet record does not reveal about existence of robbed motorcycle. He added that sequence of the prosecution story reveals that said motorcycle should have been recovered, yet neither it was shown as case property nor was restored to the complainant, even the complainant remained mum at the time of recording of his evidence before the trial Court.
Learned counsel further submitted that large number of people, as claimed by the prosecution witnesses, were available in whose presence appellant was captured, yet none from them was associated as witness or mashir of the proceedings which, according to learned counsel, vitiates the prosecution case as people who allegedly were shown to be available, were the independent persons, and their non-joining in the case reflects that either the incident had not occurred or has occurred not in a manner as has been reported. He further submitted that per evidence, said motorcycle was being driven by co-accused Habibullah who was not apprehended by the police on the spot and if such long bulk story is presumed to be true to the effect that co-accused Habibullah had taken away robed motorcycle as well as amount, yet he has been acquitted of the charge by way of same common judgment. He also added that non-recovery of motorcycle as well as robbed amount from the appellant shows that he has falsely been implicated by complainant party. While referring to the evidence of prosecution witnesses, learned counsel submitted that no bloodstained earth from the spot as well as last worn clothes of the deceased were secured by the police. He further submitted that there is delay in sending the weapon to ballistic expert for examination and report. According to him, certain roznamcha entries were not produced before the trial Court which also damages the prosecution case. In support of his contention, he has referred memo of place of incident (available at page-235 of the paper book).
He further pointed out that both the accused were shown to be armed with 30 bore TT pistols and said offensive weapons have also been shown to have been recovered from their possession, yet only the appellant has been convicted and sentenced while co-accused Habibullah has been acquitted of the charge.
9. He further submitted that as per his instructions, there was a quarrel between the parties and due to availability of large number of people, a straw bullet hit the deceased; however, complainant party instead of making search for the real culprit, has implicated the appellant although nothing incriminating has been shown to have been recovered from his possession. He also referred to the evidence and submitted that after committing robbery, the appellant and co- accused Habibullah were proceeding on it which was being driven by co-accused Habibullah (since acquitted) and the appellant allegedly was sitting on backside wherefrom he made fires upon the mob which allegedly hit deceased Mohammad Younus and resulted in his death. He, therefore, submitted that if such piece of evidence is taken into consideration that appellant had allegedly fired while sitting on backside of the motorcycle, yet he was having his face towards front of the back where they were allegedly moving, therefore, his intention was not to cause Qatl-i-Amd of any person from the mob including deceased. Learned counsel added that it is quite impossible for any individual to make fire straightly or by pointing upon some specific person towards back while sitting on moving motorcycle. Learned counsel, therefore submitted that prosecution has not come with clean hands and the trial Court has not appreciated the evidence and mere recovery of alleged weapon does not connect the appellant with commission of alleged offence. He, therefore, submitted that by granting appeal, impugned judgment may be set aside and appellant may be acquitted of the charges by extending him benefit of doubt. In support of his contentions, he placed reliance upon cases reported as (i) Allah Ditto. v. The State and another (2019 PCr.LJ 172),
(ii) Mohammad Islam v. The State (SBLR 2018 Sindh 1580) and (iii) Sikandar alias Sani v. The State (2018 MLD 1220).
10. On the other hand, learned Assistant P.G. Sindh appearing for the State, opposed the appeal on the ground that offensive weapon has been shown to have been recovered from the appellant, besides, he was captured red-handed by the police with the help of mob. He next submitted that PWs had fully implicated the appellant in their respective evidence. As far as acquittal of co- accused Habibullah is concerned, learned Assistant P.G. submitted that name of co-accused Habibullah was not mentioned in the FIR and he was implicated in this case by the police upon disclosure of his name by the appellant, besides, no specific role has been attributed to co- accused, therefore, his acquittal is not favourable to the appellant. In support of his contention, he placed reliance upon case of Muhammad Sarwar v. The State (1999 SCMR 2428).
11. Before discussing the evidence of the prosecution witnesses, it would be advantageous to highlight their evidence, particularly that of the alleged eye-witnesses of the incident. The most important witness in instant case is PW-4 complainant Zulfiqar alias Allah Rakha, who is brother of the deceased. He claims that robbery was committed from him as well as his deceased brother Mohammad Yousnus while they were standing in the street of their house. According to him, on 18.12.2011 at 04:45 p.m. he along with his brother namely Muhammad Younus was standing in the street of his house. Meanwhile, two persons came there and they took out their T.T. pistols' and aimed at them. By force of weapons, they robbed Rs.200 one mobile phone of Nokia and CNIC from. him. They also robbed Rs.25,000 and one motorcycle No.KAK-0089 from his brother Muhammad Younus. He further deposed that after committing robbery, when the culprits were fleeing away from the spot, he and his brother as well as people of the locality raised cires of 'Dakoo Dakoo'. Thereafter, he along with his brother started chasing the accused persons. When they reached at Miranaka Road, near Shaheen Hotel, one accused who was sitting at the backside of the motorcycle saw them and also fired upon them which hit in the chest of his brother namely Muhammad Younus. On commotion of firing police party also reached there. The police apprehended one accused on the spot in their presence and recovered one T.T. Pistol along with Magazine containing one live bullet, Rs.200/- and one mobile phone from his possession.
Meanwhile, his family members also reached there. They took the injured Muhammad Younus to Civil Hospital but during treatment he succumbed to his injuries in the hospital. At 10:30 p.m. police mobile came to his house and one Police Officer recorded their statements and prepared mashirnama of place of incident in his presence. He identified the accused Kashif, who was present in court, to be the same person who fired upon his brother Muhammad Younus due to which he died, so also accused Habibullah who ran away from the spot.
12. Evidence of PW-3 HC Memboob Khan is also of worth importance. He deposed that on 18.12.2011, he was posted at Police Station Shershah. One, same day he along with PC Wazir Sultan left PS for patrolling and when they reached at Miranaka Road, they saw that two persons were coming on motorcycle and the peoples were chasing them. Both the accused persons were firing on them and on the voice of firing, they also chased them. When they reached near accused persons, they also srated firing on police. The police also fired in self-defense. Subsequently, one accused was caught hold by them with the help of people, whereas another accused ran away from the spot.
On enquiry the apprehended accused disclosed his name as Kashif and the name of absconding accused as Habibullah. HC Mehboob Khan personally searched the accused and recovered one T.T. pistol along with one is bullet, Rs.200/-, one mobile phone of Nokia, and one motorcycle No.KAK- 0089 from his possession. The apprehended accused disclosed that the injured person, who was shifted to hospital as well as they, are the residents of Baldia and Maripur and the absconding accused was also the resident of same locality. He further deposed that on the pointation of apprehended accused, they went there for arresting co-accused but could not arrest him. The injured person died in the hospital.
13. PW-5 Saved Hussain deposed that on 18.12.2011 at 04:45 pm he was sitting in his Mohallah, meanwhile he heard the cries of 'dakoo dakoo'. He saw that people were running and he also followed them. During chasing the culprits, when they reached at Miranaka Road near Shaheen Hotel, one dacoit fired from his pistol which hit on the chest of Muhammad Younus, the brother of complainant. On commotion of firing, the police also reached there. The police also fired in the air and also apprehended one accused on the spot. On personal search of apprehended accused, police recovered one pistol along with magazine containing one live bullet, one mobile phone and Rs.200/- from his possession. On enquiry the apprehended person disclosed his name as Kashif.
Then police prepared mashirnama of arrest and recovery. The police also sealed the pistol on the spot. The injured was taken to Civil Hospital where he died during treatment. Thereafter, police again came at the spot at 10:15 pm and prepared mashirnama of place of incident. Thereafter, they went to place of arrest along with police where the police prepared mashirnama of place of arrest in his presence.
14. From the evidence of aforesaid alleged eye-witnesses of the instant case, it is apparent that they have fully implicated the accused/appellant in the commission of the alleged offence. From minute scrutiny of their evidence, it appears that their evidence is consistent with each other on all material aspects/points. All of them are firm and unanimous on all material events and I do not find any such flexibility or any material lacuna in their evidence which could damage / destroy the case of the prosecution.
15. Learned counsel for the appellant submitted that there are contradictions in the evidence of the prosecution witnesses which create doubt in the prosecution case. I have gone through the evidence of the prosecution witnesses, particularly the above said three alleged eye-witnesses and it seems that although there are certain contradictions in their evidence but I am of the view that such contradictions are of minor nature on the basis of which accused cannot be acquitted in a murder case. It may be observed that now it is well settled that minor contradictions in the evidence of the prosecution witnesses cannot be made the basis for acquittal of the accused if otherwise on material aspects the witnesses have corroborated each other. In fact, with the passage of time such minor contradictions usually take place, thus the same are ignorable. In this connection reliance could be placed on a decision delivered by Honourable Supreme Court in the case reported as Mohammad Ilyas v. The State (2011 SCMR 460) wherein it was held as under:- "We are conscious of the fact that there are certain contradictions but in our view the same being minor in nature can be ignored safely. The learned Advocate Supreme Court on behalf of the appellants has stressed that these contradictions in oblivion of the fact that merely on the basis of contradictions, statement of a prosecution witnesses cannot be discarded if corroborated by other incriminating material."
16. Learned counsel for the appellant also pointed out certain flaws and discrepancies committed during the investigation of the case. For instance; no bloodstained earth from the spot as well as last worn clothes of the deceased were secured by the police, that there is delay in sending the weapon to ballistic expert for examination and report, that certain roznamcha entries were not produced before the trial Court and that alleged robbed motorcycle was not shown as case property. In this context, it may be observed that although such defects in a case where there would have no strong ocular testimony and there are material contradictions in the evidence of alleged eye-witnesses, are, of course, very important and should be given due weight, and in the cases having weak ocular testimony, on account of such defects / discrepancies, acquittal could also be ordered. However, in a case, like the present one, where there is unimpeachable ocular testimony and there are only some minor contradictions in the evidence of alleged eye-witnesses, such lacunas cannot be given such a weight so as to nullify the strong ocular testimony and are made basis for acquittal of the accused. In this connection learned trial Court has rightly referred to the case of Muhammad Javed and others v. Zameer Haider and 2 others reported in 2018 YLR 1021, wherein it was held that the minor discrepancies in the statements of witnesses and irregularities in the investigation were of no avail to the defence and could be ignored in circumstances. In another case reported as Muhammad Aslam and others v. The State and others (2005 PCr.LJ 1352) it was held that it is a settled and well entrenched principle of law that the procedural defect and irregularities and sometime even the illegalities committed during the course of investigation shall not demolish the prosecution case nor vitiate the trial, while in the case of The State/ANF v. Muhammad Arshad reported in 2017 SCM R 283 it was observed by Honourable Supreme Court that where no proper investigation is conducted, but where the material that comes before the Court is sufficient to connect the accused with the commission of crime the accused can still be convicted, notwithstanding minor omissions that have no bearing on the outcome of the case.
17. Learned counsel also laid stress on the fact that the alleged eye-witnesses and the mashir are close relatives of the complainant as well as the deceased. In this connection, in the first instance, it may be clarified that out of the three alleged eye-witnesses, two namely, P.W. Mahboob and P.W.
Jawaid are independent witnesses and they are not related to the complainant or the deceased.
So far as complainant Zulfiqar is concerned, certainly he is brother of the deceased but his evidence is confidence inspiring and the defence side could not succeed in shaking / shattering his evidence. Even otherwise, now it is well settled that mere relationship of the witnesses with the complainant party will not render their evidence unreliable unless it is established that he had some motive to implicate the accused falsely in the case. In the instant case the accused have not specifically pleaded, any enmity with the prosecution witnesses so as to put any cloud on their testimony which otherwise seems to be confidence inspiring. It seems that during the course of recording of his statement under section 342, Cr.P.C. in reply to the question, "Why witnesses had deposed against you in the Court?" appellant replied, "They have falsely deposed against due to police". The appellant has, at all, not said a single word about any enmity, grudge or with the prosecution witnesses or with the police. He has not explained as to why police was adamant in involving him in a false case. Although in reply to Question No.8, he said, "I have been arrested by the police two days prior to the incident, and 1 was not arrested on the spot." but he has not produced any document or examined any witness in support of such assertion. Mere a bare statement of the accused is not sufficient.
18. In the present case, in the first place, the evidence of the eye-witnesses seems to be unimpeachable and consistent with each other, secondly; the ocular account of the incident was fully supported by medical evidence as ell as circumstantial evidence, particularly, the recovery of the crime weapon from the possession of appellant and the positive report of the ballistic expert.
Therefore, in my opinion, there was no ground for discarding the evidence of the complainant / eye-witness merely on the ground that he is related to the deceased. In this context, reference may be made to the case reported in 1995 SCM R 1793 wherein Honourable Supreme Court held that mere relationship of a prosecution witness with complainant or other prosecution witness cannot render this evidence unreliable unless it is established that he had motive to implicate the accused falsely in the case. Similar observations were also made in the case reported in 2007 SCM R 641 and it was held that merely on the basis of inter se relationship, statement of prosecution witness cannot be disbelieved and that intrinsic value of such evidence is required to be examined and not inter se relationship as, such relationship itself is no ground to disbelieve statement of prosecution witness, who otherwise is a truthful and trustworthy person. It was further held that interested witness is one who has a motive to falsely implicate accused. Even otherwise, it does not appeal to the mind of a prudent man, that as to why a person whose real brother has been murdered, would spare the real culprit and instead would involve an innocent person, particularly when the accused has not established or even claimed any enmity or with the complainant party.
19. Now adverting to the plea of the appellant, on which much stress has been laid by defence counsel, that as co-accused Habibullah has been acquitted by the trial Court by the same judgment, the appellant also deserved to be met with same treatment and he should also have been acquitted by the trial Court, it may be observed that there is no cavil to the proposition that where the case of one accused and the role in the commission of the offence assigned to him is similar to the case of and the role assigned to the co-accused, he also deserves to be extended same concession / benefit. as extended to co-accused, as per rule of consistency however, in the instant case there is mass difference between the cases of appellant Kashif and acquitted accused Habibullah. Appellant Kashif was apprehended red-handed and a T.T. Pistol was recovered from his possession with which, according to alleged eye witnesses, he had committed murder of deceased Mohammad Younus, whereas co-accused Habibullah is alleged to have fled away from the spot and he was not previously known to the alleged eye-witnesses, therefore, in such an event identification parade was very much necessary to be held in order to pinpoint him to be the same person who was riding the motorcycle and was accompanying appellant, Kashif at the time of commission of the alleged offence, but no identification parade in respect of co- accused Habibullah was held in the instant case. In the case of Hashim Qasim v. The State (2017 SCMR 986) accused was acquitted, inter alia, holding that no identification parade was arranged to identify the said two unknown persons through the witnesses. In another case of Tasar Mahmood and another v. The State and another reported in 2020 SCMR 1013. Honourable Supreme Court held that identification parade had to be essentially carried out, having regard to the exigencies of the each case. In view of this legal position, the above plea regarding 'rule of consistency' raised on behalf of the appellant is devoid of force.
20. The upshot of above discussion is that prosecution has succeeded in proving its case against accused / appellant Kashif beyond shadow of any reasonable doubt, therefore, the impugned judgment of conviction and sentence handed down by the trial Court does not require any interference by this Court. It may be pointed out that learned trial Court has already taken a lenient view while awarding lesser sentence, therefore, there is no room for any further reduction in the sentence.
21. Consequently, instant Criminal Jail Appeal filed by pauper appellant Kashif alias Moj is hereby dismissed; and the impugned Judgment dated 28.08.2019 passed by learned Additional District and Sessions Judge-8 and Additional Model Criminal Trial Court, Karachi West in L Sessions Case No.113 of 2012 (re-State v. Kashif and another), emanating from FIR No.254/2011, registered at Police Station Shershah, under sections 353/324/ 392/397/302/34, P.P.C., is hereby maintained, with extension of benefit under section 382-B, Cr.P.C. to the appellant.