ABDUL MOBEEN LAKHO, J. Ashiq Hussain Korai, appellant was tried by learned 1st Additional Sessions Judge/MCTC, Malir Karachi in Sessions Case No. 783/2015. After full-dressed trial, vide judgment dated 01.07.2019, the appellant was convicted under Section 302(b), P.P.C. for causing qatl-e-amd of Mst. Shazia and Talat Hussain and sentenced to death for each murder and was directed to pay Rupees two Million each 'to the legal heirs of deceased as provided under Section 544-A, Cr.P.C. In case of failure, he was ordered to undergo SI for six months more. Case of absconding accused Rashid was kept on dormant file.
2. Concise facts of the prosecution case are that on 19.04.2015 at 12:15 a.m. complainant Muhammad Akhtar was present at his shop along with his cousin Talat Hussain (now deceased), Zahid Hussain, Shamsuddin Jarwar and Nazir Ahmed Mallah, they heard gunshot report from the Flat of Ashique Hussain Korai, they immediately rushed to the said flat where they saw Ashique Hussain Korai, his son Rashid Hussain and one unknown person being armed with pistols. On seeing complainant party, accused Ashique Hussain made three fires upon Talat Hussain whereas, complainant and other eye-witnesses hid themselves under the stairs. All the three accused persons ran away from the flat. Complainant party found Talat Hussain and Mst. Shazia (wife of accused Ashique Hssain) in injured condition. Both the injured were brought at Hospital \where they were expired during treatment. Hence FIR bearing Crime No.41/2015 was lodged at Police Station Memon Goth for offence under Section 302/34, P.P.C.
3. After usual investigation, challan was submitted against accused under the above referred sections, however co-accused Rashid Hussain was declared as proclaimed offender.
4. Upon indictment, the accused pleaded not guilty and claimed trial.
5. In order to substantiate the charge, the prosecution examined ten witnesses, who produced certain relevant documents which had been exhibited and thereafter the learned prosecutor closed the side of the prosecution vide statement at Ex.25.
6. Trial Court recorded statements of accused under section 342, Cr.P.C. Accused claimed his false implication and denied the prosecution allegations. Accused examined himself on oath as required under Section 340(2), Cr.P.C., as well as produced witnesses in his defence which was essentially the defence of alibi.
7. Trial Court after hearing the learned counsel for the parties and assessment of evidence, by judgment dated 01.07.2019, convicted and sentenced the appellant as stated above. Being aggrieved and dissatisfied, the appellant has preferred captioned appeal against his conviction.
8. Learned counsel for the appellant submitted that the learned trial court erred in law as well as in facts, in convicting the appellant; that the learned trial court did not evaluate the evidence properly, as such the evidence requires re-appraisal by this court; that there are material contradictions and improvements in the evidence of the prosecution witnesses which could not be ignored; that there is no recovery of pistol from the possession of the appellant; that no source of light was secured by the I.O. during investigation; that blood samples were not sent to forensic expert as well as empties were also not sent to FSL; that at the time of incident the appellant was not present and in support of his defence he has also examined himself as well as produced defence witnesses; that motive of the incident has also not been established at trial. Lastly, it is submitted that the prosecution had miserably failed to establish its case against the appellant, therefore, prayed for acquittal of the appellant In support of his submissions, learned counsel has relied upon the cases reported as Sabir Ali v. The State (2011 SCMR 563), Farman Ahmed v. Muhammad Inayat and others (2007 SCMR 1825), Zeeshan alias Shani v. The State (2012 SCMR 428), Irfan Ali v. The State (2015 SCMR 872) and Inayat Khan and another v. The State (PLD 1983 SC 395).
9. On the other hand, learned Deputy Prosecutor General Sindh, duly assisted by learned counsel for the complainant, while supporting the impugned judgment has argued that learned trial Court has rightly appreciated the evidence of the prosecution eye-witnesses, whose evidence was cogent and confidence inspiring and other supportive/ corroborative evidence as such the appeal merits dismissal.
10. We have carefully heard learned counsel for the parties and perused the record minutely.
Prosecution case is primarily structured upon ocular eye-witnesses evidence furnished by P.Ws.
Muhammad Akhtar, Zahid Hussain, Shamsuddin and Nazir Ahmed Mallah, but before discussing the ocular evidence, we have decided to discuss the medical evidence.
11. In order to prove unnatural death of Talat Hussain and Mst. Shazia, prosecution examined Dr. Aijaz Ahmed, MLO Jinnah Hospital, Karachi, who stated that on 19.04.2015 at 1:30 a.m. one Talat Hussain aged about 25 years in injured condition was brought by Akthar Hussain. Doctor examined injured Talat Hussain and found the following injuries on his person: Injury No.01 Firearm projectile entry wound measuring into 0.5 cm x 0.5 c.m. Mid clavicular line, sub costal area of abdomen at left side. Inverted margin, no exit, associated puncture hole seen at shirt.
Injury No.02 Lacerated wound 2 cm x I cm at left side of umbilicus.
Injured was referred for X-Ray and treatment. He issued ML No. J-3340, which he produced at Ex.7/A.
He further stated that on the same date and time, one unknown lady was brought in injured condition, she was unconscious. Doctor examined her and found the following injuries on her person: Injury No.01 Firearm projectile entry wound with laceration measuring 3 cm x 3 cm at left cheek below the eye.
Blackening and charring seen, irregular margins. No exit.
Injury No.02 Lacerated wound at right hand index finger distal phalanx palmer side with removal of nail.
It is further reported that a firearm projectile was found from the hair of injured lady and she expired during treatment.
12. Doctor issued ML No. J-3341 which he produced at Ex.7/B. In this case, no doubt postmortem examination of the deceased was not conducted, but deceased were medically examined by Dr. Aijaz Ahmed, when they were in injured condition. Doctor stated that deceased received fire arm injuries. All material particulars have been mentioned in the medical certificates produced before trial Court at Exs. 7/A and 7/B, therefore, failure to conduct postmortem of deceased in above circumstances would not demolish the prosecution case. Reliance is placed upon the case of Abdur Rehman v. The State (1998 SCMR 1778), wherein it is held as under: "15. It may be seen that case-law relied upon by learned counsel for parties has been discussed above. We have thoroughly compared and scrutinized the ratio decidendi in afore-quoted reported judgments and relevant law. We cannot subscribe to the observations which may suggest that failure to conduct post mortem would demolish the prosecution case. Obviously there would be numerous situations when post-mortem may not even be conducted. In various parts of the country on account of longstanding customs and established traditions tribesmen do not allow post-mortem of the deceased. Thus, keeping in view all the relevant factors and law, we are persuaded to hold that in cases where prosecution through convincing evidence can establish that death was immediate, proximate and direct cause of injuries sustained without being any element of negligence or other intervention, the non-performance of postmortem would not be fatal."
13. We, therefore, hold that deceased Talat Hussain and Mst. Shazia both died unnatural deaths due to fire arm injuries. Finding of trial Court in this regard requires no interference by this Court.
14. Now it is to be seen whether the prosecution has successfully brought home the guilt of appellant for committing qatl-e-amd of deceased Mst. Shazia and Talat Hussain. The prosecution in order to prove its case has relied upon the evidence of eye-witnesses namely Muhammad Akhtar, Zahid Hussain, Shamsuddin and Nazir Ahmed Mallah.
15. We have considered the evidence of the eye-witnesses carefully. Complainant Muhammad Akhtar (PW-01) has stated that on 19.04.2015 at about 12:15 a.m, he was present at his shop along with his cousin Talat Hussain, Zahid Hussain, Shamsuddin Jarwar and Nazir Ahmed Mallah, they heard sound of firing coming from the flat of Ashiq Hussain Korai, they immediately went there, where they saw Ashique Hussain Korai, Rashid Hussain Korai and one unknown person duly armed with pistols. Upon seeing the complainant party, Ashique Hussain made three fires on Talat Hussain while complainant party hid themselves under the stairs. Thereafter, the accused made their escape good. Complainant party entered the flat where they found Mst. Shazia wife of Ashique Korai in injured condition. They shifted injured Talat Hussain and Mst. Shazia to the Hospital by her family members where both the injured succumbed to their injuries. The complainant on the same day lodged the FIR against accused with promptitude leaving no time to cook up a false case.
Investigation Officer on the same day inspected the place of incident and secured one empty and one sikka he alsq secured one empty from outside of the apartment, which were sealed separately.
Investigation Officer, also secured blood stained earth and sealed it. Investigation Officer recorded statement of complainant under Section 161, Cr.P.C. During cross-examination, he stated that he had known accused Ashique Korai for last 12 to 14 years, who was posted at Police Station Memon Goth and the accused is a friend of his father. He denied the suggestion that he did not know as to whether there was any dispute between Mst. Shazia and her ex-husband over some plots. He also denied the suggestion that accused Ashique Hussain did not make fires and that he was deposing falsely.
16. Shamsuddin (PW-02) has stated that on 19.04.2015 at about 12:15 a.m. he along with Talat Hussain, complainant Akhtar, Zahid and Nazir were present outside the shop of complainant at Memon Goth, they heard firing from 5 the apartment of Ashique Korai situated in front of shop. They immediately went to the place of incident where .Ashique Korai made three fires upon Talat, they hid themselves under the stairs thereafter, accused, his son and one unknown person went away from the scene of occurrence. They entered the apartment and found Talat in injured condition.
They also heard kids who were shouting that their mother was also injured. Injured Talat Hussain was shifted to hospital.
Investigation Officer recorded his statement under Section 161, Cr.P.C. During cross-examination he denied the suggestion that he was not present at the time of incident. He further denied the suggestion that he was deposing falsely against accused on the instigation of complainant.
17. Nazir Ahmed (PW-03) stated that on 19.04.2015 at about 12:15 or 12:30 a.m., he along with Talat Hussain, Shamsuddin" Zahid and Akthar were present in front of the shop. They heard firing from the apartments situated in front of the shop, they immediately went there, where they saw accused Ashique, his son and one unknown person. Accused Ashique made straight fires at Talat Hussain whereas, complainant party hid themselves under the stairs. Thereafter, accused Ashique and others ran away from the place of incident. They entered into the apartment and found Talat Hussain in injured condition, who was shifted to Hospital. They also found one lady in injured condition in the apartment, who was also shifted to hospital. Investigation Officer recorded his statement under Section 161, Cr.P.C. He was cross-examined at length but nothing favourable to the accused could be brought on record. He denied the suggestion that he was deposing falsely on the instigation of complainant.
18. As regards to the evidence of Zahid Hussain (PW-07) is concerned, the learned counsel for the appellant contended that according to this P.W on hearing such commotion deceased Talat Hussain first of all ran towards the building while they followed him. While Talat was climbing towards first floor Ashique Korai fired on him and according to learned defense counsel no blood was found on the stairs of the flat at the time of site inspection. We observe such contradiction to be of not much importance as with passage of time such discrepancy may creep in. Even if we do not consider the evidence of this P.W Zahid Hussain to be particularly confidence inspiring and give less weight to it even then the evidence of complainant Muhammad Akhtar, P.Ws Shamsuddin and Nazir Ahmed is found consistent, straight forward, confidence inspiring which is sufficient to bring home the charge against the appellant. They all knew the appellant as such were easily able to identify him as there was sufficient light provided by generators and as such there was no need to hold an identification parade. They were not chance witnesses as the complainant's shop was opposite the flat where the other eye-witnesses used to gather. Learned counsel for the appellant has failed to dispute their presence at the time of incident and we find their evidence to be reliable, trustworthy and confidence inspiring and believe the same especially as it is supported by the medical evidence which we discussed earlier. In a murder case conviction can be based on the testimony of a single witness, if the Court is satisfied that he is reliable. In the case reported as Niaz-ud-Din and another v. The State and another (2011 SCMR 725), the Honourable Supreme Court has held as under:
11. The statement of Israeel (P.W.9) the eye-witness of the occurrence is confidence inspir-ing, which stand substantiated from the "circumstances and other evidence. There is apt observations appearing in Allah Bakhsh v. Shammi and others (PLD 1980 SC 225) that "even in a murder case conviction" can be based on the testimony of a single witness, if the Court is satisfied that he is reliable." The reason being that it is the quality of evidence and not the quantity which matters.
Therefore, we are left with no doubt whatsoever that conviction of Niaz-ud-Din was fully justified and has rightly been maintained by the High Court.
19. Though learned counsel for the appellant pointed out some other minor contradictions in the evidence of the eye-witnesses, but it may be observed that no major contraction has been pointed out by the defense counsel. Minor contradictions/ omissions in the evidence of eye-witnesses was natural phenomena and no importance can be attached to such minor contradictions. We have no hesitation to rely upon the evidence of the eye-witnesses. It is also settled law that if court is satisfied about the truthfulness of direct evidence then the requirement of corroborative evidence is not of much significance. Corroboration is not a rule of law but is that of prudence. In any event the eye-witnesses is supported by the medical evidence. We have further observed that appellant remained absconder and arrested after four months. After commission of offence appellant absconded away and absconsion of the accused was deliberate and intentional so that he could not be interrogated. His conduct and unexplained absconsion is also corroborative piece of evidence against him to connect j him in this case. In the case of Riaz Hussain v. The State (2001 SCMR 177), Hon'ble Supreme Court has held as under:- "We are conscious of the fact that "the conduct of the accused soon after the incident plays an important part in determining the guilt of the accused, and is a corroborative piece of evidence.
(Bhamra v. State, 1953 Bhopal 1: 1953 Cr.LJ 217) The conduct of a person absconding after the commission of the offence is evidence to show that he was concerned in the offence."
20. Appellant's disappearance is a circumstance that cannot be viewed with favour. No legal flaw or infirmity in the evidence of the prosecution witnesses has been brought on record by the defence counsel. The defence plea raised by the appellant was well attended by the learned trial Court and findings recorded by the learned trial Court do not require any interference by this court.
In short we disbelieve the defence alibi witnesses who we find to be put up witnesses who did not appear before the I.O. or any time during the trial except to the fag end, as D.W's. It is also noteworthy that no cross-examination of any P.W was made on the point of alibi. Thus, the eye- witnesses and other corroborative evidence have proved that the appellant murdered Talat. With regard to the murder of Mst. Shazia we find that based on the evidence and the peculiar facts and circumstances of the case no other conclusion can be drawn except that the appellant or his son shot her. This is because that appellant and his son were alone with Mst. Shazia in her flat when the eye-witnesses heard the gunshot from her flat and were rushing to her flat within minutes of the shot the appellant and his son were exiting the flat. Thus there can be no other explanation except that the appellant murdered Mst. Shazia. The fact that the murder weapon was not recovered from the appellant is inconsequential as he absconded for four months and would have got rid of the murder weapon during this period. He was not expected to keep it as a trophy.
21. In the present case, motive has remained shrouded in mystery. It is observed that behind the commission of any crime there is always a motive. If a person commits theft or commits the offence of robbery, the motive and the object is to procure money and in case of sex related offences, the motive is to satisfy the sexual lust; however, the gravity of motive differs from offence to offence and from case to case. There can be an immediate motive for the commission of a crime or an old motive for taking some revenge; there can be a small motive or a bigger one. In any case, motive is always relevant for the commission of crime. It is the "reason" for which an accused person takes the law into his hands and commits the crime. Motive is in fact the foundation of the structure which ultimately culminates into the accomplishment of the crime.
When motive is so basic and relevant for the commission of the crime, it would definitely have bearing in every case while determining the quantum of sentence. In the case in hand, complainant in his statement under section 154, Cr.P.C. has not mentioned any motive in the commission of the crime by the appellant though he had tried to explain the motive during the trial, but it cannot be relied upon as it was an improvement at the trial stage. It has been repeatedly held by Honourable Apex Court that if motive is not alleged or is not proved, normally the sentence of death is converted into imprisonment for life. Reliance in this behalf is placed on Muhammad Ashraf v. The State (2012 SCMR 419), Hasil Khan v. The State (2012 SCMR 1936) and Jehanzeb v. The State (2003 SCMR 98).
22. For these reasons, we have decided to exercise caution in the matter of the appellant's sentences of death and have felt persuaded to reduce the said sentences of death to imprisonment for life on each count of the charge. This appeal is, therefore, dismissed and the convictions of the appellant on the charge under section 302(b), P.P.C. are maintained however, we reduce the appellant sentence from death to life imprisonment in respect of each murder.
Compensation and imprisonment in default of its payment shall remain intact. The sentences of imprisonment passed against the appellant shall run concurrently and the benefit under section 382-B, Cr.P.C. shall be extended to him.
23. This appeal is disposed of in the above terms. Reference made by trial Court for confirmation of death sentence is answered in the NEGATIVE.