MOHAMMAD KARIM KHAN AGHA, J. The appellant Sartaj alias Sartaja son of Mir Dad Khan was tried in the Court of IV Additional Sessions Judge/Model Criminal Trial Court (South) Karachi under Crime No. 960/ 2012 under section 324 read with Section 302 P.P.C registered at PS Jackson, Karachi vide judgment dated 26.01.2021 and was convicted for an offence punishable under section 265- H(ii) Cr.P.C and awarded death sentence as Tazir under Section 302(b) P.P.C subject to confirmation by this court.
2. The brief facts of the prosecution case are that on 21.12.2012 at 1745 hours SIP Ahmed Khan of PS Jackson Karachi had recorded 154 Cr.P.C. statement of complainant Aziz-ur-Rehman son of Muhammad Tang at Zia-u-Din Hospital, Karachi with regard to the incident of firing upon his uncle namely Khalid Pervez and converted the same into FIR No.960/2012 under section 324 P.P.C. On 21.12.2012 complainant Aziz ur Rehman along with his brother Shah Fahad, paternal uncle Khalid Pervaiz and cousin Inayat-ur-Rehman son of Khalid Pervaiz had proceeded from their house towards their plot situated at Hussain Haroon Road, and when they reached near Noor-ul-Huda Masjid, Gulshan-e-Sikandarabad, Block-5, Kemari Karachi at 1600 hours accused Sartaj Khan son of Meer Dad Khan intercepted them and threatened Khalid Pervaiz that he would not spare him as he (Khalid Pervaiz) registered FIRs of dacoity and extortion against him. The complainant alleged in the FIR that accused Sartaj took out pistol and with intention of killing and made straight firing upon Khalid Pervaiz who sustained 3/4 bullet shots and fell down, while accused escaped away.
Thereafter complainant along with his brother and cousin had shifted injured Khalid Pervaiz to Ziauddin Hospital for treatment. The complainant alleged that accused Sartaj Khan due to previous differences/disputes with Khalid Pervaiz made straight firing upon him with intention to kill him, hence this FIR.
3. After registration of FIR investigation was entrusted to SIP Raja Intisar who visited the place of incident and secured empties of 9 MM pistol, blood stained mud from the spot and prepared memo of recovery and site inspection, recoded 161 Cr.P.C. statements of the witnesses. During medical treatment on 24.12.2012 Khalid Pervaiz succumbed to his injuries and died at Hospital. After investigation the I.O. submitted charge sheet against the accused, however, showing him as absconder and recommended him for 512 Cr.P.C. proceedings.
4. On 13.04.2013, accused Sartaj Khan had reportedly been arrested by the police of City Mardan, Province KPK in another Crime No.416 of 2013 for carrying an unlicensed weapon. On receiving the information of arrest of absconding accused Sartaj investigation was reopened and after following all legal formalities /obligations the accused on 29.04.2013 was re-arrested in present crime by police from Karachi who brought his custody from District Jail Mardan to PS City Mardan from where he was shifted to Karachi and produced before the concerned Magistrate for trial.
5. The accused pleaded not guilty to the charge and claimed trial. The prosecution in order to prove its case examined 10 witnesses and exhibited various documents and other items. The statement of accused was recorded under Section 342 Cr.P.C in which he denied the allegations levelled against him and claimed false implication by the police in collusion with the complainant.
The appellant however did not examine himself on oath and did not call any DW's in support of his defence case.
6. After hearing the parties and appreciating the evidence on record, the trial court convicted the appellant and sentenced him as set out earlier in this judgment; hence, the appellant has filed this appeal against his conviction.
7. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment dated 16.10.2021 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.
8. Learned counsel for the appellant has contended that there was an unexplained delay in filing the FIR which lead to the complainant and the police cooking up a false case against the appellant on account of enmity; that the alleged eye-witnesses had made up the story on account of enmity; he was not arrested on the spot but was instead arrested in Mardan in KPK where he had been in hospital at the time of the incident; that no recovery was made from him and the pistol was foisted on him by the police and that for any or all of the above reasons he should be acquitted of the charge by being extended the benefit of the doubt. In support of his contentions, he placed reliance on the case of Ghulam Safdar v. The State (2009 SCMR 916).
9. On the other hand learned Additional Prosecutor General Sindh and learned counsel for the complainant have contended that the evidence of the eye-witnesses is reliable, truthful and confidence inspiring and is to be believed; that empties recovered at the spot were matched with the pistol which was recovered from the accused when he was arrested in an Arms case in KPK; that the medical evidence supported the ocular evidence; that the appellant had a motive for the murder and had murdered the deceased in cold blood and as such the impugned judgment should be upheld and the appeal be dismissed with the confirmation reference being answered in the affirmative. In support of his contentions, he placed reliance on the cases of Niazuddin v. The State (2010 SCMR 1752). Sheraz Khan v. The Haji Said Akbar (2010 SCMR 1772), Amal Sherin v. The State (PLD 2004 SC 371), Dildar Hussain v. Muhammad Afzaal alias Chala (PLD 2004 SC 663), Muhammad Waris v. The State (2008 SCMR 784), Muhammad Ilyas v. The State (2011 SCMR 460), Noor Muhammad v. The State (1999 SCMR 2722), Islam Sharif v. The State (2020 SCMR 690), Zia Ullah v. The State (2021 SCMR 1507) and Muhammad Javaid v. The State (2007 SCMR 324).
10. We have heard the arguments of the learned counsel for the appellant, learned Additional Prosecutor General Sindh and learned counsel for the complainant and gone through the entire evidence which has been read out by the learned counsel for the appellant, and the impugned judgment with their able assistance and have considered the relevant law including the case law cited at the bar.
11. Based on our reassessm ent of the evidence of the PW's especially the medical evidence and other medical reports, recovery of empties and blood at the crime scene we find that the prosecution has proved beyond a reasonable doubt that Khalid Pervaiz (the deceased) was shot and seriously injured by firearm on 21.12.12 at about 1600 hours near Noor-ul-Huda Masjid Gulshan- e-Sikadarabad Block 5 Kamarai Karachi and died on account of those firearm injuries on 24.12.12 in hospital.
12. The only question left before us therefore is whether it was the appellant who seriously injured the deceased by firearm at the said time, date and location which lead to his death on 24.12.12?
13. After our reassessm ent of the evidence we find that the prosecution has proved beyond a reasonable doubt the charge against the appellant keeping in view that each criminal case must be decided on its own particular facts and circumstances for the following reasons;
(a) That the FIR was lodged with promptitude after only one hour and 45 minutes of the incident and this slight delay was caused because the complainant took the deceased to hospital for treatment in order to save his life and it was during this time at the hospital that he gave his S.154 Cr.P.C statement which later became the FIR and as such he had no time to consult with the police or anyone else in order to cook up a false case against the accused. His mind would have been in turmoil following the incident and at that point in time his main concern would have been the condition of his seriously injured uncle rather than putting together a false narrative in order to implicate the accused. Thus, we find that there has been hardly any delay in lodging the FIR and even such slight delay has been fully explained.
(b) We find that the prosecution's case primarily rests on the evidence of the eye-witnesses to the murder of the deceased and, whether we believe their evidence whose evidence we shall consider in detail below;
(i) Eye-witness PW 2 Azizur Rehman. He is the complainant and nephew of the deceased.
According to his evidence on 21.12.12 he along with Shah Fahad, Inayatur Rehman and the deceased were going by foot to the deceased plot situated near Noorul Huda Masjid and near to there at about 4pm the accused appeared and asked the deceased why he had registered false FIR's against him for extortion and dacoity and he will take revenge whereupon the accused with a 9mm pistol fired at the deceased due to which the deceased sustained 4 to 5 bullets who then fell to the ground due to his injuries. The accused pointed his weapon at them before escaping from the scene of the incident. There upon the deceased was shifted to hospital in injured condition in a Suzuki pick up.
From the evidence it transpires that this witness is related to the deceased and that there appears to be some disputes between the accused and the deceased however the eye-witness had no dispute or enmity with the accused and thus his mere relationship to the deceased is no reason to discard his evidence which has to be judged on its own worth. In this respect reliance is placed on the cases of Amal Sherin (Supra) and Dildar Hussain(Supra).
It is clear from this eye-witnesses evidence that he knew the accused before the incident and it was a day light incident from relatively close range and thus there is no case of mistaken identity and no need to hold an identification parade in order to determine the identity of the accused. His presence at the scene is corroborated by PW 1 Fateh Muhammed Khan, PW 3 Innayat-ur-Rehman and PW 4 Shah Fahad.
This eye-witness was not a chance witness and he lived in the area and had every reason to accompany the deceased who was his uncle to see his plot along with other relatives. He gave his S.154 Cr.P.C statement within one hour and 45 minutes of the incident which was not significantly improved on during his evidence. He named the accused in his FIR along with the other eye- witnesses. He gave his evidence in a natural manner and was not dented at all during cross- examination and as such we find his evidence to be reliable, trust worthy and confidence inspiring and believe the same especially in respect of the identity of the accused.
We can convict on the evidence of this eye-witness alone though it would be of assistance by way of caution if there is some corroborative/supportive evidence. In this respect reliance is placed on the case of Muhammad Ehsan v. The State (2006 SCMR 1857). As also found in the cases of Farooq Khan v. The State (2008 SCMR 917), Niaz-ud-Din and another v. The State and another (2011 SCMR 725) and Muhammad Ismail v. The State (2017 SCMR 713). That what is of significance is the quality of the evidence and not its quantity and in this case we find the evidence of this eye- witness to be of good quality and believe the same. In this case however there is more than one eye-witness.
(ii) Eye-witness PW 3 Innayat-ur-Rehman. He is the son of the deceased. His evidence corroborates PW 2 Azizur Rehman's evidence in all material respects. He is named in the FIR as an eye-witness and gives evidence of PW 2 Azizur Rehman recording his S.154 Cr.P.C statement at the hospital where they took the deceased for treatment as further corroborated by PW 7 Ahmed Khan who was the police officer who recorded PW 2 Azizur Rehman's S.154 Cr.P.C statement at the hospital. The same considerations apply to his evidence as the evidence of PW 2 Azizur Rehman.
(iii) Eye-witness PW 4 Shah Fahad. He is a nephew of the deceased. His evidence corroborates PW 2 Azizur Rehman's and PW 3 Innayat-ur-Rehman's evidence in all material respects. He is named in the FIR as an eye-witness and recorded his S.161 Cr.P.C statement on the same day as the incident on which no material improvements were made during his evidence. The same considerations apply to his evidence as the evidence of PW 2 Azizur Rehman and PW 3 Innayat-ur-Rehman.
Thus, based on our believing the evidence of the PW eye-witness what other supportive/corroborative material is there against the appellant? It being noted that corroboration is only a rule of caution and not a rule of law. In this respect reliance is placed on the case of Muhammad Waris v. The State (2008 SCMR 784)
(c) That it does not appeal to logic, commonsense or reason that a son would let the real murderer of his father get away scott free and falsely implicate an innocent person by way of substitution. In this respect reliance is placed on the case of Muhammed Ashraf v. State (2021 SCMR 758)
(d) That the medical evidence and medical reports as discussed above fully support the eye- witness/ prosecution evidence. It confirms that the deceased died from at least three if not four gunshot wounds to the abdomen. There was no blackening around the wounds as the examination took place 2 days after the incident and the deceased's wounds were already covered with dressings and would have been cleaned so it cannot be proven that the accused did not fire at the deceased from a relatively close range as deposed by the eye-witnesses.
(e) That the evidence of PW 10 Mukhtiar Ali, PW 13 Shah Nawaz and PW 14 Muhammed Ameer states that the accused, who had already been declared an absconder in this case, had been arrested in Mardan KPK pursuant to another FIR for an offence in KPK for having an illegal firearm and thus after carrying out all legal obligations/formalities they travelled to KPK about 6 months after the incident where they arrested the appellant in this case and brought him back to stand trial. They also recovered from the Mardan police the fire arm which had been recovered from the accused in KPK and brought the same back to Karachi which was made as case property. All necessary entries/permissions regarding their trip to KPK and arrest of the accused in KPK have also been exhibited in support of their evidence. They all gave their evidence in unison in a straight forward manner and were not dented during cross-examination and as such there can be no doubt that, the accused was arrested in KPK whilst in custody in another case and was brought back to Karachi with the recovered pistol and we believe their evidence.
(f) That the empties which were recovered at the scene lead to a positive FSL even before the pistol was recovered from the KPK police station where it had been recovered from the accused in a separate case. That when the pistol was sent with the already recovered empties it found that all 7 empties matched the pistol which was found in the possession of the accused for which he was under arrest in KPK which directly links the accused to the murder of the deceased. The accused even had a license for the weapon which was his defence in the case in KPK however he claimed in this trial that the weapon was foisted on him by the police which simply is not believable based on the particular facts and circumstances of this case.
(g) That it has not been proven through evidence that any particular police PW's had any 'enmity or ill will towards the appellant and had no reason to falsely implicate him in this case for instance by planting a pistol on him and in such circumstances it has been held that the evidence of the police PW's can be fully relied upon and as such we rely on the police evidence. In this respect reliance is placed on the case of Mushtaq Ahmed v. The State (2020 SCMR 474).
(h) That nearly all required police memos and entries have been exhibited which fully support the evidence of the PW's and the prosecution case.
(i) That all the PW's are consistent in their evidence and even if there are some contradictions in their evidence we consider 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 the cases of Zakir Khan v. State (1995 SCMR 1793) and Khadim Hussain v. The State (PLD 2010 SC 669). The evidence of the PW's provides a - believable corroborated unbroken chain of events from the time the eye-witnesses and the deceased were walking to the deceased's plot to the accused shooting the deceased because he had filed FIR's against him to the accused absconding to the death of the deceased on account of the firearm injuries which he received form the accused to the arrest of the accused in KPK and recovery of his pistol to his pistol producing a positive FSL report with the empties recovered at the crime scene.
(j) Undoubtedly it is for the prosecution to prove its case against the accused beyond a reasonable doubt but we have also considered 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 implication by the police. We disbelieve his defence that he was in hospital in KPK at the time of the incident as this was not put to a single witness during cross-examination and he did not produce a DW in support of his so called alibi which we find to be a complete after thought based on managed documents in order to save his skin just like his so called CP which he filed before the Sindh High Court which was manufactured in order to prepare a defence for his premeditated murder of the accused. Thus, for the reasons mentioned above we disbelieve the defence 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.
14. Thus, based on the above discussion especially in the face of reliable, trustworthy and confidence inspiring eye-witness evidence and other corroborative/supportive evidence mentioned above, we have no doubt that the prosecution has proved its case against the appellant beyond a reasonable doubt for the offence for which he has been convicted and hereby maintain his conviction.
15. With regard to sentencing we note that the motive for the murder has been asserted and proven in that the accused wanted to take revenge from the deceased for lodging FIR's against him and thus he shot the accused 4 times in a brutal and pre mediated manner in front of his family members and left him for dead. He is a habitual hardened criminal with at least 60 cases registered against him and we cannot find any mitigating circumstance which would warrant a reduction in his sentence from the death penalty to life imprisonment and as such his death sentence, is maintained.
16. As such the appeal is dismissed and the confirmation reference is answered in the affirmative.