MOHAMMAD KARIM KHAN AGHA, J. Appellant Muhammad Yasir son of Muhammad Farooq, was tried in the Model Criminal Trial Court (Extension)/Court of Vth Addl. Sessions Judge (East) Karachi in Session Case No.1795 of 2015 arising out of FIR No.135 of 2014 under Sections 302/324/109/34 P.P.C registered at Police Station Jamshed Quarter and vide Judgment dated 09.10.2019 he was convicted and sentenced under section 265-H(ii) Cr.P.C under Section 302 (b) P.P.C to suffer R.I. for life as Tazir and pay Rs.10,00,000/- (Rupees Ten Lac only) as compensation under section 544-A Cr.P.C to the legal heirs of deceased Mst. Salma and for offence punishable under section 324 Cr.P.C to suffer RI for 10 years and to pay fine of Rs.50,000/- (Rupees Fifty Thousand). In case of default in payment of fine he shall suffer SI for (04) month. However, he was also given the benefit of Section 382-B Cr.P.C.
2. The brief facts of the case are that accused Yasir son of Farooq and his mother Mst. Zeenat wife of Farooq used to reside in the house, situated in front of the complainant's house and some cases are pending between them in the Courts. On 19.04.2014, a case was disposed of in favour of complainant side due to which the accused persons were annoyed. On 19.04.2014, all the family members of complainant including his wife Mst. Salma as well as family members of his brother Sajid Mehmood were present in the house whereas the complainant had gone for offering Assar Prayer. At about 5:40 p.m. he received phone call of his daughter who was weeping and asked the Complainant to reach immediately at home. When the complainant reached at his house, he came to know that accused Yasir caused firearm injuries to his wife Mst. Salma, aged about 42 years and his brother Sajid Mehmood and they have been shifted to hospital. Thereafter the complainant reached at Civil Hospital and came to know that his wife Mst. Salma succumbed to her injuries and his injured brother Sajid Mehmood is admitted in Emergency Ward. The injured Sajid Mehmood disclosed to the complainant that accused Yasir and his mother accused Zeenat came at the outer door of their house, accused Yasir carrying pistol in his hand and forcibly tried to enter in the house, when injured Sajid Mehmood tried to stop him, accused Yasir with intention to commit his murder opened fire upon Sajid Mehmood, resultantly Sajid Mehmood received bullet injury in his left leg and fell down. Thereafter the accused Yasir entered into the house of complainant and also opened fire upon his wife Mst. Salma who has also sustained bullet injuries and later on succumbed to her injuries. It is further alleged that when accused Yasir came out from the house of complainant, the injured Sajid Mehmood tried to apprehend him and accused Yasir again opened fires upon Sajid Mehmood with intention to kill him and when the bullets of pistol were finished, injured Sajid Mehmood snatched pistol from the hand of accused Yasir, however, his mother accused Zeenat helped accused Yasir for releasing him from the hands of injured Sajid Mehmood and accused Yasir succeeded to run away from the spot. The complainant has further alleged that accused Yasir has committed the said offence on the instigation of his mother (absconder accused Zeenat), Javed, Tanveer and Shakeel, hence the complainant lodged the FIR against the nominated accused persons. "
3. After usual investigation police submitted the challan and the trial court after completing necessary formalities framed the charge against the appellant to which he pleaded not guilty and claimed trial.
4. In order to prove its case the prosecution examined eight (08) witnesses and one CW, who exhibited numerous documents and other items. Then statement of accused under Section 342 Cr.P.C was recorded whereby he denied the allegations levelled against him by the prosecution witnesses and claimed his false implication by the complainant due to a family dispute. However, he neither examined himself on Oath nor led any evidence in his defense.
5. After hearing the parties and assessing the evidence on record the trial court convicted and sentenced the appellant as stated in earlier in this Judgment, hence appellant has preferred this Appeal against his conviction.
6. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment, therefore, the same are not reproduced here so as to avoid duplication and unnecessary repetition.
7. Learned counsel for the appellant has contended that the appellant is innocent and that he has been falsely implicated in this case by the complainant party due to a family dispute; that the eye- witnesses' evidence cannot be safely relied upon; that there was no independent mashir; that there are material contradictions in the evidence of the witnesses which renders their evidence un- reliable; that the pistol was foisted on the appellant by the police and that for any or all of the above reasons the appellant should be acquitted of the charge by extending him the benefit of the doubt.
8. On the other hand Learned APG and learned counsel for the complainant after going through the entire evidence of the prosecution witnesses as well as other record of the case supported the impugned judgment. In particular, they contended that the FIR was lodged promptly, the eye- witness's evidence was trust worthy, reliable and confidence inspiring and was to be believed; that the murder weapon (pistol) was recovered from the wardat along with empties that matched through a positive FSL report; that the medical evidence supported the ocular evidence and as such the prosecution had proved its case beyond a reasonable doubt and the appeal be dismissed. In support of their contentions, they placed reliance on the cases of Muhammad Anwar v. The State (2024 YLR 1745), Muhammad Mansha v. The State (2011 SCMR 199), Abdul Majeed v.
The State (2008 SCMR 1228), Qaiser Hussain alias Kashi alias Kashif v. The State (2011 PCr.LJ 1126), Abdul Khalique v. The State (2015 YLR 1015), The State v. Muhammad Boota (2014 YLR 306), Waris Khan v. The State (2004 MLD 1982) Ghulam Mohy-ud-Din alias Haji Babu and others v.
Liaquat Ali and others (2014 SCMR 1304), Ijaz Ahmad v. The State (2009 SCMR 99), Muhammad Ilyas v. The State (2011 SCMR 460), Sheraz Asghar v. The State (1995 SCMR 1365) and Muhammad Bashir v. The State (2023 SCMR 190).
9. I have heard the learned counsel for the appellant as well as learned APG and learned counsel for the complainant and have also perused the material available on record and the case law cited at the bar.
10. Based on my reassessm ent of the evidence of the PW's, especially the medical evidence, the blood and empties recovered at the scene of the crime I find that the prosecution has proved beyond a reasonable doubt that Mst. Salma (the deceased) was murdered by firearm and Sajjad was injured by firearm on 19.04.2014 at about 1815 hrs at House No.C-155 Patel Para Karachi.
11. The only question left before me therefore is who murdered the deceased and injured Sajjad by firearm at the said time, date and location?
12. After my reassessm ent of the evidence on record, I find that the prosecution has proved beyond a reasonable doubt the charge against the appellant for which he was convicted for the following reasons;
(a) That the FIR was lodged after 6 hours of the incident however based on the particular facts and circumstances of the case I find that this delay in lodging the FIR has been explained and is not fatal to the prosecution case. This is because the complainant received a phone call about the incident who then rushed to the wardat where he found that the Mohalla people had taken his wife (deceased) to the hospital and thus he then went straight to the hospital where he recorded his S.154 Cr.P.C statement before the police which was the basis of the FIR which was lodged by the concerned police official once he returned to the PS. As such there was no time for the complainant to cook up a false case against the appellant. In this respect reliance is placed on the case of Muhammad Nadeem alias Deemi v. The State (2011 SCMR 872),
(b) The appellant is named in the promptly lodged FIR with the specific role of murdering the deceased by firearm and causing firearm injury to Sajjid. Even otherwise no specific/proven enmity has come on record between the appellant and the complainant or any PW which would motivate him/them to lodge a false case or give false evidence against the appellant.
(c) The prosecution's case rests on the eye-witnesses to the murder of the deceased and the injury to Sajjad whose evidence I shall consider in detail below;
(i) Eye-witness PW 2 Sajjad. He is the brother of the complainant and was living in the same house as the complainant at the time of the Incident. According to his evidence on 19.04.2014 at between 5 to 6pm he came outside of his house and when he reached the gate of the house he saw the accused and his mother who lived in the adjacent house talking to each other. The accused came to enter the witnesses house and the witness tried to stop him whereupon the accused pointed a pistol on his chest which he caught hold of which lead to the accused firing on him which shot hit him on the leg. The accused tried to escape with the help of his mother and again made fire on him so he hid by a street in order to save himself. In the meantime the accused ran inside and fired on the deceased at the instigation of his mother. The accused tried to shoot him again but he had run out of bullets and the witness grabbed the pistol from his hand before the accused escaped. Mohalla people and PW 5 Hashim took him and the deceased to civil hospital.
Admittedly the eye-witness was related to the deceased however it is well settled by now that evidence of related witnesses cannot be discarded unless there is some ill will or enmity between the eye-witnesses and the accused which has not been proven in this case by any reliable evidence. In this respect reliance is placed on the cases of Ijaz Ahmed v. The State (2009 SCMR 99), Nasir Iqbal alias Nasra and another v. The State (2016 SCMR 2152) and Ashfaq Ahmed v. The State (2007 SCMR 641).
This eye-witness knew the appellant before the incident as he is related to him and lives adjacent to his house. The incident occurred in day light and he was fired at from relatively close range as such there is no case of mistaken identity and no need to hold an identification parade. In this respect reliance is placed on the case of Munir Ahmed v. The State [2020 SCMR 968].
He is named as a witness in the promptly lodged FIR. He was not a chance witness as he lived in the house where the incident occurred. He had no proven enmity or ill will with the appellant which would lead him to implicate the appellant in a false case. He gave his evidence in straight forward manner and was not damaged during a lengthy cross examination. His evidence was not improved from his S.161 Cr.P.C statement. The fact that the witness was injured at the scene of the crime as per his evidence gives weight to the fact that he was present during the incident.
The main draw back in the evidence of this eye-witness is that his S.161 Cr.P.C statement was recorded after a delay of 7 to 8 days which is usually fatal to his evidence. However since the eye- witness was injured at the scene and his presence cannot be doubted; that he is named in the promptly lodged FIR (within hours of the incident) based on the particular facts and circumstances of this case I am not prepared to discard his evidence completely. I tend to believe his evidence which I find to be reliable, trust worthy and confidence inspiring and thus on the basis of the above defect whilst believing the eye-witnesses evidence I give it lesser weight than would usually be the case. In this respect reliance is placed on the cases of Sheraz Asghar (Supra), Abdul Khalique (Supra), The State v. Muhammad Bhoota (Supra), Abdul Majeed (Supra), Qaiser Hussain (Supra), Muhammad Anwar (Supra) and Waris Khan (Supra).
(ii) Eye-witness PW 5 Syad Hashim Ali. He is related to the deceased who is his aunt. According to his evidence he was present at his aunt's House (the deceased) on 19.04.2014 where he had gone to pay his BC amount. At about 5.45 to 6 pm eye-witness Sajjad came out of his room and left the house. He then heard a noise and firing from outside. The deceased moved towards the entrance of the house in order to go outside on hearing the firing. Her daughter Sumiya tried to follow the deceased but he pushed her in a room. The entrance door of the house was kicked open by the accused who entered the house and fired on the deceased. The deceased fell down and became unconscious due to fire arm injury. Eye-witness Sajjad then came inside the house in an injured condition with blood oozing from his leg. He took the body of the deceased to civil hospital where she died.
Admittedly the eye-witness was related to the deceased and in this respect the same considerations apply to him as to eye-witness PW 2 Sajjad as discussed above.
This eye-witness knew the appellant before the incident as he is related to him and lives in the adjacent house. He saw the appellant fire at the deceased and also saw Sajjad leave the house whereupon he heard firing and then saw Sajjad with an injury to his leg from close range as such there is no case of mistaken identity and no need to hold an identification parade. In this respect reliance is placed on the case of Munir Ahmed v. State [2020 SCMR 968].
He is named as a witness in the promptly lodged FIR. He was not a chance witness as he had a reason to be at the house of his aunt at that particular time. Namely, he was visiting her in order to pay his BC money. He had no proven enmity or ill will with the appellant which would lead him to implicate the appellant in a false case. He gave his evidence in straightforward manner and was not damaged during a lengthy cross examination. His evidence was not improved from his S.161 Cr.P.C statement which he gave straight after the incident. He corroborates the evidence of PW 2 Sajjad.
It is well settled by now that I can convict the accused on the evidence of a sole eye-witness provided that I find his/her evidence to be trust worthy, reliable and confidence inspiring and in this case I have found the evidence of this eye-witness to be trust worthy, reliable and confidence inspiring especially in respect of the correct identification of the appellant and as such I believe the same and place reliance on it. In this respect reliance is placed on the cases of Muhammad Ehsan v. The State (2006 SC 1857), Farooq Khan v. The State (2008 SCMR 917), Niaz-ud-Din and another v. The State and another (2011 SCMR 725), Muhammad Ismail v. The State (2017 SCMR 713) and Qasim Shahzad and another v. The State (2023 SCMR 117). His evidence is also of good quality and it is settled by now that it is not the length of the evidence which is of importance but its quality. It is also corroborated by the evidence of PW 2 Sajjad the injured eye-witness whose evidence I gave some weight to. His evidence is also in line with the contents of the FIR as recorded by the complainant albeit based on hearsay evidence.
Having believed the evidence fully of one eye-witness and given lesser weight to the corroborative ocular evidence on the other eye-witness (Sajjad) as to the firearm injury caused to Sajjad by the appellant and murder of the deceased and the identification of the murderer as being the appellant I turn to consider the corroborative/supportive evidence whilst keeping in view that it was held in the case of Muhammad Waris v. The State (2008 SCMR 784) as under; "Corroboration is only a rule of caution and is not a rule of law and if the eye-witness account is found to be reliable and trust worthy there is hardly any need to look for am corroboration"
(d) That the medical evidence and post mortem report fully support the eye-witness/prosecution evidence that the deceased died from receiving a fire arm injury in the place which they claim.
Even if there is some discrepancy in the medical evidence (which there is not in this case) it is well settled by now that ocular evidence if found to be trust worthy, confidence inspiring and reliable (as it has been so found in this case) will prevail over the medical evidence. In this respect reliance is placed on the case of Qasim Shahzad (Supra). The medical evidence also fully supports the leg injury to eye-witness Sajjad being caused by firearm.
(e) That all the PWs are consistent in their evidence (barring in respect of the recovery of the pistol which I shall discuss below) and even if there are some contradictions in their evidence 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 appellant arguing with Sajjad at the gate of the house to the, appellant shooting Sajjad in the leg to the appellant breaking down the door of the house to the appellant shooting the deceased.
(f) The appellant had a motive for murdering the deceased and shooting the Sajjad as per FIR and other evidence on record as a case which the appellant had lodged against the complainant party had been dismissed and hence the appellant wanted revenge against the complainant party.
(g) With regard to the recovery of the pistol having believed the evidence of the eye-witnesses the recovery and ownership of the pistol becomes irrelevant. Nevertheless I note that according to Sajjad he grabbed the pistol from the appellant before he made his escape good. However two separate police PWs (PW 7 Sultan Ahmed and PW 8 Qurban Hussain) both in their evidence claim to have recovered the pistol from the wardat which is not possible as only one pistol was left at the crime scene and not two and as such the recovery of the pistol that was actually used by the appellant to injure Sajjad and the deceased becomes somewhat doubtful hence to veer on the safe side I exclude the recovery of the pistol and the matching FSL report from consideration.
(h) It is true that there was no independent mashir however it has now become a judicially recognized fact that in such like cases independent members of the public do not want to involve themselves and as such today the fact that there are no independent mashies is not of huge significance especially when the eye-witness evidence is believed.
(i) Undoubtedly it is for the prosecution to prove its case against the accused beyond a reasonable doubt but I have also considered the defence case to see if it at all can cast doubt on or dent the prosecution case. The defence case as set out by the appellant in his S.342 Cr.P.C statement is simply false implication by the complainant due to a family dispute. The appellant did not give evidence on oath or call a single defence witness in support of his claim of false implication on account of a family dispute nor produce any document in support of the same. Thus, in the face of reliable, trust worthy and confidence inspiring eye-witness evidence and other supportive/corroborative evidence discussed above I disbelieve the defence case as an afterthought which has not at all dented the prosecution case.
13. Thus, based on the above discussion, I find that the prosecution has proved its case against the appellant beyond a reasonable doubt for the offences for which he has been convicted and sentenced in the impugned judgment and as such his appeal is dismissed.