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Official Citation: 2024 MLD 733
Court / Jurisdiction: Sindh High Court
Year of Decision: 2023
Decision Date: 2023-12-31
Parties: Muhammad Ishaq alias Bobi alias Hussain and another vs The State
Ruling Summary: This decision was rendered by the Sindh High Court on 2023-12-31, officially reported as 2024 MLD 733. In this matter between Muhammad Ishaq alias Bobi alias Hussain and another and The State, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024 MLD 733
Court Name: Sindh High Court Judge(s): Muhammad Karim Khan Agha, Khadim Hussain Tunio Title: Muhammad Ishaq alias Bobi alias Hussain and another vs The State Case No.:Special Criminal A.T. Appeal No. 219 of 2010 and Confirmation Case No. 03
JUDGMENT
Reported As: 2024 MLD 733 Result: Order accordingly Judgment
JUDGMENT MOHAMMAD KARIM KHAN AGHA, J. Appellants Muhammad Ishaque alias Bobi alias Hussain and Muhammad Asim alias Ahmad alias Capri alias Mamo were charged sheeted to face their trial in Special Case No.2600 of 2016 (New Special Case No.225 of 2019) arising out of FIR No.402 of 2015 under sections 302/109/34 P.P.C. read with Section 7 Anti-Terrorism Act 1997 registered at PS Aziz, Bhatti, Karachi. The appellants were convicted vide impugned judgment dated 22.12.2020 passed by the learned Judge, Anti-Terrorism Court No.XV1, Karachi whereby they were awarded the following sentences: a) For causing death of the deceased Advocate Syed Ameer Haider Shah by firing, punishable under section 302 read with 34 P.P.C. both the accused are sentenced to death subject to confirmation by the High Court; b) For causing death of the deceased Advocate Syed Ameer Haider Shah by firing, punishable under section 7(a) of the Anti-Terrorism Act, 1997 both the accused are also sentenced to death subject to confirmation by the High Court with fine of Rs.2,00,000/- (two lacs) each; c) For the act of terrorism committed by the accused, punishable under section 7(1)(h) of Anti- Terrorism Act, 1997 both the accused are hereby also sentenced to undergo RI for (10) ten years and to pay fine of Rs.50,000/- (Fifty Thousand) each. d) Both the present accused are hereby also directed to pay an amount of Rs.2,00,000/- (two lacs) each to the legal heirs of deceased' Advocate Syed Ameer Haider Shah as compensation, as
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provided under Section 544-A Cr.P.C. and in default of 'such payment the accused shall undergo S.I. for six months. e) Both the accused are hereby also convicted for the offence under section. 11-F and sentenced to RI for 06 months with fine of Rs.10,000/- (Ten Thousand) each and in case of failure to pay the fine, they shall serve R.I. for one month more. f) The property of the accused are directed to be forfeited as required under section 7(2) of the Anti-Terrorism Act, 1997. All the sentences are directed to run concurrently. The benefit of Section 382 Cr.P.C. was also extended to the accused persons. 2. The brief facts of the prosecution case are that on 30.08.2015 complainant Shahid lodged FIR that he resides in Rabia Duplex, Mosamyat, Gulistan-e-Jauhar, Karachi and working with Advocate Syed Ameer Hyder Shah. On 28.08.2015 when they were coming in his Toyota Corolla golden colour car No.APR-402, from his office situated at PECHS Society to home, at about 06:45 pm when they reached at main University road, Hassan Square three people on one motorcycle made firing upon them and fled away, resultantly Advocate Syed Ameer Hyder Shah received firearm injuries and shifted to Al-Mustafa hospital where he was pronounced dead. Accordingly, the FIR was lodged against unknown accused persons. 3. After registration of FIR, the investigation was assigned to Inspector Zulfiqar Ali Bajwa of PS New Town, Karachi who after usual investigation filed the report under "A" class. Later on, accused Muhammad Ishaq alias Bobi and Muhammad Asim alias Capri were arrested in other cases and during interrogation the accused made disclosure that they made firing upon the deceased Advocate Syed Ameer Hyder Shah, accordingly after collection of evidence the I.O. submitted challan against the said accused persons. 4. The prosecution in order to prove its case examined 12 PWs and exhibited various documents and other items. The statement of accused persons was recorded under Section 342 Cr.P.C in which they denied all the allegations leveled against them and claimed that they have been falsely implicated in this case. 5. After hearing the parties and appreciating the evidence on record the trial court convicted the appellants and sentenced them as set out earlier in this judgment. Hence, the appellants have filed this appeal against conviction. 6. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment dated 22.12.2020 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition. 7. Learned counsel for the appellants has contended that the appellants are completely innocent and have been falsely implicated in this case by the police, as is evident by the two day delay in lodging the FIR which enabled the complainant to cook up a false case against the appellants at the behest of the police; that the so called sole eye-witness was a put up witness and was not present at the time of the offence and even otherwise would not have been able to safely identify the appellants as the persons who carried out the murder; that the identification parade was not in accordance. with the law and as such is of no legal value; that the appellants did not make any confession before the judicial magistrate and even if such confessions were made they could not be relied upon as such confessions were retracted at trial and were not made voluntarily and as such for any or all of the above reasons the appellants should be acquitted of the charge by extending them the benefit of the doubt. In support of his contentions, he placed reliance on the cases of Babar Masih v. The State (2020 YLR 1557), Provincial Government of Khyber Pakhtunkhwa through Provincial Secretary Home and 7 others v. Aftab Mohammad Usman Khan and another (2020 YLR 1563), Muhammad Pervez and others v. The State and others (2007 SCMR 670), Imran Ashraf and 7 others v. The State (2001 SCMR 424), Gulfam and another v. The
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State (2017 SCMR 1189), Hayatullah v. The State (2018 SCMR 2092), Muhammad Akram v. The State (2009 SCMR 230) and Patoo and another v. The State (2012 MLD 1358). 8. On the other hand, learned Addl. Prosecutor General Sindh has fully supported the impugned judgment. In particular, he has contended that the evidence of the eye-witness can be safely relied upon as to the correct identification of the appellants; that the identification parade was carried out strictly in accordance with law; that both the appellants made confessions before the judicial magistrate and although retracted at trial could be safely relied upon as they were made voluntarily and that a pistol recovered from the appellants on their arrest matched with the empties recovered at the scene of the crime and as such the prosecution had proved its case beyond a reasonable doubt against both the appellants and their appeals be dismissed. He also contended that the confirmation reference be answered in the affirmative due to the lack of mitigating factors and the brutality of the crime. In support of his contentions, he placed reliance on the cases of Noor Muhammad v The State (1999 SCMR 2722), Dadullah v The State (2015 SCMR 856), Muhammad Ehsan v The Slate (2006 SCMR 1857), Farooq Khan v The State (2008 SCMR 917), Khadim Hussain v The State (PLD 2010 SC 669), Sajid Sohail v The State (2009 SCMR 356), Muhammad Nadeem v The State (2011 SCMR 872), Sh. Muhammad Abid v The State (2011 SCMR 1148), Muhammad Ismail v The State (2017 SCMR 713), Solat Ali Khan v The State (2002 SCMR. 820), Muhammad Zaman v The State (2007 SCMR 813), The State v Ahmed Omar Sheikh (2021 SCMR 873), Muhammad Amin v The State (PLD 2006 SC 219) and Manjeet Singh v The State (PLD 2006 SC 30). 9. We have heard the arguments of the learned counsel for the appellants and learned Additional Prosecutor General Sindh and gone through the entire evidence which has been read out by the learned counsel for the appellants, and the impugned judgment with their able assistance and have considered the relevant law including the case law cited at the bar. 10. Based on our reassessm ent of the evidence of the PW's especially the medical evidence and other medical reports including the post mortem report of the deceased, recovery of empties and blood and car which the deceased was shot inside of at the crime scene we find that the prosecution has proved beyond a reasonable doubt that advocate Syed Ameer Haider Shah (the deceased) was shot and murdered by firearm on 28.08.2015 at about 1845pm whilst driving his car at main University Road near Bridge Hasan Square Gulshan-e-Iqbal Karachi. 11. The only question left before us therefore is who murdered the deceased by firearm at the said time, date and location? 12. After our reassessm ent of the evidence we find that the prosecution has proved beyond a reasonable doubt the charge against the appellants except under the ATA for which they were convicted for the following reasons keeping in view that each criminal case must be decided on its own particular facts and circumstances; (a) That the FIR was lodged after a delay of two days. The reason for the delay in lodging the FIR was that the complainant immediately after the deceased was shot took him to Al Mustafa hospital where he learnt that the deceased had died and then took the dead body to JPMC for legal formalities including post mortem and thereafter since the deceased's relatives were not from Karachi he helped take the body of the deceased to his ancestral village in District Khairpur for burial and thereafter he returned to Karachi and immediately lodged the FIR. As such any delay in lodging the FIR has been fully explained. Importantly the FIR is against unknown persons and as such there was no attempt to falsely implicate the accused or any other person or else the accused would have been specifically named in the FIR. Furthermore, the complainant had no enmity with the accused and had no reason to falsely implicate them and as such we find that the delay in lodging the FIR is not fatal to the prosecution case as the delay has been explained, the accused were not nominated in the FIR and as such the delay in filing the FIR has not benefited the
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prosecution or prejudiced the accused. In this respect reliance is placed on the case of Muhammad Nadeem alias Deemi v. The State (2011 SCMR 872) (b) We find that the prosecution's case primarily rests, but not exclusively, on the sole eye witness to the murder of the deceased and in particular his correct identification of the appellants as the persons who respectively drove the motorcycle and shot the deceased which lead to his murder whose evidence we shall consider in detail below; (i) Eye-witness PW 7 Shahid. He was the court clerk of the deceased lawyer who also lived with the deceased at his home. According to his evidence on 28.08.2015 as per routine he and the deceased went from the home of the deceased to the city court and then returned to the deceased office and thereafter at 6.10 pm left for home in the car of the deceased who was driving the car whilst he was sitting in the rear seat. When they reached at Hassan Square Bridge at about 6.45 pm he saw three persons on a motor cycle appear with two persons sitting behind the motor cycle driver who fired at them and due to their firing the deceased was injured. Their car immediately stopped and with the help of people he shifted the injured deceased to Al Mustafa hospital where the deceased was pronounced dead. The witness was not a chance witness as he was the court clerk of the deceased for over 14 months and lived with him at his house a position which was never challenged at trial and would have been returning to the house of the deceased in the deceased's car at the time of the incident and as such was a natural witness. He lodged the FIR after a short delay which has been explained as he took the body of the deceased to the deceased's relatives at Khairpur which again goes to show his closeness to the deceased. He also gave his S.161 Cr.P.C. statement and there is little improvement in his FIR and S.161 Cr.P.C. statement to the evidence which he gave at trial. He was not related to the deceased and was an independent witness who had no reason to falsely implicate the accused. It was a day light incident and as the firing was from close range the witness would have gotten a good look at the accused for a reasonable period of time. According to the evidence of the witness the firing went on for 30 seconds to one minute which gave him plenty of time to focus on the one motor cycle and the persons driving it and firing from it especially as the traffic was going very slowly under the bridge and the motorcycle had to come close to the car in order to fire at it in the heavy traffic. He gave some hulia of both the accused in his FIR and picked out both the accused at an identification parade with a specific role. Namely, appellant Muhammed Ishaque was driving the motor cycle whilst the appellant Muhammed Asim was firing from behind the driver appellant Muhammed Ishaque which aspect was corroborated by PW2 Vinod Kumar who carried out the identification parade whilst following all the necessary legal formalities. The identification parade was conducted about 14 months after the incident and about 14 days after the arrest of the accused in this case which delay has been explained in the evidence by the fact that the appellants were busy going before other identification parades, going to other wardats on their pointation and giving confessions in other cases. Even otherwise the slight delay in holding the identification parade is not of much consequence and in this respect, reliance is placed on the case of Muhammad Zaman v. The State (2007 SCMR 813). Although 14 months might seem quite a long time there is no hard and fast rule as to the time in which an identity parade can be carried out after the incident as very often accused do escape from the crime scene and are captured much later, often after years, but obviously the sooner the identification parade is carried out the more accurate it is likely to be. In this respect reliance is placed on the case of Solat Ali Khan (Supra). The eye-witness gave his evidence in a natural and straightforward manner and emerged undented from a lengthy cross examination and as such we have no reason to doubt his evidence. Thus, for the reasons mentioned above, whilst being on caution, we find the evidence of the eyewitness to be reliable, trustworthy and confidence inspiring and we believe the same especially
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with regard to the correct identification of the appellants as the persons who drove the motor bike and shot and murdered the deceased respectively and can convict on the evidence of this sole eye witness alone although it would be of assistance by way of caution if there is some corroborative/ supportive evidence. In this respect reliance is placed of 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 Muhammed Ismail (supra). That what is of significance is the quality of the evidence and not its quantity and in this car we find the evidence of this sole eye-witness to be of good quality and believe the same especially in terms of the correct identification of the appellants who drove the motor cycle and fired on and murdered the deceased respectively. Thus, based on our believing the evidence of the PW eyewitness especially in terms of him correctly identifying the appellants as the persons who murdered the deceased what other substantive/supportive/corroborative material is there against the appellants? 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 both the appellants gave confessions before a judicial magistrate albeit later retracted that they took part in the murder of the deceased. We set out the confessions of both the accused below for ease of reference; CONFESSIONAL STATEMENT OF ACCUSED MUHAMMAD ISHAQUE UNDER SECTION. 164 Cr.P.C. My name is Muhammad Ishaq alias Bobi alias Hussain alias Abdul jabbar son of Muhammad Ibraim. I reside in Lalokhet No.2, Dakkhana Sabzi Market near Nayab Masjid. In January 2015 I and Kamran alias Kami, armed with weapon, left by a motorcycle and when we arrived at Orangi Town No.8 1/2, so a JDC ambulance was parked there. I opened fire at the ambulance and having killed its driver, we escaped away from there and came back to our house. Subsequently, in February 2015 I and Kamran alias Kami, armed with weapon, left from home and arrived at Ghosia Chowk so two Ehl-e-Tashi persons having offered their prayers, were coming back. I targeted both of them and then both of us escaped from there. Subsequently in November 2015, I and Asim left by a motorcycle from Lalokhet Dakkhana and when we arrived at Orangi Town so there we met with Arshad Rickshaw Wala, who had three 9 mm pistols. Then all three of us reached Ittehad Town from there. Arshad had recce of an FIA constable whose name I do not remember. When that person did not arrive there so we parked the rickshaw on the way and all three of us stood near the motorcycle. In the meanwhile, a Rangers mobile pulled over near Abu Huraira Mosque. That was the time of Friday prayers. At first, we held a meeting and then having reached near them all of us opened fire at once. They were about four personnel. At first, we murdered them then I picked up the SMG of one of the personnel and having chambered it, fired with it and then we took the SMG with us and threw the SMG at a plot at some distance and then we escaped from there. After travelling some distance, we dropped off the rickshaw wala whose name was Samiullah alias Arshad and handed over the weapons back to the rickshaw wala and I and Asim came back to Liaqutabad. Then I and Asim committed the next crime in December, 2015. I and Asim, armed with 9mm pistol, left Lalokhet by our motorcycle and when we reached Parking Plaza so there, we saw a military police jeep then we started its chasing it. We arrived at Gul Plaza near Tibet Centre so Asim took the motorcycle near them after that I opened fire at those police constables and then we escaped away from there and came back to our house by passing from different ways. After that we carried out our next crime against a lawyer, whose name was Ameer Haider Shah. I carried out his recce from Tariq Road. This incident is of December 2015. When that lawyer arrived near Civic Centre so 1 was riding the motorcycle and when we arrived near him so Asim fired upon him and then we escaped away from there. Then we committed crime against policemen in 2016. I and Asim took arms from Liaqutabad to Bangla Bazar, Orangi Town. A police
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mobile was parked there in which four constables were sitting out of which one of the constables got off and went to bring food so 1 parked the motorcycle near their mobile and both of us, having got off the motorcycle, went near the mobile. Asim fired upon the constable who had gone to bring food whereas I targeted the three constables boarded in the mobile out which one was sitting at the back while two were sitting on the front side and I fired at them and then 1 lifted their SMG and escaped towards (word ambiguous) got. We had gone a few paces ahead that we saw three more policemen who were probably on polio duty. I fired at those three policemen with the same SMG I had lifted but after firing two shots, the SMG stopped working after which Asim fired at them with 9mm pistol and then we escaped away from there. After that we carried out our next crime in the month of Ramazan in 2016. I and Asim, took 9mm pistol from Lalokhet Godam. and arrived near Amjad Sabri's house and kept waiting for Amjad Sabri. As soon as Amjad Sabri came out of his house we arrived before him at Lalokhet No.10 and starred wailing for Amjad Sabri on the way which leads towards Civic Centre. As soon as Amjad Sabri's vehicle arrived so I fired twice or thrice at Amjad Sabri from my right side and after that Amjad Sabri's vehicle stopped so I fired four or five minutes from the front side and then we easily escaped from there. Then committed next crime in 2016 whose month I do not remember. and Asim left with weapons and arrived at Saddar Parking Plaza. As soon as we arrived there so we saw a green color army vehicle. We parked our motorcycle next to it and I, having got off the motorcycle, fired at least 8-10 times at them and escaped away from there. Then we committed a crime at Ayesha Manzil where I and Asim targeted two traffic policemen. When I and Asim passing through various areas arrived at Ayesha Manzil so two traffic policemen were standing there at whom I opened fire and murdered them. After that I lifted their MP-5 and having escaped from there arrived in Lalokhet. Such is my statement which I have got recorded out of my own free will. I am not under any kind of pressure or influence. (bold added) Sd/-05.12.2016 Civil Family Judge and JM Court No.X, Karachi (West)" CONFESSIONAL STATEMENT OF ACCUSED MUHAMMAD ASIM UNDER SECTION.164 Cr.P.C. My name is Muhammad Asim alias Capri alias Ahmed son of Abdul Rehman (late). I am resident of Karachi. 'In November 2015 on a Friday I and Ishaq left Liaquatabad and we met with a rickshaw wala inside Orangi Town from where way to Ittehad Town begins. I and Ishaq were boarded on a motorcycle. Then we left with the rickshaw wain from there because the weapons were inside the rickshaw, it kept travelling with us. Then we arrived at Abu Hurraira Masjid. The rickshaw wala parked his rickshaw at some distance from the masjid and took our weapon from it which, was inside a shopper and then he boarded our motorcycle with us. When we arrived there so the person was not there for whom he had taken us there after that he told us that Rangers personnel are deputed here, let us target them. We saw that the Rangers personnel were performing their duties near the mosque. As soon as the prayers ended, the place got a bit crowded after which we drew our pistols from the shopper and kept under our clothes and went near the Rangers personnel and then we, having conducted a meeting, encircled those personnel and then opened fire at them all at once due to which they did not even get the chance to react. After that Ishaq lifted the SMG of a Ranger personnel and in order to spread panic and fear, carried out firing from the SMG as well. Then we immediately ran away from there and having started our motorcycle crossed a ground at some distance and hid the SMG under the ground in a street and then we went to the place where the rickshaw was parked and dropped that boy near the rickshaw. Then we again started going back towards Orangi Town and again reached the same place where we had met with the rickshaw wala. We than handed over the weapons to the rickshaw wala. Then the rickshaw wala went to his home and I and Ishaq came back to our houses in Liaquatabad.
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Then after some days I and Ishaq again left by the motorcycle. I think it was December. We came towards Saddar Parking Plaza, where we saw that a jeep of military police was going, we chased it and when it pulled over in front of Gul Plaza before Tibbet Centre in Saddar, there were two personnel boarded in it. One of the personnel got of the vehicle and went to the market. When we were at some distance the personnel also came back and sat down on the backseat. I took the motorcycle near the jeep so Ishaq fired 5-6 times at them and we, having left from there, came back to Liaquatabad through Tibbet Centre. Then in April 2016 I and Ishaq armed with 9mm pistols, left and arrived at Banala Bazar, Orangi Town and we came on the road so a police mobile was parked there and there were three policemen inside it and one of the personnel was purchasing something from outside. They were about four policemen. We went near them and parked the motorcycle after that Ishaq fired at the personnel sitting at the back of the mobile and I fired at the personnel outside the mobile and then I and Ishaq moved towards the front side so that we may fire at the policemen sitting on the front side then we fired at both of them and Ishaq lifted the SMG of a policeman and fired for causing fear among the public. Then we left from there where three policemen who were probably on polio duty. We, having pulled over, fired at all three of them due to which they got injured and fell down and then we left from there as well. We used to carry out such crimes, In May/2016 land Ishaq went for patrolling by the motorcycle and we also took 9 mm pistols with us and when we arrived at Ayesha Manzil so we saw that two traffic police personnel were standing. I took the motorcycle near them so Ishaq fired at them…
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