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Petitioner: Muhammad Rashid and another VS Respondent: The State
Court Name: Sindh High Court Judge(s): Muhammad Karim Khan Agha, Khadim Hussain Tunio Title: Muhammad Rashid and another vs The State Case No.:Special Criminal Anti-Terrorism Appeals Nos. 249 and 250 and
JUDGMENT
Reported As: 2022 YLR 119 Result: Appeals dismissed Judgment JUDGMENT MOHAMMAD KARIM KHAN AGHA, J.---Appellants Muhammad Rashid alias Master and Zahid Abbas alias Zaidi were tried by learned Judge, Anti-T errori sm Court No. XVII, Karachi in Special Cases Nos.325 and 326 of 2015 arising out of Crime No.198/2013 under sections 302/324/109/34, P.P.C. read with section 7 of ATA, 1997 at Police Station Gizri, Karachi and in respect of appellant Zahid Abbas Crime No.555 of 2014 under section 23(i)(A) of Sindh Arms Act at Police Station Boat Basin, Karachi. After trial vide judgment dated 31.08.2018 (the impugned judgment), the appellants were convicted and sentenced as under:-- 1) Under section 302(B)/34. P.P.C. each and sentenced to death as (Tazir) with directions to pay Rs.2,00,000/- each to the legal heirs of the deceased by way of compensation under section 544-A, Cr . P. C . and in default of payment thereof further undergo S.I. for six months. Under section 7(1) of Anti-T errorism Act, 1997 each and sentenced to death with fine of Rs.2,00,000/- each and in default of payment thereof, further undergo S.I. for six months. 3) Zahid Abbas alias Zaidi son of Ghulam Abbas for the offence under section 23(1)(a) of Sindh Arms Act, 2013 to, undergo R.I. for seven years and to pay fine of Rs.50,000/- in default of fine to undergo S.I. for six months more. Forfeiture of movable and immovable properties of accused persons was also ordered to the extent of Rs.5,00,000/- each. All the sentences were ordered to run concurrently . The appellants were extended the benefit of section 382(B), Cr.P.C. The case against absconding accused persons was kept on dormant file. 2. The brief facts of the prosecution case as per FIR No.198/2014 are that SHO Sohail Ahmed Khan of Police Station Gizri lodged FIR on behalf of the State on 22.05.2013 at about 1245 hours stating therein that on 18.05.2013, he was on surveillance in the area on an official police mobile-1 Gizri. At about 2215 hours he received
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information via emergency 15 and immediately reached at behind the Jam Sadiq Bungalow at Main Gizri Avenue 09th Street Phase-IV , in the bungalow No.16.J/1 and came. to know that at the main gate inside the car porch two unknown armed persons have fired upon Mst. Zuhra Shahid (the deceased) with fire arm at about 2205 hours and also came to know that she had been taken by her daughter to National Medical Center (NMC) Kala Pull through ambulance. On receiving such information being SHO he gave directions to the duty officer ASI Muhammad Muslim to reach NMC. During that time investigation staff also reached at the scene of the crime. ASI Muslim after reaching the hospital informed him that 70 years old victim namely Mst. Zuhra Shahid has died due to injuries and shifted her dead body to JPMC and after getting permission in writing conducted proceedings under section 174, Cr.P.C. and got postmortem of deceased through WMLO Dr. Nasreen Qamar and received postmortem report No.488/13 and cause of death certificate from WMLO. After process, the dead body was handed over to the family of the deceased who have stated that after her funeral and burial the case shall be lodged but they did not come to lodge the FIR despite being contacted by him several times and they did not turn up to record their statement under section 154, Cr.P.C. When the whole facts and circumstances based on the information collected from the spot it transpires that the deceased reached at the main gate of her above mentioned bungalow at about 2205 hours from Defence Club Phase-II along with her driver in Suzuki Cultus white colour having registration Number AEH-212. The driver after stopping the car opened the gate when the deceased herself got down from the car when she was entering inside from the main gate, in the meantime two youngsters aged about 20/22 years appeared there, who were wearing black Qameez one of whom remained sitting on the motorcycle unknown number while another youngster who was small, grown up, un-shaved with a slight beard hurriedly entered the court yard of the bungalow and towards the deceased Zuhra Shahid, who was in the car porch of the bungalow who intended to hand over her purse to the accused as he appeared to be a robber but the accused threw it with his hand by pushing the purse and fired upon her from his pistol. One bullet hit below the chin and another bullet hit her on right shoulder and she fell down due to injuries. Both the culprits by making aerial firing created terror in the area and ran away on said motor bike. Since none has come forward to lodge the FIR from the family of the deceased therefore, he being S.H.O. of Police Station Gizri lodged the FIR No.198/2014 for the offence under section 302/34, P.P.C. read with section 7, ATA, 1997 on behalf of the State against two unknown persons, whose names and addresses are not known for making firing and committing murder of Ms. Zuhra Shahid and creating terror and panic in the area. 3. On the same day Inspector Ali Ahmed of Investigation Branch reached along with his staff at the place of incident and inspected the place of incident and secured the blood from the spot through cotton swab and so also recovered one iron sikka of pistol from the car port and so also one empty bullet of 30 bore pistol from outside the gate and sealed the same and prepared such memo and so also took the photo graphs of the place of incident. During investigation he has recorded 161, Cr.P.C. statements of the witnesses and so also he got prepared naqsha nazri/ site plan of the incident through Tapedar and so also sent the 30 bore empty to FSL for report and so also sent blood stained swabs and last wearing cloths of the deceased to the chemical examiner . Since the culprits were not traced out therefore, the FIR was disposed of in "A" Class and such report was submitted before ATC-III on 01.07.2013. On the transfer of 10/ Inspector All Ahmed the Investigation was entrusted to SIO/Inspector Rafique Ahmad Awan. On 25.09.2014 during investigation he received information that accused Rashid alias Master son of Abdul Hameed was arrested by Gizri police in FIR No.518/2014 under section 23(i)(A) of Sindh Arms Act, 2013 and accused has made disclosure before the police of his involvement in the murder of Mst. Zuhra Shahid. On such information I.O. Rafique Awan interrogated the accused, who disclosed that he was affiliated with the MQM and on the instructions of their high command they have made a plan along with co-accused Zahid Abbas Zaidi, Junaid Bukhari alias Phora, Tariq Nawab, Asif Ganja, Irfan alias Lamba and Kaleem for killing of Mst. Zuhra Shahid, worker of Pakistan Taherrk-e-Insaaf Party for winning the Election of 2013 and also disclosed that on the day of incident he along with accused Zahid alias Zaidi were on motorcycle went to the bungalow of Mst. Zuhra Shahid and other accused persons backing them on motorcycle in order to face untoward situation and also disclosed that he remained sitting on the motorcycle in front of bungalow whereas co-accused Zahid Abbas alias Zaidi fired upon Mst. Zuhra Shahid and then they ran away from the spot. The accused has also pointed out that the place of incident and then he was arrested in this case under the memo dated 25.09.2014 at about 0745 hours.
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4. On 02.10.2014 police of Boat Basin has arrested accused Zahid Abbas Zaidi in case Crime No.555/2014 under section 23(i)(A) of Sindh Arms Act, 2013 and during interrogation the accused has made disclosure of his involvement in the murder of Mst. Zuhra Shahid and on such disclosure the Boat Basin police informed the I.O. Rafique Ahmed Awan, who has went there and after interrogation arrested the accused under the memo dated 02.10.2014 and on 03.10.2014 accused pointed out the place of incident. Both the accused persons were also produced before the Joint Interrogation Team (JIT) and were found Black. 5. On 13.10.2014 both the accused were produced before Judicial Magistrate Court No.V , South Karachi and during the identification parade the eye-witness Ghulam Rasool identified both the accused persons. 6. The I.O. had also sent the pistol recovered from the accused Zahid alias Zaidi for matching with empty from the spot and after completing the usual investigation he produced the challan before the Court of ATC-III on 24.10.2014. In the challan the accused persons Muhammad Rashid alias Maste r and Zahid Abbas Zaidi were shown as arrested whereas the others co-accused persons were shown as absconders. 7. At trial the prosecution examined 16 prosecution witnesses and exhibited numerous documents in order to prove its case before closing its side. The state ments of the accused Rashid alias Master and Zahid Abbas alias Zaidi were recorded under section 342, Cr.P.C. who claimed false implication in the present cases. They did not give evidence under oath but called two and one DW respectively in support of there defense. After assessing the evidence the learned trial judge vide the impugned judgment convicted and sentenced the accused as set out earlier in this judgment hence these appeals against conviction have been filed by the accused. 8. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment dated 31-08-2018 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition. 9. Learned advocate for appellant Zahid Abbas has contended that there was a unexplained delay of 4 days in filing the FIR which lead to its concoction; that the purported eye-witness was not present at the scene and that he is a put up witness; that there is no evide nce of safe recovery of the Sikka and the empty from the time they were recovered on 18-5-2013 until they were sent to the FSL and there was a long unexplained delay of 18 months in sending the empty and Sikka to the FSL which was deliberately done in order to tie in with the later foisted pistol on accused Zahid Abbas and the same could not be relied upon; that no microscopic photo of the empty was produced at trial which rendered the FSL report unreliable; that the identification parade was not carried out in accordance with the law and there was an unexplained delay of 11 days in holding the same; that the medical report showed that the trajectory of the bullet could not support the eye-witness evidence and that for all the above reasons the appellant Zahid Abbas was entitled to be acquitted based on the benefit of the doubt being extended to him. In support of his contentions he placed reliance on The State of Gujarat v. Adam Fateh Mohmed Umatiya and others (1971 SC 208 (sic)), Faheem All v. The State (2019 MLD 468), Abdul Qayoom and another v. The State (2018 PCr.LJ Note 229), Tahir Mehmood alias Achoo v. The State (2018 SCMR 169), Muhammad Aslam v. Sabir Hussain and others (2009 SCMR 985), Muhammad Nadeem alias Banka v. The State (2011 SCMR 1517 ), Ghulam Akbar and others v. The State (2007 YLR 1506 ), AR Sher and others v. The State (2008 SCMR 707), Umer Khursheed and another v. Syed Tufail Ahmad (2018 SCMR 1051 ), Hayatullah v. The State (2018 SCMR 2092 ), Muhammad Shah v. The State (2010 SCMR 1009 ), Sabir All v. The State (2011 SCMR 629). Wahab All and another v. The State (2010 PCr.LJ 157), Mst. Sughra Begum and another v.. Qaiser Pervez and others (2015 SCMR 1142), Rahat All v. The State (2010 SCMR 584), Muhammad Asif v. The State (2017 SCMR 486), Shoukat All v. The State (PLD 2007 SC 93 ) and Ahmad Nawaz and others v . The State (2016 PCr .LJ 1267). 10. Learned counsel for Muhammad Rashid adopted the arguments of Zahid Abbas and in addition contended that the identification parade was not held in accordance with law and that there was a delay of 19 days in holding the identification parade; that the medical evidence contradicted the eye-witness account and that in such situations the medical evidence took preference over the ocular evidence; that there were major contradictions in the evidence of the PW's and that for all the above reasons the appellant Muhammed Rashid was entitled to be acquitted based on the benefit of the doubt being extended to him. In support of his contentions he placed reliance on Budho v. The State (PLD 1965 (W.P) Karachi 76), Muhammad Asif v. The State (2017 SCMR 486), Jalal v. The
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State PLD 1973 Kar. 693, Syed Saeed Muhammad Shah and another v. The State (1993 SCMR 550), Rahat All v. The State (2010 SCMR 584), Javed Khan alias Bacha and another v. The State (2017 SCMR 524), Tariq Pervez v. The State (1995 SCMR 1345 ), Mian Sohail Ahmed and others v. The State (2019 SCMR 956), Nazir and 2 others v. The State (2018 PCr.LJ Note 14), Ma eed alias Majeedi and others v. The State (2019 SCMR 301), State through Advocate General Sindh v. Farman Hussain and others (PLD 1995 SC 1), Asghar Ali alias Sabah and others v. The State (1992 SCMR 2088 ), Kamal Din alias Kamala v. The State (2018 SCMR 577), Gulfam and another v. The State (2017 SCMR 1189), Syed Zaki Kazmi v. The State (2018 PCr.LJ 976), Tahir Javed v. The State (2009 SCMR 166), Muhammad Shafi alias Kuddoo v. The State (2019 SCMR 1045 ), Muhammad Sharifan Bibi v. Muhammad Yasin and others (2012 SCMR 82), Abdul Jabbar and another v. The State (2019 SCMR 129) and Muhammad Arif v . The State (2019 SCMR 631 ). 11. On the other hand, Mr. Muhammad Iqbal Awan, learned Deputy Prosecutor General and Mr. Mushtaq Ahmed Jehangiri, Special Prosecutor for Rangers have fully supported the impugned judgm ent. They have contended that the presence of the eye-witness at the scene of the incident has been accepted by the accused; that the eye- witness was with the police since the time of the incident and had shown the police the place of the incident; that the delay in registering the FIR had been explained and that there was no delay in recording the section 161 statement of the eye-witness; that the motive of the accused to murder the deceased had been established since the accused were hard core MQM(A) activists who had been sent by their high ups in order to murder the deceased due to the cut throat rivalry between the MQM(A) and the PTI over the election to NA 250; that the medical evidence corroborated the ocular evidence; that the recovered empty matched with the recovered pistol and that there was no undue delay in sending the empty to the FSL; that the identification parade had been carried out in accordance with the law and as such the impugned judgment be upheld, the appeals dismissed and the death penalty handed down to the appellants be maintained. In support, of their contentions, they placed reliance on Muhammad All v. The State (1999 SCMR 1957 ) Sikandar v. The State (2006 SCMR 1786 ), Muhammad Ehsan v. The State (2006 SCMR 1857 ), Muhammad Sohail Naveed v. The State (1992 PCr.LJ 1339), Noor Zaman v. The State (2005 PCr.LJ 2016), Rafaqat All v. The State (2016 SCMR 1766 ), Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others (2005 SCMR 427), Arif Masih and another v. The State (PLD 2001 SC 398), Abdul Rauf v . The State (2003 SCMR 522 ) and Ghazanfar Ali alias Pappu and another v . The State (2012 SCMR 215 ). 12. We have heard the arguments of the learned counsel for the parties, gone through the entire evidence which has, been read out by the appellants, the impugned judgment with their able assis tance and have considered the relevant law including that cited at the bar . 13. It does not appear to be disputed by either party that according to the evidence on record the deceased was murdered on 18-05-2013 at about 2200 hours outside the porch of her house on account of firearm injuries. The issue before us is the identity of the person (s) who murdered the deceased. 14. At the outset we note that there has been a 4 day delay in lodging the FIR. Such delay can be fatal to the prosecution case unless it is adequately explained. In our view the background to the case adequately explains the delay in filing the FIR. Firstly , that as per the, evidence the complainant had asked and was awaiting for the relatives of the deceased who were present with her when she died at hospital to register the FIR however when they failed to do so he registered the FIR on behalf of the State without nominating the appellants in the FIR. Secondly , this was allegedly a politically motivated execution by members of MQM (A) against a rival PTI candidate who was seen as a threat and a hurdle to the MQM (A) winning the disputed NA 250 seat in Karachi. Hira the wife of accused Zahid Abbas even in her cross-examination whilst giving evidence for Zahid Abbas admitted that accused Zahid Abbas was unit incharge of Defense/Clifton of MQM at the time of the murder . Thus it would be unlikely in the background of this case where a highly charged atmosphere had been created between the MQM and PTI over the election of NA 250 that any one would like to voluntarily come forward and register an FIR for murder fearing reprisals and hence it was left to the State to register the FIR which it did after 4 days since it could wait no longer for the relatives to come forward. Thus, under these circumstances we do not find the delay in lodging the FIR fatal to the prosecution case and that the delay has been explain ed on account of the particular facts and circumstances which make up the background to this case.
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15. The FIR is quite specific as to how the deceased was murdered and assigns specific roles to both the accused. Namely , that they both came on a motor bike and whilst one remained on the motor bike the other dismounted and shot the deceased from close range. Admittedly the FIR is based on hearsay evidence which all stems from the evidence of eye-witness PW 15 Ghulam Rasool who was the driver of the deceased but the contents of the FIR have been corroborated through his evidence at trial. Being a driver and the alleged accused being assassins it would not be expected that he could name the accused in the FIR who he had never come across before and as such we do not find the fact that the accused are not named in the FIR as being particularly relevant but rather adding to the credibility of the eye-Witness and strongly pointing to the fact that this was not a cooked up case. If the accused were already in police custody and the police wanted to falsely implicate them in this offence they could simply have named them in the FIR which they did not. 16. With regard to the delay in recordi ng of the eye-witness' section 161 statement based on the facts and circumstances of the case as discussed above we find that there has been no unreasonable delay in recording of eye-witness PW 15 Ghulam Rasool's section 161 statement. This is because the incident took place on 18-05-2013 at B nighttime, the FIR was lodged 4 days later (as explained above) on 22-05-2013 (before which time it is not possible to record any section 161 statements as there was no FIR) and the section 161 statement of the eye- witness PW 15 Ghulam Rasool was recorded on 23-05-2013 which was a day after the FIR was lodged. 17. It appears that both the accused made extrajudicial confessions to the police whilst in police custody in other matters and led the police to the place of the incident. We do not consider these confessions made by the accused to the police to be of any relevance since it is well settled law that such confessions before the police are inadmissible in the eyes of the law. We also do not consider the accused taking the police to the scene of the crime to be of any relevance as the police already knew where the scene of the crime was. With regards to the recoveries of the Sikka and the empty it appears that there was no delay in sending these .to the FSL for there report as they were sent to the FSL on 22-05-13 after 4 days and later married with the pistol recovered from accused Zahid Abbas and as such can be used as corroborative evidence against the accused. The issue of there being no microscopic photo of the empty we find of no relevance as this aspect was not raised at the trial and is not even a part of the paper book or R&P's and it is settled law that we can only decide the appeal based on the evidence on record and not on new evidence which was not adduced at trial. We have also considered the evidence of the PWs and find no material contradictions in the same as would lead to the PWs being disbelieved. In fact a number of PWs have given hearsay evidence with respect to the actual murder of the deceased upon which we have not placed any reliance. 18. In our view the case turns primarily on three key issues along with any corro borative or supporting material. Namely (a) whether we find the evidence of the sole- eye-witness, trustworthy , reliable and confidence inspiring and (b) in particular whether both the accused have been correctly picked out at the identification parade by the eye-witness as being the culprits and (c) whether the identification parade has been carried out in accordance with the law . Turning to the eye-witness. 19. The sole eye-witness is PW 15 Ghul am Rasool who was the driver of the deceased on the fateful night. It is settled law that we can convict on the evidence of a sole eye-witness if we find him to be trustworthy , reliable and confidence inspiring. In this respect reliance is placed on the case of Muhammad Ehsan v. The State (2006 SCMR 1857 ) which was recently affirmed by the Supreme Court in the unreported case of Saleem Zada v. State dated 10-06-2019 in Criminal Petitions Nos.67P and 68P of 2014. Ghulam Rasool is not a chance witness and had been working with the deceased for a number of years and was even living in the servant quarters with his family at the deceased's bungalow . He was regarded as a member of the family and his presence at the scene of the crime was not disputed by the defense at trial durin g cross-examination and indeed his presence at the scene was natural based on the particular facts and circumstances of the case as he was the driver of the deceased and he was bringing the deceased home from dinner at the defense club when the incident took place when they arrived at her house from the club. His evidence was precise and to the point. He had no enmity with the accused, he was not an interested witness or related to the deceased in any way. He had no reason to not tell the truth. His evidence was
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not shaken during cross-examination. We totally reject the defense suggestion that he killed the deceased because he was not given a pay rise. With regard to source of light the evidence shows that this was from the street lights and headlights. He was also very close to the accused when the incident took place so would have had no problem identifying the accused who' he observe d for at least a minute during the incident. He did not try to intervene because he was unarmed and would probably have been killed as well by the accused if he had tried to intervene and as he admitted in his cross-examination he was afraid. The fact that his section 161 statement was not recorded immediately after the incident based on the particular facts and circumstances of this case where the FIR was not filed after a four days' delay coupled to the background of the case as discussed earlier we do not find particularly significant. He was even honest enough in his evidence to admit that he could only identify the two convicted accused and not acquitted accused Irfan. Thus, we find his evidence to be reliable, trust worthy and confidence inspiring and are of the view that we can Convict the accused on his evidence which is also supported/corroborated by the medical evidence to a large extent. 20. According to eye-witness Ghulam Rasool the deceased received 2 bullet wounds; one in the neck and one in the right shoulder whereas as per the post mortem report the deceased only received one bullet wound in the neck. It is settled law that oral evidence will take preference over medical evidence when in conflict. In this case the conflict is that the deceased according to the eye-witness received 2 bullet wounds whereas per post mortem report the deceased only received one bullet wound. 21. However we are of the view that this discrepancy is not in and of itself sufficient to extend the benefit of the doubt to the accused as in such cases ocular evidence provided it is trust worthy , reliable and confidence inspiring shall take precedence over corroborative and support evidence such as medical evidence as in this case if the two are to a certain extent contradictory . In this respect reliance is…
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