KARACHI: The Sindh High Court on Friday set aside the life imprisonment of a man in transgender murder case as the prosecution failed to prove charges.
Aqil Bashir was sentenced to life imprisonment by an additional district and sessions court of District East for murdering a transgender person, Shabbir alias Shabana, in the PECHS area.According to the prosecution, the appellant had allegedly married Shabbir alias Shabana and the two had been living in a rented flat in the Tariq Road area for a couple of years before Bashir alleged stabbed Shabbir to death on April 13, 2019.
The appellant’s counsel submitted that his client was falsely implicated in the case at the behest of his father-in-law, who had good terms with an official of a law enforcement agency.He said the appellant was already married to a woman, Sobia, with whom he had five children; however, his father-in-law was not happy with his freewill marriage. He submitted that the prosecution failed to prove its charges against the appellant with regard to his marriage with and murder of Shabbir.
The additional prosecutor general supported the trial court’s judgment and requested the court to dismiss the appeal.A single bench, headed by Justice Omar Sial, after hearing of the case, observed that the case was different in manner that as per the prosecution case, the appellant had allegedly married Shabbir alias Shabana, whereas simultaneously it seemed that the appellant had been married to a woman, Sobia, and had five children with her.
The court observed that prosecution relied upon the evidence of last scene evidence and the recovery of the murder weapon. It said the evidence of prosecution witnesses Iftikhar Hussain and Aftab Ali, who both claimed they had seen the appellant leaving the flat where the body was found, was not reliable as they had not seen the appellant at the flat for the last two years.
The court further observed that none of the other residents of the building or the neighborhood gave statements that would support prosecution witness Iftikhar’s assertion.It said it is also strange that nobody from the entire locality, which was a densely populated area with a range of jewellery shops on the ground level, recorded a statement.
The court observed that the statement of witness Iftikhar could not be reliable as he had only heard a voice from inside the flat when he had knocked on the door, and according to him that was the voice of Aqil. It asked how he could be so sure of whose voice he had heard when he had not even seen the appellant for a period of two years, and even before that there was nothing to show that he was even acquainted with Aqil.
The court observed that the witness also admitted that a number of people used to visit Shabana and quarrelling sounds emanating from the flat were a common occurrence.It further said the witness’s assertion at the trial that Shabana and Aqil lived in the flat as husband and wife also became doubtful when the owner of the flat testified at the trial that he had rented out the apartment to one Waqar Kiyani, but Kiyani had then let out two rooms in the flat to Shabana.
The court observed that the owner of the flat did not even mention the name of Aqil, or that he was the husband of Shabana and also lived in the flat. It said the actual tenant, Kiyani, disappeared soon after the incident, raising suspicion of his involvement in the case; besides, the police did not think it relevant to probe him.
The high court observed that witness Iftikhar testified that he knew about the very day that Shabana had been murdered and also claimed that he was the first person who had seen the dead body and called the police to the scene and was present there when they came, yet he did not record his statement under Section 161 of the CrPC until three days later.
It said it seems that he remained silent and did not even tell the police what he had witnessed as the FIR that was lodged subsequently had no mention of the entire story he had narrated at the trial.
The court observed that statement of another witness, Aftab Ali, could not be relied upon as he did not tell the police what he saw till 15 days after the incident when he recorded his Section 161 statement. The recovery of the alleged murder weapon, it said, was also shrouded in mystery and appeared to have been foisted upon the appellant.
The court observed that the call data record collected by the investigator did not reveal any contact between Aqil and his presumed “wife” Shabana and there was ample evidence on record to show that Shabana was actually a male and was named Shabbir.
The court further said the prosecution had completely failed to prove its case beyond any reasonable doubt. It set aside the trial court order and ordered releasing the appellant if not required in other cases.
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