Shaquib Ali @ Danger vs Central Bureau Of Investigation
2022 Latest Caselaw 9879 MP

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  THE HIGH COURT OF MADHYA PRADESH BENCH AT INDORE

  (D.B.: HON'BLE Mr. JUSTICE VIVEK RUSIA AND HON'BLE Mr.
           JUSTICE AMAR NATH (KESHARWANI) JJ.)

                         CRA No. 567 of 2017
                    SHAQUIB ALI @ DANGER AND OTHERS
                                   Vs
                    CENTRAL BUREAU OF INVESTIGATION

Dated : 19-07-2022
      Ms. Sharmila Sharma, learned counsel for the appellant No.1-
Shaquib Ali @ Danger.
      Ms. Sudha Shrivastava, learned counsel for the appellant No.2-
Tabish Khan.
      Shri Vikram Dubey appearing on behalf of Deepak Kumar Rawal,
learned counsel for the respondent/Central Bureau of Investigation.

Heard on I.A. No.8384/2022, which is the 7th application under Section 389 of Cr.P.C. filed on behalf of appellant No.1-Shaquib Ali @ Danger as well as I.A. No.6073/2020, which is the 1st application under Section 389 of Cr.P.C. filed on behalf of appellant No.2-Tabish Khan.

The appellants and other accused persons namely- Zahida Parvez and Saba Farooqui have been convicted vide judgment dated 28.01.2017 in Session Trial No.835/2012 passed by learned Special Judge CBI and IV Additional Session Judge, Indore under Section 302/120B of IPC and present appellants are also convicted under Arms Act and sentenced as below:-

          Conviction                       Sentence
    Section & Act         Imprisonment Fine deposited Imprisonment
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                                             details       in lieu of Fine
    Sec.302 r/w 120 B IPC   Life               Rs.1000/-     6 months
                            Imprisonment
    Sec.25(1-B)A Arms Act 2 years RI           Rs.1000/-      6 months
    Sec.27 Arms Act         2 years RI         Rs.1000/-     6 months

As per the prosecution story, co-accused Zahida Parvez and Saba Farooqui together hatched the conspiracy to murder the deceased (Shahla Mahsood) and to execute their plan, they hired the co-accused Shaquib Ali @ Danger (appellant No.1) on contract of giving him Rs.3,00,000/- in return, who further involved the appellant No.2-Tabish and Irfan (PW-46). On 16.08.2011 at around 11.20 a.m. when the deceased (Shahla Mahsood) was leaving her house in her car, appellant No.2-Tabish came in one bike along with Irfan, opened the door of her car, shot her and fled away from the spot, while another co-accused Shaquib was present on the spot at the distance.

An F.I.R. was registered on the same day at police station- Kohefiza at Crime No.533/2011 and after one month of police investigation, the matter was transferred to C.B.I. During investigation, the appellants and co-accused persons were arrested and upon completion of the investigation, the charge-sheet was filed. The trial court framed the charges against appellants for the offence mentioned above and after discussing and appreciating the entire prosecution evidence at length, the learned trial court held the present appellants guilty of the said offences and directed to undergo for rigorous imprisonment as mentioned herein above. Being aggrieved by the said judgment of conviction and sentence, the appellants have filed this criminal appeal before this Court.

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Learned counsel for the appellant No.2- Tabish Khan, submits that the case is based on circumstantial evidence and must be proved beyond the reasonable doubt but, prosecution has failed to prove it beyond reasonable doubt and as per the prosecution case, the alleged incident took place at around 11.20 a.m. in the broad day light in busy residential area but no eye witnesses has been enquired nor examined. Mere seizure of gun and three live cartridges wrongly compelled the attention of the prosecution in involvement of the appellant- Tabish because no test of finger print, if any, taken place by the prosecution in order to conclude that the weapon was used by the appellant Tabish Khan in committing the offence. The learned trial court erred in placing reliance on the call details between mobile No.8765188417 and 8081044408 so as to link the appellant's presence with the crime scene which is a very weak kind of evidence because of the fact that aforesaid numbers relating SIM and mobile phones were not seized by the prosecution from the appellant. The appellant was wrongly convicted and sentenced for the offence and conviction is bad in law. Appellant has no previous criminal history and is not a habitual offender and was not involved in the murder of the deceased.

Learned counsel for the appellant further submitted that the jail sentence of co-accused Saba Farooqui and Zahida Parvez has been suspended by this Court vide order dated 27.06.2017 in CRA. No.487/2017 and CRA No.574/2017 and further submitted that the appellant is in jail since date of the arrest and thereby he was in custody for about 10 years and this appeal is of the year 2017 and there is no possibility of an early hearing of this appeal in near future, hence, prays

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for suspension of sentence and grant of bail.

Ms. Sudha Shrivastava, learned counsel appearing for the appellant No.2- Tabish Khan placed reliance on the following judgments:-

(i) Smt. Jaya Talakshi Chheda Vs. The State of Maharastra (Criminal Application No.774/2014 in Criminal Appeal No.1012/2013), dated 30.08.2018, Bombay High Court.

(ii) Sarwan Singh Vs. The State of Punjab, 1957 AIR 637

(ii) Pradip Sarkar Vs. State of Tripura (2011) 1 Gauhati Law Reports 539

(iv) Vijay Thakur Vs. State of Himachal Pradesh (Criminal Appeal No.632/2011 judgment dated 19.09.2014.

(v) Ramesh Durgappa Hirekerur Vs. The State of Maharastra (Criminal Appeal No.1324/2013 and connected appeals) judgment dated 27.09.2017.

(vi) Gulmuni Ram and another Vs. State of Bihar (Cr.A.

No.196/1994) judgment dated 11.11.2017.

(vii) State of Himachal Pradesh Vs. Mahinder Kumar and others (Criminal Appeal No.335/2014) judgment dated 11.12.2017.

(viii) Order dated 06.07.2018 passed by M.P. High Court at Jabalpur Bench in M.Cr.C. No.22340/2018.

(ix) Karambi Singh and another Vs. State of Haryana (CRA-S No.2460-SB of 2008 (O&M) judgment dated 18.12.2013.

Learned counsel for the appellant Shaquib Ali also submits the arguments as mentioned above and submits that though the suspension application of appellant was earlier dismissed on merit by this Court by

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order dated 16.02.2018 but the jail sentence of other co-accused persons are suspended and looking at the period of custody, prays for suspension of remaining jail sentence.

Learned Govt. Advocate for the respondent/State opposes the prayer for suspension of sentence and prays that the trial court has passed the judgment after proper appreciation of evidence came on record and has rightly held these appellants guilty, therefore, they are not entitled for suspension of jail sentence.

Heard the learned counsel for the parties at length and perused the record and citations placed by the counsel.

Most of the citations are related to judgment on merits and order under Section 439 of Cr.P.C. and are distinguishable from the facts and circumstances of the present case. The application under Section 389 of Cr.P.C. moved through I.A. No.7700/2017 on behalf of Shaquib was previously dismissed by this Court by order dated 16.02.2018 after considering all the points.

Concluding part of the order dated 16.02.2018 is reproduced as below:-

"As per the prosecution, conspiracy to commit murder of Shehla Masood was hatched by Jahida Perves. Allegedly, she engaged appellant Shaquib Ali @ Danger as a contract killer. As per prosecution, Shaquib Ali @ Danger further engaged two person namely, Tabish Khan and Irfan Ali (PW No.46). Tabish Khan is said to have committed murder of Shehla Masood by gunshot injury at the instance of Shaquib Ali @ Danger. In this regard, Irfan Ali (PW No.46), who was granted pardon, has deposed with regard to complicity of the appellant. Here, it is apt to mention that expression of any final opinion at this stage with

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regard to the merits of the case is not desirable because it may prejudice the case of either party. Suffice to say, in the considered opinion of this Court, it is not a fit case for suspension of sentence. Accordingly, I.A. No.7700/2017 is hereby rejected."

The jail sentence of co-accused Saba Farooqui and Zahida Parvez was suspended by this Court vide order dated 27.06.2017 in CRA. No.487/2017 and CRA No.574/2017, and after passing of the above order subsequently on 16.02.2018 the suspension application i.e. I.A. No.7700/2017 filed on behalf of appellant -Shaquib Ali was dismissed. There is no change in circumstances, therefore, we are not inclined to reconsider the application for suspension of sentence on merit.

The case of Tabish Khan is not on a better footing than that of the appellant Shaquib Ali. Therefore, we are not inclined to allow I.A. No.8384/2022 for suspension of sentence of Tabish Khan and hence, both the applications i.e. I.A. No.8384/2022 and I.A. No.6073/2020 are hereby rejected.

Certified copy as per rules.

                               (VIVEK RUSIA )                       (AMAR NATH (KESHARWANI))
                                  JUDGE                                       JUDGE
                  N.R.


Digitally signed by NARENDRA
KUMAR RAIPURIA
Date: 2022.07.21 14:13:15
+05'30'