IN THE HIGH COURT OF SINDH, BENCH AT
SUKKUR
Criminal Appeal No. D – 78 of 2012
Criminal Appeal No. D – 79 of 2012
Criminal Appeal No. D – 80 of 2012
Criminal Jail Appeal No. D – 81 of 2012
Criminal Appeal No. D – 83 of 2012
Criminal Appeal No. D – 84 of 2012
Criminal Appeal No. D – 85 of 2012
Confirmation Case No. D- 11 of 2012
Present;
Mr. Justice Muhammad Iqbal Mahar
Mr. Justice Irshad Ali Shah
Appellants : Raja alias Wahid Bux, Ayaz Ali, Habibullah, Mir
Muhammad
and Ayaz Ali, through M/s A.R
Faruq Pirzada and Mehfooz Ahmed
Awan, Advocates
Mr. Shabbir Ali Bozdar Advocate for the
legal heirs of the deceased
Respondent : The
State, through Mr. Zulfiqar Ali Jatoi,
Additional
Prosecutor General
Date
of hearing : 16.04.2019
Date
of decision: 16.04.2019
JUDGMENT
IRSHAD ALI SHAH, J:- The appellants by way of captioned Criminal
Appeals have impugned judgment dated 24.10.2012 passed by learned Judge,
Anti-Terrorism Court Khairpur, whereby they have been convicted and sentenced
as under;
“I have come to
the conclusion that the accused Raja alias Wahid Bux Kalhoro, Habibullah
Bhutto, Ayaz Ali Lohar and Mir Muhammad Shaikh are guilty for having committed
the murder of above said two deceased police officials and convict them for an
offence punishable U/s 302(b) PPC thus I award them death penalty for two times
on each count. They shall be hanged by their neck till they are dead, subject
to confirmation of death sentence by the Honourable High Court of Sindh Bench
at Sukkur. Accused are also ordered to pay compensation of Rs.100,000/- each to
the legal heirs of each deceased person and in case of default in payment of
said compensation amount accused shall suffer further SI for six months more. I
further convict the above said accused Raja alias Wahid Bux Kalhoro, Habibullah
Bhutto, Ayaz Ali Lohar and Mir Muhammad Shaikh for an offence punishable u/s
324 r/w Section 149 PPC and sentence them to suffer RI for seven years and also
to pay fine of Rs.10,000/- to each. In case of default
in payment of fine they shall suffer further SI for two months more. I also
convict all the accused Raja alias Wahid Bux Kalhoro, Habibullah Bhutto, Ayaz
Ali Lohar and Mir Muhammad Shaikh for an offence punishable u/s 7(a) of ATA,
1997 and award them death penalty for
two times on each count. They shall be hanged by their neck till they are dead,
subject to confirmation of death sentence by the Honourable High Court of
Sindh, Bench at Sukkur. Accused are further ordered to pay fine of Rs.100,000/- each and in case of default thereof they shall suffer
further RI for two years more. I further convict accused Raja alias Wahid Bux
Kalhoro, Habibullah Bhutto and Ayaz Ali Lohar for an offence punishable under
section 13(d) Arms Ordinance and sentence them to suffer RI for 5 years and
also to pay fine of Rs.20,000/- each and in case of
default in payment of fine they shall suffer further RI for one year more.”
2. It is alleged
that the appellants with rest of the culprits after having formed an unlawful
assembly and in prosecution of their common object robbed a passenger bus at
Jhooly Lal Bus Stop and on noticing the arrival of police party of police
station ‘B’ Section and Police Station Baberloi fired at them with intention to
commit their murder, as a result of such firing SIP Muhammad Eidan Bhutto and
DPC Manzoor Hussain, police party of Police Station Baberloi after sustaining
fire shot injuries died, for that a case was registered against them at the
instance of SIP Tufail Ahmed Bhutto of Police Station ‘B’ Section Khairpur.
Subsequently, appellants Raja alias Wahid Bux, Habibullah and Ayaz Ali were
apprehended by police party of Police Station ‘B’ Section Khairpur led by SIP
Tufail Ahmed after an encounter when they were found to have assembled for
committing robbery at National Highway adjacent to Magsi village and on arrest
from them were secured the crime weapons for such offence they were booked
separately. On investigation, they were challaned and then appellant Mir
Muhammad joined them in trial. They did not plead guilty to the charge and
prosecution to prove its case examined PW-1 Medical Officer Dr. Khoob Chand
(Ex.09), he produced postmortem reports,
X‑Rays of deceased; PW-2 complainant SIP Tufail Ahmed (Ex.10), he
produced memo of recovery of Car etc, FIR No.135/2010, roznamcha entries, memo
of arrest of accused and recoveries, FIRs No.141/2010, 142/2010, 143/2010,
144/2010 and two photographs of the Cultus Car; PW-3 ASI Talib Hussain (Ex.11), he produced memo of
inspection of dead bodies and inquest reports of deceased; PW-4 PC Shahbazdino
(Ex.12), he produced receipt in respect of handing over the dead body of
deceased to legal heirs; PW-5 HC Hadi Bux (Ex.13), he produced memo of
identification parade of accused; PW-6 SIP/SIO Muhammad Faheem (Ex.14), he
produced memo of place of incident, recovery of clothes of deceased, letter of
SP Investigation in respect of sending of the blood-stained earth of deceased
to Chemical Examiner and memo of imaginary arrest of accused Mir Muhammad
Shaikh; PW-7 SIP/SIO Zulfiqar Ali (Ex.15), he produced letter in respect of
constituting JIT, receipt of Chemical Examiner, Chemical Analyers Report, copy
of letter regarding preparation of sketch of vardhat, copy of letter for
sending crime weapons to Ballistic Expert, copy of notice u/s 160 Cr.P.C, copy
of letter to Civil Judge/Judicial Magistrate in respect of appearance of PWs
for identification and the report of Ballistic Expert Karachi; PW-8 Mr.
Azizullah Khoso, Civil Judge and Judicial Magistrate (Ex.16), he produced copy
of letter of PWs for identification; PW9 SIP/SIO Maqsood Raza (Ex.17), he
produced roznamcha entry; PW-10 Sadaruddin Bhutto (Ex.18) and then closed
the side.
3. The appellants during course
of their examination u/s 342 Cr.P.C denied the prosecution’s allegation by
pleading innocence they examined DWs Abdul Raheem, Ghulam Muhammad and Rafique
Ahmed in their defence, they also produced certain documents to prove their
innocence, but did not examine them on oath. It was specifically stated by
appellant Mir Muhammad that he was apprehended by the police much before actual
involvement in the present case and he was involved in this case by police when
his wife Mst. Moomal filed a Habeas Corpus Petition at High Court of Sindh,
Bench at Sukkur.
4. The defence witnesses so
produced by the appellants have, inter-alia, stated that the appellants being
innocent have been involved in this case falsely by the police.
5. On the evaluation of the
evidence, so produced by the prosecution, the learned Court convicted and
sentenced the appellants and then made a Reference to this Court for
confirmation of death sentence awarded to the appellants in terms of Section
374 Cr.P.C. The Criminal Appeals so
filed by the appellants and the Reference so made by learned trial Court are
now being disposed of by this Court through single judgment.
6. It is contended by learned
counsel for the appellants that the appellants being innocent have been
involved in this case falsely by the police, their names are not taking place
in FIR relating to death of police officials, there is no independent witness
to the police encounter, the recoveries have been foisted upon the appellants,
the identification parade of the appellants Raja alias Wahid Bux, Habibullah
and Ayaz Ali is defective one. By contending so, he sought for acquittal of the
appellants. In support of their contentions, they have
relied upon case
of Mehmood Ahmed and 03 others vs. The State (1995 SCMR 127) and
State/Government of Sindh through Advocate-General Sindh Karachi vs. Sobharo
(1993 SCMR 585).
7. Learned DPG for the State was
fair enough to state that he would be having no objection, if the conviction
and sentence recorded against appellant Mir Muhammad is set-aside. By stating
so, he sought for dismissal of the appeals filed by appellants Raja alias Wahid
Bux, Habibullah and Ayaz Ali by contending that they have actively participated
in the commission of the incident and have been identified by the witnesses
properly during course of identification parade.
8. Learned counsel for the
legal-heirs of the deceased was fair enough to say that the parties have
compounded the offence outside of the Court. By stating so, he left the matter
over the Court to decide.
9. We have considered the above
arguments and perused the record.
10. It was stated by complainant SIP
Tufail Ahmed, PWs ASI Talib Hussain and HC Hadi Bux that on 16.07.2010 they
with rest of the police personnel when were posted at P.S ‘B’ Section Khairpur
were conducting patrolling when reached at ‘Jhooly Lal’ Bus Stop, there they
were intimated by Driver of the Car that the passengers in the Bus are being
robbed near to the bridge of ‘Waris Ghambeer’. Who that the driver of the Car
was? It is not made known by any of them, which appears to be significant. Be
that as it may, it was further stated by them that when
they reached at the pointed place, there they found six
culprits duly armed with Kalashnikovs and pistols with
a white colour Car bearing Registration No.AGC-945, it was found to have been parked
behind the Bus. Such incident of the robbery was not reported by any individual
allegedly robbed, which appears to be strange. In the meanwhile there came
police party of Police Station Baberloi consisting of SIP Muhammad Eidan, DPC
Manzoor Hussain and other police officials. The culprits with no loss of time fired
at the police personnel with intention to commit their murder. The police
personnel also fired at the culprits in self-defence. Such encounter continued
for about five minutes and then the culprits drove away in their Car. SIP
Muhammad Eidan and DPC Manzoor Hussain were found sustaining fire shot
injuries, they were referred to hospital through ASI Allauddin and the culprits
were followed, they made their escape good leaving behind their Car which was
secured. It was intimated to them by ASI Allauddin that SIP Muhammad Eidan and
DPC Manzoor Hussain have died on their way to the Hospital. Medical Officer Dr.
Khoob Chand on such point came with a different version as according to him the
death of the SIP Muhammad Eidan and DPC Manzoor Hussain was instantaneous. Such
inconsistency could not be overlooked. Be
that as it may, the FIR of the above said incident was lodged against the unknown
culprits without disclosing their descriptions even. Subsequent to such
incident appellants Raja alias Wahid Bux, Habibullah and Ayaz Ali as per the
complainant were apprehended by him after an encounter when they with rest of
the culprits were found to have assembled at National Highway adjacent to Magsi
village with intention to commit some offence. ASI Talib Hussain is silent with
regard to such an encounter, which appears to be strange, same even otherwise
proved to be ineffective one. No doubt, it is said that a police mobile
sustained damage during such encounter but it was not produced at trial. Its
non‑production at trial could not be ignored. After arrest as per SIO/SIP
Zulfiqar Ali, the said appellants on 31.7.2010 were produced before Mr.
Azizullah Khoso (Civil Judge and Judicial Magistrate) for their identification
through HC Hadi Bux and PC Allah Rakhio, who then adjourned the identification
proceedings and then conducted the same on 02.08.2010. By that act a chance was
provided to the HC Hadi Bux and PC Allah Rakhio to see the said appellants even
before their actual identification parade. Even otherwise, as per SIO/SIP
Zulfiqar Ali the P.Ws were called by him at Police Station ‘B’ Section for
recording their 161 Cr.P.C statements and at that time the appellants were also
detained there. The impression which could be gathered from such narration
would be that the PWs HC Hadi Bux and PC Allah Rakhio were provided a chance to
see the said appellants before their actual identification parade. As per Mr.
Azizullah Khoso, (Civil Judge and Judicial Magistrate) he arranged for the
dummies. He in that respect was contradicted by SIO/SIP Zulfiqar Ali by stating
that the dummies were arranged by him. No list of the dummies is made
available. No dummy was changed after change of the appellants during course of
identification parade. No specific role was attributed to any of the appellants
by any of the witness during course of their identification parade. PC Allah
Rakhio was not examined by the prosecution for no obvious reason. In such
situation, it would be very hard to rely upon sole evidence of HC Hadi Bux, who
allegedly identified the culprits during course of incident and subsequently
during course of identification parade to draw adverse inference against the
appellants. PW HC Hadi Bux even otherwise during course of his
cross-examination was fair enough to admit that his 161 Cr.P.C statement was
recorded on 02.08.2010. If it was so then it was with delay of seventeen days
to the first incident. No explanation to such late recording of 161 Cr.P.C
statement of PW HC Hadi Bux has been offered by the prosecution. In that
situation legally no much reliance could be placed upon evidence of PW HC Hadi
Bux. In these circumstances, it would be hard to uphold the conviction and
sentence which is recorded against the appellants by learned trial Court only
on the basis of recovery of alleged crime weapons, which too has not been
affected in presence of any independent person.
11. The
discussion involved a conclusion that the prosecution has not been able to
prove its case against the appellants beyond shadow of doubt. What to talk of
confirmation of their death sentence.
12. In case of Tarique Pervez vs. The State (1995 SCMR 1345), it has been held by Hon’ble
Apex Court that;
“For giving benefit of doubt to an accused it
is not necessary that there should be many circumstances creating doubt- if a
simple circumstance creates reasonable doubt in a prudent mind about the guilt
of the accused, then he will be entitled to such benefit not as a matter of
grace and concession but as a matter of right.”
13. For what has been discussed
above, the appellants are acquitted of the offence for which they were charged,
tried and convicted by learned trial Court; they are in custody they shall be
released from custody forthwith in the presence case.
14. The captioned Criminal Appeals
and death Reference are disposed of in above terms.
Judge
Judge