JUDGMENT SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No.D-39 of 2019

Date of hearing

Order with signature of Judge

For hearing of main case.

Present:

Mr. Justice Muhammad Junaid Ghaffar

Mr. Justice Irshad Ali Shah

Date of hearing: 29.09.2020

Date of decision: 06.10.2020.

Mr.Habibullah Ghouri, Advocate for the appellant.

Mr. Ali Anwar Kandhro, Addl.P.G for the State.

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IRSHAD ALI SHAH, J.- The appellant by preferring the instant criminal appeal has impugned judgment dated 30.05.2019, rendered by learned Judge, Anti Terrorism Court, Larkana, whereby he (appellant) has been convicted and sentenced as under;

a) Accused Riaz Hussain Chandio is convicted for the offence punishable U/S.302 (b) PPC and sentenced to suffer imprisonment for life. He is also ordered to pay a compensation of Rs.100,000/- only (one lac only) to the heirs of the deceased Abdul Wahab Chandio as compensation U/S.544-A Cr.PC recoverable as land revenue and in default of payment, the recovery of the aforesaid amount, he shall suffer imprisonment for a period of S.I for one year more.

b) Accused Riaz Hussain Chandio is also convicted for an offence punishable U/S.7(a) of Anti Terrorism Act, 1997 and sentenced to suffer imprisonment for life, and ordered to pay fine of Rs.100,000/- only (one lac only) and in case of default in payment of fine, he shall suffer imprisonment for a period of S.I for one year more.

c) Accused Riaz Hussain Chandio is also convicted for an offence punishable U/S.324 PPC and sentenced to suffer R.I for ten years and ordered to pay fine of Rs.20,000/- only (twenty thousands only) and in case of default in payment of fine, he shall suffer imprisonment for a period of S.I for six months more.

d) Accused Riaz Hussain Chandio is also convicted for an offence punishable U/S.7 (b) of Anti Terrorism Act, 1997, and sentenced to suffer R.I for ten years and ordered to pay fine of Rs.20,000/- only (twenty thousands only) and in case of default in payment of fine, he shall suffer imprisonment for a period of S.I for six months more.

e) Accused Riaz Hussain Chandio is also convicted for an offence punishable U/S.353 PPC and sentenced to suffer R.I for two years and ordered to pay fine of Rs.10,000/- only (ten thousands only) and in case of default in payment of fine, he shall suffer imprisonment for a period of S.I for three months more.

f) Accused Riaz Hussain Chandio is also convicted for an offence punishable U/S.24 of Sindh Arms Act, 2013, and sentenced to suffer R.I for five years and ordered to pay fine of Rs.10,000/- only (ten thousands only) and in case of default in payment of fine, he shall suffer imprisonment for a period of S.I for three months more.

2. The facts in brief necessary for disposal of instant criminal appeal are that Abdul Wahab (deceased) for allegedly abducting Mst.Farzana, on arrest was remanded to judicial custody by learned 1^st Civil Judge & J.M, Warrah, when was about to be lodged in barrack of judicial lockup, Warrah, there came the appellant and others, who allegedly made indiscriminate fires, as result whereof not only Abdul Wahab, after sustaining fire shot injuries died at the spot but PWs PC Zahid Ali and PC Muhammad Ayoob, on duty also sustained fire shot injuries. The appellant was apprehended at the spot by the police party on duty and from him was secured the pistol allegedly used by him in commission of the incident, for that he was booked and reported upon by the police.

3. At trial, the appellant did not plead guilty to the charge and the prosecution to prove it, examined PW-01 complainant ASI Muhammad Idrees, he produced memo of arrest of the appellant and recovery of an unlicensed pistol from him, FIR(s) of the case relating to death of Abdul Wahab and sustaining of fire shot injuries by PWs PC Zahid Ali and PC Muhammad Ayoob, recovery of an unlicensed pistol from appellant, abduction of Mst.Farzana and remand orders, PW-02 PC Muhammad Ayoob, PW-03 PC/Corpse bearer Abdul Majeed, PW-04 SIO/Inspector Abdul Ghafoor, he produced memo of place of incident, examination of dead body of the deceased, recovery of blood stained earth and bullet from place of incident, memos of injuries sustained by injured PWs PC Zahid Ali and PC Muhammad Ayoob, reports of Chemical Examiner and Ballistic Expert and inquest report, PW-05 ASI/duty officer Asadullah at P.S Warrah, PW-06 PC Zahid Ali, PW-07 HC Muhammad Jurial, PW-08 Tapedar Khawar Hussain alias Fahad, he produced sketch of vardat, PW-09 medical officer Dr.Jalaluddin, he produced medical certificate in respect of injuries sustained by PWs PC Zahid Ali and PC Muhammad Ayoob and postmortem report on dead body of deceased Abdul Wahab, “Lash Chakas” Form and then the learned Addl.P.G for the State closed its side.

4. The appellant in his statement recorded u/s.342 Cr.PC denied the prosecution allegation by pleading innocence by stating that;

“I am innocent. Complainant is inimical with me because his niece Mst.Quratulain d/o Gulzar Ahmed Wahoocho contracted marriage with my cousin namely Sardar Ahmed s/o Muhammad Khan Chandio who have filed protection petition being C.P.No.1507/2013 before Honourable High Court of Sindh, Karachi. I produce the copy of petition as Exh.24/A alongwith Nikahnama, order dated 10.1.2014 and statement of Mst.Quratulain. I pray for justice with mercy.”

5. The appellant examined himself on oath and DWs Gulsher Ahmed and Naeem Ahmed in his defence.

6. It was stated by the appellant in his defence that his “Marot” Gulsher Ahmed was confined at judicial lockup Warrah. On the date of incident, he went to meet with him, when he was sitting outside the lockup, there came two persons and made fires, as result of such firing, Abdul Wahab died. I was arrested by ASI Muhammad Idrees Wahoocho due to enmity, as my cousin solemnized Nikkah with Quratulain.

7. It was stated by DW Gulsher Ahmed that on the date of incident, when he was confined at judicial lockup, Warrah, the appellant came to visit him when he was with him, they found two accused running outside of the lockup. Police also made fires, accused succeeded to run away. Appellant was apprehended by the police at the spot, on that, he (Gulsher Ahmed) raised cries by saying that the appellant had come to visit him but no result could be obtained.

8. It was stated by DW Naeem Ahmed that the deceased was his son, he was brought at judicial lockup Warrah, in judicial custody, he was fired at by two accused, who then managed to escape, the weapon of one of the accused fallen. It was taken by the police. The appellant was not amongst those accused who made attack.

9. On conclusion of trial, the learned trial Court convicted and sentenced the appellant, as is detailed above, by way of impugned judgment.

10. It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by ASI Muhammad Idrees Wahoocho only to satisfy his matrimonial dispute with him when he came at judicial lockup Warrah to meet with his relative Gulsher Ahmed, who was confined there; the pistol has been foisted upon the appellant; there is no report of fingerprint expert; the deceased was done to death by unknown culprits; there is no independent witness to the incident; the postmortem on dead body of the deceased has been conducted with delay of about four hours which goes to suggest that the deceased had died in a manner other than the one which is claimed by the prosecution; PWs PC Siraj Ahmed, PC Abdul Waheed and PC Kehar Lashari have been given up by the prosecution and DW Naeem Ahmed who happened to be father of the deceased, has impliedly declared the appellant to be innocent. By contending so, he sought for acquittal of the appellant by extending him benefit of doubt. In support of his contention, he relied upon cases of Tariq Parvez Vs. The State (1995 SCMR-1345), 2).Muhammad Mansha Vs. The State (2018 SCMR-772), 3). Asad Rehmat Vs. The State and others (2019 SCMR-1156), and 4).Tariq Ali Shah and another Vs. The State and others (2019 SCMR-1391).

11. Learned Addl.P.G for the State by supporting the impugned judgment has sought for dismissal of the instant criminal appeal by contending that the appellant has been apprehended at the spot together with the crime weapon; there was no reason with police personnels to have involved the appellant in this case falsely and evidence of DWs Gulsher Ahmed and Naeem Ahmed is procured by the appellant by way of compromise or otherwise, which could not be relied upon to disbelieve the case of prosecution. In support of his contention, he relied upon cases of Nawab Khan and others Vs. The State (1968 PCr.LJ-1588) and 2). Farooq Khan Vs. The State (2008 SCMR-917).

12. We have considered the above arguments and perused the record.

13. It is inter-alia stated by complainant ASI Muhammad Idrees that on 02.11.2016, he and his witnesses were performing their duty at judicial lockup Warrah, there was brought Abdul Wahab (deceased) by police party of P.S Warrah, which was consisting upon HC Muhammad Jurial Chandio with remand order of learned 1^st Civil Judge & J.M, Warrah, to be kept in judicial custody, in connection with investigation of FIR Crime No.108/2016, under section 365-B, 452, 148, 149 PPC of P.S Warrah. He was made to sit there for want of incharge of lockup and in the meanwhile, at about 1530 hours, there came four persons. They were identified to be appellant, Yad Hussain, Fayaz and Ali Jan. They were armed with pistols and they made indiscriminate fires, as result whereof, not only Abdul Wahab died after sustaining fire shot injuries but PWs PC Zahid Ali and Muhammad Ayoob who were on duty, also sustained fire shot injuries. The fires were retaliated as result whereof the appellant was apprehended at the spot and from him was secured pistol used by him in commission of the incident, while rest of the culprits made their escape good. The incident was reported to police formally. Whatever, is stated by the complainant finds support from the evidence of PWs PC Zahid Ali and PC Muhammad Ayoob. Despite lengthy cross examination, they have stood at their version, on all material points. They could not be disbelieved on the basis of irrelevant and immaterial inconsistencies and/or for the reason that there is no independent witness to the incident. It was none of job of the independent person to have gone inside the lockup to witness the cross firing, which even otherwise was sudden. The appellant obviously was having motive to kill the deceased being one of the witness of FIR (Crime No.108/2016 of P.S Warrah) relating to abduction of Mst.Farzana. On arrest, from the appellant has been secured by the police the pistol, which he used in commission of the incident. Had such pistol been foisted upon the appellant then it would not have been found similar with four of the empties secured from the place of incident as is reported by the Forensic Expert. In that situation, there was hardly a need for prosecution to have obtained the opinion of fingerprint Expert. No doubt, PWs PC Siraj Ahmed, PC Abdul Waheed and PC Kehar Lashari have been given up by the prosecution but they could not be said to be material witnesses of the incident. Their non-examination obviously is having no bearing on the fate of the present case. As per medical officer Dr.Jalaluddin, the dead body of the deceased was brought to him at about 07.45 p.m. It was with delay of more than four hours but such delay is not enough to conclude that the deceased had died in a manner other than the one, as is claimed by the prosecution. Surprisingly, death of the deceased together with injuries sustained by the PWs PC Zahid Ali and PC Muhammad Ayoob at judicial lockup, Warrah, is not disputed by the appellant even, there he admittedly gone under the cover to meet with Gulsher Ahmed. His defence was only to the extent that someone else came at the place of incident and committed the offence and he has been involved in this case falsely by the complainant only to satisfy his matrimonial dispute with him on account of free-will marriage of Quratulain with Sardar Ahmed. Nothing has been brought on record which may prove relationship of the appellant or that of the complainant with above said couple. In that situation, the plea of appellant that he has been involved in this case falsely by the complainant only to satisfy his matrimonial dispute with him, could hardly be allowed to hold the field. No doubt, DW Naeem Ahmed had impliedly declared the appellant to be innocent by stating that he was not amongst the culprits, who made attack but his evidence could hardly be given preference over straight forward evidence of the prosecution which is implicating the appellant in commission of the incident beyond doubt, for the reason that no-where at investigation stage, he declared the appellant to be innocent. In that situation, the contention of learned Addl.P.G for the State that evidence of DW Naeem Ahmed has been procured due to compromise or otherwise, could not be lost sight of. Therefore, the evidence put forth by the appellant in his defence has rightly been ignored by learned trial Court and it obviously is appearing to be after-thought achievement.

14. In case of Wahid Vs. The State (2002 PLD Supreme Court-62), it has been held by the Hon’ble Apex Court;

“We do not find substance and merit in the contentions of the learned counsel for the petitioner. So far the petitioner/accused is concerned, testimony of P. W . 3 Rana Muhammad Azim, P. W .4 Zahid Hussain and P.W.5 Muhammad Sadiq is consistent to the effect the petitioner was holding .12 bore gun and he fired which hit Rafaqat Ali deceased's throat and right side of his shoulder which fact was consistent to the part assigned to the petitioner in the F.I.R. which was lodged without delay. Their testimony has been found to be confidence‑inspiring by the learned Trial Court and the learned Division Bench or the High Court, considering that the same could not be discredited in their cross‑examination by the defence counsel to which finding no exception could be taken. It may also be observed that co‑accused Riasat Ali admitted the occurrence and motive but claimed exercise of right of private defence of person and property which he could not substantiate when motive and commission of crime on the part of petitioner have been testified by P. Ws. Rana Muhammad Azim, Zahid Hussain and Muhammad Sadiq, therefore, same proved by the prosecution In the light of above ocular testimony of the P. Ws. s. and the motive, the evidence of P.W.7 Safdar Ali if judged and analysed one could easily arrive at the right conclusion that he was not stating the truth and was won over by the accused party therefore, the testimony to the said extent which was 'untrue was rightly discarded by the learned Division Bench of the High Court and learned trial Court though there could not be cavil with that decisions of this Court (supra) relied upon that the evidence of such hostile witness could be taken into consideration so as to find out if evidence of said witness was worthy of belief in, the light of other evidence and (ii) that a witness who was unfavourable to the prosecution was not necessarily hostile but a witness who was not telling the truth for the Court would be considered to be a hostile witness. 1t would not be out of place to mention here that it has been noticed that in large number of cases eye‑witness of the occurrence resile from their statements or at least make concessions in favour of accused consequently said witnesses are often declared to be hostile. The cause for this has been in view of conditions prevailing in the Court that some pressure by way of inducement has been put upon them, therefore, the said witnesses generally would not endanger themselves at the risk of their lives to state truth in the Court. In the circumstances the Courts have to find out the truth from the statement with caution of such declared hostile witness, consequently such evidence which is to be found to he untrue is to be discarded by the Court. Accordingly the learned Division Bench and the trial .Court were justified in discarding/rejecting the evidence of P.W. Safdar Ali”.

15. In end of the arguments, it was stated by learned counsel for the appellant that no injury to the deceased or any of the injured is attributed to the appellant specifically, therefore his involvement in this case is not free from doubt. The firing was indiscriminate and it was made by the appellant and others only to avenge the abduction of Mst.Farzana. In that situation, it would be hard to absolve the appellant of liability of the incident under the pretext that no specific injury either to the deceased or to the injured is attributed to him.

16. In case of Shihab Din Vs. The State (1964 PLD S.C-177), it has been held by the Hon’ble Apex Court;

“These are questions which have not been considered at all in the judgment of the High Court. The nature of the incident, and the criminal liability of each person involved cannot be correctly ascertained, in a case of this kind without a close examination of the details of the incident, in so far as they can be held proved. The learned Judges have found the two injured witnesses to require corroboration, because they are brothers to the injured person. It has been observed by this Court in a number of cases that the mere fact of relationship does not necessarily render a witness's account of the occurrence subject to doubt. Provided his presence is proved beyond doubt (as here by the presence of injuries on the bodies of Khamisa and Allah Ditta) and the number of persons accused is not out of proportion to the nature of their enterprise and the results they produced (which factors are also satisfactorily established in this case) such witnesses are entitled to be believed, as against a mere plea of false implication on the part of the accused persons. Again, to confine convictions to those of the accused persons who bear injuries is a rule which is too frequently applied, to the detriment of justice. Even in a free and equal fight, the more capable fighters, who do the greatest damage, frequently escape without a mark on their persons, and to make this the sole or final test of their guilt is clearly not consistent with true dispensation of justice. In this case, for instance, there are a number of lathi blow‑marks on Khamisa and Allah Ditta, which were not attributed to Shihab Din, who had no lathi, or to Mithu, a few were attributed to Ghulam Hassan, but Mithu's own statement made this doubtful; the number of blow‑marks, and the fact that Khamisa and Allah Ditta themselves had lathis makes it easily credible that they were attacked by two men, and therefore there was good ground for believing that Nabi Bakhsh and Muhammad Bakhsh were rightly charged with causing these injuries. Merely because they themselves were un‑injured, they have escaped conviction. ”

17. The case law which is relied upon by learned counsel for the appellant is on distinguishable facts and circumstances. The case of “Tariq Parvez” (supra) is relating to recovery of 1099 grams of Heroin powder. In that case, only single parcel containing contraband substance was sent to the chemical examiner and the accused by extending such benefit was acquitted. In the instant case, no issue of the appellant being in possession of narcotics substance is involved. In case “Muhammad Mansha” (supra), the main reason for acquittal of the accused was that there were found dishonest improvements in evidence of witnesses only to make a case in line with medical evidence. In the instant case, no improvement in evidence of the witnesses to make the case in line with the medical evidence is evident. In case of “Asad Rehmat” (supra), the main reason for acquittal of the accused was that the persons robbed and abducted were not arrayed as witness. In the instant case, the material witnesses have been examined by the prosecution. In case of “Tariq Ali Shah and another” (supra), the main reason for acquittal of the accused was prosecution’s failure qua three of the co-accused albeit with somewhat different role. In the instant case, no co-accused has been acquitted.

18. The appellant has failed to establish any prima facie mis-reading or non-reading of the evidence on record or failure on part of the learned trial Court in following the settled principle of law of appreciation of evidence. Thus, the learned trial Court has rightly convicted and sentenced the appellant for the above said offence by way of the impugned judgment; it is not calling for interference by this Court by way of instant criminal appeal. It is accordingly dismissed.

JUDGE