IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Jail Appeal No. D- 46 of 2015.
Crl. Confirmation Reference No. D- 05 of 2021.
Present:
Mr. Justice Mohammad Karim Khan Agha.
Mr. Justice Zulfiqar Ali Sangi.
Appellants: 1. Abdul Hafeez alias Mumtaz son of Muhammad Panjal Kalhoro, and
2. Noor Muhammad son of Ali Nawaz Mirbahar. Through Mr. Irfan Badar Abbasi, Advocate.
Complainant: Gulzar Ali Langah, through Mr. Rafique Ahmed K. Abro Advocate.
Respondent: The State, through Mr. Ali Anwar Kandhro, Additional Prosecutor General.
Dates of hearing: 26.01.2021.
Date of Judgment: 16.02.2021.
JUDGMENT
Zulfiqar Ali Sangi, J: This common judgment would dispose of the above captioned Criminal Jail Appeal No. D- 46/2015 filed by both the appellants and Criminal Confirmation Reference/ case sent by the learned trial Court for confirmation of death sentence awarded to the appellant Abdul Hafeez alias Mumtaz. Both the appellants have assailed the judgment dated 11.5.2015, passed by learned Judge, Anti-Terrorism Court, Larkana, in Special Case No.40/2014, re; State v. Abdul Hafeez and another, arising out of Crime No.121/2014 of P.S Hyderi (District Larkana), under Sections 302, 387, 34 P.P.C, read with Section 7 (a) & (h) Anti-Terrorism Act, 1997, whereby they were convicted and sentenced as under:
(a) Appellants Abdul Hafeez alias Mumtaz and Noor Muhammad have been convicted and sentenced for offence under Section 387 read with Section 34 P.P.C to suffer R.I for seven years with fine of Rs.20,000/- each and in case of default of payment of fine to suffer S.I for three months more.
(b) Appellant Abdul Hafeez alias Mumtaz has been convicted for offence under Section302 (a) read with Section 34 P.P.C and sentenced to death. He was directed to be hanged by neck till he is dead. He was also ordered to pay compensation of Rs.100,000/- to the heirs of deceased Akhtar Ali as compensation and in case of default shall suffer S.I for six months more.
(c) Appellant Noor Muhammad was convicted for offence under Section 302 (b) read with Section 34 P.P.C and sentenced to suffer imprisonment for life. He was also ordered to pay compensation of Rs.100,000/- to heirs of deceased Akhtar Ali as compensation and in case of default to suffer S.I for six months more.
(d) Appellant Abdul Hafeez alias Mumtaz was convicted for offence punishable under Section 7 (a) of Anti-Terrorism Act, 1997 read with Section 34 P.P.C and sentenced to death. He was directed to be hanged by neck till he is dead. He was also ordered to pay fine of Rs.100,000/- and in case of default shall suffer further S.I for six months more.
(e) Appellant Noor Muhammad was convicted for offence punishable under Section 7 (a) of Anti-Terrorism Act, 1997, read with Section 34 P.P.C and sentenced to suffer imprisonment for life. He was also ordered to pay fine of Rs.100,000/- and in case of default shall suffer further S.I for six months more.
(f) Appellants Abdul Hafeez alias Mumtaz and Noor Muhammad were also convicted for offence under Section 7 (h) of Anti-Terrorism Act, 1997, read with Section 34 P.P.C and sentenced to suffer R.I for seven years; they were also ordered to pay fine of rs.20,000/- each and in case of default to suffer S.I for six months more.
2. The brief facts of the prosecution case are that, on 08.10.2014 complainant Gulzar Ali Langah lodged F.I.R with Police-station Hyderi, Larkana, alleging therein that, Akhtar Ali Langah was his nephew, who was working as Compounder at the Clinic of Dr. Gobind Ram, which is situated in front of Zulfiqar Bagh, who was in tension since few days and disclosed him that a person, namely, Abdul Hafeez Kalhoro was coming from time to time at Clinic and asked him to pay “Bhatta” to him and also his doctor; otherwise he will cause damage to his property and life. They were in search of said Abdul Hafez. On the fateful day, complainant alongwith his relative Zaheed Ahmed Memon and Jinsar Ai Langah was going at the Clinic to meet his nephew Akhtar Ali, who was available at Clinic. They were chitchatting there; it was 09.00 a.m. when two persons entered in Clinic whose faces were open. One of them was identified to be Abdul Hafeez alias Mumtaz Kalhoro. The accused took out pistols from their folds and aimed upon complainant party. Accused Abdul Hafeez alias Mumtaz Kalhoro asked complainant’s nephew Akhtar Ali that they had demanded “Bhatta” from him and his doctor again and again to which Akhtar Ali refused to pay “Bhatta”. Meantime, accused Abdul Hafeez alias Mumtaz Kalhoro fired from his pistol upon Akhtar Ali which hit him and he fell down and started bleeding; then the accused person made their escape good from the Clinic. The complainant party being empty handed did not chase the accused persons. The complainant found that his nephew had received firearm injury on his left side of face above the lip, which was exited from right side neck near the ear through and through, blood was oozing. The injured was shifted to Casualty ward after receiving letter from police, but he was referred to Hyderabad for further treatment; however he died at about 04.05 p.m. Hence his dead-body was brought back and after postmortem and burial the complainant went to police-station and lodged report to the above effect.
3. The police after usual investigation submitted challan of the case on 22.10.2014 in the concerned Court showing appellant Abdul Hafeez alias Mumtaz Kalhoro as in custody, while one unknown accused was shown in list of absconders. However, on 04.12.2014, a subsequent report/ challan was submitted by the police against appellant Noor Muhammad.
4. After completing legal formalities learned trial Court framed the charge against appellants at Ex.7, to which they pleaded not guilty and claimed their trial.
5. The prosecution in order to prove its case examined PW-1 complainant Gulzar Ali at Ex.9; he produced F.I.R at Ex.9-A and Receipt at Ex.9-B. PW-2 Zaheed Ahmed (eyewitness) was examined at Ex.10. PW-3 Jinsar Ahmed (eyewitness) was examined at Ex.11. PW-4 Gul Muhammad (mashir) was examined at Ex.12; who produced mashirnama of inspection of dead-body of deceased and mashirnama of place of incident. PW-5 Dr. Ashok Kumar was examined at Ex.13; who produced carbon copy of police letter and postmortem report of deceased. PW-6 PC Muhammad Idrees (Corpse bearer) was examined at Ex.14. PW-7 PC Irfan Ahmed (mashir) was examined at Ex.15; who produced mashirnama of arrest of accused Abdul Hafeez alias Mumtaz Kalhoro and recovery from him. PW-8 PC Hussain Bux (mashir) was examined at Ex.16; who produced mashirnama of arrest of accused Noor Muhammad. PW-9 Muhammad Ilyas (the I.O of the case) was examined at Ex.17; who produced letter No.3927-31 dated 13.10.2014 issued by S.S.P Larkana about constitution of J.I.T; copy of ballistic expert’s report and chemical report. PW-10 Haq Nawaz (Tapedar) was examined at Ex.19; who produced police letter and sketch of place of incident. PW-11 Inspector Faheem Ahmed was examined at Ex.21. PW-12 SIP Azhar Ahmed (Investigation Officer) was examined at Ex.22; who produced attested photocopy of police letter. PW-13 Gul Muhammad Chandio (Civil Judge & Judicial Magistrate) was examined at Ex.23; who produced police letter and mashirnama of identification-parade of accused Noor Muhammad. The evidence of PC Ayaz Ali, Abdul Karim and Abdul Ghani was given-up by learned Prosecutor vide his statement Ex.18 and Ex.24, respectively. However, Prosecutor by moving an application under Section 540 Cr.P.C re-called PW Abdul Karim Gaad and Abdul Ghani and lastly the prosecution closed its side vide Ex.25.
6. The statements of appellants were recorded in terms of Section 342 Cr.P.C. at Ex.26 and Ex.27, in which they denied the prosecution allegations against them. They did not examine themselves on oath nor lead evidence in their defence.
7. The learned trial Court after hearing learned counsel for the parties passed the impugned judgment, whereby appellants were convicted and sentenced, as stated-above, which has been impugned before this Court by way of filing captioned appeal. While, learned trial Court has sent criminal reference for confirmation of death-sentence in view of Section 374 Cr.P.C.
8. Learned counsel for the appellants assailed the impugned judgment and argued that the prosecution witnesses have made contradictions, improvements and omissions in their evidence on the very material points, therefore, their evidence is un-reliable and un-trustworthy. Learned counsel further submitted that, there was inordinate delay in registration of the F.I.R, for which no plausible and satisfactory explanation was offered by the complainant, but this fact has not been considered by the trial Court while passing impugned judgment. Learned counsel further added that, appellant Abdul Hafeez alias Mumtaz Kalhoro was convicted in cases of Arms Act and police-encounter, however on appeal he was acquitted by this Court in both cases vide judgment dated 20.9.2019 passed in Crl. Jail Appeal No. S- 117 of 2016 and judgment dated 28.3.2019 passed in Crl. Jail Appeal No. S- 118 of 2016. Learned counsel has placed on record certified true copies of these judgments. Learned counsel lastly submitted that, case of prosecution is full of doubts and it is well settled principle of law that benefit of even slightest doubt must go in favour of the accused. In support of his contentions learned counsel for the appellants relied upon the cases of Tariq Parvez v. The State (1995 SCMR 1345), Liaquat Ali v. The State (2008 SCMR 95), Patan v. The State (2015 SCMR 315), Muhammad Asif v. The State (2017 SCMR 486), Muhammad Ilyas and another v. Ameer Ali and another (2020 SCMR 305), Sabir Ali alias Fauji v. The State (2011 SCMR 563), Shafqat Mehmood and others v. The State (2011 SCMR 537), Ayub Masih v. The State (PLD 2002 Supreme Court 1048) and Muhammad Imran v. The State (2020 SCMR 857).
9. Learned Addl.PG and learned counsel for complainant controverted the arguments of learned appellants’ counsel and submitted that the prosecution case has rightly been believed by the learned trial Court and the appellants have rightly been awarded conviction. They next contended that it was broad day time incident in which an innocent young person lost his life at the hands of appellants; that the motive was proved by the prosecution during trial; that ocular version is fully supported by the medical evidence. Lastly it was argued that the prosecution had succeeded in proving its case beyond a reasonable doubt and prayed for dismissal of the appeal. They relied upon casesof Imam Bux versus The State (PLD 1983 SC-35), Mawas Khan versus The State and another (PLD 2004 SC 330), Muhammad Tahir Aziz versus State and another (2010 P.Cr.L.J 1787), Hameed Khan alias Hameedai versus Ashraf Shah and another (2002 SCMR 1155), Muhammad Arshad versus The State (2004 SCMR 1645) and Niaz Ahmed versus State (2014 YLR 1125 “Quetta”).
10. We have heard the arguments of learned counsel for the parties and perused the material available on record and gone through the case law relied by them with their able assistance.
THE MAIN PROSECUTION WITNESSESS GAVE THEIR EVIDENCE AS UNDER:-
11. Complainant Gulzar Ali Langah (eye witness)/ PW-1 deposed that this incident took place on 08.10.2014 and on same day his nephew namely, Akhtar Ali aged about 35 years was working as Compounder at the Clinic of Dr. Gobind Ram situated at Zulfiqar Bagh, Larkana, a few days before the incident his nephew Akhtar Ali came to him at his shop and told him that one person namely Abdul Hafeez Kalhoro was issuing him threats and demanding “Bhatta” from him, so also from Dr. Gobind Ram. On 08.10.2014, he alongwith Jinsar Ahmed and Zaheed Ahmed were sitting at the Clinic of Dr. Gobind Ram and were chitchatting with his nephew Akhtar Ali. At that time it was about 09.00 a.m.when two persons with open faces came at the Clinic and asked his nephew Akhtar Ali that they had demanded “Bhatta” from him so also from the Dr. Gobind Ram, but he has not paid “Bhatta”. He identified one accused person namely, Abdul Hafeez alias Mumtaz son of Panjal Khan Kalhoro. He deposed that accused Abdul Hafeez fired from his pistol upon his nephew Akhtar Ali, which hit him on his mouth. On sustaining the firearm injury he fell down on the ground, blood was oozing from his injury; after firing both the accused persons ran away. He deposed that they took injured Akhtar Ali to Causality department at Larkana. The doctor after providing the first-aid to the injured referred him to Hyderabad. On the same day, when they were going to Hyderabad, the injured died on the way. They then came back to the Casualty department at Larkana. He then leaving the witnesses over the dead body of deceased went to police station to lodge the F.I.R of this incident, which was registered and then he came back to Casualty Larkana alongwith police and the police saw the dead body of deceased Akhtar Ali; prepared such mashirnama of inspection of the dead body of deceased. He showed place of vardat to police on same day in presence of mashirs, namely, Gul Muhammad and Saleem. Then police took dead body of deceased to the hospital for postmortem and report and after postmortem dead body was handed over to him by the police. He further deposed that on 04.12.2014 the identification parade of accused Noor Muhammad was held through him and witnesses Jinsar and Zaheed Ahmed in the Court of IV-Civil Judge & Judicial Magistrate, Larkana. Complainant was cross examined at some length but we could not find any substance favourable to appellants. Defence counsel even did not suggest any enmity or ill-will against this witness as to why the present appellants were involved by the complainant party in the murder case.
12. Zaheed Ahmed PW-2 (eye witness) has deposed that he is eyewitnesses of this incident and this incident took place on 08.10.2014; he alongwith complainant Gulzar Ali and Jinsar Ahmed were sitting at the Clinic of Dr. Gobind Ram and chitchatting with Akhtar Ali. At that time it was about 9.00 a.m., two accused persons with open faces came on motorcycle at the Clinic; he identified one accused person, namely, Abdul Hafeez. Accused Abdul Hafeez asked deceased Akhtar Ali that they (accused) were asking him to pay “Bhatta” himself and Dr. Gobind Ram, but you have not paid “Bhatta”. On saying so accused Abdul Hafeez fired from his pistol upon deceased Akhtar Ali, which hit him on his face. On sustaining the firearm injury he fell down on the ground; blood was oozing from his injury. They then took Akhtar Ali to Casualty department at Larkana for his treatment. The doctor after providing the first-aid to the injured referred him to Hyderabad for further treatment and on the same day when they were taking injured to Hyderabad, he expired on the way at about 4.05 p.m. they then came back to Casualty department at Larkana. He further deposed that complainant then leaving him and Jinsar Ahmed over dead-body of deceased Akhtar Ali went to Police station to lodge the F.I.R. He deposed that his statement under section 161 Cr.P.C was recorded by the police. He deposed that on 04.12.2014 identification parade of accused Noor Muhammad was held through him and complainant Gulzar Ali and P.W Jinsar in the Court of IV-Civil Judge & Judicial Magistrate, Larkana and he identified accused Noor Mohammed before the magistrate. This witness was also cross examined by the defence counsel, no enmity or ill-will was suggested only it was the suggestions on behalf the appellants that witness was not present at the time of incident and he was not a witness to the incident for which this witness negated.
13. Jinsar Ahmed PW-3 (eye witness) in his evidence before learned trial Court deposed that this incident took place on 08.10.2014, when he alongwith complainant Gulzar Ali and Zaheed Ahmed were sitting at the Clinic of Dr. Gobind Ram and were chitchatting with Akhtar Ali, it was 9.00 a.m. two accused persons with open faces came on motorcycle at the Clinic; he identified one accused namely, Abdul Hafeez. Accused Abdul Hafeez asked deceased Akhtar Ali that they (accused) were asking him to pay “Bhatta” himself and so also Dr. Gobind Ram, but they have not paid “Bhatta”. Saying so, accused Abdul Hafeez fired from his pistol upon deceased Akhtar Ali, which hit him and sustaining firearm injury he fell down on the ground; blood was oozing from his injury. He further deposed that they took Akhtar Ali to casualty department at Larkana for his treatment and the doctor after providing first aid to injured Akhtar Ali referred him to Hyderabad for further treatment and on same day when complainant was taking injured to Hyderabad he expired on the way at about 4.05 p.m, then they returned back to Casualty department at Larkana. He deposed that the complainant left him and Zaheed Ahmed over dead body of deceased and went to police station Hyderi to lodge F.I.R. He further deposed that his statement under Section 161 Cr.P.C was recorded by the police. He deposed that on 04.12.2014 identification parade of accused Noor Muhammad was held through him and complainant Gulzar Ali and PW Zaheed Ahmed in Court of IV-Civil Judge and Judicial Magistrate, Larkana and he had identified accused Noor Muhammad before the Magistrate. He was cross examined by the defence counsel, no enmity or ill-will was suggested against this witness for false implication only it was the suggestions on behalf the appellants that witness was not present at the time of incident and he was not a witness to the incident.
14. Gul Muhammad PW-4 (Mashir) deposed that on 08.10.2014 police inspected dead body of deceased Akhtar Ali and prepared such mashirnama in his presence and co-mashir was Saleem. He further deposed that police also prepared inquest-report of deceased in their presence. The police also visited place of vardat on 08.10.2014 at 2300 hours shown by complainant in his presence and in presence of co-mashir Saleem, wherefrom the police recovered empty bullet of pistol and blood stained earth and sealed the same on spot separately and also prepared such mashirnama. His evidence went unchallenged and only it was suggestion on behalf of the appellants that all the mashirnamas were signed by him at police station and he deposed falsely to which he denied.
15. Dr. Ashok Kumar PW-5 (MLO) deposed that on 08.10.2014 he was working as Medico Legal Officer at Chandka Medical College Hospital, Larkana. On the same day, he received dead body of deceased Akhtar Ali Langah at 10.15 p.m. through PC Muhammad Idrees of P.S Hyderi under police letter for conducting postmortem examination and report. He further deposed that injured was brought in CMC Hospital Larkana in the evening time in serious condition and after providing the first-aid he was referred to LMC Hospital Hyderabad on 08.10.2014 but he expired on the way, then he was brought again to CMC Hospital, Larkana, for postmortem. He conducted postmortem examination of deceased. He started postmortem examination at 10.30 p.m. on 08.10.2014 and completed it at 11.30 p.m. on same date. He deposed that on external examination of dead body of deceased he found following injuries:
(i) Lacerated punctured wound measuring 1 cm in diameter muscle deep, margins inverted at mid of upper lip and frontal upper teeth were broken (wound of entry).
(ii) Lacerated punctured wound x cm x 1.5 cm cavity deep, margin averted at back of right ear at mastoid region (wound of exit).
The medical officer further deposed that on internal examination of dead body he found that blood vessels were ruptured at the site of injury, maxillary artery upper incisors teeth and maxillary bond were fractured, mouth pharynx ruptured; while other organs were healthy and intact. He further deposed that on internal and external examination of dead body of deceased Akhtar Ali he was of the opinion that death of deceased occurred due to hemorrhage and shock as a result of injury to major blood vessel i.e. maxillary artery; the injury was sufficient to cause death in ordinary course of nature and it was ante-mortem in nature and has been cause by firearm discharge. He was also cross examined but nothing brought on record by defence which favours the appellants.
16. PC Muhammad Idrees PW-6 deposed that on 08.10.2014 SIP Ilyas Sangi handed over him dead body of deceased for postmortem examination and report, which he handed over to Dr. Ashok Kumar and after conducting postmortem doctor handed over dead body to him, which he handed over to paternal uncle of deceased, namely, Gulzar. He further deposed that he also handed over blood stained clothes of deceased to SIP Ilyas Sangi. His evidence was also not shaken during cross examination.
17. PC Irfan Ahmed PW-7 deposed that on 21.10.2014 he was working as Constable at P.S Hyderi and on same day he alongwith SIP Ilyas Sangi, PC Muhammad Punhal, PC Muhammad Aslam and driver PC Ashfaque Ali boarded in official vehicle for patrolling under roznamcha entry No.12 at 1500 hours and when they reached Dhani Bux Oil Mill near bank square, SIP Ilyas Sangi received spy information that accused Abdul Hafeez Kalhoro required in this case alongwith his companion are standing near Kabeer Shah graveyard and after receiving such information they reached at pointed place, where they saw two persons armed with pistols; he identified one accused, namely, Abdul Hafeez Kalhoro and on seeing the police party they started firing upon them and tried to make their escape good. He further deposed that they also made firing upon them and arrested accused Abdul Hafez Kalhoro alongwith pistol. SIP Ilyas Sangi conducted personal search of accused Abdul Hafeez Kalhoro and recovered two currency notes of Rs.50/- and pistol alongwith two live bullets; the accused disclosed about pistol to be unlicensed; SIP made him and PC Muhammad Punhal as mashir and prepared such mashirnama of arrest and recovery; the pistol was sealed at the spot. During cross examination it is suggested that appellant Abdul Hafeez was not arrested during the encounter and the mashirnama was prepared at police station. Nothing favourable to appellants was brought on record.
18. PC Hussain Bux PW-8 deposed that on 02.12.2014 he was working as Constable at police station Market and on same date, he alongwith Inspector Faheem Farooqi, PC Ayaz Ali and Driver H.C Wazir Ali left police station for investigation of the case of P.S Hyderi and when they reached Empire road Larkana, Inspector Faheem Farooqi received spy information that one person is going from Pir Sher road to Kamber Wah; on receiving such information they reached at pointed place, where they saw one person was going by way. They alighted from vehicle and arrested him. Inspector Faheem Farooq enquired from him about his name etc. who disclosed his name as Noor Muhammad Mirbahar and on his personal search nothing was secured. This witnesses further deposed that he and PC Ayaz Ali were nominated as mashirs and Inspector prepared such mashirnama of arrest and obtained their signatures. During cross examination arrest as alleged by the prosecution was denied and it was suggested that appellant Noor Muhammad was arrested from his house.
19. SIP Muhammad Ilyas PW-9 deposed that on 08.10.2014 he was working as SIP at P.S Hyderi and on same date complainant Gulzar Langah came at Police station and disclosed facts of cognizable offence, which he incorporated in book under Section 154 Cr.P.C. He further deposed that he accompanied complainant and his subordinates to Clinic of Dr. Gobind Ram where dead body of Akhtar Langah was lying; he prepared mashirnama of seeing dead body in presence of mashirs. He further deposed that mashirs of mashirnama of seeing dead body were Gul Muhammad and Saleem Langah. He handed over dead body to PC Muhammad Idrees to take it to hospital for postmortem and report; he also prepared inquest-report of deceased in presence of same mashirs. He further deposed that on 08.10.2014 he visited place of vardat shown by complainant in presence of same mashirs and prepared such mashirnama; he recovered blood stained earth and one empty bullet of 30-bore from place of vardat and also sealed blood stained earth and empty bullet at spot. He further deposed that he recorded statements under section 161 Cr.P.C of PWs Zaheed Memon and Jinsar Langah. He deposed that on 21.10.2014 he arrested accused Abdul Hafeez from Kabir Shah graveyard near Zulfiqar Bagh in presence of mashirs PC Irfan and PC Muhammad Punhal and on his personal search recovered one pistol of 30-bore alongwith two live bullets and two currency notes of Rs.50/-, sealed the pistol at place of arrest of accused and recovery and prepared such mashirnama. He further deposed that on 13.10.2014 the S.S.P Larkana constituted J.I.T in which he was one of the members. He further deposed that he received ballistic expert report and chemical report. This witness was cross examined but his evidence was not shattered by the defence counsel, no enmity or ill-will suggested against this witness to falsely implicate the appellants.
20. Tapedar Haq Nawaz PW-10 was examined at Ex.19, who had prepared the sketch of place of incident; he produced such sketch on record. Inspector Faheem Ahmed Farooqui PW-11 deposed that on 02.12.2014 he was working as Inspector/ SHO at P.S Market and on same day he alongwith PC Hussain Bux and PC Ayaz and driver PC Wazir left police station for patrolling and during patrolling he received spy information that a suspicious person is going from Pir Sher road towards Bhambhar Wah; they reached there, where they saw a person was going; they informed him about their identity to be police, who on seeing them tried to run away but he was arrested and on enquiry he disclosed his name to be Noor Muhammad Mirbahar and on his personal search nothing incriminating was recovered. PC Hussain Bux and PC Ayaz were appointed as mashirs. He further deposed that the captive himself disclosed to him that he is accused in Crime No.121/2014 under section 302 P.P.C of P.S Hyderi. We carefully examined the cross examination of these witnesses but could not find anything favourable to the appellants.
21. SIP Azhar Ahmed Mangi PW-12 deposed that on 04.12.2014 he was working as S.I.O at P.S Market and on same day he produced accused Noor Muhammad before Civil Judge & Judicial Magistrate, Larkana, for his identification parade. He also produced complainant Gulzar, PWs Zaheed and Jinsar in the Court for said purpose and after identification parade of accused Noor Muhammad he took him back to P.S Market. During cross examination it was suggested that complainant party and the appellant Noor Muhammad were brought to court together for identification to which this witness negated.
22. Mr. Gul Muhammad Chandio (Civil Judge & Judicial Magistrate) PW-13 deposed that on 04.12.2014, he was posted as Civil Judge & Judicial Magistrate-IV, Larkana and on same day investigating officer brought accused Noor Muhammad Mirbahar in Court for his identification parade alongwith a letter. He removed the hand-cuffs of accused and arranged dummies. The complainant and PWs were asked to sit outside the Court and the accused was asked to stand in the row of dummies and he stood for first time in row at serial No.6 from left side and for the second time at serial No.4 from left side; he then called complainant of this case and asked him to identify the accused, who correctly identified the present accused Noor Muhammad and described his role that the accused was standing beside co-accused at the time of occurrence and while going he caused aerial firing with pistol. He further deposed that he again re-arranged the row and accused was asked to stand in row where he likes, who stood at serial No.4 from left side for first time and for second time he stood at serial No.9 from left side of row of dummies, then PW Jinsar Ahmed was asked to identify accused, who correctly identified the accused Noor Muhammad. The Magistrate further deposed that he also got identification parade of accused Noor Muhammad through PW Zaheed Ahmed, who too identified him to be same accused. He was cross examined but we could not find any thing favourable to the appellants.
23. From the evidence as discussed above we find that the case of both the appellants is on different footings therefore we have discussed the case of each appellant separately below.
AS REGARDS TO THE CASE OF APPELLANT ABDUL HAFEEZ @ MUMTAZ.
24. Incident took place on 08-10-2014 at 0900 hours and the FIR was registered on the same day at 2030 hours, the delay of about 11 hours was explained by the complainant and the prosecution witness by deposing that they first took the deceased in injured condition to the Larkana Hospital and after getting first-aid the injured was referred to the Hyderabad for better treatment, after the drive of about 04 hours the injured died on the way. Complainant returned and reached again at Larkana hospital. Leaving the witnesses with the deceased the complainant went to the police station and lodged the FIR. The Doctor also deposed that injured was brought in CMC Hospital Larkana in serious condition and after providing the first-aid he was referred to LMC Hospital Hyderabad on 08.10.2014 but he expired on the way, then he was brought again to CMC Hospital, Larkana, for postmortem.Complainant party at the first instant was busy in saving the life of the deceased who was in serious condition and was referred by the doctor and on death they after reaching at Larkana hospital immediately went to police station and lodged the FIR. We find the delay if any in registration of the FIR was properly explained by the complainant. In these circumstance the delay if any occurred in the registration of FIR is not fatal to the case of prosecution in the particular fact and circumstance of the present case. Like similar facts and the circumstances in the case of Abdul Khalique Versus The State (2020 S C M R 178), Supreme Court of Pakistan has held as under:-
3. After hearing the learned counsel for the petitioner and learned Additional Prosecutor General at length and perusal of available record with their assistance, it has been observed by us that though there is delay of about sixteen hours in lodging the FIR but the fact remains that it has come on record that complainant side had sent Muhammad Umer, cousin of deceased Khalil Ahmed, whose name was also given in the FIR, to P.S. Bulri Shah Karim for issuance of letter for medical treatment of injured Khalil Ahmad (deceased) from the hospital and in this respect a Rapat was recorded by the police at 11.30 p.m. on the day of occurrence and a letter was also issued with the signatures of ASI to the Medical Officer, District Hospital, Tando Muhammad Khan for conducting medical examination of Khalil Ahmad (deceased) and for issuance of medico-legal certificate. Dr. Nizamuddin (PW6) who medically examined Khalil Ahmad in injured condition stated in his examination in chief that Khalil Ahmad was brought by his relatives on 18.07.2014, who informed him that their relative had gone to police station for obtaining the letter, whereupon he (PW6) started examination of Khalil Ahmad. He further stated that in the meantime the said relative brought the letter of police. The said letter has been exhibited as Ex.16/A. The doctor (PW6) further stated in his cross-examination that he referred Khalil Ahmad to LUMHS Hyderabad after giving him first aid at 11.05 p.m. on 18.07.2014. In this respect, referral letter has been exhibited as Exh.16/B. A glance at the postmortem examination report of Khalil Ahmad issued by Dr. Salahuddin (PW7), MLO at LUH Hyderabad reveals that Khalil Ahmad was admitted in the said hospital on 19.07.2014 and he expired there on 21.07.2014. In these circumstances, the delay in lodging the FIR has reasonably been explained by the prosecution. Even otherwise, the first priority of kith and kin of Khalil Ahmad (deceased) was to save his life and they tried to do so by first taking him to local hospital, wherefrom he was referred to a hospital at Hyderabad. Even in this process, they reported the matter to police and obtained official letter of police for medical examination of Khalil Ahmad (deceased).
25. All the three eye witnesses deposed against the appellant Abdul Hafeez @ Mumtaz with specific role of causing single fire shot from pistol upon the deceased at the Clinic of Dr. Gobind Ram where the deceased was working as compounder and the presence of the witness was established from their evidence. We find the evidence of all three eye witnesses to be reliable, trustworthy and confidence inspiring. All the three eye witnesses were consistent on each and every point and were cross examined by the defence counsel but they were on one line and fully supported the case of prosecution. All three eye witnesses knew appellant Abdul Hafeez @ Mumtaz and since it was a day light incident and all the eye witnesses got a good look at the appellant from close range we have no doubt that the eye witnesses have correctly identified the appellant especially as they had no reason to implicate him in a false case as there was no enmity between them. In these circumstances no identification parade was required with respect to this appellant who was named and given a specific role in the FIR. No material contradiction was pointed out by the learned counsel for the appellant. The incident was day time incident. The ocular evidence furnished by the eye witnesses is further corroborated by the medical evidence and other circumstantial evidence. In almost similar facts and the circumstances death sentence awarded by the Additional Session Judge Gujrat was maintained by the High Court of Lahore Rawalpindi bench and the jail petition was also dismissed and leave was refused by the Supreme Court of Pakistan in case of Umar Hayat versus The State (2007 SCMR 1296).
26. The investigation officer visited the place of vardat on the same day in presence of the mashirs and recovered one empty bullet of the pistol and the blood stain earth which he sealed separately. Appellant Abdul Hafeez @ Mumtaz was arrested on 21-10-2014 and pistol was recovered from his possession and the same was also sealed at the spot. Investigation officer sent the pistol and the empty for FSL and the same were matched with the recovered pistol resulting in a positive FSL report.
27. The motive was only alleged against the appellant Abdul Hafeez @ Mumtaz as he was demanding the “Bhatta” from the deceased and even it is established from the evidence of the eye witnesses that at the time of incident appellant asked the deceased that he had not given Bhatta to him and after saying so he directly fired from his pistol on the face of deceased which hit him and he died subsequently as the result of said firearm shot. During cross examination of all the three eye witnesses it was even not suggested that appellant not demanded Bhatta from the deceased. Thus in our view the prosecution has proved the asserted motive against the appellant Abdul Hafeez @ Mumtaz.
28. Contentions raised by the learned advocate for the appellant that the witnesses are near relatives to the deceased and are interested therefore their evidence cannot be relied upon has no force as in the case in hand, the eye-witnesses have sufficiently explained the date, time and place of occurrence as well as each and every event of the occurrence. No substance has been brought on record by the appellant to justify his false implication in this case at the hands of the complainant party on account of the previous enmity nor was the same suggested during cross examination. In this contextreliance can safely be placed on the case of Lal Khan v. State(2006 SCMR 1846) wherein Honourable Supreme Court has held as under:-
... The mere fact that a witness is closely related to the accused or deceased or he is not related to either party, is not a sole criteria to judge his independence or to accept or reject his testimony rather the true test is whether the evidence of a witness is probable and consistent with the circumstances of the case or not.
In another case of Zulfiqar Ahmed & another v. State(2011 SCMR 492), Honourable Supreme Court has held as under:-
...It is well settled by now that merely on the ground of inter se relationship the statement of a witness cannot be brushed aside. The concept of ‘interested witness’ was discussed elaborately in case titled Iqbal alias Bala v. The State (1994 SCMR-01) and it was held that ‘friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused.
It is settled by now that mere relationship of eye-witnesses with the deceased alone is not enough to discard the testimony of the complainant and his witnesses. In the matters of capital punishments, the accused would not stand absolved by making a mere allegation of dispute/enmity but would require to bring on record that there had been such a dispute/enmity which could be believed to have motivated the “natural witnesses” in involving the innocent at the cost of the escape of “real culprits”. It is further settled that where the natural witnesses are in blood-relations then normally the possibility of substitution becomes rare. Reference may be made to the case of Zahoor Ahmed v. The State(2007 SCMR 1519), wherein Honourable Supreme Court has held as under:-
6. The petitioner is a maternal-cousin of the deceased, so also the first cousin of the deceased through paternal line of relationship and thus, in the light of the entire evidence it has correctly been concluded by the learned High Court that the blood relation would not spare the real culprit and instead would involve an innocent person in the case. Further it has rightly been observed that it was not essential for the prosecution to produce each of the cited witnesses at the trial.
29. Learned counsel for the appellant pointed out some contradictions and the discrepancies in the evidence of the witnesses which in our view are minor in nature and not sufficient to hold the case of the prosecution as doubtful. It is established principal of law that where in the evidence prosecution established its case beyond reasonable doubt then if there are some minor contradiction which always are available in each and every case as no one can give evidence like photograph such may be ignored, Reliance is placed on the case of Zakir Khan V. The State (1995 SCMR 1793), wherein Honourable Supreme Court has held as under:-
“13. The evidence recorded in the case further indicates that all the prosecution witnesses have fully supported each other on all material points. However, emphasis has been laid by Mr. Motiani upon the improvements which can be found by him in their respective statements made before the Court and some minor contradictions in their evidence were also pointed out. A contradiction, unlike an omission, is an inconsistency between the earlier version of a witness and his subsequent version before the Court. The rule is now well established that only material contradictions are to be taken into consideration by the Court while minor discrepancies found in the evidence of witnesses, which generally occur, are to be overlooked. There is also a tendency on the part of witnesses in this country to overstate a fact or to make improvements in their depositions before the Court. But a mere omission by witness to disclose a certain fact to the Investigating Officer would not render his testimony unreliable unless the improvement made by the witness while giving evidence before the Court has sufficient probative force to bring home the guilt to the accused.”
30. We have carefully scanned the entire evidence produced by the prosecution and found that the prosecution proved its case against the appellant beyond a reasonable doubt by producing independent, trustworthy, reliable and confidence-inspiring evidence in the shape of oral evidence as well as medical evidence coupled with other corroborating evidence.
31. As to the sentence a lenient view cannot be taken as the circumstances of this case indicate that the act of the appellant was gruesome and merciless. Further the particular facts and circumstances of this case keeping in view the brutality of the crime, where one innocent young boy was murdered in the clinic in presence of his blood relatives, the complete lack of mitigating circumstances and the presence of aggravating circumstances as mentioned above and the need to discourage such kind of offences which regrettably were most common and remain so, we are of the view that a deterrent sentence is the appropriate one. Reliance is placed on the case of Dadullah V. State (2015 SCMR 856).
32. The upshot of the above discussion is that the prosecution has successfully established its case against the appellant Abdul hafeez alias Mumtaz through ocular account furnished by eye-witnesses, which is corroborated by the medical evidence coupled with circumstantial evidence. Learned counsel for the appellant has failed to point out any material illegality or serious infirmity committed by learned trial Court while passing the impugned judgment, which in our humble view is based on the appreciation of the evidence and the same does not call for any interference by this Court. Thus, the conviction awarded to the present appellant by learned trial Court is hereby maintained and the instant appeal filed by the appellant merits no consideration, which is dismissed accordingly, the death penalty is confirmed. Confimration Reference is answered in the AFFIRMATIVE.
TURNING TO THE CASE OF APPELLANT NOOR MUHAMMAD.
33. The appellant Noor Muhammad was not nominated in the FIR nor was his description mentioned in the FIR or by any of the eye witness named in their statements under section 161 Cr.P.C recorded during the investigation. He was arrested on suspicion and it was alleged that at the time of his arrest he confessed before the police that he was involved in the commission of offence. No role was assigned against him by the prosecution witnesses in the FIR and in their statements recorded under section 161 Cr.P.C.
34. Appellant was arrested on 02-12-2014 after about two months of the incident and his identification parade was conducted on 04-12-2014 after two days of his arrest. The identification parade of the appellant through the eye witnesses is also not helpful for the prosecution as the SIP Faheem Ahmed who arrested the appellant Noor Muhammad during his cross examination stated that he issued notices to the complainant after arrest of the accused Noor Muhammad to appear at P.S for identification of the accused. This witness further stated that complainant and PWs had identified the accused Noor Muhammad at P.S. This fact alone is sufficient to discard the identification parade held before the Magistrate.
35. The allegation against the appellant in the FIR and in Statements under section 161 Cr.P.C was that he came at the place of incident along with main accused and after the main accused fired upon the deceased he escaped with him. No role was assigned against the present appellant for even firing in the air. We have scanned the entire evidence of the eye witnesses and the eye witnesses have not deposed before the trial court single word that the present appellant also fired in the air, however, all the witnesses during identification of the appellant before the Magistrate have improved the case to the extent of his role and stated that accused Noor Muhammad had fired in the air which improvement in respect of the role of the appellant made the case of prosecution doubtful against the present appellant.
36. The allegation made against the appellant during the identification parade that he fired in the air at the time of incident is also not supported by any other independent evidence, no empty of pistol was recovered from the place of vardat except the one empty which is alleged against the main accused Abdul Hafeez @ Mumtaz.
37. No direct motive is assigned against the appellant for demanding Bhatta from the deceased nor did any of the prosecution witness depose a single word against the appellant that the appellant was demanding the Bhatta or at the time of incident he asked the deceased about the Bhatta. Even it is not established from the evidence produced by the prosecution that the appellant Noor Muhammad shared his common intention with the main accused Abdul Hafeez @ Mumtaz.
38. It is well settled principle of law that heinous nature of offence is not sufficient to convict the accused as the accused continues with presumption of innocence until found guilty at the end of the trial, for which the prosecution is bound to establish the case against the accused beyond any shadow of reasonable doubt by producing confidence inspiring and trustworthy evidence, It is also well settled principle of law that if a single circumstance creates doubt in the prosecution case its benefit must go to the accused not as a matter of grace or concession but as a matter of right. The principle is expressed by saying that to be on the safer side the acquittal of ten guilty persons is to be preferred to the conviction of a single innocent person. A very high standard of proof is, therefore, required to establish the culpability of an accused person in a criminal case especially one where the accused is charged with murder which carries the death sentence. Thus, based on the above discussion we find in the present case that the prosecution has failed to prove its case beyond a reasonable doubt against appellant Noor Muhammad and as such appellant Noor Muhammed is entitled to be acquitted based on being extended the benefit of the doubt.In this respect reliance is placed on the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749).
39. In view of the above and while relying upon the above precedents, appeal filed by the appellant Noor Muhammad isallowed impugned judgment dated 11-05-2015 passed by learned Judge Anti-Terrorism Court, Larkana in respect of the appellant Noor Muhammadis set-aside and the appellant is acquitted of all the charges. Appellant is in jail and directed to be released forthwith if not required in any other custody case.
40. The above jail appeal and the confirmation reference are disposed of in the above terms.
JUDGE
JUDGE