Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Jail Appeal No. D – 39 of 2012

Confirmation Case No. D – 06 of 2012

 

Present.

Mr. Justice Naimatullah Phulpoto &

Mr. Justice Rasheed Ahmed Soomro

Date of hearing:                  28.08.2019   

Date of announcement:    12.09.2019

 

 

Mr. Rukhsar Ahmed Junejo Advocate for the appellant.

Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General.

 

 

J U D G M E N T

 

 

NAIMATULLAH PHULPOTO, J.  Appellant Muhammad Moosa was tried by learned Judge, Anti-Terrorism Court, Khairpur for offences under Sections 302, 324 PPC read with Section 7 ATA, 1997. On the conclusion of the trial, vide judgment dated 30.05.2012, appellant Muhammad Moosa was convicted under Section 302 (b) PPC as Ta’azir for death on four counts. He was ordered to pay compensation of Rs.200,000/- each to be paid to the legal heirs of deceased persons, in case of default in the payment thereof, appellant was ordered to suffer SI for six months more. Appellant has also been convicted under Section 324 PPC and sentenced to 07 years RI and to pay fine of Rs.10,000/- to each injured and in case of default in the payment of fine, he was ordered to suffer SI for two months more. Appellant has also been convicted under Section 7(a) ATA, 1997 and sentenced to death for four times on each count. He was also ordered to pay fine of Rs.200,000/- and in case of default thereof, he was ordered to suffer RI for two years more. All the sentences awarded to the appellant were ordered to run concurrently. However, the death sentence awarded to the appellant was subject to confirmation by this Court.

 

2.         Brief facts of the prosecution case as disclosed by complainant Darya Khan in his FIR lodged vide crime No.2/2007 at PS A-Section, Khairpur for offences under Sections 302, 324, 34 PPC and 7 ATA 1997,  are that Dilbar and Dhani Bux (now deceased) and PWs Mazharuddin and Muhammad Usman are related to complainant. All of them, were challaned in a Dharna case before 1st Assistant Sessions Judge Khairpur. On the day of incident, complainant along with above-named deceased and injured persons was attending the Court of Ist. Assistant Sessions Judge / Senior Civil Judge, Khairpur and were standing at the gate of the Court. In the meanwhile, it is alleged that Lal Dino s/o Muhammad Bux Khaskheli (now deceased), his son Mohabat Khaskheli  and Haji Banho (now deceased) also came there. It was 10:30 a.m. It is alleged that PC Muhammad Moosa s/o Haji Khan Langah (appellant) and PC Qurban Ali Jamali in police uniform along with an unknown person in civil dress appeared there.  Appellant was armed with official SMG. It is alleged that accused Muhammad Moosa challenged  Haji Banho that he would not be spared. Thereafter, it is stated that all the accused fired upon Haji Banho, resultantly Dhani Bux Jagirani, Dilbar Jagirani, Lal Dino Khaskheli, Haji Banho Langah, Muhammad Usman Jagirani and Mazharuddin Jagirani sustained fire arm injuries and fell down. Thereafter, it is alleged that complainant party caught hold of Muhammad Moosa along with kalashnikov while remaining accused made their escape good. Thereafter, complainant party saw that Dhani Bux Jagirani had sustained firearm injuries at various parts of his body. Dilbar Jagirani, Haji Banho, Lal Dino, Muhammad Usman and Mezharuddin had also sustained firearm injuries at various parts of the bodies. Dhani Bux Jagirani, Dilbar Jagirani, Haji Banho Langah and Lal Dino Khaskheli succumbed to injuries at spot and injured persons Mazharuddin Jagirani and Muhammad Usman Jagirani were taken to the civil hospital Khairpur  for immediate treatment. Complainant while leaving the other persons over the dead bodies went to the police station and lodged FIR. It was recorded on the same day at 1115 a.m. It may be mentioned that regarding same incident Tayyab s/o Haji Banho lodged another FIR / crime No.03/2007 on the same day, however, at 1145 a.m. PW No.5 Mohabat Ali had also lodged FIR regarding the same incident. It was recorded vide crime No.06/2007 at PS A-Section on the same day at 1730 hours under Sections 302, 324 PPC 7, ATA 1997.

 

3.         After registration of aforesaid three (03) FIRs with regard to same incident, which occurred in the premises of Assistant Sessions Judge, Khairpur, investigation of aforesaid three FIRs was entrusted to Inspector/SIO Parvez Ahmed. After usual investigation, separate challans in three crimes were submitted before learned Judge, ATC, Khairpur. Challan in crime No.02/2007 was submitted against accused Muhammad Moosa under Sections 302, 324 PPC and 7 ATA 1997. Challan in crime No.03/2007 was submitted against accused Muhammad Moosa under Sections 302, 324 PPC and 7 ATA 1997. Challan in crime No.06/2007 was submitted against accused Muhammad Moosa under Sections 302, 324 PPC and 7 ATA 1997. In final report of crime No.02/2007 the name of accused Qurban Ali Jamali was placed in column No.2 of the challan. Miss Ghazala Siyal, Special Public Prosecutor ATC, Khairpur submitted an application under Section 21 (m) of ATA, 1997 for joint trial of Special case No.47/2007 under Sections 302, 324 PPC and 7 ATA,1997 and trial Court ordered for amalgamation of aforesaid special cases with Special Case No.46/2007 and treated it as a leading case.

 

4.         Learned Judge, ATC, Khairpur framed charge against appellant Muhammad Moosa at Exh.4 for offences under Sections 7 (a) ATA read with Section 302, 7 (b) ATA read with Section 324 PPC and 7 (h) ATA of 1997. Accused pleaded not guilty and claimed to be tried.

 

5.         In order to prove its case, prosecution has examined PW-1 Darya Khan at Exh.5, he produced FIR of crime No.02/2007 registered at PS A-Section, Khairpur at Exh.5-A, PW-2 Mezharuddin at Exh.6, PW-3 Muhammad Usman at Exh.7, PW-4 Tayab at Exh.8, he was the complainant of crime No.3/2007 registered at PS A-Section, Khairpur and produced FIR at Exh.8-A. PW-5 Mohabat Ali at Exh.10, he was also the complainant of crime No.6/2007 lodged at PS A-Section, Khairpur and produced FIR at Exh.10-A, PW-6 Khadim Hussain at Exh.11, PW-7 Abdul Sattar at Exh.12, he has acted as mashir of place of vardat, inspection of dead bodies and recovery of empties. Such mashirnama was prepared and he has produced it at Exh.12-A. He has also acted as mashir of the arrest of accused PC Muhammad Moosa and produced such mashirnama at Exh.12-B. He has also produced inquest report of deceased Dilbar at Exh.12-C, inquest report of deceased Dhani Bux at Exh.12-D, inquest report of Lal Dino at Exh.12-E and mashirnama of the injuries of injured persons Muhammad Usman and Mezharuddin at Exh.12-F. He was also made mashir of the arrest and recovery of official SMG. Such mashirnama was prepared in his presence and he has produced it at Exh.12-G. He was also made mashir of handing over to him the clothes of deceased Lal Dino, deceased Dilbar and deceased Dhani Bux at Exh.12-H, PW-8 Mumtaz Ali at Exh.13, PW-9 Dr. Aziz Rehman who had conducted post-mortem examination of deceased persons and produced post-mortem reports at Exh.16-C, 16-D, 16-E and 16-F, PW-10 Akhtar Ali Khokhar Tapedar at Exh.18, he had produced sketch of place of vardat at Exh.18-A, PW‑11 Tofique Ahmed at Exh.19, PW-12 Akhtar Ali Langah at Exh.20, PW-13 Parvez Ahmed Investigation Officer at Exh.22, he produced inquest report of deceased Haji Banho at Exh.22-A, mashirnama of the injuries of injured Muhammad Usman at Exh.22-B and Roznamcha entry No.43 dated 04.01.2007 at Exh.22-J. ASI Abdul Jabbar had also partly investigated the case. He was examined at Exh.24 and produced mashirnama of arrest of accused Muhammad Moosa at Exh.24-A. Special Public Prosecutor through his statement has produced the reports of the Chemical Examiner, Rohri at Exh.25-A, 25-B.

 

                        Thereafter, Special Public Prosecutor vide statement dated 14.03.2012 closed the prosecution side.

 

6.         Statement of the accused / appellant was recorded under Section 342 Cr.P.C at Ex.27 in which he has claimed false implication in this case and denied the prosecution allegations. In a question, what else, he has to say, the appellant has replied as under:

 

“I am innocent and I was on duty in Court as guard when firing started. Many persons had started firing. After the incident I was continuing duty at police HQ from where I was taken into custody for investigation at Police Station “A” Sec: one FIR No.2/2007 was lodged in which myself and PC Qurban Jamali were nominated. He was also on duty with me. Later on he was let off in the same FIR. In FIR of crime No.3/2007 myself and PC Qurban, Hatim, Karam Hussain and Juman were nominated but all were let off except me. In third FIR in crime No.6 of 2007 myself and PC Qurban and others were nominated but except me all were let off.

            The IO / Insp Pervaiz Ahmed Shaikh had malafidely challaned me alone. I pray for justice. I have not committed any murder and firing.”

 

 

7.         Learned trial Court after hearing learned counsel for the parties and assessment of the entire evidence, convicted and sentenced the appellant to death as stated above. By this single judgment, we intend to decide the aforesaid appeal as well as confirmation Reference made by the trial Court.

 

8.         Mr.  Rukhsar Ahmed Junejo Advocate for appellant contended that evidence led by the prosecution to substantiate the allegations has not been appreciated in its true prospective by the trial Court which resulted in serious miscarriage of justice. It is further contended that prosecution has failed miserably to prove the guilt to the hilt by producing cogent and concrete evidence and prosecution story being highly improbable and imaginary should have been discarded. It is further contended that there are major contradictions in the statements of the prosecution witnesses with regard to the material particulars of the case. It is further argued that prosecution had failed to produce the report of the firearm expert in respect of the official SMG and crime empties before the trial Court. It is submitted that motive set up by the prosecution had not been proved at trial. Lastly, it is argued by the learned counsel for the appellant that there are several mitigating circumstances in the case, as such, death sentence may be converted to imprisonment for life. In support of contentions reliance is placed upon the cases reported as Sajjan Solangi V/S The State, 2019 SCMR 872, Muhammad Sarwar @ Saru V/S The State, 2016 SCMR 210, Ahmed V/S The State, 2015 SCMR 993 and Mureed V/S The State, 2015 YLR 1366.

 

9.         Mr. Zulifqar Ali Jatoi, Additional P. G submits that it was day time incident. Appellant committed 04 murders in the Court premises, and caused firearm injuries to two PWs and FIR was promptly lodged. It is further argued that ocular evidence has been corroborated by medical evidence. That appellant was arrested at spot and  Official SMG was recovered from his possession used in commission of offence that all the eye witnesses have categorically stated that appellant fired upon deceased and injured persons. Learned Addl. P. G. submits that ocular evidence corroborated by medical evidence required no further corroboration. According to Addl. P. G. non-production of ballistic report of SMG would not be fatal to the case of prosecution. It is argued that act of terrorism committed by the appellant created terror in society and he has rightly been convicted under provisions of Anti-Terrorism Act,1997 and prayed for confirmation of death sentence. He has relied upon the case reported as Asim V/S The State, 2005 SCMR 417.

 

10.       We have carefully examined the respective contentions as agitated on behalf of the parties, perused the entire evidence by keeping the defence version in juxtaposition and perused the judgment of learned trial Court with care and caution. An in-depth scrutiny of the entire record would reveal that prosecution has produced 13 witnesses to substantiate the charge i.e. Darya Khan (PW-1), Mazharuddin (PW-2), Muhammad Usman (PW-3), Tayab (PW-4), Mohabat Ali (PW-5), Khadim Hussain (PW-6), Abdul Sattar (PW-7), Mumtaz Ali (PW-8), Dr. Aziz Rehman (PW-9), Akhtar Ali Khokhar Tapedar (PW-10), Tofique Ahmed (PW-11), Akhtar Ali Langah (PW-12) and Pervez Ahmed Inspector (PW‑13).

 

11.       We intend to examine the eye account first as furnished by Darya Khan (PW-1), Mazharuddin (PW-2), Muhammad Usman (PW-3), Tayab (PW-4), Mohabat Ali (PW-5) and Khadim Hussain (PW-6) who have been mentioned as eye-witnesses / injured. A careful analysis of the statement of Darya Khan (PW‑1) would reveal that he has supported the prosecution version by mentioning the details of unfortunate incident which occurred at the door of 1st Assistant Sessions Judge, Khairpur. He has deposed that incident took place on 04.01.2007 at 1030 hours in the premises of the 1st Assistant Sessions Judge, Khairpur. On the day of incident, in the morning complainant along with Mazharuddin Jagirani, Dhani Bux Jagirani, Dilbar Jagirani and Muhammad Usman Jagirani had gone to appear before the Court of 1st Assistant Sessions Judge, Khairpur in the Dharna case. When at 10:30 a.m. they were standing at the gate of Court and were waiting for the call, he has deposed that accused Muhammad Moosa police constable armed with official kalashnikov came there and fired a burst from his KK upon the people standing there. Accused was apprehended at spot. Complainant saw that his relatives Dhani Bux Jagirani had expired, Dilbar Jagirani, Muhammad Usman Jagirani, Mazharuddin Jagirani had sustained serious firearm injuries. They were taken to hospital where Dilbar succumbed to the injuries. In the incident, Banho Khaskheli and one Langah had also sustained firearm injuries at the hands of accused Muhammad Moosa. Complainant has clearly deposed that accused Muhammad Moosa by making indiscriminate firing created terror in the Court premises and committed murder of four persons and caused firearm injuries to PWs. He went to the Police Station and lodged FIR and produced it at Exh.5-A. Mazharuddin (PW-2) is an injured witness. He has also given the same episode of the incident and stated that incident took place on 04.01.2007 at 10:30 a.m. in the premises of the Court of 1st Assistant Sessions Judge, Khairpur. He has further deposed that on 04.01.2007 in the morning he went to attend the Court of Assistant Sessions Judge along with Nisar Ahmed Jagirani, Darya Khan, Karamuddin, Muhammad Yaseen, Mumtaz, Usman, Abdul Sattar, Dhani Bux, Dilbar and others at about 10:30 a.m. they were standing at the gate of said Court and were waiting for the call, when accused Muhammad Moosa Police Constable armed with official kalashnikov appeared there and fired from his kalashnikov upon Banho Langah and Lal Bux Khaskheli who were killed. PW Mazharuddin, Muhammad Usman, Dhani Bux and Dilbar sustained firearm injuries. Injured Dilbar and Dhani Bux later on expired by means of firearm injuries. PC Qurban Ali snatched KK from accused Muhammad Moosa and accused Muhammad Moosa was taken into the custody. Muhammad Usman (PW-3) is also an injured witness. He narrated the same facts and stated that accused Muhammad Moosa fired upon the deceased persons and he was also injured on 04.01.2007 at 10:30 a.m. in the Court premises of Assistant Sessions Judge, Khairpur. Tayab (PW-4) was also eye-witness of the incident. He has also narrated the same facts of the incident and stated that accused Muhammad Moosa fired in the Court of Assistant Sessions Judge. Four persons namely Dhani Bux Jagirani, Dilbar Jagirani, Haji Banho Langah, Lal Dino Khaskheli received firearm injuries and two persons namely Mazharuddin Jagirani and Muhammad Usman Jagirani sustained firearm injuries. Mohabat Ali (PW-5) was also eye-witness of the incident. He has also narrated the entire facts of the incident and stated that present incident took place on 04.01.2007 in the Court premises, where many persons were present. Accused Muhammad Moosa in the police uniform armed with official KK appeared and fired and fires hit to Dhani Bux Jagirani, Dilbar Jagirani, Haji Banho Langah, Lal Dino Khaskheli and two persons namely Mazharuddin Jagirani and Muhammad Usman Jagirani sustained firearm injuries. Khadim Hussain (PW-6) has deposed that on the day of incident, he was also present in the Court of 1st Senior Civil Judge, Khairpur on 04.01.2007 at 10:30 a.m. where accused Muhammad Moosa wearing police uniform duly armed with official kalashnikov appeared and fired. In the result of his firing, Dhani Bux Jagirani, Dilbar Jagirani, Haji Banho Langah, Lal Dino Khaskheli, Mazharuddin Jagirani and Muhammad Usman Jagirani sustained firearm injuries. Out of them, Dhani Bux Jagirani, Dilbar Jagirani, Haji Banho Langah, Lal Dino Khaskheli expired and two persons namely Mazharuddin Jagirani and Muhammad Usman Jagirani received injuries. Eye‑witnesses / injured were subjected to the lengthy cross-examination but nothing beneficial could be elicited. There are certain contradictions but they are not grave in nature and can be ignored safely as minor contradictions do creep in with passage of time. Evidence of the injured witnesses is also trustworthy and confidence inspiring. All the four deceased namely Dhani Bux Jagirani, Dilbar Jagirani, Haji Banho Langah and Lal Dino Khaskheli were examined by Dr. Aziz Rehman (PW-9) who has deposed that he conducted post-mortem examination of deceased persons in the hospital on 04.01.2007 and opined that deceased persons died of firearm injuries. Medical Officer had also examined injured persons namely Mazharuddin Jagirani and Muhammad Usman Jagirani and found firearm injuries on their persons. Learned defence counsel did not dispute unnatural death of deceased persons and injuries sustained by injured persons as described by Medical Officer. Pervaiz Ahmed Inspector conducted investigation of the case and submitted challan against the appellant.

 

12.       The close scrutiny of evidence shows that the occurrence in this case had taken place in broad daytime in the premises of 1st Assistant Sessions Judge, Khairpur. FIRs in respect of the alleged offence had been lodged with reasonable promptitude wherein the appellant was named as the perpetrator of the alleged murders and responsible for causing the injuries to the injured persons. After usual investigation, he was challaned. Appellant was Police Constable, he had fired from his official SMG and was caught red-handed. Complainant party was present in the Court for hearing of the case, as such, complainant party absolutely had no reason to falsely implicate the appellant in the murders. The medical evidence had provided full support to the ocular account furnished by eye-witnesses Darya Khan (PW-1), Tayab (PW-4), Mohabat Ali (PW-5), Khadim Hussain (PW-6) and injured persons Mazharuddin (PW-2), Muhammad Usman (PW-3). Appellant in his statement recorded U/S 342 Cr.P.C has admitted his presence in Court premises as guard. As regards to motive complainant Darya Khan has deposed that accused / appellant made indiscriminate firing to create terror.

 

13.       As regards the contention of the learned counsel that the report of the ballistic expert with regard to the official SMG and empties was not produced before the trial Court. It may be mentioned that in this case there was strong ocular evidence corroborated by the medical evidence. Under the circumstances of the case, non-production of the firearm expert report in respect of official SMG and empties will also have no reflection on the prosecution case because it otherwise stands proved against the appellant. Reliance is placed upon the case of Asim V/S The State (supra). Learned counsel for the appellant has further argued that prosecution had failed to examine the employees of Court and prayed for reduction of appellant’s sentence from death to imprisonment for life. In our considered view, submissions made by learned defense counsel are without legal force, for the reasons that eye witnesses were natural witnesses, some of them were injured and they had consistently implicated the appellant as sole perpetrator of alleged murders. The ocular account furnished by the said eye witnesses had received full support from medical evidence. Appellant made indiscriminate firing in Court premises and created terror and insecurity. Appellant in his statement U/S 342 Cr.P.C had admitted his presence at relevant time in Court as guard. Learned trial Court has already undertaken an exhaustive analysis of prosecution evidence. We have also examined the prosecution evidence deeply and defense plea and reached to conclusion that prosecution has proved it’s case against the appellant.

                        As regards to submission of learned counsel for appellant for reduction of death sentence to imprisonment for life. We have, however, remained unable to subscribe to this submission of learned counsel for appellant, because incident has been committed in Court premises and it was promptly reported to the police. The appellant had been apprehended red-handed at the spot with weapon and was handed over to concerned police. It is a matter of great concern that appellant belonged to Police force, as a member of disciplined force, a responsibility heavier than normal was placed upon his shoulder to abide by the law and not to take the law in his own hands. Appellant unfortunately considered himself to be above the law and used official weapons for committing brutal murders. For the above stated reasons and while relying upon the case of Rashid Ali v. The State (2011 SCMR 1037) we have come to conclusion that appellant deserves no sympathy / leniency in the matter of his sentence. Even otherwise, we have remained unable to find any circumstance warranting mitigation of his sentence of death.

 

14.       For whatever has been discussed above, we hold that prosecution has proved its case against the appellant. Judgment of trial Court requires no interference. Resultantly, appeal is dismissed and Reference for confirmation of death sentence is answered in affirmative.

 

 

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                                                                                                J U D G E

 

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           J U D G E

N.M.