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.