Judgment Sheet
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Criminal
Jail Appeal No. D – 70 of 2016
Criminal
Jail Appeal No. D- 72 of 2016
Confirmation
Case No. D – 05 of 2016
Present.
Mr. Justice
Naimatullah Phulpoto &
Mr.
Justice Abdul Mubeen Lakho.
Date
of hearing: 18.09.2019
Date of announcement:
22.10.2019
Mr. Ghulam
Shabbir Dayo Advocate for the appellants.
M/S
Arbab Ali Chandio and Nusrat Hussain Memon Advocates for complainant.
Mr.
Abdul Rehman Kolachi D.P.G.
J U D G M E N T
NAIMATULLAH
PHULPOTO, J. Appellants
Nisar, Ghulam Shabbir, Younis and Nazir
all bycaste Lakho were tried by learned Additional Sessions Judge Naushehro
Feroze for offences under Sections 302, 114, 337-H(2), 34 PPC. After regular trial
vide Judgment dated 07.04.2016, appellant Ghulam Shabbir was convicted under
section 302 (b) read with section 34 PPC as Tazir and sentenced to death. He
was also directed to pay fine of Rs. 50,000/- in case of default in payment of
fine he was ordered to suffer one year more RI. Accused Nisar was convicted U/S 302 (b) PPC as
Tazir read with section 34 PPC and sentenced to imprisonment for life and to
pay fine of Rs. 50,000/-, in case of default in payment of fine, he was ordered
to one year R.I more. He has also been convicted under section 337-H(2) read
with section 34 PPC and sentenced to two months SI. Both sentences were ordered
to run concurrently against appellant Nisar.
Accused Younis and Nazir have also been convicted U/S 302(b) read with
section 114 PPC and sentenced to imprisonment for life and to pay fine of Rs.
50,000/- each in case of default in payment of fine, accused were ordered to
suffer RI for one year. Appellants have been extended benefit of section 382-B
Cr.P.C. Trial Court has made reference for confirmation of death sentence of
accused Ghulam Shabbir as provided U/S 374 Cr.P.C.
2. Brief facts of the prosecution case as
disclosed in the FIR are that on 31.12.2010 at 2225 hours complainant Ghulam
Qadir lodged his report alleging therein that he and his father Ahmed Fakir
(now deceased) were cultivating the lands. It is alleged that appellant Younis
and others were also cultivating their lands on the same water course. There
was dispute between parties over turn of water. On the day of incident,
complainant along with his father Ahmed Fakir, cousin Ghulam Sarwar, Sikandar
son of Muhammad Umer and step brother of the complainant namely Guhram were
going to the land, at about 5.45 pm complainant party reached at katcha Sarak
near the disputed water course. Where it is alleged that accused Younis son of
Muhammad Ummer, Ghulam Shabbir son of Ameen Lakho armed with gun, Nazeer son of
Ali Muhammad Lakho, Nisar Lakho armed with pistol appeared and declared that
father of the complainant would be learnt lesson over the turn of water.
Thereafter, it is alleged in FIR that accused Younis and Nazeer instigated
Ghulam Shabbir to kill Ahmed Fakir. At their instigation, it is alleged that
accused Nisar aimed his pistol at the complainant party whereas accused Ghulam
Shabbir fired from his gun from close range at the chest of Ahmed Fakir and
fire hit him and he fell down. It is alleged that complainant party due to fear
remained calm and accused went away. Thereafter, complainant saw that his father
had expired. It is further alleged in the end of FIR that accused Nisar Lakho
had made aerial firing for creating harassment. Complainant arranged the
conveyance and took dead body of his father to the Bhirya Hospital. He went to P.S where he lodged FIR against
accused. ASI Muhammad Sajjan Baladi recorded statement of complaiant vide crime
No.232/2010 under section 302, 114, 337-H(ii), 34 PPC. The investigation was
entrusted to ASI Muhammad Azeem. He proceeded to the hospital, inspected dead
body of Ahmed Fakir and prepared inquest report in presence of mashirs Muhammad
Lakho and Muhammad Usman. After completing the formalities dead body deceased was dispatched through PC
Amjad Ali to Medial Officer for conducting post mortem examination report. On
01.01.2011, complainant produced clothes of deceased to I.O and he secured the
same and prepared such mashirnama. I.O recorded 161Cr.P.C statements of P.Ws PC
Amjad Ali and visited place of vardat, it was shown to him by complainant on
01.01.2011 in presence of mashirs
Muhammad and Muhammad Usman I.O collected one empty cartridge from place of
vardat and sealed the same at spot, prepared such mashirnama in presence of
same mashirs. I.O recorded 161 Cr.P.C statements of eye witnesses namely Ghulam
Sarwar, Sikandar and Guhram. Mukhtiarkar prepared the sketch of place of
vardat. I.O dispatched blood stained earth to the Chemical Examiner for
analysis and report. Druing investigation I.O arrested accused Nazir and Nisar
Lakho on 10.01.2011 from Lakha Mori in presence of mashirs Muhammad and
Muhammad Usman at 1600 hours and prepared such mashirnama. I.O recorded
statements of defence witnesses during investigation and opined that accused
Nazeer Lakho was innocent and he was let off during investigation. On 22.1.2011,
I.O was transferred and further investigation was handed over to SIP Wali
Muhammad Chang.
Second I.O Wali Muhammad let off
accused Ghualm Shabbir and submitted interim challan before competent Court of
law. On 18.10.2010 I.O arrested absconding accused Younis Lakho from link road
village Khuda Bakhsh in presence of same mashirs. On the conclusion of usual investigation,
final report was submitted against accused Nisar, Younis. Accused Nazeer was
shown absconder while accused Ghulam Shabbir was released by I.O U/S 169
Cr.P.C. Learned 2nd Civil Judge & J.M Bhirya took the cognizance
of the offence and joined Ghulam Shabbir and Nazir as accused and issued N.B.Ws
against them.
3. Accused Nisar, Ghulam Shabbir, Younis
and Nazeer were present before trial Court on 28.09.2011 and charge was framed
against them under sectiosn 302, 114, 337-H(2) read with section 34 PPC. All accused
pleaded not guilty and claimed to be tried.
4. In order to substantiate the charge,
prosecution has examined (09) P.Ws, thereafter prosecution side was closed.
5. Trial Court recorded statements of the
accused / appellants U/S 342 Cr.P.C at Exh. 21 to 24. All the accused denied
the prosecution allegations. All accused declined to examine themselves on oath
and did not lead evidence in defence. Appellant Ghulam Shabbir in his statement
U/S 342 Cr.P.C wanted to examine Noor Shah son of Yakoob Shah and Bilal son of
Hassan Lakho but did not examine. Appellant Ghulam Shabbir has raised plea that
at the time of incident he was performing his duty at PS Lakhat and produced
certificate at Exh.34.
6. Learned trial Court after hearing
learned counsel for the parties and assessment of the entire evidence, vide Judgment
dated 07.04.2016 awarded death sentence to appellant Ghulam Shabbir and
convicted the remaining appellants to various sentences as stated above and
appellants have filed the Jail Appeal. By this singe Judgment, we intend to
decide aforesaid Jail Appeal and confirmation Reference.
7. Facts of this case as well as evidence
produced before the trial Court find an elaborate mention in the judgment
passed by trial Court and, therefore, same may not be re-produced here so as to
avoid duplication and unnecessary repetation.
8. Mr. Ghulam Shabbir Dayo learned advocate for appellants mainly contended that incident was
un-witnessed. The conduct of the P.Ws was unnatural as complainant did not make
efforts to rescue his father. It is also argued that there was delay of five
hours in lodging of the FIR for which no plausible explanation has been
furnished. It is also submitted that ocular evidence was contradictor to the
medical evidence. With regard to weapon
used in the commission of murder of deceased it is submitted that there was
delay of six hours in conducting post morte examination. It is also argued that
no crime weapon was recovered from accused Ghulam Shabbir. It is submitted that
complainant and P.Ws were closely related to deceased and are on inimical
terms. No independent corroboration is available on record. Lastly it is
submitted that motive as set up in the FIR has not been established at trial.
In support of contentions he relied upon the cases of Zahir Yousif and another
v. state and another (2017 SCMR 2002), Mst. Rukhsana Begum and others v. Sajjad
and others (2017 SCMR 596), Nazar Muhammad and 2 others v. State (2017 MLD
360), Amin Ali v. State (2011 SCMR 323), Muhammad Iqbal and others v. State and
others (2015 YLR 476) and Ali Nawaz v. The State (2010 P.Cr.L.J 1345).
9. Mr. Abdul
Rehman Kolachi DPG assisted by advocates for complainant argued that
prosecution has established motive against the appellant and delay in lodging
of the FIR has also been mentioned. He further argued that ocular evidence was
strong enough which require no corroboration. Regarding conflict between ocular
and medical evidence learned DPG submitted that Medical Officer has given
obliged reply in cross examination. Lastly submitted that prosecution has
proved its case against appellants and prayed for dismissal of the appeals.
10. As regards to the unnatural death of deceased
Ahmed Fakir, prosecution has examined Dr. Ghulam Sarwar (PW-3) he has deposed
that on 31.12.2010 he was posted as Medical Officer at R.H.C Bhirya city. On
the same date Pc Amjad Ali of Police station Bhirya city brought dead body of
Ahmed Fakir at 11.30 pm for conducting post mortem examination and report. He
started post mortem examination at 11.30 pm and finished the same at 2.00 pm.
On external examination of dead body Medical Officer found the following
injuries on the body of deceased.
1. Lacerated
punctured wound measuring 3 cm x 4 cm margines are inverted, charring marks
present.
This is
wound injury at mid of chest.
2. Wounds of
exit, 9 in number, margins left side of back.
On
internal examination of dead body, M.O found that left lung was damaged. Heart
was severally damaged.
From the external as well as internal examination of dead
body M.O was of the opinion that death of deceased had occurred due to injury
No.1 caused by discharge from fire arm. Probable time that elapsed between
injury and death 2 to 3 minutes and probable duration between death and post
mortem was about 8 to 10 hours. In cross
examination to the learned advocate for
accused, Medical Officer has replied that deceased might have replied bullet
injury, it might be cartridge or pallet injury. Doctor further replied that he
could not find any bullet or pallet in the body. Lastly, doctor has replied
that probably deceased had received bullet injury from the distance of one
yard. Complainant Ghulam Qadir and eye witnesses have also deposed that
deceased died as unnatural death. Learned defense counsel has also not disputed
unnatural death of deceased. We, therefore, hold that deceased Ahmed Fakir died
his unnatural death as described by Medical Officer. So far the type of weapon used
is concerned, it will be discussed later on.
11. It is the case of prosecution that appellant
Ghulam Shabbir had fired upon deceased. In order to substantiate the charge,
prosecution has mainly relied upon the evidence of Ghulam Qadir, who is son of the deceased. He has
deposed that on 03.12.2010 he along with his father Ahmed Fakir, Ghulam Sarwar
and Gohram after finishing the work when reached at the land of Raees Jillani
Lakho near water course saw accused namely : Younis, Ghulam Shabbir armed with
SBBL guns, Nazeer and Nisar armed with armed with TT pistols. He has further
deposed that accused Younis was demanding more share of water for irrigating
the land to which deceased had refused which caused annoyance to the accused.
It was 5.45 pm complainant party reached near water course and accused Younis challenged Ahmed Fakir that he was not giving
them extra water from water course, he would not be spared. He further deposed
that accused Nisar Ahmed aimed the pistol upon the complainant . Accused Nisar
and Nazeer had instigated and asked Ghulam Shabir for committing murder of
Ahmed Fakir. It is further stated that accused Ghulam Shabbir put his gun at
the chest of his father Ahmed Fakir and fired from the gun, fire hit to the
father of complainant and he fell down. Accused Nisar Lakho fired in the air to
create harassment. Thereafter, all the accused went away. Complainant has
stated that he found that his father died. Thereafter villagers were attracted.
Complainant’s maternal uncle Akber arranged datsun in which dead body was taken
to R.H.C Bhirya city. Complainant made to sit P.Ws over dead body and he went
to PS Bhirya city for lodging report. Complainant was cross-examined by the defense
counsel in which he has replied that accused Nisar made two fires in air and
empty cartridge was lying at the distance of two paces from the dead body. However,
he admitted that empty cartridges have not been produced before the trial
Court. In the cross examination complainant has replied that they did not
resist as they were empty handed. Complainant has denied the suggestion that he
was deposing falsely against the accused.
PW-2 Ghulam Sarwar has deposed that complainant is his
cousin. Deceased Ahmed Fakir was his uncle. At the time of incident, he was
with complainant and deceased. It was 5.45 pm when they reached near water
course where accused Ghulam Shabbir,Younis armed with SBBL guns, Nazeer and
Nisar armed with country made pistols appeared. Accused Younis challenged deceased
Ahmed Fakir that he was not giving extra share of water for the lands of the
accused, he would not be spared. Thereafter, at the instigation of accused
Younis and Nazeer he has deposed that accused Ghulam Shabbir fired upon his
uncle Ahmed Fakir. Fire was hit at his chest. At that time accused Nisar had
aimed his weapon to the complainant party and issued threats. He has further
deposed that after receipt of fire arm injuries Ahmed Fakir fell down. Accused
Nisar made fires in air. Ahmed Fakir died at spot. In the cross examination
PW-2 has admitted that there was allegation against him that he had developed
illicit relations with the wife of Gohram who is his cousin. In private faisla
PW-2 was driven out of the village but returned back within 2/3 days. P.W 2 has
further admitted that Syed Noor Hussain Rashidi had taken oath from villagers
regarding murder of Ahmed Fakir as he had doubt over the villagers. He has also
admitted that when incident occurred, sun had already set. Accused Nisar made
fires in air. After the incident, 200/300 persons were attracted at the place
of incident. In cross examination to the advocate for accused Nisar, PW-2 has
replied that complainant party did not follow the accused and did not resist
also.
Eye witness Gohram PW-5 has deposed that
deceased was his step father. On the day of incident, at 5.45 pm he along with complainant who is step father
and other P.Ws were returning from the lands when reached at Younis Lakho
katcha path where it is stated that accused Younis and Ghulam Shabbir armed
with SBBL guns , Nazeer and Nisar armed
with pistols , accused Younis asked Ahmed Fakir that he was not giving extra
share of the water for the lands of the accused, he would not be spared.
Thereafter accused Nazeer fired upon the complainant party and remained at some
distance due to fear and accused Ghulam Shabbir fired at his father Ahmed
Fakir, fire hit him and he fell down. In the cross examination he has admitted
that accused Ghulam Shabbir is serving in the police department and incident
had occurred at sunset time and there was some brightness at the time of
incident. However, he hasdenied the suggestion for deposing falsely against the
accused.
Investigation of this case has been carried
out by ASI Muhammad Azeem, on the basis of defense witnesses found accused
Nazeer innocent and he was let off during invesigation. I.O had also not sent
empty cartridge to the ballistic expert. Second I.O Wali Muhammad released
accused Ghulam Shabbir due to deficient evidence. Prosecution has also examined
mashirs in this case. It was the whole prosecution evidence that has been
brought on record.
12. The conduct of
complainant Abdul Qadir and eye witnesses namely Ghulam Sarwar, Sikandar and
Gohram is to be adjudged at the touch stone of Article 129 of the
Qanun-e-Shahadat Order, 1984, which is reproduced below:-
“129. Court may presume existence of certain
facts.- The Court may presume the
existence of any fact which it thinks likely to have happened, regard being had
to the common course of natural events, human conduct and public and private
business, in their relation to the facts of the particular case.”
13. Both eye witnesses have claimed
to witness the incident but we are unable to understand that what were the
circumstances which prevented them to rescue old father. We are not prepared to believe that
eye witnesses remained calm because accused were armed with deadly weapons. It
is not the case of prosecution that both eye-witnesses in a routine way used to
go jointly with deceased to work in the lands. In absence of such evidence, the
eye witnesses i.e complainant Abdul Qadir and PWs Ghulam Sarwar, Sikandar and
Gohram can be held to be chance witnesses, as incident took place near lands
and their houses were situated at some distance. A chance witness, in legal
parlance is the one who claims that he was present on the crime spot at the
fateful time, albeit, his presence there was a sheer chance as in the ordinary
course of business, place of residence and normal course of events, he was not
supposed to be present on the spot but at a place where he resides, carries on
business or runs day to day life affairs. It is in this context that the
testimony of chance witness, ordinarily, is not accepted unless justifiable
reasons are shown to establish his presence at the crime scene at the relevant
time. In normal course, the presumption under the law would operate about his
absence from the crime sport. True that in rare cases, the testimony of chance
witness may be relied upon, provided some convincing explanations appealing to
prudent mind for his presence on the crime spot are put forth, when the
occurrence took place otherwise, his testimony would fall within the category
of suspect evidence and cannot be accepted without a pinch of salt. Reliance is placed upon the case of Sughra
Begum v. Qaisar Pervaiz (2015 SCMR 1142).
14. Apart from that after the incident no blood was
found on the clothes of complainant. There was also delay of five hours in
lodging of FIR which has not been explained to the satisfaction of the Court.
Post mortem examination was also conducted after delay of six hours without
plausible explanation. Safe custody of the dead body during that period has
also not been established. Learned counsel for appellant has argued that ocular
evidence is contradictory to the medical evidence. According to case of
prosecution, appellant Ghulam Shabbir fired upon deceased from close range from
his gun at the chest but doctor Ghulam Sarwar in the corss examination has
admitted that injury sustained by deceased might be the result of bullet, it
means doctor was not sure / confident about the weapon used in the commission
of offence. Learned DPG has also admitted that there is contradiction between
ocular and medical evidence. During investigation empty was recovered but
neither that empty was sent to Ballistic Expert nor it was produced before
trial Court, when evidence of witnesses P.Ws 1 Ghulam Qadir and P.W 2 Ghulam
Sarwar was recorded. Motive set up in an FIR was the dispute over the turn of
water but at the trial PWs have deposed that they had gone to the lands for
supply of the fertilizer / Urea. Prosecution is under legal obligation to prove
guilt of accused persons beyond shadow of doubt through evidence coming from an
impeachable source. In this case, there are several circumstances, which have
created doubt in the prosecution case such as unexplained delay in lodging of FIR, un-natural conduct of
eye witnesses at the time of incident, ocular evidence contradictory to the medical
evidence. Unexplained delay in conducting post mortem report, non recovery of
the crime weapons from accused. We are also unable to understand as to why
accused killed old man and spared his young sons. P.W 2 Ghulam Sarwar in his
cross examination has admitted that “ Our Murshid Syed Noor Hussain
Rashidi had taken the oath from villagers regarding the murder of Ahmed Fakir,
because he had doubt over them”. It has also created doubt in
prosecution case.
15. It is a well settled principle of criminal
law that it is for the prosecution to prove its case against the accused beyond
a shadow of a doubt and if there is any doubt in the prosecution’s case the
benefit of such doubt, as set out in the case of Tariq Pervez v. The State
(1995 SCMR 1345) must go to the appellant as of right as opposed to concession.
However in considering this aspect of the case we are also guided by the case
of Faheem Ahmed Farooqui v. State (2008 SCMR 1572) where it was held as
under at P.1576 at Para D:
"
It needs no reiteration that for the
purpose of giving benefit of doubt to an accused person, more than one
infirmity is not required, a single
infirmity creating reasonable doubt in the mind of a reasonable and prudent
mind regarding the truth of the charge makes the whole case doubtful.
Merely because the burden is on the accused to prove his innocence it does not
absolve the prosecution from its duty to prove its case against the accused
beyond any shadow of doubt."(bold added)
21. In the recent Supreme Court case
of Hashim Qasim v. State (Criminal Appeals No.115 and 116 of 2013) dated
12th April 2017 the Hon'ble Supreme Court in respect of the benefit of doubt
held as under at Para 20:
" Even a
single doubt, if found reasonable, would entitle the accused person to
acquittal and not a combination of several doubts is bedrock principle of
justice. Reference may be made to the case of Riaz Masih alias Mithoo v. The
State (1995 SCMR 1730)."
16. For what has been discussed above, we have come to
the conclusion that prosecution has failed to bring home the guilt of the
appellants beyond any shadow of doubt and that the learned trial Court was not
justified in convicting them. We, accordingly, accept the appeal and set aside
the conviction and sentence recorded by the trial Court vide Judgment dated
07.04.2016 by acquitting the appellants. Appellants be set free forthwith from
the Jail, if not required to be detained in any other case. Confirmation Reference No. 05 of 2016 for
confirmation of death sentence of accused Ghulam Shabbir sent by trial Court is
answered in negative.
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J U D G E
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J U D G E
Irfan/PA