IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Crl. Spl. ATA Jail Appeal No. D - 32 of 2012

                                           Present;

                                  Mr. Justice Zafar Ahmed Rajput

                                  Mr .Justice Amjad Ali Sahito

 

Appellant           :        Shahzad Ahmed S/o Ghulam Hussain

Rajput, through Mr. Rukhsar Ahmed M. Junejo, advocate

 

Respondent       :        The State, through

Mr. Shafi Muhammad Mahar, D.P.G.

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Date of Hearing :        25.08.2021

Date of Decision :        29.09.2021

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                                                  JUDGMENT

 

AMJAD ALI SAHITO, J.-     Through this appeal, appellant Shahzad Ahmed has called in question the judgment, dated 15.5.2012, passed by the Judge, Anti-Terrorism Court, Khairpur in Special Case No.05/2009 (Re: The State v. Shahzad Ahmed & others) arising out of Crime No.233/2008, registered under sections 302, 324, 295-B, 120-B, 148, 149, PPC & section 7 (A) of Anti-Terrorism Act, 1997 at police station ‘B’ Section, Khairpur, whereby he was convicted and sentenced, as under:-

(a)           U/S 148, PPC sentenced to suffer RI for three years.

 

(b)           U/S 302(b) R/w Section 149, PPC sentenced to suffer RI for life and he is also liable to pay compensation of Rs.200,000/- to be paid to the legal heirs of deceased Imran Channa and in case of default he shall suffer further RI for 01 years more.

 

(c)           U/S 120-B R/w Section 149, PPC sentenced to suffer RI for six months and also to pay fine of Rs.5000/ and in default thereof he shall undergo SI for one month more.

 

(d)           U/S 324 r/w Section 149, PPC sentenced to suffer RI for seven years and also to pay fine of Rs.10,000/- and in default thereof, he shall undergo SI for two months more.

 

(e)           U/S 7 ATA, 1997 sentenced to suffer RI for life and to pay a fine of Rs.100,000/- and in default thereof, he shall undergo RI for one year.

 

All the sentences were ordered to run concurrently. The appellant was extended benefit of Section 382-B, Cr.P.C.

2.     Succinctly, as per FIR lodged on 28.11.2008 at 1415 hours by complainant Deedar Ali Channa, the allegations against the appellant are that, on 26.11.2008 at 18:00 hours, he along with Abdul Razaque Bozdar and three unidentified co-accused, duly armed with iron rods being the member of unlawful assembly and in prosecution of common object of such an unlawful assembly committed offence of rioting, in the mosque of Imam Ali Raza, situated at Hussaini Chowk Luqman, Khairpur; consciously and deliberately entered into the said mosque of Shia Sect with intention to damage, destroy and defile the honour and respect of the said mosque/place of worship with intent to insult the religion or the religious belief of a class of persons; intentionally caused injuries to Hakeem Syed Mukhtiar Hussain Shah and Ghulam Qambar Langah with iron rods with intention to kill them;  committed intentionally the Qatl-e-Amd of Imran Ali Channa by causing injuries with iron rods and created panic, terror and sense of insecurity in the mind of persons of the locality for which he was, along with four other co-accused, was booked in the FIR.    

 

3.     During investigation, police arrested the appellant and after investigation submitted report under section 173 Cr.P.C (challan) before the trial Court, showing Abdul Razaque and 03 unidentified accused persons as absconders. The trial Court after declaring the co-accused Abdul Razaque as proclaimed offender framed the charge against the appellant at Ex.07, to which he pleaded not guilty and claimed for trial.

 

4.     To prove its case, prosecution examined PW-1 Deedar Ali Channa (complainant) at Ex.08, who produced FIR at Ex.08/A; PW-2 Ghulam Qambar Langah at Ex.09; PW-3 Syed Mukhtiar Hussain Shah at Ex.10; PW-4 Dr Ali Nawaz Phulpoto at Ex.11, who produced provisional and final MLCs of injured PWs along with letters of police at Ex.11/A to 11/F, respectively; PW-5 Syed Azeem Abbas (Mashir) at Ex.12, who produced mashirnama of the place of wardat, inspection of injuries and arrest of accused at Ex.12/A to 12/C; PW-6 SIP Noor Muhammad Kalhoro at Ex.13; PW-7 SIP Sikandar Ali Chang (I.O) at Ex.15, who produced chemical report and the letters at Ex.15/A to 15/D; PW-8 Ali Bux Phulpoto (Tapedar) at Ex.16, who produced sketch of the place of wardat at Ex.16/A; PW-9 SIP Muhammad Faheem Abro at Ex.17 and PW-10 Dr. Muhammad Ayub Gorar at Ex.20, who produced medical letters of deceased Imran at Ex.20/A to D.

 

5.     Statement of appellant under section 342, Cr. P.C was recorded at Ex.22 wherein he denying the allegations against him claimed his false implicated in this case by the police. He further stated that the complainant and the PWs were interested and set up witnesses. He; however, neither opted to examine himself on oath nor led any evidence in his defence.

 

6.        Learned trial Court after hearing the parties and appreciating the evidence, convicted the appellant and awarded him sentences vide impugned judgment as mentioned above.

 

7.     Learned counsel for the appellant has mainly contended that the impugned judgment is against the law and facts; that the appellant is innocent and he has falsely been implicated due to enmity; that there is a delay of 02 days in the lodgement of FIR for which no plausible explanation has been furnished by the complainant; that the place of incident is a mosque but no local person has been cited as a witness; that if the appellant had any intention to commit the offence, he must have explosive substance to damage the mosque; that post-mortem of the deceased was not conducted; that the complainant is not an eye witness of the incident; that no article was recovered from the possession of the appellant; that blood-stained earth was secured by the I.O on 28.11.2008 and same was sent to the laboratory on 07.02.2009 with the delay of about 02 months; that there are material contradictions in the statements of the PWs rendering the prosecution case doubtful; that since the prosecution has miserably failed to prove its case against the appellant, he is entitled to acquittal by extending him benefit of doubt. In support of his contentions, learned counsel has relied upon the case reported in 2021 SCMR 381 and 2020 P.Cr.L.J 43.

8.    Per contra, learned DPG has maintained that the appellant is nominated in the FIR with specific role, who in furtherance of his common intention committed the murder of deceased Imran Ali Channa by causing him iron rod blows; that no enmity was claimed by the appellant, justifying his false implication in this case at the hands of complainant; that both the eye-witnesses are injured and their presence at the place of incident is natural; that the ocular account is consistent with medical evidence as well as circumstantial evidence; that the delay in lodgement of FIR has properly been explained by the complainant in his deposition; that the learned trial Court has rightly appreciated the evidence for recording conviction of the appellant. In support of his contention, learned DPG has relied upon the cases reported in 2011 S C M R 872, 2013 P Cr. L.J 86 & 1461, 2004 P.Cr.L.J 1326, 2015 PLD  SC 145, 2016 YLR Note 38 and 2014 P Cr. L.J 885.

 

9.     We have heard learned counsel for the parties and perused the material available on record with their assistance.

 

10.    On the evaluation of the material brought on record, it appears that the prosecution case mainly depends upon the ocular testimony furnished by the PW-1 complainant Deedar Ali and eye-witnesses PW-2 Ghulam Qambar Langah and (PW-3) Syed Mukhtiar Hussain Shah, which is supported by the medical evidence adduced by the PW-4 MLO Dr Ali Nawaz and PW-10 Registrar P.M.C.H, Nawabshah Dr. Muhammad Ayub and finally PW-7 I.O, SIP Sikander Ali. The record shows that the complainant, appellant and injured PWs. are residents of the same vicinity.

 

11.   PW-1 complainant Deedar Ali has deposed that he belongs to Fikka-e-Jaffaria and he is Mutawali of mosque Imam Ali Raza. On 26.11.2008, he was going to offer Maghribain prayer at 06:00 p.m., he heard the cries from the mosque and rushed towards mosque and saw the appellant, Abdul Razaque Bozdar and 03 other unidentified persons on the light of the electric bulb causing iron rods blows to deceased Imran Ali Channa, Syed Mukhtiar Hussain Shah and Ghulam Qambar Langah, who were offering prayer. The injured were raising cries, in the meantime Shahid Ali Langah and other neighbours came running in the mosque. The accused expressed that if any persons belonging to Shia sect came in the mosque for offering prayer, he would be dealt with similarly and saying so they went away from the mosque. All the injured PWs. sustained serious injuries on their heads and were bleeding, who were shifted to Civil Hospital, Khairpur for treatment. Due to serious injuries, deceased Imran Ali Channa was referred to Nawabshah Hospital for better treatment and Hakeem Mukhtiar Hussain to Karachi. On the very next day, injured Imran Ali Channa succumbed to his injuries in Nawabshah Hospital. In his cross-examination, the complainant has admitted that his house is situated at a distance of 250 paces from the mosque. He has also admitted that he knew the appellant prior to the incident and that the house of accused co-accused Abdul Razaque is situated on eastern side of mosque Imam Ali Raza. PW-2 Ghulam Qambar, the eye-witness/injured, has deposed that on the day of the incident, he was offering Maghribain prayer in the mosque Imam Ali Raza, Syed Mukhtiar Hussain and deceased Imran Ali Channa were also offering prayer, when appellant and Abdul Razak Bozdar, along with 03 unidentified accused caused iron rods blows to him and to Syed Mukhtiar Hussain Shah and deceased Imran Ali Channa, who after sustaining iron rods blows fell down in the mosque and raised cries. Complainant Deedar Ali, Shahid Ali and other neighbours arrived there and they were shifted to hospital. He has also deposed that on sustaining injuries he went unconscious, and remained hospitalised in Civil Hospital, Khairpur for about 14/15 days for treatment, and on the next day of the incident Imran Ali succumbed to his injuries at Nawab Shah Hospital. He identified the appellant present in Court. In cross-examination, he has admitted that his house is situated at the distance of about Ľ KMs from the mosque Imam Ali Raza. He has also admitted that he knew the appellant for the last about 4/5 years. PW-3 Syed Mukhtiar Hussain Shah, the eye-witness/ injured, has deposed that on the day of the incident he was offering prayer when accused persons entered into the mosque and gave iron rod blows to him and to Ghulam Qambar and Imran Channa, who received injuries on their heads. They were shifted to the hospital for treatment. Due to serious injuries, he was shifted to Karachi for better treatment and he remained there for 02 weeks. He also identified the appellant in the Court and said that he had caused an iron blow to him. In his cross‑examination, he deposed that at the time of incident he was residing at the distance of 100 paces from the said mosque.

 

12.   The direct evidence also finds corroboration from the medical evidence regarding cause of death of the deceased and the time of the incident. PW-1O Dr. Muhammad Ayub has deposed that on 27.11.2008, injured Imran Ali Channa was referred by the CMO Civil Hospital, Khairpur to PMCH for further management vide yearly OPD No.12314-15502. (Ex.20/A). During treatment, the injured expired at about 11:00 p.m. The cause of death was right extradural hematoma. In his cross-examination, he has deposed that he received the injured Imran in unconscious condition at 10:00 p.m. who expired at 11:00 p.m. PW-4 MLO Dr. Ali Nawaz, in his deposition has produced provisional/final MLCs of injured Mukhtiar Hussain (Ex.11/A & Ex.11/B), who received (1) lacerated wound sized 7cm x 2 cm on the right parietal region of the head with expose of bone and (2) contusion irregular size on the left cheek. Both injures appeared to have been caused by hard and blunt substances. He has opined injury No.(1) as “Shajjah Mudihah” under section 337-A(ii), PPC and injury No.(2) as another hurt under section 337-L(2), PPC caused by the hard and blunt substance. He has also produced MLC of injured Ghulam Qambar (Ex.11/C), who received (1) lacerated wound size 8 cm x 2 cm on the right parietal occipital region of the head with expose of the bone and (2) lacerated wound size 7 cm x 1 cm on the mid partial region of the head with expose of bone. He has opined said injuries as “Shajjah Mudihah”, caused by hard and blunt substance.

 

13.   The ocular version is supported with medical evidence. The ocular evidence is also supported by evidence of PW-7 SIP Sikander Ali, the investigating officer, who during investigation secured blood‑stained earth from the place of incident in presence of witnesses. As per the chemical examiner report (Ex.- 15/L), blood-stained earth was found stained with human blood. The prosecution witnesses are in line in respect of the vital points in their depositions and they could not be shaken during cross-examination. The availability of the appellant at the place of the incident is also established through the evidence of complainant and injured/eye-witnesses. We have not observed any material contradiction in their depositions.

 

14.   The first contention of the learned counsel for the appellant is that no post-mortem was conducted on the body of deceased Imran Ali Channa and he in this regard has relied upon the case of Gul Muhammad and others v. The State (2021 SCMR 381). The facts of the cited case are that the accused of the cited case committed murder of the deceased by means of throttling, asphyxia, respiratory arrest and thrown him into saim shakh. The Hon’able Supreme Court observed, as under:

 

“it is admitted fact that there is no direct evidence available on the record which connects the involvement of the petitioners in the occurrence alleged against them……….It is an admitted fact that the occurrence has taken place in the month of May whereas the finding given by the doctor qua time and cause of death do not commensurate keeping in view the condition of dead body as disclosed by the doctor observed during external examination. Possibility cannot be ruled out that the deceased was done to death earlier to the date disclosed in the crime report.”

 

In the instant matter, complainant as well as both the injured witnesses have sufficiently explained the date, time, place, manner of occurrence, and alleged involvement of the appellant. There can be no denial to legally established principle of law that it is always direct evidence that is material to decide the fact and to prove the charge. Insufficient, contradictory, discrepant direct evidence is deemed adequate to hold a criminal charge as not proved but where direct evidence remains in the field with that of its being natural and confidence-inspiring then the requirement of independent corroboration is only a rule of abundant caution and not a mandatory rule to be applied invariably in each case. Reliance may be placed upon the case of Muhammad Ihsan v. The State (2006 SCMR 1857), wherein the Apex Court has held that:

 

“5. It be noted that this Court has time and again held that the rule of corroboration is rule of abundant caution and not a mandatory rule to be applied invariably in each case rather this is settled principle that if the Court is satisfied about the truthfulness of direct evidence, the requirement of corroborative evidence would not be of much significance in that, as it may as in the present case eye-witness account which is unimpeachable and confidence-inspiring character and is corroborated by medical evidence.”

 

15.   From the perusal of the evidence of the complainant and both the injured witnesses, it appears that they cannot be termed as chance witness rather would fall within the category of natural witnesses as they offered prayers regularly in the said mosque. In the instant case, the evidence of eye-witnesses regarding the first part i.e. their presence at the spot in support of their claim to have witnessed the incident, is not disputed which is also substantiated from the medical evidence. Needless to mention that in absence of the first part such witnesses would never qualify the requirement, necessary for direct evidence as required by Article 71 of Qanun‑e‑Shahadat Order, 1984. There had never been a serious challenge to such claim of these witnesses; hence both the injured witnesses are natural witnesses. It may be added here that the status of one being a natural witness would never unnecessarily stand to be the witness of truth but always to the satisfaction of the Court. For which witnesses have given the detail of the incident in a manner that is believable to a prudent mind. Reliance in this regard is placed on the case of Abid Ali and 02 others v. The State (2011 SCMR 208) wherein the Apex Court has held that:

“21.  To believe or disbelieve a witness all depends upon intrinsic value of the statement made by him. Even otherwise, there cannot be a universal principle that in every case interested witness shall be disbelieved or disinterested witness shall be believed. It all depends upon the rule of prudence and reasonableness to hold that a particular witness was present on the scene of crime and that he is making true statement. A person who is reported otherwise to be very honest, above board and very respectable in society if gives a statement, which I illogical and unbelievable, no prudent man despite his nobility would accept such statement”.

 

16.   In the instant case, the complainant and injured/eye- witnesses were cross-examined by the defense at length wherein the learned counsel for the defense asked multiple questions to shatter their confidence but he could not extract anything from any of the said witnesses, who remained consistent on all material points. The parties are known to each other, so there was no chance of mistaken identity of the appellant, hence the case‑law relied upon by the learned counsel for the appellant is not applicable in the case in hand as the facts and circumstances of the present case are quite different from the cited case.

 

17.   As to the contention of learned counsel for the appellant regarding delay of two days for lodgement of FIR, the complainant has explained the delay by deposing that first he shifted the injured to Civil Hospital, Khairpur for treatment from where injured Imran Ali Channa was referred to Nawab Shah Hospital for better treatment and Mukhtiar Hussain Shah was referred to Karachi. The injured Imran Ali succumbed to his injuries in Nawab Shah and on the next day he has lodged the FIR, hence he has properly explained the delay for lodgement of FIR. In the case of Muhammad Nadeem alias Deemi v. The State (2011 SCMR 872) Hon’able Supreme Court of Pakistan has held that:

 

“it is an established principle of law and practice that in criminal cases the delay, by itself, in lodging the FIR is not material. The factors to be considered by the court are firstly that such delay stands reasonably explained and secondly, that the prosecution has not derived any undue advantage through the delay involved.”

 

18.   Considering the above facts and circumstances, we have come to the conclusion that the prosecution has successfully established its case against appellant through ocular accounts furnished by the eye-witnesses, which is corroborated by the medical evidence adduced by the MLOs coupled with recovery of blood-stained earth which was recovered from the place of incident. Learned counsel for the appellant has failed to point out any material or serious infirmity committed by learned trial Court while passing impugned judgment, which in our view is based on proper appreciation of the evidence on record and the same does not call for any interference by this Court. Thus, the conviction and sentence awarded to the appellant Shahzad Ahmed by the learned trial Court are hereby maintained and the instant appeal filed by the appellant merits no consideration, which is dismissed, accordingly.

                                                                 Judge

                                            Judge

        

ARBROHI