IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Criminal Appeal No.S-32 of 2021.

Appellants:                    1.GhulamRaza s/o Ali Bakhsh Khoso.

2.ZulfiqarAli s/o Ali Muhammad Khoso.

3. Abdul Razzaq s/o Ali Muhammad Khoso

4.Barkat Ali s/o Ali Muhammad Khoso

                                      Through Mr. Achar Khan Gabole advocate.

The State:                      Through Mr. Khalil Ahmed Mailto, Deputy Prosecutor General, Sindh.

 

Date of hearing:          24-02-2022.

Date of judgment:         07-03-2022.

J U D G M E N T

 

Amjad Ali Sahito, J.-Through instant Crl. Appeal, the appellants named above have impugned the judgment dated 16-04-2021 passed by learned II-Additional Sessions Judge, Naushahro Feroze in Sessions Case No. 409/2013 (Re. The State Vs. Ghulam Taki & others), offence under section 324, 395, 337H(ii), 337L(ii), 337A(i), 337F(vi), 504, 147, 149 PPC, registered at Police Station Padidan, whereby the appellants/accused have been convicted and sentenced as under:-

          Accused Ghulam Raza.

          (a)      For offence u/s 324 PPC, R.I for 07 years and to pay fine of Rs. 50,000/-. In default whereof, he shall suffer S.I for 06 months more.

 

          (b)     For offence u/s 337-F(iii) PPC, imprisonment for 02 years and to pay Rs. 20,000/- as Daman to complainant/victim Ghulam Hussain, In default whereof, he shall remain in jail till payment of Daman amount.

 

          Accused Barkat Ali, Zulfiqar Ali and Abdul Razzaq.

 

          (a)      For offence u/s-A(i) and 337-L(ii) PPC, R.I for 02 years and to pay Rs. 20,000/- as Daman to eyewitness/victim Ali Bux jointly in equal shares. In default, they shall remain in jail till the payment of Daman amount.

 

          (b)     For offence u/s 337-F(i) and 337-L(ii) PPC for 01 year and to pay Rs. 20,000/- as Daman to eyewitness/victim Ali Gul jointly in equal shares. In default, they shall remain in jail till the payment of Daman amount.

 

          (C)     For offence u/s 337-A(i) PPC for 02 years and to pay Rs. 20,000/- as Daman to eyewitness/victim Ali Nawaz jointly in equal shares. In default, they shall remain in jail till the payment of Daman amount.

 

          The benefit of section 382-B Cr.P.C also extended to the appellants/accused and all the sentences of the imprisonment awarded to them shall run concurrently

 

2.      Brief facts of the prosecution case are that complainant Ghulam Hussain lodged the FIR on 28-02-2013 alleging therein that he is the owner of agricultural land, which was being cultivated by him. About one year back, Ali Muhammad Khoso and others prepared a fake agreement of his land and attempt to occupy it. On coming to know about such fake agreement, from time to time, such Faislas were held between the parties before Nekmards of locality, but no fruitful result was exposed. Hence he has lodged the bearing Crime No. 16/2012 for an offence under section 420, 465, 447, 506/2, 34 PPC at PS Padidan against accused Ali Muhammad and others, such a case is pending trial before the competent Court. The accused persons asked the complainant to withdraw from the said case. On 28-04-2012, the complainant along with his brother Ali Nawaz, Ali Bux and Ali Gul were available at their land bearing S.No.365 and thrashing wheat crop. At about 08-00 am ten persons armed with weapons came there on the Tractor Trolley, who were identified to be Ali Muhammad Khoso armed with a gun, Ghulam Raza Khoso armed with a rifle, Abdul Razzaq Khoso armed with the repeater, Ghulam Taki Khoso armed with a pistol, Barkat Khoso having lathi, Zulfiqar Khoso armed with a gun, Ali Hassan Brohi armed with a pistol and three identified persons, whose faces were opened armed with deadly weapons and would be identified if seen again. The accused Ali Muhammad Khoso and Ghulam Raza Khoso abused the complainant party and challenged them to leave the land, to which the complainant party replied that the land belongs to them, they already thrashed about 100 mounds of wheat crop and filled about 35/37 wheat bags, which were lying there. Meanwhile accused Ali Muhammad Khoso asked other accused persons for taking bags of wheat crop and so also issued threats to the complainant party that if anyone came near to them, they will kill him. The complainant party resisted taking of wheat crop bags, on which accused Ghulam Raza made a straight fire upon complainant with intent to commit his murder, which hit him on his left thigh, he fell and raised cries. Accused Ali Muhammad made aerial firing to create harassment. Accused Ghulam Taki also made direct fire from his pistol upon brothers of the complainant, but the same was missed. Accused Ali Hassan and Barkat caused lathi/club blows to brothers of the complainant, while accused Zulfiqar and Abdul Razzaq also caused butt blows to the brothers of the complainant, on which complainant raised hue and cry, which attracted villagers Tariq Solangi, Farooq Solangi and others, who rushed towards there and rescued the complainant party. Thereafter the accused persons went away from the place of the incident while taking away wheat bags by loading the same on Tractor Trolley.

 

03.   The villagers brought the complainant and his injured brothers’ tothe police station, obtained a letter for treatment and got admitted them to RHC Padidan. The medical officer referred the complainant to Nawabshah Hospital for better treatment, where an operation of his leg was conducted and his treatment was continued due to grievous injury. During treatment, he went to Police Station for lodging the FIR, but Nekmards of the locality advised him for resolving the dispute in brotherhood and kept him on hallow hopes, but did not redress his grievance. Then the complainant applied tothe competent Court of law for the registration of FIR, which was transferred to the Court of Additional Sessions Judge Naushahro Feroze, same was allowed vide order on 18-02-2013, hence he appeared at PS and lodged the above said FIR.

 

4.      After completion of the investigation, the police submitted challan u/s 173 Cr.P.C before the Court of law showing accused Ghulam Taki, Ali Muhammad and Ali Hassan on bail, while accused Ghulam Raza, Abdul Razzaq, Barkat and three unidentified culprits were shown as absconders. The NBWs were issued against the absconding accused. After completion of legal formalities, accused Ghulam Raza, Abdul Razzaq and Barkat were declared as proclaimed offenders. Learned 1st Civil Judge & Judicial Magistrate Naushahro Feroze supplied the case papers to the accused and then sent the R & Ps to the Court of learned Sessions Judge Naushahro Feroze, who transferred the same to the Court of learned 1st Additional Sessions Judge Naushahro Feroze, where the formal charge against accused Ghulam Taki, Ali Muhammad, Zulfiqar and Ali Hassan was framed, to which they pleaded not guilty and claimed to be tried vide their pleas recorded at Ex. 06 to 09 respectively.

 

5.      To prove the charge against the accused, the prosecution has examined all the material witnesses i.e complainant Ghulam Hussain, who produced the FIR, PW/2 injured Ali Nawaz, who produced mashirnama of wardhat and mashirama of inspection of injuries and PW/3 injured Ali Gul. After getting the pre-arrest bail, the absconding accused joined the trial and thenan amended charge was framed. The case was again transferred to the Court of learned 2nd Additional Sessions, Judge Naushahro Feroze. The prosecution has examined all the material witnesses including the complainant, eyewitness, investigation officer, mashirs as well as Medical Officer, who have also exhibited their respective documents. Ultimately learned DDPP for the State closed the prosecution side.

 

6.      The Statement of accused Ghulam Taki was recorded under Section 342 Cr.PC, who produced certain documents. The statement of accused Ali Muhammad, Zulfiqar, Ali Hassan, Ghulam Raza, Abdul Razzaq and Barkat were also recorded, who have denied the allegations of the prosecution leveled against them and claimed their false implication in this case. However, neither they examined themselves on oath nor led any defence witness.

 

7.      The learned Trial Court, after hearing learned counsel for the parties and assessmentof the evidence, convicted and sentenced the appellants/accused by extending the benefit of section 382-B Cr.P.C vide judgment dated 16-04-2021, which is impugned by them before this Court by way of filing instant Crl. Appeal.

 

8.     Learned counsel for the appellants/accused contended that the impugned judgment is against the law and facts of the case; that the appellants/accusedare innocent and have falsely been implicated in this case by the complainant due to dispute over the landed property; thatthere is an inordinate delay of ten months in lodging the FIR and such long delay has not been explained by the complainant; that prosecution has not examined material witnesses/injured Ali Bux, Tariq, Farooq and Mst. Sharifan; that there are material contradictions in between the contents of FIR and evidence of prosecution witnesses as well as application u/s 22A & B Cr.P.C; that in case of injuries court has to see the ocular version, medical account and circumstantial evidence, but in the present case ocular version furnished by the prosecution on contra to the medical evidence available on the file; that the evidence of prosecution witnesses is full of contradictions and discrepancies, which are fatal to the prosecution case. He lastly contended that the prosecution has miserably failed to prove its case against the appellants/accused, thus, they are entitled to acquittal. In support of his contentions, he has relied upon on the case laws (1)  2017 SCMR 486 (2) 2007 SCMR 108, (3) 2019 SCMR 1306, (4) 2008 SCMR 707 and 2016 SCMR 1763.

 

9.      On the other hand, learned DPG for the State has supported the impugned judgment and opposed for acquittal of appellants/accused on the ground that no malafide on the part of the complainant is found to involve them in this casefalsely;that the judgment passed by learned trial Court is well reasoned and has rightly appreciated the evidence while recording conviction and sentence of the appellants/accused,thus he prayed for dismissal of the instant Crl. Appeal.

 

10.    I have heard learned counsel for the appellants/accused, learned DPG for the State as well complainant and have perused the material available on record.

 

11.   On careful perusal of material brought on record it appears that the prosecution case solely depend upon the ocular testimony adduced in the shape of evidence of PW/Complainant Ghulam Hussain (Ex-23)eye-witnesses namely Ali Nawaz (Ex-24) and Ali Gul and supported with the medical evidence as well ascircumstantial so also supported by other prosecution witnesses. Complainant Ghulam Hussain, who is also injured, has deposed that before this incident accused persons got prepared fake documents of their lands. Therefore, hehad registered FIR bearing Crime No. 16/2012 for the offence punishable under sections420, 465, 447, 506/2, 34 PPC at PS Padidan against Ali Muhammad, Ghulam Raza, Abdul Razzaq, Ghulam Taki, Barkat Zulfiqar, Pir Bux Arain and others. It has come on record that on 28-04-2012 at 0800 hours, in the land of complainant situated in S.No. 365, deh Aghan the appellants/accused in furtherance of their common object, duly armed with guns, rifle, repeater, pistols, lathi while hurling abuses to complainant Ghulam Hussain, his witnesses Ali Nawaz, Ali Bux and Ali Gul caused firearm, lathi, kicks, fists and butt blows to the complainant Ghulam Hussain, his brothers Ali Nawaz, Ali Bux and Ali Gul with the intention to commit their murder.  After receiving the injures the injured persons fell on the ground by raising cries, on which people of surrounding gathered and gave the name of Holy Quran to the accused, but the accused persons took their total wheat in the Tractor Trolley and left the scene of the offence. The injured were shifted to the police station. The complainant Ghulam Husain was also shifted toPolice Station and then to Hospital at Padidan, where the doctor gave him first aid and referred to him Nawabshah Hospital for further treatment. He was admitted for five daysand then discharged from the hospital and he came to his home and got treatment from private Hospital at Nawabshah, where after 10 months of the incident his leg was operated on by Dr. Shams Brohi at Nawabshah and remained under treatment for three months. After continued treatment, he approached the Court of District & Sessions Judge, Naushahro Feroze by filing an application for registration of FIR. After getting an order from the Court, he lodged the FIR.

12.In cross-examination, he admits that “I made complaint against the accused persons to Nekmard Dr. Abid Rajper, but I have not named the Nekmard in my FIR….I got treatment from different hospitals at Jinnah Hospital, Civil Hospital Hyderabad, and Private Hospital Larkana. I got treatment of my injured leg about 03/04 years and it is still continued due to rifle injury.”  In order to strengthen the version of the complainant, the prosecution has examined injured PWs Ali Nawaz and Ali Gul, who have fully supported the version of the complainant. PC Mushtaque Ahmed, who was also mashir of the case, deposed that on the day of incident viz 28-04-2012 injured Ghulam Hussain, Ali Gul, Ali Bux and Ali Nawaz appeared in injured condition at the police station. He issued them a letter for treatment and certificate to RHC Padidan, which he produced at Ex. 26/A. The prosecution has also examined investigating officer ASI Mumtaz Hussain, who deposed that on 28-02-2013 he was posted at PS Padidan and on the same day, complainant injured Ghulam Hussain appeared along with an order of learned Sessions Judge for registration of FIR. He lodged the FIR as per verbatim of the complainant and obtained his signature. On 01-03-2013 he noted the injuries of the injured complainant in presence of mashirs namely Ali Nawaz and Ali Gul and prepared such mashirnama, which he produced at Ex. 11/B. On the same day, he visited the place of incident/wardhat in presence of mashirs, which was situated in the land of the complainant and prepared such mashirnama of the place of incident/wardhat. On the same day, he also recorded the statements of PWs Ali Nawaz, Ali Gul, Ali Bux, Tariq and Farooq.

 

13.    Although, the witnesses named above, were cross-examined by the defense at length, wherein learned defense counsel asked multiple questions to shatter their confidence so also their presence at the scene of occurrence, but could not extract anything in favour of the accused and they remained consistent on all material points.

 

14.   Prosecution evidence has also found corroboration from the medical evidence concerning the injuries and time of the incident, which is evident from the evidence of Dr. Muhammad Aslam Arain who has deposed that on 28-04-2012 he was posted as Medical Officer at RHC Padidan. On the same day, he received police letter No. 424 brought by injured Ghulam Hussain, Ali Gul, Ali Bux and Ali Nawaz for treatment and certificate. First, he examined the injured Ghulam Hussain and found the following injures on his person.

(i)       Circular lacerated wound 1 ½ cm in diameter going deep on lower 1/3rd of the left thigh (laterally). (Wound of the entrance.

(ii)      Circular lacerated wound 2 cm in diameter on lower 1/3rd of the left thigh (Medially) (wound of exit).

 

          Injuries No. 1 & 2 are kept reserved for Radiological expert opinion from PMCH Nawabshah, therefore the injured was referred to PMCH Nawabshah for further management and expert opinion. The kind of weapon was the firearm. Duration of injuries was observed about five hours. Thereafter he received a Radiological expert opinion of the above name injured from PMCH Nawabshah dated 25-05-2012.  The expert opinion is as under:-

          No evidence of traumatic bony lesion is seen in all properly visualized bony parts in the radiograph, therefore the injuries No. 1 & 2, which were kept reserved in his provisional certificate dated 29-04-2012 treated as “Jurh-Ghayr-Jaifah-Mutalahimah”. He produced a provisional Medical Certificate of injured Ghulam Hussain at Ex. 28/A. He also produced the letter of Medical Superintendent PMCH Nawazbshah along with a report and two X-ray films at Ex. 28/B to 28/E. He also produced a copy of the final medical certificate at Ex. 28/F.

          Thereafter he examined Ali Nawaz Arain and found the following injuries on his person:-

(i)       Lacerated wound 2 cm x ¼ cm x skin deep on right occipital region of the head.

 

          (ii)      Contusion with swelling 6 cm x 3 cm on right shoulder joint.

 

          (iii)     Contusion with swelling 6 cm x 3 cm x on right gluteal region of buttock. 

 

          It was treated as Shajjah-e-Khafifah, while injuries No. 2 & 3 are other hurts. The kind of weapon was a hard blunt substance. The duration of injuries was observed about five hours, therefore, he issued such Final Medical Certificate, which he produced at Ex. 28/G.

          He has also examined injured Ali Bux Arain and the following injuries were found on his person.

(i)       Abrasion 3 cm x 2 cm skin ruptured on right frontal region of head near right eye brow.

 

          (ii)      Contusion with swelling 6 cm x 2 cm on left scapular region of back.

 

          Injury No. 1 is treated as Shajjah-i-Khafifah, while injury No. 2 is other hurts. The kind of weapon was a hard blunt substance. The duration of injuries was observed about five hours. Such a medical certificate was issued, which he produced at Ex. 28/H.

          Lastly, the injured Ali Gul was examined and following injuries were found on his person:-

(i)       Abrasion 5 cm x 3 cm skin rupture on right shoulder joint.

 

(ii)      Abrasion 5 cm x 4 cm x skin ruptured on right knee joint (Interiorly).

 

(iii)     Contusion with swelling 14 cm x 3 cm on mid of right and left back.

 

          The kind of weapon used was a hard blunt substance and the duration of injuries was observed about five hours. He issued such a medical certificate, which he produced at Ex. 28/I.

 

15.    The appellants in their statements u/s 342 Cr.P.C, have simply denied the prosecution allegation by stating that they are innocent and have falsely been implicated in this case by the complainant due to a dispute over the landed property. In this regard, appellant/accused Ghulam Taki has produced certified copies of certain documents while recording his statement u/s 342 Cr.P.C, which also strengthen the version of complainant they have also inimical terms with each other. The complainant and injured witnesses in their evidence have categorically stated that accused Ghulam Raza due to the enmity over the agricultural land accompanied with other accused, attacked and fired upon complainant party from his rifle, which hit at his left thigh, which has been corroborated by the Medical evidence. For the remaining accused persons, the complainant and injured PWs have deposed that they have caused lathi/club, as well as butt, blows to them and in this regard, the medical evidence is also in line with the ocular evidence. The medical office Dr. Muhammad Aslam has deposed that injuries caused to the injured werethe result of firearms and hard and blunt substances, this aspect of the matter has not been contradicted by the defence during lengthy cross-examination meaning thereby this has been admitted. The bone of contention between the parties is an agricultural land upon which the accused persons attacked the complainant party and taken away wheat bags from the land.

 

16. The investigating officer of the case was also examined, who has visited the place of incident/wardhat, prepared mashirnama of injuries, recorded 161 Cr.P.C statements of PWs etc and after completing all the Codal formalities, he has submitted the challan before the Court of law. From the careful evidence produced by the prosecution as well as documents produced by the accused persons, it appears that the prosecution has fully established the charge against the accused Ghulam Raza, who has made a straight fire upon the complainant, which hit at his left thigh as well as against accused Barkat Ali, Zulfiqar and Abdul Razzaq for causing injuries to injured Ali Bux, Ali Gul, Ali Nawaz.

 

17. In the instant matter, the eyewitness has sufficiently explained the date, time and place of occurrence, as well as, each and every event of the occurrence in a clear cut manner. The parties were known to each other as is evident from their evidence. I would not hesitate to saythat where the witness falls within the category of natural witness and gives a detail of the incident in a confidence-inspiring manner, then the only escape available to the appellants is to satisfactorily establish that witnesses are not the witness of truth but interested one. No substance has been brought on the record by the appellants to justify their false implication in the instant case at the hands of the complainant party.)

 

18.   So far as the contention of the learned counsel for the appellants are that there was a delay in the registration of FIR of about 10 months is/was concerned,the complainant has explained the delay by deposing that first he was shifted to Padidan hospital then he was referred to Nawab Shah hospital for better treatment from where he was discharged. He had also got treatment from different hospitals. The complainant is/was present in court still he is unable to walk properly due to a firearm injury. Further, the PW/HC Mushtaque Ahmed deposed that on the day of the incident he was posted as HC at PS Padidan. On the same day injured Ghulam Hussain, Ali Gul, Ali Bux and Ali Nawaz appeared in the injured condition he has issued a letter for the treatment and certificate to RHC Padidan he has produced letter No. 424 dated 28.04.2012 at Exh.26/A. The PW/Dr. Muhammad Aslam (Ex-28) also confirms that on the day of the incident the injured person appeared before him and he has provided the treatment to them and issued a medical certificate of injured persons. He has also produced the final medical certificate of injured Ghulam Hussain Ali Nawaz, Ali Bux, Ali Gul as Exh. 28/F to 28/I,hence the delay in lodging of FIR has been explained satisfactorily. Reliance is placed in the case of Muhammad Nadeem alias Deemi v. The State (2011 SCMR 872).

19.    The upshot of the above discussion is that the prosecution has successfully established its case against the appellants/accused through an ocular account furnished by eyewitnesses, which is corroborated by the medical evidence coupled with circumstantial evidence. Learned counsel for the appellants/accused has failed to point out any material illegality or serious infirmity committed by the learned trial Court while passing the impugned judgment, which in my 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 appellants/accused by learned trial Court is hereby maintained and the instant Crl. Appeal filed by the appellants/accused merits no consideration, which is dismissed accordingly. The appellants/accused Zulfiqar, Abdul Razzaq and Barkat Ali are present on bail, their bail bond stands cancelled and surety discharged. They are taken into custody, remanded to jail to serve out the remaining sentence, awarded to them as per impugned judgment of the learned trial Court. The office is directed to return the surety documents i.e. Special Saving Certificate to the surety(s) after proper verification and identification and as per rules.

 

                                                                                           JUDGE

Nasim/P.A