IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Crl. Jail Appeal No.D- 55 of 2016
Conf. Case No.D- 03 of 2016
Before;
Mr.
Justice Muhammad Iqbal Mahar
Mr.
Justice Irshad Ali Shah
Appellants: Sikander
alias Sikoo and Zakria
alias Zakoo
through Mr.
Rab Dino Makwal, Advocate
Complainant: Muhammad Nawaz Katohar, through
Mr.
Muhammad Qayoom Arain,
Advocate
Respondent: The State,
through Mr. Abdul Rehman Kolachi,
Deputy
Prosecutor General
Date of hearing: 27.03.2019
Date of decision: 27.03.2019
JUDGMENT
Irshad Ali Shah, J; The appellants by way of instant
Criminal Jail Appeal have impugned the judgment dated 12.03.2016, whereby they
by Judge, Anti-Terrorism Court Khairpur Mirs’ have been convicted and sentenced as under;
“therefore, both
the above named accused persons namely 1. Sikander
alias Sikoo Chandio and 2. Zakria alias Zakoo Chandio are liable to be punished for offence punishable
under section 148 PPC and I award sentence them to suffer R.I for three years
each and to pay the fine of Rs.10,000/- (Rupees ten thousand) each and in case
of default in payment of fine, they shall suffer further R.I for two months
each. I also convict both the abovenamed accused for
the offence of murder of deceased Shahnawaz Katohar punishable under section 302(b) r/w Section 149 PPC
and sentenced them death penalty each. They shall be hanged by their neck till
they are dead and it is further ordered that both the above named accused
persons shall pay the compensation as contemplated under section 544-A Cr.P.C to the legal heirs of the deceased Shahnawaz Katohar, of
Rs.2,50,000/- (Rupees two lacs fifty thousand) each
in lieu of above named deceased, total Rs.5,00,000/- (Rupees five lac) and in case of default of payment of said compensation
the accused 1. Sikander alias Sikoo
Chandio and 2. Zakria alias
Zakoo Chandio shall suffer
further R.I for one year each and if the compensation amount is recovered it
shall be paid to the legal heirs of the said deceased in accordance with law.
Separately; I also convict both the above named accused for the offence
punishable under section 324 r/w Section 149 PPC and sentence them to suffer
R.I for ten years each and to pay fine of Rs.25,000/- each. In case of default
in payment of fine they shall suffer further R.I for six months each.
Separately; I also convict both the above named accused for the offence
punishable under section 386 R/w section 149 PPC and sentence them to suffer
R.I for seven years each and to pay the fine of Rs.15,000/- each. In case of
default in payment of fine, they shall suffer further R.I for four months each.
I also
convict the accused namely 1. Sikander alias Sikoo Chandio and 2. Zakria alias Zakoo Chandio for the offence punishable u/s 7 of ATA, 1997 and
sentence them death penalty. They shall be hanged by their neck till they are
dead, subject to confirmation of death sentence by the Honourable
High Court of Sindh, Bench at Sukkur. Accused further
ordered to pay fine of Rs.50,000/- (Rupees fifty thousand) each and in case of
default thereof, they shall suffer further R.I for six months each and if the
fine is recovered be deposited in Government Treasury.
All the above
said sentences awarded to the above named accused persons shall run
concurrently with the benefit of Section 382-B Cr.P.C.”
2. The narration of the incident
is well disclosed in the FIR of the present case, which reads as under;
“Complaint
is that Shahnawaz aged about 36/37 years was my elder
brother. Accused Liaquat Ali, Fareed,
Zakria alias Zakoo, Sikander alias Sikoo all by caste
Chandio and Sajan Lashari are criminal type of persons. About one month ago,
above named accused demanded ‘bhatta’ from us, on our
refusal they were found threatening us of murder. Today at evening time I, my
brother Shahnawaz and relative Sanwal
s/o Qurban Katohar were
sitting at hotel near MashaAllah Petrol Pump there at
about 5:00 p.m came accused Liaquat
Ali s/o Sheral chandio
having dagger, 2. Fareed s/o Allahdino
Chandio having dagger, 3. Sajan
Lashari, having dagger, 4. Sikander
alias Sikoo s/o Sheral Chandio having Kalashnikov, 5. Zakria
alias Zakoo Chandio having
pistol, they overpowered us by force by saying that we have failed to pay them
‘bhatta’ now we would be killed so that none may
refuse paying ‘bhatta’ to us on demand. By saying so,
accused Liaquat Ali Chandio
caused dagger blow to Shahnawaz on his chest with
intention to commit his murder, accused Sajan Lashari caused dagger blow to PW Sanwal
at right side of his chest with intention to commit murder, accused Fareed Chandio caused dagger blow
to PW Sanwal on his right thigh with intention to
commit his murder, accused Sikander alias Sikoo caused butt blow with his Kalashnikov to PW Sanwal on his head. I while raising cries ran towards
petrol pump. On my cries, my relatives Paras Din s/o Moula Dad, 2. Misri s/o Hamzo Katohar and others came
running, on seeing them coming, all the accused ran away while making aerial firing
and creating terror. We immediately came to injured and narrated the above facts
to witnesses and found that my brother Shahnawaz and
PW Sanwal were oozing blood from their injuries and
condition of Shahnawaz was serious. Immediately we
arranged for conveyance and shifted the injured persons for immediate treatment
to Civil Hospital, Khairpur. Having left the injured
in civil Hospital, Khairpur now I have appeared to
report that the above named accused in collusion with each other by making
affray, being armed with deadly weapons on account of non-payment of ‘bhatta’ have caused injures to my brother Shahnawaz and Sanwal with daggers,
with intention to kill them, as well as accused persons having weapons made
aerial firing in order to spread terror. I am complainant, investigation may be
made.”
3. On investigation, the appellants
were challaned; they denied the charge and
prosecution to prove it, examined PW-1 complainant Muhammad Nawaz
(Exh.6), he produced FIR of the present case and receipt whereby dead body of
deceased was handed over to him; PW-2 Sanwal (Exh.7); PW-3 Misri Khan
(Exh.8); PW-4 Mashir Ghulam
Shabbir (Ex.9), he produced the memo of injuries of
injured, memo of examination of dead body of the deceased Shahnawaz,
inquest report, memo of place of incident and recovery of blood stained earth
and empties, memo of recovery of clothes of the deceased and memo of arrest of
the accused/appellants; PW-5 ASI Mazhar Ali (Exh.10);
PW-6 ASI Gulzar Hussain
(Exh.11), he produced police letters whereby the injured and deceased were
referred to hospital; PW-7 PC Qurban Ali (Exh.12);
PW-8 Dr. Khoob Chand
(Exh.13), he produced postmortem report of the dead body of the said deceased,
provisional and final medical certificates in respect of injuries sustained by
PW Sanwal; PW-9 Tapedar
Muhammad Chhuttal (Exh.14); PW-10 SIO Muhammad Ameen (Exh.15) and then closed the side.
4. The
appellants during course of their examination u/s 342 Cr.P.C
denied the prosecution’s allegation by pleading innocence by stating that they
have been involved in this case falsely by the complainant party on account of their
dispute with Chandia community people over landed
property, they did not examine themselves on oath or any one in their defence in disproof of the prosecution’s allegation.
5. On
the basis of evidence, so produced by the prosecution, the learned Judge,
Anti-Terrorism Court Khairpur convicted and sentenced
the appellants and then made a Reference to this Court in terms of Section 374 Cr.P.C for confirmation of death sentence or otherwise,
which he has awarded to the appellants.
6. Both, the Criminal Jail Appeal
filed by the appellants and Reference made by learned trial Court are now being
disposed of by this Court through single judgment.
7. It is contended by learned
counsel for the appellants that the appellants being innocent have been
involved in this case falsely by the complainant party in order to satisfy
their enmity with them over landed property; even otherwise no active role in
commission of incident has been attributed to them and evidence which the
prosecution has been able to produce before the learned trial Court against the
appellants has not been considered by learned trial Court in its true prospect.
By contending so, he sought for acquittal of the appellants.
8. Learned
DPG for the State and learned counsel for the complainant by supporting
impugned judgment have sought for dismissal of instant appeal by contending
that the appellants are vicarious liable for the commission of incident.
9. We
have considered the above arguments and perused the record.
10. The
unnatural death of deceased Shahnawaz and injuries to
PW Sanwal are proved by evidence of Dr. Khoob Chand. Now would be
examined the liability of the appellants towards the present incident. It is
stated by complainant Muhammad Nawaz and P.Ws Sanwal that the appellants and others oftenly
were threatening them of murder, if they failed to pay them ‘Bhatta’. On 11.12.2013 when they and deceased Shahnawaz were sitting at Masha
Allah hotel, there at about 5:00 p.m time they found
coming accused Liaquat Ali with dagger, Fareed with dagger, Sajan with
dagger, Sikander with Kalashnikov and Zakria with Pistol and they told them that they have failed
to pay ‘bhatta’ now they are to be killed. Consequently,
accused Liaquat caused dagger blow to Shahnawaz on his chest with intention to commit his murder,
accused Sajan and Fareed
caused dagger blows to PW Sanwal on his right knee
and thigh while accused Sikander caused butt blow to
PW Sanwal on his head. On that they raised cries, on
such cries PWs Misri and Paras
Din and others came running there and then accused ran away, they referred the
deceased and injured to hospital and reported the matter to police. If their
evidence is believed to be true, then no role in commission of incident is
attributed by them to appellant Zakria alias Zakoo and role attributed to appellant Sikander
alias Sikoo is only to the extent of causing butt
blows to PW Sanwal on his dead. As per Medical
Officer Dr. Khoob Chand, PW
Sanwal was found sustaining two stab wounds. If it
was so, then no blow to PW Sanwal was caused with
hard and blunt substance which is alleged to have been caused to him by
appellant Sikander alias Sikoo
with butt of his Kalashnikov. In that situation, involvement of appellants Zakria alias Zakoo and Sikander alias Sikoo on the basis
of mere presence and unproved blow to PW Sanwal is
appearing to be somewhat doubtful. PW Paras Din has
not been examined by the prosecution. PW Misri was
fair enough to admit that he did not see anyone causing dagger blows to
deceased Shahnawaz or injured PW Sanwal
with his eyes. His evidence hardly lend support to the case of prosecution. No
specific date for making demand of ‘bhatta’ is
disclosed by the complainant or PW Sanwal. No ‘bhatta’ is paid by the complainant or PW Sanwal to any of the appellants in person. As per SIO/Inspector
Muhammad Ameen after preparing memos of place of
incident etc. and recording 161 Cr.P.C statements of
the P.Ws he handed over the police papers to Inspector Altaf
Hussain Burdi for further
investigation. He too has not been examined by the prosecution for no obvious
reason. In these circumstances, it would be safe to make a conclusion that the
prosecution has not been able to prove its case against the appellants beyond
shadow of doubt. What to talk of confirmation of death sentence.
11. In case
of Tarique Pervez vs. The State (1995 SCMR 1345), it has been held by Hon’ble Apex Court that;
“For giving benefit of doubt to an
accused it is not necessary that there should be many circumstances creating
doubt- if a simple circumstance creates reasonable doubt in a prudent mind
about the guilt of the accused, then he will be entitled to such benefit not as
a matter of grace and concession but as a matter of right.”
12. For what has been discussed above,
the appellants are acquitted of the offence for which they were charged, tried
and convicted by learned trial Court; they are in custody they shall be
released from custody forthwith in the present case.
13. The instant Criminal Jail Appeal
and death Reference are disposed of in above terms.
Judge
Judge
ARBROHI