IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal  Appeal No. D – 78 of 2012

Criminal  Appeal No. D – 79 of 2012

Criminal  Appeal No. D – 80 of 2012

Criminal Jail Appeal No. D – 81 of 2012

Criminal  Appeal No. D – 83 of 2012

Criminal  Appeal No. D – 84 of 2012

Criminal  Appeal No. D – 85 of 2012

Confirmation Case No. D- 11 of 2012

 

Present;

Mr. Justice Muhammad Iqbal Mahar

Mr. Justice Irshad Ali Shah

 

Appellants                :           Raja alias Wahid Bux, Ayaz Ali, Habibullah, Mir

                                                Muhammad and Ayaz Ali, through M/s A.R

            Faruq Pirzada and Mehfooz Ahmed Awan, Advocates

 

Mr. Shabbir Ali Bozdar Advocate for the legal heirs of the deceased

 

Respondent     :                   The State, through Mr. Zulfiqar Ali Jatoi,

                                                Additional Prosecutor General

 

Date of hearing :                16.04.2019

Date of decision:                16.04.2019

 

JUDGMENT

 

IRSHAD ALI SHAH, J:-   The appellants by way of captioned Criminal Appeals have impugned judgment dated 24.10.2012 passed by learned Judge, Anti-Terrorism Court Khairpur, whereby they have been convicted and sentenced as under;

“I have come to the conclusion that the accused Raja alias Wahid Bux Kalhoro, Habibullah Bhutto, Ayaz Ali Lohar and Mir Muhammad Shaikh are guilty for having committed the murder of above said two deceased police officials and convict them for an offence punishable U/s 302(b) PPC thus I award them death penalty for two times on each count. 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 are also ordered to pay compensation of Rs.100,000/- each to the legal heirs of each deceased person and in case of default in payment of said compensation amount accused shall suffer further SI for six months more. I further convict the above said accused Raja alias Wahid Bux Kalhoro, Habibullah Bhutto, Ayaz Ali Lohar and Mir Muhammad Shaikh for an offence punishable u/s 324 r/w Section 149 PPC and sentence them to suffer RI for seven years and also to pay fine of Rs.10,000/- to each. In case of default in payment of fine they shall suffer further SI for two months more. I also convict all the accused Raja alias Wahid Bux Kalhoro, Habibullah Bhutto, Ayaz Ali Lohar and Mir Muhammad Shaikh for an offence punishable u/s 7(a) of ATA, 1997  and award them death penalty for two times on each count. 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 are further ordered to pay fine of Rs.100,000/- each and in case of default thereof they shall suffer further RI for two years more. I further convict accused Raja alias Wahid Bux Kalhoro, Habibullah Bhutto and Ayaz Ali Lohar for an offence punishable under section 13(d) Arms Ordinance and sentence them to suffer RI for 5 years and also to pay fine of Rs.20,000/- each and in case of default in payment of fine they shall suffer further RI for one year more.”

 

2.                    It is alleged that the appellants with rest of the culprits after having formed an unlawful assembly and in prosecution of their common object robbed a passenger bus at Jhooly Lal Bus Stop and on noticing the arrival of police party of police station ‘B’ Section and Police Station Baberloi fired at them with intention to commit their murder, as a result of such firing SIP Muhammad Eidan Bhutto and DPC Manzoor Hussain, police party of Police Station Baberloi after sustaining fire shot injuries died, for that a case was registered against them at the instance of SIP Tufail Ahmed Bhutto of Police Station ‘B’ Section Khairpur. Subsequently, appellants Raja alias Wahid Bux, Habibullah and Ayaz Ali were apprehended by police party of Police Station ‘B’ Section Khairpur led by SIP Tufail Ahmed after an encounter when they were found to have assembled for committing robbery at National Highway adjacent to Magsi village and on arrest from them were secured the crime weapons for such offence they were booked separately. On investigation, they were challaned and then appellant Mir Muhammad joined them in trial. They did not plead guilty to the charge and prosecution to prove its case examined PW-1 Medical Officer Dr. Khoob Chand (Ex.09), he produced  postmortem reports, X‑Rays of deceased; PW-2 complainant SIP Tufail Ahmed (Ex.10), he produced memo of recovery of Car etc, FIR No.135/2010, roznamcha entries, memo of arrest of accused and recoveries, FIRs No.141/2010, 142/2010, 143/2010, 144/2010 and two photographs of the Cultus Car; PW-3  ASI Talib Hussain (Ex.11), he produced memo of inspection of dead bodies and inquest reports of deceased; PW-4 PC Shahbazdino (Ex.12), he produced receipt in respect of handing over the dead body of deceased to legal heirs; PW-5 HC Hadi Bux (Ex.13), he produced memo of identification parade of accused; PW-6 SIP/SIO Muhammad Faheem (Ex.14), he produced memo of place of incident, recovery of clothes of deceased, letter of SP Investigation in respect of sending of the blood-stained earth of deceased to Chemical Examiner and memo of imaginary arrest of accused Mir Muhammad Shaikh; PW-7 SIP/SIO Zulfiqar Ali (Ex.15), he produced letter in respect of constituting JIT, receipt of Chemical Examiner, Chemical Analyers Report, copy of letter regarding preparation of sketch of vardhat, copy of letter for sending crime weapons to Ballistic Expert, copy of notice u/s 160 Cr.P.C, copy of letter to Civil Judge/Judicial Magistrate in respect of appearance of PWs for identification and the report of Ballistic Expert Karachi; PW-8 Mr. Azizullah Khoso, Civil Judge and Judicial Magistrate (Ex.16), he produced copy of letter of PWs for identification; PW9 SIP/SIO Maqsood Raza (Ex.17), he produced roznamcha entry; PW-10 Sadaruddin Bhutto (Ex.18) and then closed the  side.

3.                    The appellants during course of their examination u/s 342 Cr.P.C denied the prosecution’s allegation by pleading innocence they examined DWs Abdul Raheem, Ghulam Muhammad and Rafique Ahmed in their defence, they also produced certain documents to prove their innocence, but did not examine them on oath. It was specifically stated by appellant Mir Muhammad that he was apprehended by the police much before actual involvement in the present case and he was involved in this case by police when his wife Mst. Moomal filed a Habeas Corpus Petition at High Court of Sindh, Bench at Sukkur.

4.                    The defence witnesses so produced by the appellants have, inter-alia, stated that the appellants being innocent have been involved in this case falsely by the police.

5.                    On the evaluation of the evidence, so produced by the prosecution, the learned Court convicted and sentenced the appellants and then made a Reference to this Court for confirmation of death sentence awarded to the appellants in terms of Section 374 Cr.P.C. The Criminal Appeals so filed by the appellants and the Reference so made by learned trial Court are now being disposed of by this Court through single judgment.

 

6.                    It is contended by learned counsel for the appellants that the appellants being innocent have been involved in this case falsely by the police, their names are not taking place in FIR relating to death of police officials, there is no independent witness to the police encounter, the recoveries have been foisted upon the appellants, the identification parade of the appellants Raja alias Wahid Bux, Habibullah and Ayaz Ali is defective one. By contending so, he sought for acquittal of the appellants.  In support of their contentions, they have relied upon  case of  Mehmood Ahmed and 03 others vs. The State (1995 SCMR 127) and State/Government of Sindh through Advocate-General Sindh Karachi vs. Sobharo (1993 SCMR 585).

7.                    Learned DPG for the State was fair enough to state that he would be having no objection, if the conviction and sentence recorded against appellant Mir Muhammad is set-aside. By stating so, he sought for dismissal of the appeals filed by appellants Raja alias Wahid Bux, Habibullah and Ayaz Ali by contending that they have actively participated in the commission of the incident and have been identified by the witnesses properly during course of identification parade.

8.                    Learned counsel for the legal-heirs of the deceased was fair enough to say that the parties have compounded the offence outside of the Court. By stating so, he left the matter over the Court to decide.

9.                    We have considered the above arguments and perused the record.

10.                  It was stated by complainant SIP Tufail Ahmed, PWs ASI Talib Hussain and HC Hadi Bux that on 16.07.2010 they with rest of the police personnel when were posted at P.S ‘B’ Section Khairpur were conducting patrolling when reached at ‘Jhooly Lal’ Bus Stop, there they were intimated by Driver of the Car that the passengers in the Bus are being robbed near to the bridge of ‘Waris Ghambeer’. Who that the driver of the Car was? It is not made known by any of them, which appears to be significant. Be that as it may, it was further stated by them that when they reached at the pointed  place,  there they found six

culprits duly armed with Kalashnikovs and pistols with a white colour Car bearing Registration No.AGC-945, it was found to have been parked behind the Bus. Such incident of the robbery was not reported by any individual allegedly robbed, which appears to be strange. In the meanwhile there came police party of Police Station Baberloi consisting of SIP Muhammad Eidan, DPC Manzoor Hussain and other police officials. The culprits with no loss of time fired at the police personnel with intention to commit their murder. The police personnel also fired at the culprits in self-defence. Such encounter continued for about five minutes and then the culprits drove away in their Car. SIP Muhammad Eidan and DPC Manzoor Hussain were found sustaining fire shot injuries, they were referred to hospital through ASI Allauddin and the culprits were followed, they made their escape good leaving behind their Car which was secured. It was intimated to them by ASI Allauddin that SIP Muhammad Eidan and DPC Manzoor Hussain have died on their way to the Hospital. Medical Officer Dr. Khoob Chand on such point came with a different version as according to him the death of the SIP Muhammad Eidan and DPC Manzoor Hussain was instantaneous. Such inconsistency could not be overlooked.  Be that as it may, the FIR of the above said incident was lodged against the unknown culprits without disclosing their descriptions even. Subsequent to such incident appellants Raja alias Wahid Bux, Habibullah and Ayaz Ali as per the complainant were apprehended by him after an encounter when they with rest of the culprits were found to have assembled at National Highway adjacent to Magsi village with intention to commit some offence. ASI Talib Hussain is silent with regard to such an encounter, which appears to be strange, same even otherwise proved to be ineffective one. No doubt, it is said that a police mobile sustained damage during such encounter but it was not produced at trial. Its non‑production at trial could not be ignored. After arrest as per SIO/SIP Zulfiqar Ali, the said appellants on 31.7.2010 were produced before Mr. Azizullah Khoso (Civil Judge and Judicial Magistrate) for their identification through HC Hadi Bux and PC Allah Rakhio, who then adjourned the identification proceedings and then conducted the same on 02.08.2010. By that act a chance was provided to the HC Hadi Bux and PC Allah Rakhio to see the said appellants even before their actual identification parade. Even otherwise, as per SIO/SIP Zulfiqar Ali the P.Ws were called by him at Police Station ‘B’ Section for recording their 161 Cr.P.C statements and at that time the appellants were also detained there. The impression which could be gathered from such narration would be that the PWs HC Hadi Bux and PC Allah Rakhio were provided a chance to see the said appellants before their actual identification parade. As per Mr. Azizullah Khoso, (Civil Judge and Judicial Magistrate) he arranged for the dummies. He in that respect was contradicted by SIO/SIP Zulfiqar Ali by stating that the dummies were arranged by him. No list of the dummies is made available. No dummy was changed after change of the appellants during course of identification parade. No specific role was attributed to any of the appellants by any of the witness during course of their identification parade. PC Allah Rakhio was not examined by the prosecution for no obvious reason. In such situation, it would be very hard to rely upon sole evidence of HC Hadi Bux, who allegedly identified the culprits during course of incident and subsequently during course of identification parade to draw adverse inference against the appellants. PW HC Hadi Bux even otherwise during course of his cross-examination was fair enough to admit that his 161 Cr.P.C statement was recorded on 02.08.2010. If it was so then it was with delay of seventeen days to the first incident. No explanation to such late recording of 161 Cr.P.C statement of PW HC Hadi Bux has been offered by the prosecution. In that situation legally no much reliance could be placed upon evidence of PW HC Hadi Bux. In these circumstances, it would be hard to uphold the conviction and sentence which is recorded against the appellants by learned trial Court only on the basis of recovery of alleged crime weapons, which too has not been affected in presence of any independent person.

 11.                 The discussion involved 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 their death sentence.

12.                  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.”

 

13.                  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 presence case.

 

14.                  The captioned Criminal Appeals and death Reference are disposed of in above terms.

 

Judge

Judge

 

 

ARBROHI