IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Appeal No. D-63 of 2014.

Present:

Mr. Justice Zafar Ahmed Rajput.

Mr. Justice Muhammad Iqbal Kalhoro.

1. Rashid son of Sarahuddin.

2. Sarahuddin son of Ali Roshan. …….. Appellants.

Versus

The State. ….. … Respondent.

Mr. Faiz Muhammad Larik, Advocate for the appellants

Mr. Khadim Hussain Khoonharo, D.P.G. for the state

Date of hearing: 22.11.2016.

Date of judgment: 08.12.2016.

J U D G M E N T

Muhammad Iqbal Kalhoro, J. On the allegations of committing qatl-e-amd of ASI Muhammad Yasin with fire arms near Anti-Terrorism Court, Old Sessions Court Building, Larkana on 20.01.2011 at about 10.30 a.m., the appellants were tried in Special Case No.04/2011 bearing Crime No.7/2011 registered at P.S Civil Line, Larkana for the offences under Sections 302, 353, 148, 149, 114 P.P.C read with Section 6/7 Anti-Terrorism Act, 1997 by the Court of Judge Anti-Terrorism, Larkana, and were convicted vide impugned judgment dated 20.12.2014 to suffer imprisonment for life under Section 302 (b) read with Section 149 P.P.C. and to pay compensation of Rs.100,000/- each to the legal heirs of the deceased under Section 544-A Cr.P.C; to suffer R.I two years under Section 353 read with Section 149 P.P.C; to suffer S.I three months under Section 337-H (2) read with Section 149 P.P.C; to suffer R.I two years under Section 148 P.P.C; to suffer imprisonment for life under Section 7 (a) of Anti-Terrorism Act, 1997 and to pay fine of Rs.100,000/- each, in default of which to suffer R.I for one year more and lastly to suffer ten years for committing offence under Section 7 (h) Anti-Terrorism Act, 1997 and to pay fine of Rs.50,000/- each, in default of which to suffer S.I six months more. The appellants being aggrieved by the above findings in the impugned judgment have preferred the instant appeal.

2. Record reveals that in order to prove its case, the prosecution has examined PW-1 Dr. Badaruddin Ex.14; PW-2 SIP Hussain Ali Ex.15; PW-3 LNC Nazir Ahmed, the Corpse Bearer Ex.16; PW-4 Head Constable Rehmat Ali Ex.18; PW-5 P.C. Abdul Majeed Ex.19; PW-6 Muhammad Haneef, the complainant, Ex.20; PW-7 Ali Hyder, the eyewitness Ex.22; PW-8 Imdad Ali Ex.24; PW-9 Himath Ali, the eyewitness, Ex.25; and PW-10 SIP Shah Nawaz, the Investigating Officer, Ex.26. In their respective evidence, these witnesses have produced all the necessary documents of the prosecution case, from F.I.R to all the memos, Inquest report, Postmortem report, Ballistic Expert report etc. After the prosecution side was closed, the statements of the appellants under Section 342 Cr.P.C were recorded, in which they have denied the charge. However, neither they have examined themselves on oath nor led any evidence in their defense. Learned trial Court at the conclusion of trial convicted the appellants vide impugned judgment in the terms as stated above.

3. This appeal was heard on 22.11.2016 and was reserved for judgment. During course of hearing, Mr. Faiz Muhammad Larik argued that appellants were innocent and were falsely implicated in the case on the basis of enmity; that there was no confidence inspiring evidence against them; that evidence of the prosecution witnesses was full of contradictions and discrepancies making the entire case as doubtful; that during the investigation, co-accused Muhammad Zaman who was the alleged driver of the car, in which the appellants and other co-accused had come to the place of incident to commit the offence, was let off by the police under Section 497 (1) Cr.P.C. hence the very root of the prosecution case was scuttled. And thereafter although in the trial the complainant had moved an application under Section 193 Cr.P.C for joining the said accused Muhammad Zaman, but it was dismissed by the learned trial Court vide Order dated 30.4.2013, meaning thereby that the manner in which prosecution presented its case was not even believed by the trial court. Learned counsel in his arguments laid much emphasis on the point that in the F.I.R and in the evidence of all the eye witnesses the deceased was stated to have died on the spot, but the Medico Legal Officer had deposed that the deceased was brought in injured condition, was provided emergency treatment and was alive for ten minutes; and that, according to him, had completely belied the prosecution case viz-a-viz presence of the prosecution witnesses at the relevant time on the spot. He further contended that the recovery of the pistol from appellant Rashid was also not free from doubt, as one witness had stated that after recovery the pistol was sealed, whereas the other one had stated that it was not sealed. He lastly urged that whole incident was un-witnessed and the complainant on the basis of previous enmity had later on introduced the appellants and others as accused. He in order to support his arguments, relied upon the case laws reported in 1995 P.Cr.L.J 1548, 1974 P.Cr.L.J 385, 1997 P.Cr.L.J 625 and 1999 SCMR 1220.

4. Conversely, learned D.P.G. supported impugned judgment. His contention was that appellant Rashid was nominated in the F.I.R with specific role of firing at the deceased and he was arrested from near the spot along-with the incriminating weapon, which was duly sealed and sent subsequently to the Ballistic Expert along-with the empties recovered from the crime scene, and his report was in positive showing that the said pistol was used in the commission of offence. However, the stance of learned DPG to the case of appellant Sarahuddin was much like conceding. He could not rebut that this appellant was not assigned any role and his sharing common intention thus was not beyond shadow of doubt.

5. We have considered the submissions of the parties and perused the material available on record including the case laws cited by the defence counsel. Record reveals that deceased Muhammad Yasin was Assistant Sub Inspector in the Police department. On the day of incident viz. 20.01.2011, he had come in the premises of Sessions Court Larkana to attend a case where he met with the complainant, his son, a practicing Advocate, and meanwhile his another son Ali Hyder and brother-in-law Himath Ali also reached there. And while they were talking to each other, when at 10.30 a.m. eight (8) accused including appellants came in a car and on a motorcycle duly armed with weapons. And then at the instigation of accused Muhammad Zaman appellant Rashid, accused Aurangzeb alias Zeb and Sanaullah alias Sano fired directly from their respective pistols at deceased Muhammad Yasin who resultantly fell down and died. Thereafter all the accused after making aerial firing with intention to create harassment fled away on the said vehicle and motorcycle, but appellant Rashid could not make it to any vehicle and ran towards the side of Treasury Office Larkana chased by the police. Whereafter, the complainant with the help of his brother and maternal uncle shifted dead body of his father to casualty at hospital and after leaving the above witnesses there appeared at Police Station and registered the F.I.R. The complainant in his evidence has given a detailed account of above incident that is fully supported by the witnesses. They have been subjected to a lengthy cross-examinations but no material contradiction has come out on record. Their evidence is consistent and confidence-inspiring that shows that appellant Rashid and two other co-accused committed murder of the deceased with fire-arms. As for the objection on the presence of PW Ali Hyder, who is otherwise peon in Govt. Boys High School Rasheed Wagan, it may be mentioned that in his evidence, he has explained satisfactorily that on the day of incident he was present in the school, where his uncle Himath Ali PW-9 had come to inquire about his father and with whom he had come to the place of incident, where complainant and his father were present. This piece of evidence establishing his presence at the spot has been fully supported by P.W Himath Ali, who in his deposition has reaffirmed the same facts. And there is nothing substantial on record to shatter their assertions and/or to doubt their presence at the spot at the relevant time. Their presence is further established by the unimpeachable account of the incident furnished by them in the evidence which is in line with the version of the F.I.R. Appellant Rashid, while trying to flee, was arrested from near Agricultural Development Bank situated close to the place of incident by PW-4 Head Constable Rehmat Ali who was on patrol duty along-with P.C Abdul Majeed and P.C Saeed, and from him a pistil along-with three live bullets was recovered. In investigation, said pistol was sent to the Ballistic Expert for examination along-with the empties recovered from the crime-scene, whose report has been produced by the Investigating Officer at Ex.26-D that shows that the said weapon and empties were received there in sealed condition and on examination, the empties marked as C-1 to C-6 were found fired from the said pistol. The recovery of pistol from appellant Rashid, which is found to be used in the commission of offence, is yet another piece of evidence which supports the prosecution case. It may be mentioned that when the place of incident was inspected in all six (6) empties of 9 m.m. bore, four (4) empties of 30-bore and ten (10) empties of Kalashnikov were recovered. This recovery corresponds exactly with the claim of prosecution relating to aerial firing made by the accused at the spot for spreading terror. Postmortem report showing three firearms injuries on the body of deceased is likewise in conformity with the evidence of the prosecution witnesses. There is no material contradiction in the evidence of the witnesses suggesting false implication of appellant Rashid.

6. We have also attended to the contention of learned counsel that in the F.I.R and in the evidence of all the eyewitnesses the deceased is said to have died at the spot, whereas the medico-legal officer has deposed the probable duration between injuries and death as 30 minutes. In our estimation this would be of no help to the appellants, nor would it improve their case a bit either, for the reasons that Postmortem of the deceased shows that he had received 3 through and through firearm injuries on the upper part of his body (torso), which had ruptured almost all the vital parts inside his body, and he was bleeding profusely. Naturally he would be unconscious at that time, and in such condition the complainant and witnesses, being inexpert medically to form a definite opinion about his death, assuming him dead would not be read to have debunked the entire oral account of the incident, which otherwise, as discussed above, inspires confidence. And in such circumstances we cannot give overriding importance to Medico-legal Officer’s evidence describing probable duration between death and injuries as 30 minutes, particularly so when from his deposition it is not borne out that the deceased was in conscious condition when brought in casualty.

7. However, as for the case of appellant Sarahuddin is, we have noted that although in the F.I.R he is stated to be armed with Kalashnikov but no role is attributed to him, and he is only alleged to be sitting inside the car. In their evidence the complainant or eye-witnesses have not assigned him either, except firing in the air, any specific part in the incident. This appellant in his statement under section 342 Cr.P.C has submitted copies of some medical-documents indicating him a disabled person. There is also no record showing recovery of any incriminating article from him that may lend any credence to the allegations leveled against him. In these facts and circumstances, his presence at the spot, and then more importantly his sharing common intention with the main accused is not free from doubt. We, therefore, cannot dissuade ourselves from extending benefit of doubt to him.

8. Considering foregoing discussion, while dismissing the appeal of appellant Rashid, we acquit appellant Sarahuddin by extending him benefit of doubt. He shall be released forthwith if not required in any other custody case. he appeal stands disposed of in the above terms.

JUDGE