IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

 

Cr. Appeal No. S-82 of 2024

 

Appellant

 

Dildar Khoso

 

 

Through Mr. Safdar Ali Ghouri, advocate

 

 

 

The State

 

Through Mr. Ali Anwar Kandhro, Additional Prosecutor General for the State

 

 

 

Date of hearing

 

12-03-2025

Date of order

 

21-03-2025

 

O R D E R

OMAR SIAL, J.- On 20.02.2021, a police party of the A-Section police station in Kandhkot was on routine patrol when it received information that a man named Shad Mohammad had been throttled to death by Sahab, Saqib, Dildar (the appellant) and Hanif and that the dead body was lying next to a drain. The police party went to the identified spot and, recovered the body, and took it to the hospital. F.I.R. No. 34 of 2021 was registered under sections 302, 311, and 34 P.P.C. at the A-Section police station in Kandhkot by H.C. Ali Murad, acting on behalf of the State.

2.       Sahab Khoso and Dildar were arrested but pleaded not guilty and claimed to be tried. At trial the prosecution examined - PW-1 P.C. Mohammad Tayyab Gujrani (witness to the recovery of the dead body); PW-2 Ghulam Qadir Bangwar (eye-witness); PW-3 Akbar Ali (witness of site inspection); PW-4 P.C. Amanullah (accompanied the police party when the body was discovered); PW-5 Dhani Bux (eyewitness); PW-6 H.C. Ali Murad (the complainant); PW-7 Dr. Shafique Ahmed Malik (doctor); PW-8 S.I. Badal Khan (the investigating officer); PW-9 (Ghulam Mohiuddin Sundrani (the revenue office who sketched the crime scene); PW-10 H.C. Habibullah (who arrested the appellant).

3.       In his section 342 Cr.P.C. statement, the appellant denied all wrongs and further stated that he was not even the person named as the accused. Sahab Khoso was acquitted by the learned 1st Additional Sessions Judge, Kandhkot, but Dildar was convicted for life for an offense under section 302(b) P.P.C.

4.       I have heard the learned counsel for the appellant and the learned Additional Prosecutor General. Despite notices, none appeared on behalf of the legal heirs of the deceased. My observations and findings are as follows.

5.       The evidence against the applicant is solely in the testimonies of PW-2 Ghulam Qadir Bangwar and PW-5 Dhani Bux. Both individuals claimed to be eyewitnesses to the occurrence. We have, therefore, deeply analyzed their evidence to determine whether it is confidence-inspiring and trustworthy.

6.       The story narrated by the two prosecution witnesses is that three individuals, i.e., PW-1 Ghulam Qadir Bangwar, PW-5 Dhani Bux, and the deceased Shad Mohammad, were going home in a car being driven by PW-1 Ghulam Qadir Bangwar. When they reached close to their home, for some unexplained reason, the three men got out of the vehicle and gave the car to their cousin Akbar Ali. The three men decided to take the remaining journey to the house on foot. It was then that six men on two motorcycles appeared armed with Kalashnikovs and lathis.  The men were identified as Saqib, Zulfiqar, Sahab, Sain Bux, and Dildar, while one assailant remained unidentified. Dildar, in a loud voice, announced that Shad Mohammad was a “Karo” (a man accused of having an illicit affair with the wife of another) and then directed his companions to kill Shad. Encouraged and instigated Saqib, Zulfiqar, and Sain Bux throttled Shad while Dildar hit him on his leg with the lathi that he carried. The alleged assailants then threw the dead body in a nearby drain and left the premises.

7.       The presence of both witnesses on the crime scene is denied by both members of the police party, which was the first responder to the information that a dead body had been found. PW-1 P.C. Mohammad Tayyab Gujrani (witness to the recovery of the dead body), PW-4 P.C. Amanullah (accompanied the police party when the body was discovered), and PW-6 H.C. Ali Murad (the complainant), in their respective testimonies, stated that the place where the dead body was found was a deserted and abandoned place and that there was no one there when they had reached the crime scene. PW-5 Dhani Bux, who claimed to be an eyewitness, according to the testimonies of the police personnel, had joined them when they were taking the dead body to the hospital in the mobile they had come in. According to PW-1 P.C. Mohammad Tayyab Gujrani, the place of the crime was “situated in City Kandhkot, but it is an abandoned area.” and “No one gathered at the place of incidence.” PW-4 P.C. Amanullah and PW-6 H.C. Ali Murad both testified that “No one was available at the venue of occurrence.” Surprisingly, none of the members of the police party saw either Ghulam Qadir Bangwar, Dhani Bux, Akbar Ali, or anybody else, as a matter of fact. Doubts regarding the witness's credibility are created when, contrary to the police version, Ghulam Qadir Bangwar, at trial, claimed that not only was he present but that “after the departure of accused persons, many public persons gathered at the place of incident.”

8.       Another glaring and material contradiction is regarding the cause of death. The official version was that Shad had been throttled to death by three of the assailants. The eyewitnesses, PW-2 Ghulam Qadir Bangwar and PW-5 Dhani Bux, gave the same account. The medical report issued in the case also seems to support this theory, although the doctor's competence in performing the postmortem in light of his testimony left much to be desired. The surprising thing is that both the witnesses, while claiming that Shad was throttled in their examination in chief, in their respective cross-examinations, claimed that Shad had been shot at. Both witnesses testified, “Shad Mohammad suffered firearm injuries while he was on the road.”

9.       The two eyewitnesses testified that a short distance away from their destination, they had disembarked from the car they were traveling and handed over the vehicle to PW-3 Akbar Ali (witness of site inspection). In his testimony, Akbar recorded no such transfer taking over, and it appears that he had come to the scene, if at all, only when the investigating officer was to inspect the crime scene. One also wonders why Akbar was called to identify the crime scene if he was not present when the incident occurred. The supposed absence of eyewitnesses to show where the crime occurred is also suspicious.

10.     It is also noteworthy that H.C. Ali Murad registered the F.I.R. in the case. The prosecution witnesses did not explain at trial as to why the two eyewitnesses were not complainants. PW-2 Ghulam Qadir Bangwar approached the Justice of Peace a few days later for permission to register an F.I.R. but was denied because the F.I.R. had already been registered.

11.      Even according to the prosecution case, the role assigned to the Dildar is primarily of instigation. He is also accused of hitting Shad on his leg with a lathi. We find it unnatural that a man who wants to kill another will, in a loud voice, announce the reason why the target is being killed and then tell his companions to do the needful. This is the story in nearly every other case that comes to court. It is also odd that if the alleged assailants were also armed with Kalashnikovs and seemed not to be afraid of being identified and committed the crime in front of eyewitnesses, knowing them to be close relatives of the target, would opt to throttle the target rather than just shoot him dead. There is no evidence apart from his loud proclamation to show that the appellant shared a common intention with those who throttled Shad. Unless Dildar took away the stick with him with which he hit the leg of the deceased, the investigating officer could recover nothing from the place of the incident.

12.     It was alleged that the motive for killing Shad was an illicit affair he had with someone. This allegation was based on what the spy informer told the police party. This aspect was never investigated; thus, no evidence was recorded to support this theory. It was also not explained as to how Dildar was connected with the unidentified woman with whom Shad had an affair. The motive assigned went unproven.

13.     In light of the above observations, I cannot exclude doubt in the prosecution case. One set of witnesses was not telling the truth. It cannot be deciphered from the evidence as to who that was. Be that as it may, the prosecution case was adversely impacted. The prosecution was unable to prove its case beyond a reasonable doubt. The appeal is allowed and the impugned judgment is set aside. The appellant may be released forthwith if not required in any other custody case.

 

                                                                                Judge

Abdul Salam/P.A