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Petitioner: Muhammad Qasim and 5 others VS Respondent: The State
Court Name: Sindh High Court Judge(s): Zulfiqar Ali Sangi Title: Muhammad Qasim and 5 others vs The State Case No.: Criminal Appeal No. S-162 of 2019 Date of Judgment:2021-09-20 Reported As: 2023 YLR 2343 Result: Appeal dismissed
JUDGMENT
JUDGMENT ZULFIQAR ALI SANGI, J.-- This criminal appeal is directed against the judgment dated 31.10.2018, passed by learned Sessions Judge, Jamshoro, in Sessions Case No.339 of 2013 (Re: The State v. Muhammad Qasim and others), emanating from Crime No.76 of 2013, registered at Police Station Schwan, under sections 302, 324, 504, 147, 148, 149,114, 337-A(i), 337-F(vi), P.P.C., whereby the learned trial court in the concluding para has held as under: "All the accused in prosecution of their common object, in pre-planned manner intercepted the car, made aerial firing, surrounded the car and brutally beaten five PWs, out of whom two have lost their lives subsequently. Therefore, in these mitigating circumstances, all accused are found guilty of following offences. Under sections 302(b)/ 149. P.P.C.For committing Qatl-i-Amd of deceased Photo Mallah Under sections 302(b)/ 149, P.P.C.For committing Qatl-i-Amd of deceased Ghulam Muhammad Under sections 324/149, P.P.C.Attempted to commit Qatl-i-amd of injured Gul Mohammad and Ghulam Hyder and in addition of that caused injuries to them. Under sections 337- L(ii)/ 149, P.P.C.For causing six injuries to injured Gul Mohammad Under sections 337- A(i)/ 149, P.P.C.For causing one injury to injured Gul Mohammad and one injury to injured Ghulam Hyder
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Under sections 337- F(vi)/ 149, P.P.C.For causing injury to injured Ghulam Hyder Under sections 504/149, P.P.C.For using abusive language Under sections 337- H(ii)/ 149, P.P.C.For aerial firing rashly or negligently as to endanger human life Under sections 147/149, P.P.C.For unlawful assembly Under sections 148/149, P.P.C.For rioting I therefore convict all the accused under Section 265-H(ii), Cr.P.C. in above - mentioned offences and sentence all accused as under:- Under sections 302(b)/149, P.P.C.Life imprisonment as Tazeer for causing Qatl-i-Amd of deceased Photo Mallah Under sections 302(b)/149, P.P.C.Life imprisonment as Tazeer for causing Qatl-i-Amd of deceased Ghulam Mohammad Under sections 324/149, P.P.C.R.I. for five years with fine of Rs.5000/- for- each accused and in default, each accused shall further undergo S.I. for four months. Under sections 337- L(ii)/ 149, P.P.C.R.I. for one year for the injury on the person of injured Gul Mohammad on his right fore-arm Under sections 337- L(ii)/ 149, P.P.C.R.I for one year for the injury on the person of injured Gul Mohammad on his right lower leg under sections 337- L(ii)/ 149, P.P.C.R.I for one year for the injury on the person of injured Gul Mohammad on his right foot Under sections 337- L(ii)/ 149, P.P.C.R.I for one year for the injury on the person or injured Gul Mohammad on his right chest Under sections 337- L(ii)/ 149, P.P.C.R.I for one year for the injury on the person of injured Gul Mohammad on his left upper arm Under sections 337- L(ii)/ 149, P.P.C.R.I for one year for the injury on the person of injured Gul Mohammad on his left side of chest Under sections 337- A(i)/ 149, P.P.C.R.I for one year and Daman Rs.5000/- to be paid to injured Gul Mohammad by the accused Under sections 337- A(i)/ 149, P.P.C.R.I for one year and Daman Rs.5000/- to be paid to injured Ghulam Hyder by the accused Under sections 337- F(vi)/ 149, P.P.C.R.I for two years as Tazeer and to pay daman Rs.10000/- to injured Ghulam Hyder Under sections 504/149, P.P.C.R.I. for six months Under sections 337- H(ii)/ 149, P.P.C.R.I for three months Under sections 147/149, P.P.C.R.I for six months Under sections 148/149, P.P.C.R.I for six months
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All the above sentences of R.Is. shall run concurrently and accused are extended benefit of Section 382-B, P.P.C. for the period which they have remained in jail as UTPs and same period be deducted from R.Is awarded to accused persons. Accused (1) Mohammad Essa and (2) Soomar are produced in custody they be remanded back to jail, while accused (1) Mohammad Qasim (2) Mohammad Hashim (3) Azizullah and (4) Ali Gohar are present on bail, their bail bonds stand cancelled and sureties discharged and they. are taken into custody and remanded to jail with directions to serve out sentence with directions to Superintendent of Jail to compute UTP period of accused and deduct same from R.I awarded to them.The case against proclaimed offenders (1) Zulfiqar Ali (2) Mumtaz Ali and (3) Qadir Bux be kept on dormant file till they are arrested or surrender and there would be no property order." 2. The brief facts of the prosecution case are that on 13-07-2013, at 2345 hours, complainant Gul Mohammad Mallah lodged FIR at P.S. Sehwan, stating therein that they have old enmity with Qasim Bozdar party. On 12-07-2013, he along with his brother Haji Ghulam Mohammad, nephew Ghulam Akbar, brother-in-law Photo Khan and maternal nephew Ghulam Hyder left their village Akatar in a Car for Sehwan Court and when at 8.30 a.m., reached near Ghulam Qadir Bhalai landhi, accused Mohammad Qasim and Mohammad Hashim with Kalashnikov rifles, Zulfiqar Ali with iron bar, Mumtaz Ali with danda, Qadir Bux and Soomar with iron rods, Azizullah, Mohammad Essa and 4/5 unidentified accused with dandas, all by caste Bozdar were found standing thee. Out of them,. Mohammad Qasim and Mohammad Hashim on seeing their car, fired in the air, hence they stopped the car and all the accused encircled their car. Accused forced them to alight from the car and started abusing. Accused Mohammad Qasim instigated others to kill Photo Mallah, who has used ill words towards them, to which accused Zulfiqar and Qadir Bux caused iron rod blows to Photo Mallah on his head, arms, legs, back of chest and other parts of the body with intention to kill him and he while crying fell down on the ground. Accused Mumtaz Ali and Soomar caused danda and iron rod blows to him and Ghulam Mohammad on heads, legs, arms, back of chests and other parts of bodies with intention to kill them. Accused Azizullah, Mohammad Essa and 4/5 unidentified accused caused danda blows to Ghulam Akbar and Ghulam Hyder on their heads, arms, legs, back of chests and other parts of their bodies with intention to kill. them. Accused Mohammad Qasim and Mohammad Hashim caused butt blows of Kalashnikov to him and Ghulam Mohammad on heads. On their cries people of vicinity came there, who rescued them and then accused by issuing threats and firing in the air went away. They saw that blood was oozing from their injuries. They arranged the conveyance and came at P.S. Sehwan and after obtaining refer letter there from, came to Taluka Hospital, Sehwan where from they all were referred to Civil Hospital, Hyderabad. During treatment on 13-07-2013 at 2.00 p.m his brother-in-law Photo Khan succumbed to the injuries and his dead body was brought at Taluka Hospital, Sehwan where postmortem on its dead body was conducted. Thereafter he lodged FIR at P.S. 3. After the investigation, the case was challaned and case papers were supplied to the appellants. The charge against them was framed at Ex.04, to which they pleaded not guilty and claimed to be tried. Some of the accused have absconded away but later they joined the trial and amended charge against all accused namely (1) Ali Gohar (2) Mohammad Essa, (3) Mohammad Soomar (4) Mohammad Qasim (5) Mohammad Hashim and (6) Azizullah was framed at Ex.11, to which they all pleaded not guilty and claimed to be tried vide their pleas at Exs.12 to 17 respectively. 4. The prosecution in order to prove its case examined PW-1 complainant Gul Mohammad Mallah at Ex.18, who produced FIR at Ex.18/A, PW-2 injured Ghulam Akbar Mallah at Ex.19, PW-3 Dr. Ghulam Rasool Daudpoto at Ex.21, who produced police letter at Ex.21 /A, provisional medical certificate of injured/ deceased Ghulam Mohammad at Ex.21/B, provisional medical certificate of injured/ deceased Photo at Ex.21/C, provisional and final medical certificates of injured Ghulam Hyder at Ex:21/D and 21/E respectively, provisional and final medical certificates of injured Gul Mohammad at
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Exs.21/F and 21/G respectively, police letter for conducting postmortem on the dead body of deceased photo Khan at Ex.21/H, inquest report at Ex.21/I, postmortem report of deceased Photo at Ex.21/J, PW-4 Dr. Mohammad Juman Memon at Ex.22, who produced police letter at Ex.22/A, inquest report at Ex.22/B, postmortem report of deceased Ghulam Mohammad at Ex.22/C, receipt of handing over dead body at Ex.22/D,PW-5 Tapedar Mohammad Juman at Ex.24, who produced four copies of sketches at Ex.24/A to 24/D respectively,PW-6 mashir Mevo Khan Mallah at Ex.25, who produced memo of injuries at Ex.25/A, inquest report at Ex.25/B, dead body examination form at Ex.25/C, memo of clothes at Ex.25/D, memo of inspection of wardat at Ex.25/E, memo of arrest of accused at Ex.25/F, memo of recovery at Ex.25/G, dead body examination forms at Exs.25/H and 25/I, memo of recovery of clothes of deceased Ghulam Mohammad at Ex.25/J, PW-7 Investigation Officer ASI Altaf Hussain Mangi at Ex.26 receipt of handing over dead body of deceased Photo at Ex.26/A, entry No.27 at Ex.26/B, letter to the chemical examiner at Ex.26/C, chemical report at Ex.26/D, receipt of handing over dead body of deceased Ghulam Mohammdd at Ex.26/E, letter addressed to the Chemical Examiner at Ex.26/F, and chemical report at Ex.26/G. Thereafter, learned incharge DPP for the State closed its side, vide statement at Ex.27. 5. Subsequently, counsel for appellants filed an application Under Section 540, Cr.P.C. for calling Administrators of Agha Khan Hospital and Ziauddin Hospital Karachi along with medical record of deceased Ghulam Mohammad for their examination as court witnesses, which was dismissed by the trial Court, vide order dated 18-08-2016, that order was assailed by accused before this Court in Criminal Revision Application No.S-153/2016 and this court vide order dated 18-11-2016 set-aside the impugned order of the trial Court dated 18-08-2016 and directed for issuance of summon to the witnesses mentioned in application along with relevant record and examine them as Court witnesses. 6. Court Witness-1 Dr. Syed Mohammad Baqi of Agha Khan Hospital, Karachi was examined at Ex.28, who produced complete file of patient/ deceased Ghulam Mohammad at Ex.28/A. The Court witness-2 Dr. Abdul Ghani of Ziauddin Hospital, Karachi was examined at Ex.29, who produced original file of patient/ deceased Ghulam Mohammad at Ex.29/A. 7. The statements of accused were recorded under Section 342, Cr.P.C. at Exs.30 to 35 respectively, in which they all denied the allegations of prosecution and stated that they were involved due to enmity with Abdullah Shah and his son Murad Ali Shah. Learned trial court after hearing the parties and examining the evidence available on record convicted and sentenced the appellant as stated above. 8. Mr. Mehmood Alam Rizvi, Learned counsel for the appellants has contended that the appellants are innocent, who have been falsely involved by the complainant due to political rivalry, which is evident from the contents of the FIR; that there is inordinate delay of more than 39 hours in lodging of FIR, which has not been explained properly; that there is also 11 days delay in recording statements of witnesses under section 161, Cr.P.C. that all the eye-witnesses are closely relatives to each other and no person from the vicinity has been taken as witness or mashir; that there are major contradictions in between evidence of the prosecution witnesses, which makes the case of prosecution doubtful; that though as per prosecution story, appellants Muhammad Qasim and Muhammad Hashim were armed with KKs but surprisingly they did not use the KKs against the deceased and PWs which also casts dent in the prosecution story; that the car of the complainant party in which they were travelling when they were attacked by the appellants, was neither examined by the I.O., nor the same was produced before the trial court to show that any damage was caused to it from the weapons of the appellants; that actually it was a road accident case but complainant party with the league of police converted it into present case by manipulating a false story, which is also evident from the evidence of PW-3, who in his deposition has stated that multiple injuries of such nature can be caused in a road traffic accident; that there is no iota of
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evidence against the appellants to connect them with the alleged offence; that in the given circumstances the prosecution story totally appears to be false and managed one and prosecution has failed to establish its case, therefore, this appeal be allowed and the appellants be acquitted of the charge. In support of his contentions, learned counsel for the appellants placed reliance on the cases of Zafar v. The State and others (2018 SCMR 326), Muhammad Asif v. The State (2017 SCMR 486), Muhammad Nawaz v. The State (2016 PCr.LJ Note 72), Muhammad Javed and another v. The State and another (2019 YLR Note 1), Rahat Ali v. The State (2010 SCMR 584), Muhammaddullah and another v. The State through Additional Advocate General and another (2018 PCr.LJ 1633), Allah Bakhsh v. Station House Officer and another (2013 MLD 885), Muhammad Ishaque and another v. The State (1997 SCMR 596), Aurangzeb v. The State through Advocate General (2008 PSC (Crl) 965), Haroon Shafique v. The State and others (2018 SCMR 2118), Said Wahab v. The State through Additional Advocate General and 3 others (2018 YLR 2398), Bagh Ali v. Muhammad Anwar and another (1983 SCMR 1292), Saeedullah Khan v. The State (1986 SCMR 1027), Mir Muhammad v. The State (1995 SCMR 610), Sikandar v. The State (PLD 2004 Karachi 644), Imran Ashraf and 7 others v. The State (2001 SCMR 424), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Altaf Hussain v. Fakhar Hussain and another (2008 SCMR 1103), Muhammad Ryas v. The State (1997 SCMR 25), Wali Muhammad v. Nawab and others (1984 SCMR 914), Riaz Masih alias Mithoo v. The State (1995 SCMR 1730), Mehmood Ahmad and 3 others v. The State and another (1995 SCMR 127), Mehar Ali and others v. The State (1968 SCMR 161), Khurshed v. The State (PLD 1996 SC 305), Muhammad Iqbal and others v. Muhammad Akram and another (1996 SCMR 908), Muhammad Ahmad and another v. The State and others (1997 SCMR 89), Khan Muhammad Mahar v. The State (2003 SCMR 22), Khalid Mehmood Butt v. Rauf Ahmed Qureshi (2008 SCMR 660) Peer Mukaram-ul-Haq v. National Accountability Bureau (NAB) through Chairman and others (2006 SCMR 1225), Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others (PLD 2001 Supreme Court 607); Mazhar Ahmed v. The State and another (2012 SCMR 997), Abdul Hameed v. Muhammad Abdullah and others (1999 SCMR 2589), Alamgir Khalid Chughtai v. The State (PLD 2009 Lahore 254), Muhammad Shahid Sahil v. The State and another (PLD 2010 FSC 215), Saifal v. The State (2013 PCr.LJ 1082), Ammar Yasir Ali v. The State (2013 PCr.LJ 783), Muhammad Rizwan Ahmed and others v.The State (2016 PCr.LJ 1371), Babar Ahmad v. The State (2017 YLR 153), Shoaib Ahmed and others v. The State and others (2019 PCr.LJ 57), Ulfat Hussain v. The State (2018 SCMR 313) and Khan Muhammad Mahar v. The State (2003 SCMR 22). 9. On the other hand, learned counsel for the complainant has contended that the delay in lodging of FIR has been fully explained by the complainant; that the medical evidence is in consonance with the ocular evidence; that there is no material contradictions in the evidence of prosecution witnesses and the contradiction if any, is immaterial and minor in nature, which could be occurred due to passage of time and would safely be ignored; that so far the non-association of witnesses from the locality is concerned, it has been observed by the Apex court in number of cases that it is matter of common knowledge that the people from the locality generally hesitate to come forward as witness in such cases for fear of reappraisal from the accused party; that the appellants failed to substantiate defence plea taken by them by producing any sufficient cogent evidence; while the prosecution has proved its case against the appellants% beyond reasonable shadow of doubt. He, therefore, prayed for dismissal of instant Criminal Appeal. In support of his contentions learned counsel for the complainant placed his reliance on the cases of Muhammad Nadeem alias Deemi v. The State (2011 SCMR 872), Nadir Shah v. The State (2009 SCMR 565), Naseer Ahmed v. The State (2003 SCMR 350), Muhammad Mushtaque v. The State (PLD 2001 SC 107), Khadim Hussain v. The State (PLD 2010 SC 669), Khurshid Ahmad v. Kabool Ahmed and others (PLD 1964 (W.P.) Karachi 356), Asif Jameel and others v. The State (2003 MLD 676), Shawar Gul and others v. The
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State and another (2006 PCr.LJ 284), Saeed and 2 others v. The State (2003 SCMR 747), Muhammad Ahmed (Mahmood Ahmed) and anther v. The State (2010 SCMR 660), Muhammad Ahmad and another v. The State and others (1997 SCMR 89), Farmanullah v. Qadeem Khan and another (2001 SCMR 1474), Achar alias Bhai Khan and another v. The State (2003 PCr.LJ 232), Nawab Khan alias Dahkhan and others v. The State and others (2015 PCr.LJ 539), Muhammad Bashir v. Station House Officer Okara Cantt and others (PLD 2007 SC 539), Muhammad Ashraf Khan Tareen and another v. The State and another (1996 SCMR 1747), Aftab Ahmed v. Hassan Arshad and 10 others (PLD 1987 SC 13), Shahnawaz and others v. The State (PLD 1959 (W.P.) Karachi 383), Abdullah Khan (deceased) through his legal representative v. Government of Sindh and another (1986 MLD 1500), Muhammad Ashraf v. Shah Noor Khan and another (1996 MLD 1819), Mst. Maryam Mirza v. M.M.Kazi and 2 others (1988 MLD 1651) and Muhammad Pervez and others v. The State and others (2007 SCMR 670). 10. Ms. Sana Memon learned A.P.G Sindh after going through the entire evidence of prosecution witnesses as well as other record of the case has supported the impugned judgment. 11. I have heard learned counsel for the appellants, learned APG for the state and learned counsel for the complainant and perused the materials available on record with their able assistance. 12. On reassessm ent of the entire evidence produced by the prosecution, I am of the view that the prosecution has proved its case against the appellants beyond any reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence, ocular as well as medical evidence including the circumstantial and other supportive evidence. The main prosecution witnesses gave their evidence as under:- 13. The prosecution examined P.W. 1 Gul Muhammad (complainant/ Eye-witness) who deposed that the incident took place on 12.07.2013. On the day of incident at 8.30 a.m. morning, he along with his brother Ghulam Muhammad, nephew Ghulam Akbar, brother-in-law Photo Khan and maternal nephew Ghulam Hyder left their village boarding in a car for visiting Sehwan Court and when reached at Ghulam Qadir Bhalali Landhi, they saw accused Muhammad Qasim armed with Kalashnikov, Muhammad Hashim armed with Kalashnikov, Zulfiqar armed with iron rod, Mumtaz armed with danda, Azizullah armed with danda, Muhammad Essa armed with danda and 4 unknown persons, they encircled their vehicle. They got down them from the car and on the instigation of accused. Muhammad Qasim, accused Zulfiqar and Qadir Bux caused iron rod blows to Photo Mallah at arms, legs, head and other parts of the body, who on sustaining injury fell down on the ground. Accused Muhammad Soomar and Mumtaz caused iron rod blows to him and his brother Ghulam Muhammad at arms, legs and heads, they also fell down. Accused Muhammad Essa and Azizullah caused blows to Ghulam Hyder and Ghulam Akbar. Accused Muhammad Qasim and Muhammad Hashim caused butt blows of Kalashnikov to him on his head and his brother Ghulam Muhammad. They raised cries, which attracted to the local people, who after taking the name of "Almighty Allah" saved them. Thereafter, accused Muhammad Qasim Bozdar told that if they made complaint against him, they will not be spared. He then saw that their peoples were lying injured and blood was oozing from the injuries. Photo Mallah was serious. He arranged another vehicle and shifted the injured to PS Sehwan. Police referred them to Taluka Hospital, Sehwan. The doctors of Taluka Hospital Sehwan after seeing them in serious condition referred them to Civil Hospital Hyderabad. He further deposed that on the 2nd day at 12 noon, Photo Mallah succumbed to injuries and died in hospital, and he also got first aid then they brought the dead body to Taluka Hospital Sehwan. After hearing about the death of deceased, Photo Mallah, police also came at Taluka Hospital Sehwan. Post-mortem of the dead body was conducted there. At about 10.30 p.m., the dead body was handed over, to them, which was brought at village by Muhammad Umar and others. After sending dead body, he along with Mevo and Ghulam Nabi went to police station Sehwan where he lodged FIR at 11.45 8 p.m. He further deposed that on the
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next day, ASI Altaf Mangi came at the place of incident shown by him and he inspected the place of incident and prepared such memo. This witness was cross-examined at length but I could not find any material substance favourable to the appellants. 14. Prosecution examined P.W.-2 Ghulam Akbar (Eye-witness), who deposed that this incident took place on 12.07.2013. On that day, date was fixed before the Court at Sehwan and he along with his father Ghulam Muhammad, uncle Gul Muhammad, Photo Mallah and Ghulam Hyder left house in their car for attending the Court at about 8.30 a.m. When they reached at Ghulam Qadir Landhi, they saw there Muhammad Qasim, Muhammad Hashim armed with Kalashnikovs, Zulfiqar, Qadir Bux Soomar, armed with iron rods while Azizullah, Essa and Mumtaz having dandas and 4/5 unknown persons. Accused Muhammad Qasim and Muhammad Hashim made fires from Kalashnikovs in the air and due to fear they stopped their vehicles. All the accused encircled their car and forcibly pull out them from the car and abused them. On instigation of Muhammad Qasim, accused Zulfiqar and Qadir Bux caused iron rod blows on the head of Photo Mallah, who fell down on the ground then they caused injuries to his other parts of the body. Mumtaz and Soomar caused injuries with danda and iron rod blows to his father Ghulam Muhammad and uncle Gul Muhammad. Azizullah, Essa and 4/5 unknown persons caused injuries to him and Ghulam Hyder with intent to kill them. Accused Muhammad Qasim and Muhammad Hashim caused butt blow of Kalashnikov to his father. Ghulam Muhammad and uncle Gul Muhammad on their heads. He further deposed that they raised cries, which attracted to the local peoples, who gave the name of "Almighty Allah" and saved them. Accused Muhammad Qasim told that if they will make any complaint against them, they will kill them. Accused after firing in the air and abusing went away. They saw that blood was oozing from their injuries as well as injuries of Photo Mallah. They arranged for conveyance and came at P.S. Sehwan. Police gave a letter for Civil Hospital, Sehwan. They reached at Sehwan Hospital where the doctors seeing their serious condition referred them to civil hospital Hyderabad. Photo was serious, he was taken to emergency. The doctors gave them treatment. On the. next day on 13.7.2013 Photo Mallah succumbed to injuries and died in hospital. His uncle and others took dead body of Photo Mallah and brought to Sehwan for postmortem. He further deposed that his father Ghulam Muhammad was unconscious due to injuries hence he remained with him in hospital at Hyderabad. Thereafter my uncle Gul Muhammad lodged FIR with police. On 23.7.2013, he went to Police Station, where ASI Altaf recorded his statement. He was cross- examined but learned counsel was unable to point out any material contradiction which creates any doubt in the case of prosecution. 15. The prosecution examined P.W-7 Mevo Khan (Mashir) who deposed that on 12.07.2013 at 10.00 a.m. police noted injuries on the persons of injured Ghulam Muhammad, Photo Khan, Ghulam Akbar, Ghulam Hyder and Gul Muhammad in Taluka Hospital, Sehwan. Police prepared such mashirnama of injuries in their presence. The co-mashir was Ghulam Nabi. On 13.07.2013 at 9.0 p.m. police inspected the dead body of deceased Photo at Taluka Hospital, Sehwan and prepared inquest report and dead body examination form. He depbsed that on the same date at 10.30 p.m, police secured clothes of deceased in their presence and prepared such memo. The co-mashir was same. On 14.7.2013 at about 7.00 or 7.1 5 a.m. police inspected place of incident, which was situated at link road at Ghulam Qadir Bhalai stop…
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