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Petitioner: Kamran s/o Rasool Parhiyar VS Respondent: The State
Court Name: Sindh High Court Judge(s): Riazat Ali Sahar Title: Kamran s/o Rasool Parhiyar vs The State Case No.: Criminal Appeal No. S-148 of 2024, Criminal Appeal No.S-149 of 2024 Date of Judgment:2025-06-03 Reported As: 2025 SHC HYD 1691 Result: Appeal Dismissed
JUDGMENT
JUDGMENT Riazat Ali Sahar, J. Both the above-captioned Criminal Jail Appeals have been filed by appellant Kamran, wherein he has challenged two separate judgments. One pertains to the main offence in the Robbery and attempt to murder case, while the other relates to an offshoot case arising from the main offence. Since both appeals stem from interconnected proceedings, they are being disposed of through this single judgment. 2. Through Criminal Appeal No. 148 of 2024, the appellant, being aggrieved and dissatisfied with the judgment dated 12-11-2024 passed by the learned 1st Additional Sessions Judge / Model Criminal Trial Court (MCTC), Tando Allahyar, in Criminal Case No. 254 of 2022 (Re: The State vs. Kamran & Another), arising out of Crime No. 103/2022 registered at Police Station A-Section Tando Allahyar under Sections 324, 392, and 34 PPC, prefers the instant appeal. By the impugned judgment, the learned trial Court convicted the appellant and sentenced him to undergo Simple Imprisonment for seven (07) years for the offence punishable under Section 324 read with Section 34 PPC, along with a fine of Rs. 50,000/-, and in default thereof, to suffer Simple Imprisonment for six (06) months. In addition, for the offence under Section 392 PPC, the appellant was sentenced to Rigorous Imprisonment for ten (10) years, together with a fine of Rs. 50,000/-, and in default of payment of fine, to suffer Simple Imprisonment for a further six (06) months. The benefit of Section 382-B Cr.P.C. was extended to the appellant, and all the sentences were ordered to run concurrently. The appellant, being dissatisfied with the findings and sentences awarded, seeks the indulgence of this Honourable Court to call for the record and proceedings of the above-referred criminal case from the learned trial Court.
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3. Through Criminal Appeal No. 149 of 2024, the appellant, being aggrieved and dissatisfied with the judgment dated 14.11.2024 passed by the learned 1st Additional Sessions Judge / Model Criminal Trial Court (MCTC), Tando Allahyar, in Criminal Case No. 249 of 2022 (Re: The State v. Kamran), arising out of Crime No. 104 of 2022 registered at Police Station A-Section Tando Allahyar under Section 23 (i) (a) of the Sindh Arms Act, 2013, submits the present appeal. By way of the impugned judgment, the learned trial Court convicted the appellant for the offence punishable under Section 23 (i) (a) of the Sindh Arms Act, 2013, and sentenced him to suffer Rigorous Imprisonment for a period of seven (07) years and to pay a fine of Rs.50,000/- (Rupees Fifty Thousand Only) and in default of payment of the fine, to undergo Simple Imprisonment for a further period of six (06) months. The benefit of Section 382-B of the Code of Criminal Procedure, 1898, was rightly extended to the appellant. The appellant, being dissatisfied with his conviction and sentence, prefers this Criminal Appeal with the humble prayer that this Honourable Court may graciously be pleased to call for the record and proceedings of the above-mentioned criminal case from the learned trial Court and, after hearing the learned counsel for the parties, be further pleased to set aside the impugned judgment dated 14-11-2024 and extend the relief of acquittal to the appellant, in the interest of justice. 4. Tersely stated, the brief facts of the prosecution case, as set out in Criminal Appeal No. 148 of 2024, are that on 19.05.2022, the complainant, his brother Muhammad Zubair, and their employee Shamsuddin Halepoto were present at their Mini Mart shop, which customarily operates from 11:00 a.m. until 1:00 a.m. At approximately 12:15 a.m. on 20.05.2022, three individuals arrived on a 125 cc motorcycle. Two of the assailants, armed with pistols, dismounted and entered the shop, while the third remained outside with the engine running. The armed assailants, at gunpoint, held the complainant and his associates hostage and forcibly robbed the cash counter, taking approximately Rs.27,000/- to Rs.28,000/- in mixed denominations. They further robbed Rs.5,000/- in cash from the complainant's pocket. From Muhammad Zubair, they snatched an Oppo touchscreen mobile phone and a black wallet, while from Shamsuddin, they seized an Itel keypad mobile phone. When resistance was offered, the assailants, with the intention of committing murder, opened fire upon the complainant and his companions. The complainant, in lawful self- defence, used his licensed pistol to fire upon the robbers. As a result, two of the assailants were injured, while the third fled the scene on foot. The complainant and his companions then approached the injured assailants, who were found to be in a semi-conscious state. The police were promptly informed and arrived at the scene within a few minutes. Upon police arrival, the injured assailants were disarmed, and initial inquiries revealed their identities: one of the injured, Kamran s/o Rasool Bux Parhyarri, disclosed his name, while he identified the other unconscious accused as Hyder s/o Aijaz Shaikh. Kamran further stated that the third, absconding accused, was an associate of Hyder Shaikh. A subsequent search of Kamran resulted in the recovery of a black wallet belonging to Muhammad Zubair, containing Rs.1,100/-, photocopies of CNIC, visiting cards, and a photograph of Muhammad Zubair. Additionally, an Itel keypad mobile phone belonging to Shamsuddin, a Samsung mobile phone, and another white-coloured keypad mobile phone were recovered. From the unconscious Hyder Shaikh, an Oppo touch screen mobile phone and a Vivo mobile phone, robbed from Muhammad Zubair, were recovered. The motorcycle used by the assailants was inspected and found without registration number, with engine No. R-737112 and chassis No. EB-419352. Upon inquiry, Kamran admitted that the pistols were unlicensed and that the motorcycle was undocumented. From the crime scene, 10 spent casings of 9mm and 12 spent casings of 30-bore pistols were collected and sealed as evidence. The 30-bore TT pistol recovered from Kamran was found loaded with two bullets, while the 9mm pistol from Hyder Shaikh was loaded with one bullet. The injured accused were transported to Civil Hospital Tando Allahyar, where the medical officer confirmed that Hyder Shaikh had expired. Kamran, however, received first
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aid and was transferred under police custody to Hyderabad for further medical treatment. Necessary proceedings concerning the deceased accused were carried out at the hospital. Thereafter, the complainant proceeded to the police station and lodged the present FIR, narrating the facts as stated above. The investigation was accordingly commenced. 5. Tersely, in Criminal Appeal No. 149 of 2024, the brief facts of the prosecution case, as disclosed in the FIR, are that on 20.05.2022 at approximately 0015 hours, the accused Kamran son of Rasool Bux, by caste Parihyar, resident of Meer Paro, Tando Jam, was arrested in connection with Crime No. 103/2022 under Sections 392, 324, and 34 of the Pakistan Penal Code. At the time of his arrest, a T.T. pistol of 30 bore calibre, along with a magazine and two live rounds, was recovered from his possession. Upon inquiry, the accused failed to produce any valid licence or lawful authority for possessing the said weapon. Consequently, a mashirnama of arrest and recovery was prepared on the spot in the presence of private witnesses (mashirs). Thereafter, SIP Umaid Ali Lakho, the complainant, lodged a separate FIR against the accused, for having committed an offence punishable under Section 23 (1) (a) of the Sindh Arms Act, 2013, on behalf of the State. 6. After completing all the requisite formalities, the charge was framed separately against the accused in both cases. During the trial of the main (Crime No.254/2022), the prosecution examined following witnesses: PW-1 Complainant Zaheer Abbas Khatri was examined at Ex. 04. He produced the FIR at Ex.4/A PW-2 Medical Officer Dr. Bhuroo Khan was examined at Ex. 05. He produced police letter of injured Kamran dated 20-05.2022. Provisional Medical Certificate of injured accused Kamran, Police letter for conducting the post mortem of dead accused Haider, Lash Chakas Form, Final Post Mortem Certificate, receipt of handing over the dead body to SIP Umaid Ali Lakho and refer letter at Ex5/A to Ex.5/G. PW-3 Muhammad Zubair (mashir) was examined at Ex.06. He produced memo of arrest and recovery of accused Kamran and Haider, Danishtnana, memo of inspection of dead body of dead accused Haider, memo of injuries of accused Kamran, clothes of dead accused and memo of arrest of accused Irfan al Ex.6/A to Ex.6/F respectively PW -4 Muhammad Faheem (mashir) was examined at Ex.07. He produced the memo of place of wardat at Ex.7 / A PW-5 SIP Umaid All Lakho (First 1.0) was examined al Ex.08 He produced entry No.31, entry No.37, entry No. 15 and 20 on one page, Entry No.45, entry No. 9. Letter for FSL of motorcycle of accused, report of FSL dated 25.05.2022 and FL report of motorcycle dated 07.06.2022 at Ex.8/A to Ex.8/H; PW-6 Samiullah was examined at Ex.09. PW -7 Rizwan Ali was examined at Ex. 10. The learned DDPP has given up PWs ASI Abdul Haleem and PC Ghulam Abbas vide statement at Ex.11. Application U/S 540 Cr.PC submitted by the learned DDPP for the state for calling the witness Inspector Syed Ibrahim Shah at Ex. 12 which was allowed vide order dated 07.10.2024. PW-8 Inspector Ibrahim Shah (second I.O) was examined at Ex.13 He produced memo of pistol, roznamcha entry No.20 dated 05.01.2023 and Photographs downloaded from the ID of one Irfan Haider Shaikh at Ex. 13/A to Ex. 13/C respectively. 7. After completing all the requisite formalities, the charge was framed separately against the accused in both cases. During the trial of the main (Crime No.249/2022), the prosecution examined following witnesses: PW-1 Muhammad Zubair (Mashir) was examined at Ex.03 he produced Mashirnama of arrest and recovery at Ex.03/A.
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PW -2 SIP Umaid Ali Lakho I.O was examined at Ex.04 he produced entry No.31, entry No.36, FIR, Entry No.08 & 20 on one page, entry No.70 of Malkhana register No. 19, letter to FSL and FSL report at Ex.04/A to Ex.4/G respectively. PW-3 PC Deen Muhammad was examined at Ex.05. PW-4 PC Munawar Hussain was examined at Ex.06 8. Trial court recorded statement of accused under section 342, Cr.P.C. wherein he pleaded his innocence and claimed his false implication in this case due to dispute over landed property. However, the appellant neither examine himself on oath nor brought any defence witnesses. 9. Learned trial Judge after hearing the learned counsel for the parties and examining the evidence available on record convicted and sentenced the appellant as stated above through impugned judgment. Hence, the appellant has preferred instant Criminal Jail Appeals against the said judgment. 10. The learned counsel for the appellant advanced several arguments assailing the convictions and sentences. In essence, it was contended that the complainant admittedly failed to produce his licensed pistol or its licence during the trial. This omission, counsel argued, undermines the prosecution's version of events - particularly the proportionality of the retaliatory force used by the complainant - and casts doubt on whether the encounter transpired as alleged. Relatedly, the FIR and testimonies lacked certain details (e.g. the exact number of shots fired, positions of the parties, etc.), suggesting that material aspects of the occurrence were not properly documented, which could indicate afterthought or embellishment. It was suggested that the entire incident may have been a fabrication or at least an exaggerated account. The defence theory was that the appellants had a prior enmity or quarrel with the complainant's party and that an altercation (unrelated to robbery) led to the gunfire. In cross-examination a specific suggestion was put to PW-1 (complainant) that the accused had merely come to purchase a bottle of water and a dispute over small change ensued, during which the complainant (allegedly in a drunken state) shot the accused. Although PW-1 denied this, the defence maintained that the appellants were roped in due to a prior dispute (possibly over property), and that the robbery story was concocted as a cover- up for what was essentially the complainant's excessive use of force. In sum, it was argued that the plea of private defence put forth by the complainant was dubious and that the prosecution failed to discharge its evidentiary burden to prove the appellants' aggressive intent beyond reasonable doubt. The learned counsel also attempted to highlight alleged discrepancies in the recovery memos and forensic evidence. For instance, it was pointed out that the handle of the pistol recovered from the appellant was broken but this was not noted in the recovery memo, and certain markings on the weapon were not recorded. These omissions were urged as indicators of a flawed investigation, possibly casting doubt on the veracity of the recoveries. It was argued that if the Investigating Officer could be negligent or selective in recording such details, the entire recovery of weapons and property might be questionable. Furthermore, since the complainant's own weapon was not produced, the defence implied that some of the spent casings collected from the scene could have emanated from an unknown weapon, thereby muddying the forensic linkage of crime empties to the appellant. Lastly, and in the alternative, the learned counsel pleaded for leniency in sentencing. He submitted that even if the convictions were upheld, the sentences - particularly the seven years' imprisonment under Section 324 PPC- were excessive in the circumstances. Stressing that no fatal injury was caused to the victims and that the appellant himself sustained multiple gunshot wounds in the episode, the counsel prayed that the Court exercise its discretion to reduce the sentences. It was urged that the appellant has already "paid a price" by being injured and that a lesser term (closer to the minimum) would adequately serve the ends of justice, given the "doubtful circumstances" surrounding the incident. In this context, the learned counsel invoked the maxim "in dubio pro reo" (the benefit of doubt goes to the accused)
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and cited the well-settled principle that even a single circumstance creating reasonable doubt entitles an accused to such benefit as of right. He argued that while the trial court chose to convict, the presence of material doubts should now be reflected at least in mitigation of the sentence. 11. Conversely, the learned Deputy Prosecutor General, Sindh opposed the appeals and fully supported the impugned judgments. He submitted that the prosecution had proved its case to the hilt through an unbroken chain of credible evidence - from the eyewitness accounts to medical and forensic corroboration - all of which unerringly point to the appellant's guilt. The DPG highlighted that the appellant was caught "red-handed" at the crime scene in injured condition, with the stolen money and goods recovered from his possession on the spot. There was no plausible explanation for these inculpatory circumstances consistent with innocence. No ill-will or ulterior motive was demonstrated that might impel the complainant to falsely implicate the appellant; indeed, the defence's own stance implicitly admitted the appellant's presence at the scene (albeit under a different narrative). In such a scenario, the learned DPG argued, there is "hardly any possibility for false implication without any ulterior motive" and a bald denial or alternative story put forth by the appellant "does not appeal to logic or reason" in the face of the prosecution's overwhelming evidence. 12. The State's counsel further contended that the omission to produce the complainant's licensed pistol in court did not dent the prosecution case in any material way. The fact of a shootout was never seriously disputed - if anything, the defence version also involves an exchange of fire, though under a different pretext. The complainant and other witnesses were cross-examined at length, but nowhere was it suggested that no encounter took place; rather, the defence claim was that the encounter was initiated by the complainant. In these circumstances, the learned DPG maintained that non-production of the licensed weapon was at best a "negligent investigative lapse" which does not vitiate the direct evidence of the occurrence. The recovery of multiple spent casings of two different calibres at the scene and the seizure of two pistols (one from the appellant and one from the deceased co-accused) immediately after the incident, conclusively establish that a gun battle occurred - corroborating the complainant's version and leaving little room for misidentification or fabrication. It was emphasized that all four eye-witnesses (the complainant, his brother, their employee, and even the apprehending police officer) gave consistent accounts of the robbery and the shootout, and their testimony remained unshaken on material points. Minor inconsistencies or omissions in an FIR are not enough to disbelieve such cogent evidence, especially given that crimes like the present are often marked by confusion and urgency. The DPG reminded that courts must not lose sight of the fact that armed dacoits today are exceedingly desperate and dangerous, as observed by the Honourable Supreme Court in Dadullah and another vs. The State (2015 SCMR 856) - they do not hesitate to open fire on innocent citizens and thus "courts should not hesitate in awarding the maximum punishment in cases like the present one, where it has been proved beyond any shadow of doubt that the accused was involved in the offence". On that note, the DPG submitted that the sentences awarded were appropriate to the brutality of the crime and that the appellant "does not deserve any leniency in sentence" given the havoc wreaked by such offences on public safety. He thus prayed for dismissal of both appeals. 13. I have given careful consideration to the rival submissions and have scrutinized the entire trial record with the assistance of learned counsel. This being an appeal against conviction, it is incumbent on this Court to re-appraise the evidence and reach an independent conclusion on the merits. The pivotal questions to determine are: (i) whether the prosecution has proved, beyond reasonable doubt, that the appellant (along with accomplices) committed armed robbery and attempted to commit qatl-i-amd (murder) upon the complainant party and was found in possession of an unlicensed firearm in the manner alleged; and (ii) if so, whether the sentences
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awarded are just and proportionate in view of the facts and applicable law. These issues are addressed in turn. 14. The prosecution's narrative rests primarily on the testimony of PW-1 Zaheer Abbas (the complainant) - owner of the mini-mart - who was an eye-witness to the entire episode. He gave a vivid and coherent account of the incident, starting from the robbers' arrival and culminating in the exchange of fire and the apprehension of two assailants. In his deposition, PW-1 stated that around 12:15 a.m., three men arrived on a motorcycle; two of them, armed with pistols, entered the shop and at gunpoint looted cash and valuables (around Rs.32,000/-, two mobile phones and wallets) from the complainant, his brother and their employee. When the victims offered resistance, the robbers "with intention to commit our murders made firing upon us", whereupon PW-1 "took my licensed pistol and made fire upon the accused in our defence". He further narrated that the accused persons fled out of the shop while still firing, attempting to mount their motorcycle, and "I followed them and came out of the shop and made straight fires upon the accused. The fires made by me hit two accused persons and the third accused person... made his escape good". As a result, two of the robbers fell injured, while the third escaped. PW-1 and the witnesses then overpowered the injured accused and immediately called the police, who arrived within minutes and took custody of the scene. 15. This eye-witness account is fully corroborated by PW-3 Muhammad Zubair, who is the complainant's brother and was present throughout the incident. PW-3 testified that upon the robbers' onslaught, they resisted, at which the robbers opened fire but fortunately missed their targets. He stated: "My brother Zaheer Abbas took his licensed pistol which was kept at the counter and fired in defence upon the accused, due to which the accused persons left the shop while continuing firing. My brother then came out of the shop and fired upon the accused persons. The shots fired by him hit two of the accused when they were on the motorcycle to make good their escape". This resulted in the two assailants collapsing, after which the third fled on foot. PW-3's account of what happened before and after - the robbery, the firing by the robbers, the retaliatory firing by the complainant, and the capture of the culprits - aligns in all material particulars with the testimony of PW-1. Both these witnesses were subjected to extensive cross-examination, but their core assertions could not be shaken. Minor discrepancies were elicited - for example, PW-1 conceded that the FIR does not mention where each person was positioned in the shop during the robbery or how many shots he fired - but such omissions are neither unexpected nor fatal. First Information Reports are not encyclopedic narratives; they are meant to set out the essence of the occurrence. It is well-settled that immaterial omissions in an FIR or testimony do not render the witness untruthful, so long as the substance of the allegation is consistently maintained. The maxim "falsus in uno, falsus in omnibus" (false in one thing, false in everything) is not to be applied mechanically to discard testimony of a witness for trivial inconsistencies. Our courts have repeatedly held that minor contradictions or memory lapses on peripheral details do not erode the credibility of truthful witnesses. In the present case, I find PW-1 and PW-3 to be natural, confidence-inspiring witnesses; their presence at the crime scene is admitted and their veracity remains unblemished. They had no relationship with the accused prior to this incident, and the defence could not impute any motive for them to falsely implicate the appellant in such a heinous crime. As the Supreme Court observed in Salah-ud-Din vs. The State (2010 SCMR 1962), when there is no proven enmity between the parties, false implication becomes highly improbable. Here, no enmity whatsoever was demonstrated - the suggestion of a prior dispute was vague and unsubstantiated - hence the eyewitnesses' testimony, corroborated by other evidence, firmly establishes the appellant's culpability. 16. The ocular account is strongly supported by the medical evidence. PW-2 Dr. Bhuroo Khan, who examined the injured accused and conducted the post-mortem of the deceased co-accused,
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found multiple gunshot wounds on both. Significantly, the appellant Kamran sustained 08 firearm wounds (entry/exit) on various parts of his body, and the deceased co-accused Haider sustained 04 firearm wounds. The medico-legal certificates (Ex.5/A-5/G) detail these injuries. Crucially, the doctor noted that all the wounds were on the posterior side of the bodies. In other words, the assailants were shot from behind. This perfectly dovetails with the prosecution story that the complainant fired at the robbers when they were attempting to flee on their motorcycle, with their backs towards the shop. It also negates any theory that the accused were shot from the front or in a face-to-face confrontation - an important point because it rebuts any insinuation that the complainant might have initiated the shooting. During cross-examination of the doctor, the defence did not dispute the orientation of the injuries (no suggestion was made that the wounds were not from the backside). Such medical evidence lends confirmatory support to the eye- witnesses, reinforcing that the events unfolded exactly in the manner they described. 17. Forensic evidence further fortifies the prosecution case. The police recovered 22 spent bullet casings from the crime scene (of two different calibres) and seized two firearms from the apprehended accused - a 30-bore T.T. pistol from the appellant Kamran and a 9mm pistol from the deceased co-accused Haider. These were sent for forensic ballistics analysis. According to the…
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