Full Judgment Text & Judicial Ruling

2026 Y L R 640

2026 Y L R 640 [Federal Shariat Court] Before Iqbal Hameedur Rahman, C.J and Ameer Muhammad Khan, J Talib---Appellant Versus The State---Respondent Criminal Appeal No. 01-K and Jail Criminal Appeal No. 01-I of 2024, decided on 9th May, 2025. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 396, 337-H(2), 148 & 149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qatl-i-amd, dacoity with murder, rash or negligent act to endanger human life or personal safety of others, rioting armed with deadly weapons, unlawful assembly, harabbah---Appreciation of evidence---Benefit of doubt---Presence of eye-witnesses at the spot not proved---Accused were charged for attempting to take away the cattle upon which brother of complainant made resistance, thereafter he was murdered by the accused persons through firing---Ocular account of the occurrence was advanced by the complainant/brother of the deceased and his paternal uncle---Scenario so advanced gave rise to the fact that deceased on receipt of fire arm injuries was lying at the spot in injured condition and the three persons including the eye-witnesses claimed their presence at the spot---Time and date of occurrence as advanced by these two eye-witnesses was 08:00 a.m, on 01.2.2014---Dead body remained lying un-attended at the spot till 12:30 p.m.---Complainant stated during the cross-examination that from 08:00 a.m. to 12:30 p.m. the dead body was lying at the place of incident on the ground in straight position with face towards sky---Complainant also claimed that till 12:30 p.m., though so many persons came there but they went away after seeing the dead body and again said that no other family member came at the place of incident---Complainant stated that he had brought a cot from the house of one "Z" and then they put the dead body over it and shifted the dead body without cot through a Datsun---Said witness further stated that he himself arranged the Datsun from 12:00 to 12:30 p.m.---Investigation Officer had not taken any such cot in possession nor pointed out regarding staining of any blood on any cot---There was no evidence regarding the staining of blood over the apparels of any of the witnesses and no witness had claimed in that regard that they had attended the victim in injured condition or that their body, hands or apparels got stained with the blood of the deceased---Complainant stated that victim died within their sight and had sustained fire arm injuries on his left shoulder, back and other parts of his body and his entire body had sustained fire arm injuries, whereas other witness stated that victim sustained injuries on the left side of his hand, left arm and on his abdomen---Claim of said two witnesses that the deceased died within their sight and advancement of seat of injuries could only be if they had attended victim in injured condition and in that eventuality the oozing of blood from the body of injured was a natural phenomenon but none of the said two witnesses received staining of blood on any part of the body or their apparels and the dead body kept on lying facing towards sky at the spot and the cot could be brought at 12:00 p.m., such conduct of the real brother and the nephew of the deceased was not appealable to the ordinary prudence and the natural expectancy could be that had they seen the occurrence, they could attend the injured and could endeavour to shift him to the hospital or at least to their house forthwith---Therefore, the fact of presence of said witnesses at the scene of occurrence required corroboration of some independent facts in support of their said claim---Appeal against conviction was allowed, in circumstances. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 396, 337-H(2), 148 & 149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qatl-i-amd, dacoity with murder, rash or negligent act to endanger human life or personal safety of others, rioting armed with deadly weapons, unlawful assembly, harabbah---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses--- Accused were charged for attempting to take away the cattle upon which brother of complainant made resistance; thereafter he was murdered by the accused persons through firing---Complainant stated that they had informed the police about the occurrence at 01:15 p.m. on 01.2.2014 regarding the occurrence that took place at 08:00 a.m., when they had brought the dead body at the Police Station 20-Miles, whereas other witness stated that after that incident, they had brought the dead body on one cot towards their village and then from there they shifted the dead body in one Datsun at about 12:45 or 01:00 p.m.; they left their village along with the dead body and went towards the police station---Said witness stated that he along with complainant, one other person and police had brought the dead body from their village to the police station---After this incident police came in their village and from there police had accompanied them when they went to the police station---About two/three Police Officials came there and complainant had obtained letter for post-mortem from police station---Whereas complainant was silent regarding the shifting of dead body from place of occurrence to the village rather stated that from 12:00 to 12:30 p.m., he had arranged the Datsun from village; he along with driver came at the place of incident in Datsun and they went to the police station---Station House Officer and Incharge Investigation came across them and the dead body was referred to the hospital for post-mortem examination---When they went to the police station at that time he had narrated whole story to the said Officers and had also given them the names of all the accused---Both the said witnesses were at variance even regarding the shifting of dead body of the deceased from the place of occurrence---Appeal against conviction was allowed, in circumstances. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 396, 337-H(2), 148 & 149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qatl-i-amd, dacoity with murder, rash or negligent act to endanger human life or personal safety of others, rioting armed with deadly weapons, unlawful assembly, harabbah---Appreciation of evidence---Benefit of doubt---Delay of 35-hours in lodging the FIR---Consequential---Accused were charged for attempting to take away the cattle upon which brother of complainant made resistance; thereafter he was murdered by the accused persons through firing---First Information Report had not been lodged even at 01:00 p.m., when the dead body was taken to the police station and the occurrence was narrated to the police by complainant---Police witnesses were silent and advanced no explanation for not recording the FIR inspite of the fact that Incharge Investigation stated before the court that on 01.2.2014 complainant party had not disclosed before him about the names of any accused and voluntarily stated that they disclosed before him that accused by caste Mangnejo had committed murder of deceased---First Information Report was not lodged on 01.2.2014, rather it was lodged on 02.2.2014 at 18:45 hours that was 06:45 p.m.---Total delay from the time of occurrence to the lodging of FIR was about thirty five (35) hours and the delay from narrating the occurrence to the police at 01:00 p.m. on 01.2.2014 to 06:45 p.m. on 02.2.2014; the delay in lodging of FIR become thirty (30) hours---Said delay in lodging the FIR had not been explained either by the complainant party or by the police---Police of police station 20-Miles inspected the dead body on 01.2.2014, prepared the inquest report, different Mashirnamas but did not opt to chalk out the FIR---Similarly the first informer comfortably came on the next date after thirty five (35) hours and lodged the FIR with nominations and attributions of the weapons, such like conduct of the witnesses gave rise to the impression of consultation and deliberations---Appeal against conviction was allowed, in circumstances. Muhammad Hassan and another v. The State and others 2024 SCMR 1427; Khial Muhammad v. The State 2024 SCMR 1490; Muhammad Nawaz and another v. The State and others 2024 SCMR 1731 and Zafar Ali Abbasi and another v. Zafar Ali Abbasi and others 2024 SCMR 1773 rel. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 396, 337-H(2), 148 & 149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qatl-i-amd, dacoity with murder, rash or negligent act to endanger human life or personal safety of others, rioting armed with deadly weapons, unlawful assembly, harabbah---Appreciation of evidence---Benefit of doubt---Motive not proved---Accused were charged for attempting to take away the cattle upon which brother of complainant made resistance; thereafter he was murdered by the accused persons through firing---Motive set-forth by complainant and eye-witness was that the twenty culprits armed with lethal weapons, tried to snatch the animals comprised of goats and cows of the complainant party but there was no evidence on record about snatching of the animals rather said witnesses stated that they went away towards the river side, meaning thereby that the culprits did not tether the cattle along with them---Investigation Officer was also silent in that regard and did not utter a word about the motive part that was the attempt to snatch the cattle---Therefore, the motive part could be culminated as not proved---Appeal against conviction was allowed, in circumstances. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b), 396, 337-H(2), 148 & 149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qatl-i-amd, dacoity with murder, rash or negligent act to endanger human life or personal safety of others, rioting armed with deadly weapons, unlawful assembly, harabbah---Appreciation of evidence---Benefit of doubt---Defective investigation---Accused were charged for attempting to take away the cattle upon which brother of complainant made resistance, thereafter he was murdered by the accused persons through firing---Sketch of wardat was prepared by Mukhtiarkar, who went to the place of occurrence on 09.2.2014 i.e. after eight days of the occurrence---Therefore, on part of the Investigating Officer there was negligence and failure in collecting the evidence---Investigating Officer had not opted to proceed to the spot forthwith, however he was bound by the Police Rules 1934, mentioned at Rule number 25.13 for preparation of two site plans of the offence---Investigating Officer did nothing in securing the scene of occurrence rather acted negligently even in lodging the FIR---Site plan got prepared through the Mukhtiarkar, was incomplete and be was even unable to highlight the sight of occurrence and also had not shown the place of presence of the witnesses or the cattle---Said witness also had not mentioned the place of collection of blood stained earth by the Investigation Officer---In short, same proved a futile exercise and served no purpose whatsoever for the prosecution---Appeal against conviction was allowed, in circumstances. (f) Penal Code (XLV of 1860)--- ----Ss. 302(b), 396, 337-H(2), 148 & 149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qatl-i-amd, dacoity with murder, rash or negligent act to endanger human life or personal safety of others, rioting armed with deadly weapons, unlawful assembly, harabbah---Appreciation of evidence---Benefit of doubt---Medical evidence doubtful---Accused were charged for attempting to take away the cattle upon which brother of complainant made resistance; thereafter he was murdered by the accused persons through firing---Medical Officer observed six entry wounds on the dead body vide post-mortem report---Post-mortem report was not accompanied with the pictorial part which could show the locale of injuries---It was admitted by the Medical Officer in his cross-examination and was evident from post-mortem examination report, that the column of time of the commencement of post-mortem examination was blank---Medical Officer also admitted it correct that in the post-mortem report it had not been mentioned that he had received the dead body at 01:15 p.m.---Said witness observed the presence of blackening on the entry wound Nos. 1 and 4 and during cross-examination stated that "As per his expert opinion, deceased had sustained all the injuries from his front side from the distance of about 10 feet"---Whereas injury Nos. 6 and 8 were muscle deep on right and left shoulder respectively but the Medical Officer had not taken out any lead material, on dissection from the said injuries---Therefore, the medical evidence was not available for determining the kind of weapon like gun or the rifle or the injuries caused with bullet or with the pellets---Medical Officer had not stated a word about the availability of corresponding holes or blackening on the last worn clothes of the deceased taken into possession vide Mashirnama, the said Mashirnama also contained no such marks on the detail of apparels mentioned therein---Medical Officer did not claim signing of the apparels of the deceased, which otherwise he was duty bound to mark the corresponding holes and to sign the same---Post-mortem examination report contained that the dead body was identified by cousins of deceased before the Medical Officer at the time of post-mortem examination but none of the said persons appeared in Court as a prosecution witnesses for confirming that fact---Finding of the Medical Officer was that the assailants were at ten feet distance from the victim at the time of firing, whereas Tapedar vide his site plan stated a distance of 40-feet where from the accused persons had fired upon the deceased---Appeal against conviction was allowed, in circumstances. (g) Penal Code (XLV of 1860)--- ----Ss. 302(b), 396, 337-H(2), 148 & 149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qatl-i-amd, dacoity with murder, rash or negligent act to endanger human life or personal safety of others, rioting armed with deadly weapons, unlawful assembly, harabbah---Appreciation of evidence---Benefit of doubt---Safe custody of recovered weapon of offence not established---Accused were charged for attempting to take away the cattle upon which brother of complainant made resistance; thereafter he was murdered by the accused persons through firing---Admittedly, no weapon had been recovered from any of the accused including the convicts/appellants---Even the crime empties so claimed by the prosecution recovered from the place of occurrence after two days during inspection by the Investigation Officer had not been stated to be placed with the concerned Official Moharar of the police station for placing in the Malkhana, nor there was any witness to whom the Investigation Officer handed over such properties for safe custody, interestingly the Investigation Officer had not even claimed so---Said crime empties had not even been forwarded to the Ballistic Expert for determination of their caliber for any corroboration to the ocular account---Appeal against conviction was allowed, in circumstances. (h) Penal Code (XLV of 1860)--- ----Ss. 302(b), 396, 337-H(2), 148 & 149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qatl-i-amd, dacoity with murder, rash or negligent act to endanger human life or personal safety of others, rioting armed with deadly weapons, unlawful assembly, harabbah---Appreciation of evidence---Benefit of doubt---Report of Chemical Examiner---Inconsequential---Accused were charged for attempting to take away the cattle upon which brother of complainant made resistance; thereafter he was murdered by the accused persons through firing---As per S.510, Cr.P.C, the reports of Chemical Examiner and Serologist were per-se admissible in evidence without calling the examiner as a witness but required that the thing should be duly submitted to him for examination or analysis---Therefore, it was duty of the prosecution particularly the Investigation Officer who claimed the collection of blood stained earth from the place of occurrence, after two days to state that same was kept in safe custody and through whom the same was duly submitted to the office of Chemical Examiner---Report contained that it was received through one "IA" but such "IA" was not a prosecution witness before the Court---Therefore, when the due submission of the parcel of blood stained earth had not been proved before the Court, the report of Chemical Examiner became of no use to the prosecution---Appeal against conviction was allowed, in circumstances. (i) Penal Code (XLV of 1860)--- ----Ss. 302(b), 396, 337-H(2), 148 & 149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qatl-i-amd, dacoity with murder, rash or negligent act to endanger human life or personal safety of others, rioting armed with deadly weapons, unlawful assembly, harabbah---Appreciation of evidence---Benefit of doubt---Ocular account and medical evidence---Contradiction---Accused were charged for taken the cattle attempting to take away upon which brother of complainant made resistance, thereafter he was murdered by the accused persons through firing---Record showed that the ocular account advanced by eye-witnesses became directly in conflict with the medical evidence---Medical Officer stated that as per his opinion the deceased had sustained fire arm injuries from one and same weapon, in standing position---As per his expert opinion all the injuries were received from the front side, from a distance of ten feet---During the cross-examination eye-witness stated that accused "B" along with others were standing in front of deceased, while the appellant was standing behind him; "I" was standing on his right side and the accused made firing from the points, where they were standing around him---Said witness had assigned the injuries to "M" from behind the deceased---There was no injury from the back side on the person of the deceased and the Medical Officer had categorically stated that all the injuries were caused from the front side---Similarly, in cross-examination the complainant stated that all the accused had surrounded the deceased, when they committed his murder---Said witness also stated that he and the witnesses were also surrounded by the accused---Admittedly, none of the witness was injured nor got their apparels stained with blood of the deceased---Claim of the witnesses of ocular account that all the five accused armed with Kalashnikovs, SBBL gun, 12-bore guns and G-3 rifle fired upon the deceased with their respective weapons was not found corroborated through medical evidence, rather was contradictory on record and the Medical Officer refuted their claim while stating that all the injuries were caused with one and the same weapon---Appeal against conviction was allowed, in circumstances. Abdul Sattar Brohi and Hafiz Muhammad Awais Malano for Appellants. Khadim Hussain Khuharo, Additional Prosecutor General, Sindh for the State. Date of hearing: 15th April, 2025. Judgment Ameer Muhammad Khan, J.---These two criminal appeals have been filed by Talib son of Sallah and Mazno alias Ghulam son of Ramzan against their conviction and sentence passed vide judgment dated 05.12.2023, in the Court of Ist Additional Sessions Judge (MCTC), Shikarpur, wherein both the appellants had been convicted for the offence of dacoity with murder punishable under Section 396 Pakistan Penal Code, 1860 and were sentenced to imprisonment for life with fine of Rs. 2,00,000/- (Rupees two lac) each and in case of failure the payment thereof to further undergo six months simple imprisonment. Both the appellants/convicts were further burdened with payment of compensation amount of Rs. 5,00,000/- (Rupees five lac) to the legal heirs of the deceased Ghulam Nabi and in case the default thereof to further undergo one year simple imprisonment. They had also been convicted for the offence punishable under Section 337-H(ii) Pakistan Penal Code, 1860 and sentenced to undergo three months simple imprisonment with fine of Rs. 20,000/- (Rupees twenty thousand) each and in default the payment thereof to further undergo one month simple imprisonment. All the sentences so awarded were directed to run concurrently with extension of benefit of Section 382-B Criminal Procedure Code, 1898, whereas the co-accused namely Hadi Bux, Suhbat, Arbab, Aadho, Muhabat, Nadeem, Saleem, Shabeer, Mitero and Momin were benefited with doubts and acquitted from the charge. 2. Both the above mentioned appeals arising out of the same judgment dated 05.12.2013 are being decided vide this single judgment. The Jail Criminal Appeal No. 01-I of 2024 of Mazno alias Ghulam son of Ramzan was received on 05.1.2024 through Superintendent Central Prison, Sukkur, whereas the Criminal Appeal No. 01-K of 2024, filed by Talib son of Sallah was received through High Court of Sindh, Circuit Court, Larkana, vide order dated 09.2.2024. 3. The Brief facts are that PW-1, Soomar lodged the FIR Exh.05/A, on 02.2.2014 at 18:45 hours regarding the occurrence taken place on 01.2.2014 at about 08:00 a.m, while appearing before PW-5 Muhammad Suleman ASI, police station 20-Miles, District Shikarpur, under Section 302/337H(ii)/148/149 Pakistan Penal Code read with Section 17/1-4, Offences Against Property (Enforcement of Hudood) Ordinance, (VI of 1979), stating therein that on 01.2.2014, he along with his brothers i) Gul Bahar ii) Ghulam Nabi, his nephew (iii) Yousif son of Muhammad Achar Mangnejo, resident of Taluka Ghari Yaseen took out their goats and cows for grazing towards their agricultural land. His brother Ghulam Nabi was looking after the cattle, whereas they were working in the nearby land. At about 08:00 a.m, the accused Bashir armed with G-3 Rifle, Mazno and Ilyas sons of Ramzan armed with Kalashnikovs, Suleman and Abdul Rehman armed with Kalashnikovs, Hadi Bux armed with double barrel gun, Saleem and Arbab armed with Kalashnikovs, Adho armed with single barrel gun, Muhabat armed with Kalashnikov, Suhbat armed with double barrel gun, Momin armed with Kalashnikov, Talib son of Sallah armed with single barrel gun, Nadeem son of Bashir armed with Kalashnikov, Mitero and Shabir armed with SBBL, all Mangnejo by caste, resident of village Gul Hassan Mangnejo, Taluka Kingri, District Khairpur along with four unknown accused with open faces were seeing clearly and could be identified on appearance, came there while making hackles and took the cattle with intention to snatch them away. Upon which his brother Ghulam Nabi aged 35/36 years made resistance, thereafter the accused Bashir, Suleman, Mazno, Abdul Rehman and Talib, said to his brother that he was resisting them and they will not leave him alive, while saying that accused Bashir, Suleman, Abdul Rehman, Mazno and Talib directly fired with their respective weapons upon his brother Ghulam Nabi, such fires hit him and he fell down on the ground while crying. Thereafter, all accused while resorting to aerial firing ran away towards Southern side of river and due to fear of weapons they kept silent. Thereafter they saw their brother Ghulam Nabi had sustained fire-arm injuries on his hands, abdomen, back, kidney and shoulder. His blood was oozing out and he died within their sight. After arranging the conveyance they appeared at police station and post-mortem examination of his brother Ghulam Nabi with the help of police from Taluka Hospital Lakhi Ghulam Shah was conducted. Thereafter they took the dead body for burial, where they remained busy and after consulting with the elders and youngsters, he lodged the FIR against the above mentioned accused and the unknowns, who had tried to rob the cattle and upon resistance of Ghulam Nabi, the accused persons caused his death. 4. Thereafter on 01.3.2014, the report under Section 173 Criminal Procedure Code was filed, different accused had been appearing and the court after taking cognizance adjourned the case sine die and finally through the amended charge dated 01.12.2021, started the trial in this case against thirteen accused namely Hadi Bakhsh, Suhbat, Mazno alias Ghulam, Arbab, Aadho, Suleman, Muhabat, Nadeem, Saleem, Shabir, Mitairo, Talib and Momin, under three heads for commission of Haraabah with causing death and for making aerial firing as member of unlawful assembly. All the said accused denied the charge and claimed trial. 5. Afterwards, the prosecution evidence was summoned and recorded. The gist of which is as under:- PW-1 Soomar, the first informer who reiterated the story as mentioned supra in the FIR Exh.05/A, besides that he witnessed the recovery of crime empties comprised of ten…

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