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Official Citation: 2024 SHC 45
Court / Jurisdiction: Sindh High Court
Petitioner: Criminal Appeal 45/2024 (S.B.) Sindh High Court, Circuit Court, Mirpur Khas - Munawar @ Munni & others (Appellant)
Ruling Summary: This decision was rendered by the Sindh High Court, officially reported as 2024 SHC 45. In this matter between Criminal Appeal 45/2024 (S.B.) Sindh High Court, Circuit Court, Mirpur Khas - Munawar @ Munni & others (Appellant) and the Respondent, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Sindh High Court CASE NO: Criminal Appeal 45/2024 (S.B.) Sindh High Court, Circuit Court, Mirpur Khas CITATION: 2024 SHC MPK 911 PARTIES: Munawar @ Munni & others (Appellant) ORDER DATE: 06-JUN-24 BENCH: Hon'ble Mr. Justice Muhammad Saleem Jessar(Author) A.F.R: Yes ------------------------------------------------------------ IN THE HIGH COURT OF SINDH, CIRCUIT COURT, MIRPURKHAS
Criminal Appeal No. S-45 of 2024 (Old No.08 of 2023) & Criminal Appeal No. S-46 of 2024 (Old No.10 of 2023)
Appellant Munawar@Munni : through Mr. Mian Taj Muhammad in Cr. Appeal No.S-45/2024. Keerio, Advocate
Appellants Hyder & Shah Nawaz : through Mr. Ghulamullah Chang, in Cr. Appeal No.S-45/2024. Advocate
Appellant Dilber @ Allah Bachayo: through Mr. Abdul Hafeez Mari, in Cr. Appeal No. No. S-46/2024 Advocate.
State : through Mr. Dhani Bakhsh Mari, Assistant Prosecutor General, Sindh
Complainant Ahmed : through Mr. OM Parkash & in both appeals Mr. Afzal Karim Virk Advocates.
Date of hearing : 06.06.2024
Date of Judgment : 06.06.2024
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JUDGMENT
Muhammad Saleem Jessar, J.- By means of this single judgment, I propose to dispose of captioned criminal appeals, as same have arisen out of one and same judgment passed by learned Addl. Sessions Judge -I/MCTC, Umarkot (trial Court).
2. Through these Criminal Appeals, appellants / accused Dilbar @ Allah Bachayo Mari, Munawar @ Munni Khaskheli, Hyder Lanjo and Shah Nawaz Lanjo have assailed judgment dated 05.01.2023 whereby the appellants were convicted for the offence under Section 394 PPC and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 50,000/ - each and in
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case of default they were ordered to suffer simple imprisonment for six months more. However, benefit of Section 382 -B Cr. P.C. was extended to all the accused. By the same judgment, absconding accused namely Mithal@Dado Shar and Sadam Birohi were declared as proclaimed offender and the c ase against them was ordered to be kept on the dormant file till their arrest.
3. Brief facts of the prosecution case, as per FIR lodged by complainant Ahmed Saand, are that he and PWs Abdul Khalique Kalar and Qazi Muhammad Nooh Saand are employed at Kiryana Shop of Seth Ghulam Fareed Memon. On 03.12.2020 all employees and seth Ghulam Fareed Memon along with others was sitting at the shop, when at about 1620 hours, one 125 Motorcycle stopped in front of their shop, wherefrom three persons alighted and took out pistols. Out of them, two persons entered in the shop, while one person stood outside the shop. All the accused could be identified if seen again. The accused who entered into the shop, kept all the PWs hostage on the force of weapons and threat of murder. Then, they robbed Rs. 7000/ - from complainant Ahmed, one Mobile phone from Qazi Muhammad Nooh, while another accused caused pistol butt blows at the head of Ghulam Fareed Memon and Abdul Khalique Kalar and robbed Rs. 800,000/ - already counted by Seth Ghulam Fareed, so also robbed a Mobile Phone kept there by Haji Abdul Rehman Memon, father of seth Ghulam Fareed Memon. Meanwhile, watchman Muhammad Niaz Gishkori came there, who tried to catch the accused standing outside the shop, whereupon the ac cused who were inside the shop, walked out and made straight fire upon Muhammad Niaz Gishkori, who sustained fire arm injury and fell down. Then, all accused boarded on their 125 motorcycle and fled away towards Gu’r Mandi alongwith robbed property. Therea fter, the injured PWs were shifted to Kunri Hospital, where doctors referred injured Muhammad Niaz Gishkori to Hyderabad Hospital. After leaving injured Muhammad Niaz at Hyderabad Hospital, the complainant went to police station and lodged FIR, in above terms.
4. After registration of FIR, the case was investigated by Inspector Atif Hussain Shah, who visited place of incident, got prepared sketch of dacoits, secured 125 Motorcycle abandoned by the accused. Then upon receiving information of accused Dilbar Mari’s involvement in the alleged offence through SSP Mirpurkhas, he went to Mirpurkhas and formally arrested accused Dilbar Mari, interrogated him who disclosed names of co -accused
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Munawar @ Munni, Hyder Lanjo, Shah Nawaz Lanjo, Sadam Brohi and Mithal @ D odo Shar. He then got conducted identification parade of the accused under the supervision of concerned Judicial Magistrate . The police got recovered part of robbed amount at the pointation of arrested accused Munwar @ Munni, so also got recovered a part o f robbed amount and mobile phone on the pointation of accused Dilbar Mari. He interrogated arrested accused Hyder Lanjo and Shah Nawaz Lanjo and got recovered a part of robbed amount on their pointation, so also recovered a motorcycle on the pointation of accused Shah Nawaz Lanjo, collected call data reports of accused; besides, collected criminal record of accused Dilbar Mari and Munawar @ Munni Khaskheli. After completing investigation, submitted final challan before the concerned Court showing accused Di lbar @ Allah Bachayo Mari, Munawar @ Munni Khaskheli, Hyder Lanjo and Shah Nawaz Lanjo in judicial custody, while accused Sadam Hussain Birohi and Mithal @ Dado Shar as absconders.
5. The concerned Magistrate after completing legal formalities, supplied copies of case papers to accused vide receipt Ex.04. Thereafter, case was sent - up to the Court of Sessions Judge, Umerkot who assigned the same to the trial Court for disposal according to law.
6. A formal charge was framed against accused at Ex….05, to wh ich they pleaded not guilty and claimed trial vide their pleas recorded at Ex…5 -A to 05-D respectively.
7. The prosecution examined Dr. Abdul Khalique at Ex….06, who produced police letter and medical certificates of injured PWs as Ex….06 -A to 06-E respec tively. PW-2 complainant Ahmed Saand was examined at Ex…..07, who produced FIR as Ex……07-A and memo of identification parade as Ex….7-B. PW-3 injured Niaz Muhammad was examined at Ex….08. PW -04 Ghulam Fareed was examined at Ex….09, who produced memo of identification as Ex…..09 -A. PW-05 Abdul Khalique was examined at Ex…..10, who produced memo of identification parade as Ex…10 -A. PW-6 Qazi Muhammad Nooh was examined at Ex…11, who produced memo of identification parade as Ex….11 -A. PW -07 ASI Umed Ali was examined at Ex...12, who produced memo of injuries and three daily diary entries as Ex….12-A to 12 -D respectively. PW-8 DSP Abdul Sattar was examined at
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Ex…..13, who produced a daily diary entry as Ex…..13 -A. PW-09 Inspector Tufail Ahmed was examined at Ex….14, while PW -10 mashir PC Aamir Farooque was examined at Ex……15, who produced memo of arrest of accused Dilbar Mari, memo of arrest of accused Munawar @ Munni, memo of recovery on pointation of accused Dilbar @ Allah Bachayo and memo of recovery on pointation of accused Shah Nawaz @ Mullah as Ex….15-A to 15-D respectively. PW-11 mashir Ahmed Khan was examined at Ex….. 16, who produced memo of site inspection, memo of securing boxes of looted mobile phones, memo of recovery of motorcycle and memo of rec overy on pointation of accused Hyder Lanjo as Ex…..16 -A to 16 -D respectively. PW-12 mashir PC Allah Bux was examined at Ex…..17, who produced memo of arrest of accused Shah Nawaz @ Mullan as EX…..17 -A. PW -13 mashir PC Muhammad Hanif was examined at Ex….18, who produced memo of recovery on pointation of accused Munawar @ Munni as Ex…..18 -A. PW -14, I.O. / Inspector Atif Hussain Shah was examined at Ex……19, who produced letter addressed to CPLC, sketch of accused, letter addressed to Excise and Taxation Depart ment, Mirpurkhas, Verification of Motorcycle, Information Note received from SSP Mirpurkhas, permission letter of SSP Umerkot, No Objection Certificate by Judicial Magistrate / Family Judge Mirpurkhas, Interrogation Report, letter of receiving custody of a ccused Dilbar Mari, Application addressed to Judicial Magistrate-II, Kunri for identification parade, Notice and Order of Judicial Magistrate-II, Kunri, Call Data Record, Criminal Record of accused Dilbar Mari as Ex……..19 -A to 19 -P and 13 daily diary entr ies of different dates as Ex……19-Q to 19 -DD respectively. PW -15 Mr.Allah Bachayo, the Judicial Magistrate Samaro, was examined at Ex…..20.
8. Learned Public Prosecutor then closed prosecution side through statement at Ex….21.
9. Statements of all accus ed under Section 342 Cr. P.C. were recorded at Ex…22 to Ex…..25 in which they denied the allegations of prosecution and claimed to be innocent. However, they did not examine themselves on oath, nor opted to lead any evidence in their defence.
10. After formulating the points for determination in the case, recording evidence of the prosecution witnesses and hearing counsel for the parties, learned trial Court convicted and sentenced the accused / appellants vide
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impugned judgments, as stated above. Against said judgment, instant appeals have been preferred by the convicts / appellants.
11. I have heard learned counsel for the appellants, learned counsel for the complainant as well as learned Assistant P.G. appearing for the State and perused the ma terial made available before me on the record with their able assistance.
12. Learned counsel for the appellants submitted that names of the appellants do not transpire in the FIR and though they were subjected to identification Parade, yet no specific role was assigned to them by PW / victim Ghulam Fareed (Page No.89 Ex,9 of paper book). They further submitted that appellant Munawar @ Munni was arrested by the police on 24.12.2020, Hyder was arrested by the police on 26.12.2020, Shahnawaz was arrested on 18.01.2021 whereas the appellant Dilber @ Allah Bachayo was arrested by the police of PS Old Mirpur in connection with Crime No s.87, 88 and 90 of 2020; however, he was shown to have been arrested in this case on 21.12.2020. It is their contention that i t was the accused Dilber @ Allah Bachayo, who disclosed names of other accused and on his pointation remaining appellants were arrested. They further submitted that despite such fact, the appellants were subjected to Identification Parade on 26.12.2020 i.e . much later after their arrest, hence no sanctity could be attached to the identification Parade, more particularly when PW who allegedly picked up the accused in the Identification Parade had not assigned any specific role to any of the accused in the co mmission of alleged offence. They further submitted that though some of robbed amount is shown to have been recovered from their possession on 25.12.2020, but that too is delayed by about 04 days of their respective arrest and according to their contention , it was foisted upon them by the police in collusion with the complainant only in order to strengthen the rope of their false case. Learned counsel drew attention of the court towards evidence of PW Ahmed (page No.59 Exh.7 relevant page No.63) where in hi s cross -examination he had admitted that accused Shahnawaz and Hyder were not present at the time of incident and their names were disclosed to them by the police. As far as alleged motorcycle is concerned, learned counsel while referring to evidence of In spector / I.O. Atif Hussain (Ex.19 page No.136 at relevant page No.137), submitted that it was recovered on 05.12.2020 from the land of one Yahya Qadiani and said
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Yahya Qadiani was not examined by the I.O. during investigation. Learned counsel further submitted that since Identification Parade was defective, hence it created doubt to the veracity of prosecution evidence which goes in favour of the appellants. In support of their contentions, they relied upon the case law viz: Sabir Ali alias Fauji Vs. The S tale (2011 SCMR 563 |Supreme Court of Pakistan]). They further referred to evidence of PW Ghulanm Fareed (page No.89 Exh9 at relevant page No.91), whereby he had admitted in his cross examination that on 21.12.2020 accused Dilber was brought at PS Kunri from Mirpurkhas Jail where the witness es alongwith complainant and PW Abdul Khalique went to see the accused at PS Kunri before holding of Identification parade. Mr. Mian Taj Muhammad, advocate for appellant Munawar @ Munni, submitted that the said appell ant was arrested on 25.12.2020, despite that he was not subjected to Identification Parade and mere recovery of Rs.9,000/ - is no ground to convict him, more particularly when in the FIR nothing had been mentioned as to which of the accused had robbed amo unt from the victim and even at the time of Identification Parade, it was not pointed out that who allegedly robbed the amount from the victim, hence no specific role was assigned to him as well as to co-accused.
13. Learned counsel, therefore, submitted that in the light of above discrepancies and flaws in the prosecution case, the veracity of the prosecution evidence does not come to the required level in order to maintain the conviction against the appellants, hence they prayed for allowing the appeals and acquittal of the appellants.
14. Learned Assistant P.G. appearing on behalf of the State vehemently opposed grant of appeals on the ground that appellants were rightly picked out by the PWs during Identification Parade, besides robbed amount was als o recovered from their possession. He further submitted that no malafide or enmity has been alleged for their false implication, hence the prosecution evidence could not be discarded merely on the basis of certain discrepancies which are minor in nature. H e, therefore, submitted that by dismissing the appeals, impugned judgment may be maintained.
15. Complainant as well as his counsel inspite of notice, have chosen to remain absent; however, Mr. Om Parkash advocate holding brief for Mr. Afzal Karim, advocate for the complainant, opposed the appeals and submitted that
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prosecution had adduced sufficient material evidence connecting the appellants with the commission of alleged crime, hence appeals merit no consideration, therefore, same may be dismissed.
16. From perusal of the evidence adduced by the prosecution witnesses, it seems that they have made certain glaring and material admissions. Complainant Ahmed Ali in his cross -examination has admitted that though it is mentioned in the FIR that accused had ma de straight firing but it is not mentioned as to who and how many fires were made. He had further admitted that accused Dilbar was not known to him before registration of the case. He further admitted that though the CCTV cameras were installed at their sh op; however, due to power shortage , no video was recorded . He further went on to say that though the place of incident (shop) was surrounded by many houses as well as shops yet none from the surrounding was arrayed as a witness even he d id not produce blood stained clothes of the injured. He had also admitted that one accused Soomar Chachar was arrested but later was released by the police being suspicious. PW Niaz Muhammad, who was serving as watchman at the shop of Seth Ghulam Fareed Me mon, had deposed in his examination -in-chief that on 03.12.2020 he came to Kunri town for his personal work, meanwhile found three accused in the shop of Seth Ghulam Farred, who after committing robbery, rushed out. Upon resistance, one of the accused caus ed fire arm shots on him which inflicted on his chest, after which , he fell down. He further admitted that he was not examined by the police. He; however, had identified the accused Dilbar before the trial Court; however, he could not identify the remainin g accused. In his cross, he admitted that before the incident, accused Dilbar was not known to him and his name was disclosed to him by Seth Ghulam Fareed. He also admitted in his cross that he inflicted Lathi blows to accused Dilbar Mari; however, same Lathi was not secured by the police nor he produced as case property, in contravention of his evidence. PW Ghulam Fareed had admitted in his examination -in-chief that as soon as the accused came out, their watchman Niaz Ahmed Gishkori offered resistance wherefrom one of accused caused him fire arm injury. In his cross -examination, PW Ghulam Fareed deposed that names of accused were disclosed to him by the police. He further admitted in his cross that on 16.12.2020 he along with complainant went to District Mirpurkhas and when they reached at PS, accused Dilbar was found in the lock up of PS Mirpurkhas. On 21.12.2020, accused Dilbar Mari was
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brought to PS Kunri from Mirpurkhas jail, at that time he along with complainant and PW Abdu Abdul Khalique went to see accused Dilbar at PS Kunri before conduct of the identification parade.
17. PW Abdul Khalique deposed in his examination-in-chief that as soon as accused came out, their watchman Niaz Ahmed Gishkori offered resistance, whereupon accused caused him fire arm injury. In his cross-examination, he deposed that police did not record his statement under Section 161 Cr.P.C. He further admitted that he is the employee of Seth Ghulam Nabi Memon. After incident 15/20 persons gathered at the spot and name of accuse d Dilbar was disclosed to him by the police. PW Qazi Muhammad Nooh had deposed in his examination-in-chief almost same facts as are deposed by PWs Seth Ghulam Fareed and Abdul Khalique. He further admitted in his cross-examination that accused Dilbar was not known to him before the incident/FIR; besides, police disclosed name of accused Dilbar. He further admitted that in his cross that shop of the complainant is situated in Main Bazar where so many shops are situated. In the surrounding of shop of the comp lainant, about hundred persons gathered at the time of incident and he did not go at PS of District Mirpurkhas. PW Umed Ali admitted in his cross -examination that he had not produced entry dated 03.12.2020 through which it could be deduced that he was on duty on particular date at PS Kunri as duty officer even did not know the number of said entry, as mentioned under letter vide Ex.6/A. PW Tufail Ahmed admitted in his cross -examination that he did not produce daily diary entry dated 23.01.2021 nor he verifi ed the ownership of alleged motorcycle from Excise Department even he had not produced such entry showing his departure from PS to Civil Hospital for collecting final medical certificate. PW Aamir Farooque deposed in his examination -in-chief that accused v oluntarily produced Rs.3000/- kept in Iron trunk, so also handed over one CD -70 model 2019 of red colour to police. Said motorcycle was recovered on the pointation of accused Shahnawaz and was also made available outside the Court room at the time of evide nce. In his cross -examination, he deposed that I.O did not record the statement of WPC Muhammad Ramzan even memo of arrest viz. Ex.15/B did not show any daily diary entry to the effect wherefrom accused was arrested in instant case. At the time of arrest o f accused Shahnawaz from village, Inspector Atif Hussain Shah did not call any private person to witness the proceedings. He also did not produce the entry of P.S Kunri which may show that he was at PS Kunri or not. The plastic shopper available before the
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Court was not in sealed condition. PW/Mashir Ahmed Khan admitted in his cross-examination that he became Mashir of the proceedings at the request of Seth Ghulam Fareed Memon. The complainant asked him to become Mashir of recovery vide Ex.16/C. He also adm itted that memo of entries already available vide Ex.12/A but he never went to Kunri Hospital, again admitted that police obtained his signature over the memo of injuries at police station.
18. PW/Inspector/I.O Atif Hussain admitted in his cross -examination that contents of the memo (Ex.18/A) show that the cash amount recovered on the pointation of accused Munawar @ Munni were kept by him in a plastic shopper but the colour of said shopper is not mentioned in the memo and said plastic shopper was not avail able before the Court. He while referring memo dated 05.12.2020 (Ex.16/C) deposed that motorcycle in question was recovered from the land of one Yahya Qadiyani; however, said Yahya Qadiyani was not made as witness in instant case nor he has been arrayed as an accused in this crime. He further admitted that he had not recorded the statement of owner of the motorcycle. He further admitted that PWs did not disclose name of accused Munawar @ Munni in their statements under Section 161 Cr.P.C; however, at belate d stage they were examined under Section 162 Cr.P.C whereby they disclosed name of accused Munawar @ Munni. Accused Munawar @ Munni was not subjected to identification test, though he made entry into Roznamcha/daily diary; however, he did not produce such copy before the Court. He was confronted with memo of arrest of accused Dilbar as Ex.15/A which did not show any entry regarding his arrest from the District Jail Mirpurkhas; however, letter for permission from the concerned Civil Judge was mentioned along with order. He produced accused Dilbar before PS Kunri and said entry was also not produced before the Court.
19. The above-quoted admissions lead to some discrepancies / lacunas in the prosecution case / investigation as well as contradictions in the evidence of prosecution witnesses which may be narrated in the following terms:
20. The identification parade suffers from certain material illegalities and irregularities, inasmuch as; the witnesses who had picked out accused Dilber in the identification parade had already seen him in the police lock -up; no features of the accused was given, as well as no specific role was assigned to each accused in the commission of allege d offence by the witnesses who
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allegedly picked out the accused in the identif ication parade, so also there was delay in holding of identification parade. Besides, accused Munwaar alias Munni, although admittedly not being known to the witnesses prior to the incident, was not put to identification test at all. All these lapses put serious dents in the identification parade, thus it cannot be said to have any sanctity in the eye of law.
21. In this connection, reference may be made to a recent judgment pronounced by a Full Bench of Honourable Supreme Court in the case of MEHBOOB HA SSAN Vs. AKHTAR ISLAM and others , reported in 2024 SCMR 757, wherein it was held as under:
“Moreover, in order "to maintain secrecy, it was the responsibility of the concerned police to ensure that the accused should not witness by the witnesses while in police station lock -up or in police custody. The police was required to have taken every pre caution to conceal the identity of the detainees before conducting the identification parade. All these precautions should not only be taken, but must have been proved to have been taken. There is nothing on the record to prove that any step was taken by t he police in this behalf. Before conducting the identification parade, the respondents had raised an objection before the Magistrate that the witnesses saw them in the lockup and their photographs were published in the newspapers in connection with some ot her case. The prosecution did not deny the objection. The Magistrate was required to record the objection and to decide its fate, but he ignored the objection and instead, continued to complete the process of identification parade…… the presumption would b e that they were picked from amongst the other persons during that identification, because the witnesses had access to the police station and saw the respondents in the police lock -up and might have saw their pictures published in the newspapers before the identification parade. Evidence of such witnesses, identifying the respondents as accused, loses its efficacy.”
22. In another case reported as SABIR ALI alias FAUJI Vs. The State (SCMR 2011 563), while discussing the said point, it was held as under:
“It is settled principle of law that it is the duty and obligation of the authority that precautionary measures are necessary to conceal the identity of the…
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