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Official Citation: 2024 YLR 1531
Court / Jurisdiction: Sindh High Court
Year of Decision: 2024
Decision Date: 2024-02-19
Parties: Bux Ali Mazari and another vs The State
Ruling Summary: This decision was rendered by the Sindh High Court on 2024-02-19, officially reported as 2024 YLR 1531. In this matter between Bux Ali Mazari and another and The State, 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.
Case cited as 2024 YLR 1531
Court Name: Sindh High Court Judge(s): Muhammad Saleem Jessar Title: Bux Ali Mazari and another vs The State Case No.: Criminal Jail Appeals Nos. S-94 of 2019 and S-25 of 2023 Date of Judgment:2024-02-19 Reported As: 2024 YLR 1531 Result: Appeals dismissed
JUDGMENT
JUDGMENT MUHAMMAD SALEEM JESSAR, J. By this single Judgment, I propose to dispose of above said two Criminal Jail Appeals as both appeals are outcome of the same incident. In fact, by Criminal Jail Appeal No.94 of 2019 accused Bux Ali and Dilijan have challenged their conviction for offence under section 302(b), P.P.C. whereas, Criminal Jail Appeal, No.25 of 2023 is the offshoot of above said main case and the same has been filed only by accused Bux Ali against his conviction for offence under section 23(i)A Sindh Arms Act, 2013. 2. Brief facts of prosecution case as depicted in the FIR lodged by complainant Shah Gul Jakhrani on 30.07.2015, are that a relative of accused Allah Bux and others namely Abdul Lateef alias Titoo Mazari, who was notorious thief, was murdered about 18 years ago in village of complainant party during encounter between thieves and villagers, such dispute was settled privately by nek mards/WADERAs and fine of rupees ten lac was paid by the complainant party to the accused party. Despite such settlement, accused Allah Bux and others used to demand Rs.10,00,000/- (Rupees Ten Lac only) more from complainant party and had issued threats of dire consequences. The complainant party approached to nek mards, who assured that no harm shall be caused to complainant party as the dispute has already been settled down and fine has been paid to the legal heirs of Abdul Lateef alias Titoo Mazari, who had been murdered during commission of theft. 3. It is further stated that on 29.7.2015, the complainant along with his brother Mehar Gul, who was a Primary School Teacher and was aged about 48/49 years, on one motorcycle, whereas, his cousin All Hassan and maternal cousin Khushhal, by caste Jakhrani, on another motorcycle, were going to their village from Kashmore city. Mehar Gul was driving the first motorcycle while complainant was
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sitting on the rear side. At 04:30 PM when complainant party reached near village Naich where preplanned accused persons appeared duly armed with weapons. The accused were identified as Allah Bux son of Raes Khan, Mir Hassan son of Saifal, both armed with K.Ks, appellants Dilijan son of Bolan and Bux Ali son of Abdul Lateef alias Titoo, so also accused Allah Dad son of Muhammad Salleh alias Mulan Mitho and Mir Khan son of Gulzar, all by caste Khird Mazari resident of village Raes Khan Taluka Kashmore, duly armed with TT pistols. The accused persons on the force of weapons got stopped complainant party. Accused Allah Bux challenged complainant party that they will take revenge of murder of their person as complainant party failed to pay another fine amount of rupees ten lac to them. Meanwhile, accused Allah Bux instigated other accused to commit murder of Mehar Gul whereupon accused/ppellant Dilijan fired from his TT pistol upon Mehar Gul which hit him on left side of his chest; whereas, appellant Bux Ali fired from his TT pistol which hit Mehar Gul on his right foot. Complainant tried to rescue but accused persons aimed their weapons towards him, as such due to fear complainant party remained silent. The accused persons on seeing Mehar Gul died, went away by making aerial firing and raising slogans. The complainant found that Mehar Gul Lad expired at the spot due to sustaining fire arm injuries on his chest and foot. The dead body was transported to police station wherefrom same was brought at Hospital where postmortem examination was conducted and after completion of burial ceremonies complainant went to police station and got registered FIR. 4. After receiving investigation papers, SIP Khan Muhammad Brohi visited the place of incident on the pointation of complainant, collected six empties of TT pistol, dry bloodstained earth of deceased Mehar Gul which was sent to Chemical Lab Rohri. I.O. also arrested accused Bux All and Dilijan during investigation. On completing the investigation, he submitted charge sheet showing accused Bux All and Dilijan in custody while remaining accused namely, Allah Bux son of Raes Khan Khird Mazari, Mir Hassan son of Saifal Khird Mazari, Allandad son of Muhammad Salleh alias MuIan Mazari and Mir Khan son of Gulzar Khird Mazari were shown in column No. 2 of the charge sheet declaring them innocent before the Court of 2nd Civil Judge and Judicial Magistrate, Kashmore, who did not agree with the opinion of I.O.; hence, also joined the let-off accused persons to face the trial vide order dated 02.09.2015. Thereafter, having completed legal formalities, R&Ps of the case were sent up to the Court of learned Sessions Judge, Kashmore at Kandhkot wherefrom same was transferred to the trial Court on 28.3.2019, on creation of Model Criminal Trial Court, on the orders of Honourable Supreme Court of Pakistan. 5. A formal charged was framed against accused/appellants Bux Ali and Dilijan vide Ex. 6, to which they pleaded not guilty and claimed for trial vide their pleas Exs:6/A and 6/B, respectively. 6. In order to prove its case, prosecution examined PW/M.O. Dr. Peer Bux Kalwar at Ex:7, who produced Laash Chakas form, post mortem report as Exs:7/A and 7/B respectively. PW/HC Hidayatullah Khoso, who was author of FIR, was examined at Ex.8, who produced mashirnama of inspection of dead body, danistnama and FIR as Exs:8/A to 8/C. respectively, PW/Tapedar Mukesh Kumar was examined at Ex.9, who produced sketch of place of incident as Ex. 9/A, while PW/PC Ahsan Ali Lashari, corpus bearer, was examined at Ex.10, who produced receipt of handing over of dead body as Ex.10/A. PW/complainant Shah Gul was examined at Ex:11, PW/alleged eye-witness Ali Hassan was examined at Ex:12, whereas PW/mashir Muhammad Hayat was examined at Ex:13, who produced-mashirnama of inspection of place of incident and recovery of empties as Ex:13/A. Thereafter, statement of process server ASI Nangar Ali Soomro was recorded at Ex:14, wherein he stated that I.O/SIP Khan Muhammad Brohi had gone Saudi Arabia, hence his appearance is not possible in near future. In view of such statement of process server, the case was kept in abeyance till appearance of Investigation Officer SIP Khan Muhammad Brohi vide order dated 27.6.2019. Subsequently on appearance of I.O/SIP Khan Muhammad Brohi, case was ordered to be re-opened on same stage on 03.8.2019 vide Ex:16. The evidence of I.O/SIP Khan Muhammad Brohi was recorded
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at Ex:17, who produced mashirnama of arrest, roznamcha entries, mashirnama of recovery of used weapon and bullets from accused, Chemical Lab report at Exs:17/A to 17/H respectively, PW/PC Bilawal Soomro, who is mashir of arrest of accused and recovery, was examined at Ex:18. Thereafter, prosecution side was closed vide Statement Ex.19. 7. Statements of the accused/appellants were recorded under section 342, Cr.P.C., in which they pleaded their innocence; however, neither they opted to make statement on oath nor produced any witness in their defense as provided under Section 340(2), Cr.P.C. Moreover, accused Bux Ali deposed that he is innocent as there was old murderous dispute between deceased Mehar Gul and them, such case/FIR No. 172/2013 under Section 302, P.P.C. was registered at P.S. Buxapur against deceased Mehar Gul and the present FIR was registered as a counterblast. He further stated that prosecution witnesses have deposed falsely against them due to enmity. 8. After formulating the points for determination, recording evidence of prosecution witnesses and hearing counsel for the parties, trial Court vide impugned judgments convicted the accused/appellants, as stated above. The appellants have challenged their conviction by preferring instant appeals. 9. I have heard the arguments advanced by learned counsel for the appellants, learned counsel for the complainant and learned Addl. P.G. Sindh appearing for the State and perused the material available on record. 10. Learned counsel for the appellants has argued that all the prosecution witnesses in the case are not only relatives to the deceased but are also inimical to the accused, besides they are also chance witnesses, therefore, their testimony cannot safely be relied upon to maintain the conviction against the appellants. He next argued that P.W. Khushhal was alleged to be an eye- witness; however, he was not examined before the trial Court and was given up by the prosecution, therefore, presumption would be that if he would have been examined, he would not have supported the case of prosecution. He further argued that there is inconsistency between ocular version and the medical evidence, as according to the prosecution case, appellants allegedly had fired from T.T. pistols; however, Medico Legal Officer, who was examined before the trial Court, in his cross-examination had admitted that the injury allegedly sustained by the deceased could be of pellet, therefore, in such a situation, benefit of doubt arises which goes in favour of the appellants/accused. He next submitted that FIR is delayed for about 17/18 hours, thus presumption of deliberation and consultation could not be ruled out, hence, it is apparent that the appellants have been roped by the complainant in the case due to long standing enmity between the parties. Learned counsel also pointed out that there had been enmity between the communities of Bhaya, jakhrani and Mazari, therefore, deceased was done away with, by some unknown culprits; however, complainant has chosen to aim at the appellants in order to thrust the grudge, on account of the motive shown in the FIR. He further submitted that appellants were arrested by the police on 16.08.2015; however, recoveries were effected from their possession on 25.08.2015 and samples were sent to chemical laboratories for examination on 27.08.2015 i.e. after a delay of about two days; the safe custody of alleged recovery has become questionable and it could be imagined that the prosecution has not come with clean hands. Learned counsel, while referring the evidence of complainant, stated that though the complainant had appeared at Police Station at the time of incident; however, had not recorded NC, nor nominated any accused and after having consultation/deliberation he nominated the appellants. Learned counsel submitted that the trial Court has not appreciated the evidence brought before it through defence. He further contended that for the recovery allegedly effected from the appellants, a joint memo was prepared, which is not permissible under the law, hence that too is fatal to the prosecution case, therefore, appellants may be acquitted by extending benefit of doubt. As far as alleged recovery of empties is concerned, per evidence adduced by the prosecution, the property was in a sealed condition and
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they have only deposed before the trial Court that the property produced before the Court was same. Learned counsel stated that he shall produce case-law during course of the day. 11. Learned Addl. P.G, Sindh appearing for the State, opposed the appeals on the ground that appellants are not only nominated in the RR but also assigned specific role of causing firearm injures to the deceased on account of motive shown in the FIR. He further submitted that the deceased was an educated person; whereas, appellants being persons belonging to notorious gang, had taken revenge of their relative, who was done away by the villagers while he was committing theft, for which the complainant party had also paid Rupees Ten Lacs as per private faisla, despite that the appellants were demanding further amount and when the complainant contacted in this context with nekmard who had given Faisla, he gave assurance to the complainant party not to be fearful as the amount given by them was sufficient and there was no need to pay any more amount. According to him, for this reason, appellants by showing their arrogance, had taken revenge of their grudge and committed murder of an educated person. As regards inconsistency between the medical evidence and ocular testimony, as pointed out by learned counsel for the appellants, learned Addl. P.C. Sindh submitted that statement of Medico Legal Officer is obliging in nature as the injury allegedly sustained by the deceased, is through and through and pellet could not be so powerful to go through and through. Learned Addl. P.G., Sindh further submitted that Superior Courts have time and again held that preference should be given to ocular version and minor discrepancies should be ignored. 12. Mr. Abdul Ghani Bijarani, learned counsel appearing for the complainant, adopted the arguments as advanced by learned Addl. P.G, Sindh and opposed the appeals and submitted that plea of convicts/appellants regarding inconsistency between ocular version and medical evidence, has elaborately been discussed by the trial Court in para-24 of the impugned judgment, thus the same carries no weight in the eyes of law. He further submitted that the Supreme Court has also laid down dictum in this regard and has held that minor discrepancies as well as alleged inconsistency between the ocular version and the medical evidence, carries no weight and preference should be given to the ocular version over the medical evidence. In support of his contention, he placed reliance upon the cases (i) Qasim Shahzad and another v. The State and others (2023 SCMR 117(sic) (ii) Muhammad Bashir and another v. The State and others (2023 SCMR 190(b)), (iii) Nasir Ahmed v. The State (2023 SCMR 478) and (iv) Azhar Hussain and another v. The State and others (2022 SCMR 1907) Learned counsel prayed for dismissal of appeals. In the last, he submitted that the delay as claimed by learned counsel for the appellants, has plausibly been explained by the prosecution. In support of this contention, he referred to the evidence of HC Hidayatullah (Ex. 8 at page-82 of the paper book), wherein he specifically deposed before the trial Court that P.Ws. had disclosed the names of the appellants before him but he did not note down the same. 13. In instant case, ocular testimony is consisting of Complainant Shah Gul (Ex.11) and P.W. Ali Hassan (Ex.12). The evidence of both these witnesses is almost similar. Complainant Shah Gul deposed that deceased Mehar Gul was his brother. He further deposed that the relative of accused Allah Bux namely Abdul Lateef alias Tatoo Mazari was a notorious criminal/thief and about 18 years ago he had entered in their village with intention to commit theft; however, he was expired in an encounter between accused and the villagers. Thereafter, a Faisla was conducted by the nekmards of the locality and a fine of Rs.10,00,000/- (Rupees Ten Lac only) was imposed upon the complainant party for causing death of Abdul Lateef Mazari, which amount was paid by them to the legal heirs of deceased Abdul Lateef Mazari. According to him, despite that, Allah Bux and others, accused in present case, used to demand another amount of rupees ten lac from them and issued threat that in case of their failure to pay the same, they will commit murder of complainant party. He further deposed that they approached the nekmards of the accused party,
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who assured them that there is no apprehension to them as the right has been extended to the accused, therefore, accused have no right to retaliate or to issue threats to them. He further deposed that on 29.7.2015, he along with his brother Ustad Mehar Gul went on the motorcycle from city Kashmore towards their village and on another motorcycle his cousin All Hassan and maternal cousir. Khushaal were also going towarus their village from city Kashmore and when they reached at Naich village through the road at about 04:30 p.m., they saw that accused persons namely Allah Bux armed with K.K. Mir Hassan with K.K, accused Dilijan, Bux Ali, Allandad and Mir Khan duly armed with TT pistols, intercepted them on the point of weapons. They stopped their motorcycles due to fear of the weapons on the side of road. He deposed that accused Allah Bux raised Hakal that as the complainant party has refused to pay further amount of Rs. ten lacs, therefore they shall take revenge of deceased Abdul Lateef Mazari from them/complainant party. Thereafter, accused Allah Bux instigated other accused to commit murder of Ustad Mehar Gul, whereupon accused Dilijan opened fire of TT pistol with intention to commit murder, which hit him on the left side of his chest, whereas accused Bux All fired at his brother with intention to commit his murder, which hit him on his right foot, consequently, Mehar Gul fell down on the ground by crying. Complainant party raised cries not to commit murder of their brother but all the accused persons pointed their weapons towards them, therefore, they remained silent. He deposed that accused also issued threats that they shall also be murdered like their brother; however, they remained silent on account of being empty handed. Mehar Gul expired in their presence, thereafter, accused persons went away while firing in air and raising slogans of happiness towards southern side. He further deposed that they saw one entry and exit wound on the left side chest of deceased Mehar Gul, while second firearm injury on left side foot of the deceased which was passed through the foot and the deceased had succumbed to his injuries. Thereafter, they brought the dead body at Taluka Hospital after arranging transport and informed the police. Thereafter, postmortem was conducted in presence of police and mashirs Muhammad Hayat and Faqeer Muhammad. Then, they went to village along with dead body of Mehar Gul and after funeral ceremonies, they lodged FIR on 30.7.2015 at 11:30 A.M. He deposed that ASI Khan Muhammad Brohi brought them in police mobile and visited the place of incident at 01:00 PM on 30.7.2015. He deposed that 06 empties, foot marks of the accused and blood stained earth was found present at the place of incident and such rnashirnama was prepared in presence of mashirs Muhammad Hayat and Faqeer Muhammad. He deposed that empties and blood stained were collected by I.O. which were sealed. He identified accused Bux Ali and Dilijan. 14. Another alleged eye-witness namely, Ali Hassan (Ex:12), fully supported the version of complainant and his evidence is almost or the same line as that of the complainant. 15. Apart from above, evidence of I.O. of the case namely SIP Khan Muhammad Brohi is also material, who had deposed about entire investigation conducted by him after receiving police papers. He had collected six empties of T.T. pistol from the spot, so also dry bloodstained earth of deceased Gul Meher. He also effected recovery of crime weapons on the pointation of accused/appellants. He produced chemical analyzer's report which indicates that articles referred to the Chemical Analyzer in present case were found stained with human blood. 16. From ocular testimony of aforesaid two eye-witnesses, it is evident that their evidence is consistent with each other. They are consistent on all material aspects of the incident i.e. place of incident, date and time of incident, number and locations of injuries allegedly sustained by the deceased and so also regarding motive and old enmity between the parties. There seems to be no loophole/flexibility in their evidence. 17. The ocular evidence is further corroborated by the medical evidence. Dr.Pir Bux Kalwar, SMO Taluka Hospital, Kashmore conducted post-mortem examination on the dead body of deceased. Mehar Gul and found following injuries: External Injuries.
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1. Lacerated punctured wound 3/4 cm x 3/4 cm chest cavity deep over left side chest front, margins inverted, wound of entrance. 2. Lacerated punctured wound 1 1/4 cm x 1 1/4 cm x cavity deep over mid chest back, margins averted, wound of exit. 3. Lacerated punctured wound 1 cm x 1 cm over right foot laterally, margins inverted, wound of entrance. 4. Lacerated punctured wound 2 cm x 2 cm over right foot medially, margins averted, wound of exit. In the opinion of the Doctor, death of the deceased occurred due to discharge from fire arm, resulting in shock and hemorrhage due to above injuries. He opined that all the injuries are anti- mortem in nature and are sufficient to cause death in ordinary course of nature. He further opined that deceased died instantaneously after receiving above injuries and duration between death and postmortem was 02 hours. 18. From perusal of the evidence of M.0, it seems that medical evidence is consistent with ocular account of the incident. The eye-witnesses had deposed that deceased had sustained two firearm injuries i.e. one on the left side of his chest and the other on his right foot and both the injuries were through and through. Such assertion of the eye-witnesses is confirmed by the medical evidence which also shows afore said two injuries plus two exit wounds, as a result of these injuries. Both, the ocular as well as medical evidence, are also consistent on the point that all the injuries have been caused by firearm weapon. Likewise, as per both the eye-witnesses, the deceased died immediately at the spot after sustaining injuries, which fact is also confirmed by medical evidence which shows that death of the deceased was instantaneous. Similarly, duration between the death and the postmortem examination as per ocular testimony and the medical evidence, is also almost same. 19. The ocular testimony is further corroborated by circumstantial evidence. 1.0/Khan Mohammad has deposed that he had collected six empties of T.T. pistol from the spot, so also dry bloodstained earth of deceased Gul Meher. He also effected recovery of crime weapons at the pointation of accused/appellants. He produced chemical analyzer's report which indicates that the articles referred to the Chemical Analyzer in present case, were found stained with human blood. 20. Prosecution case is further corroborated by the motive disclosed by the prosecution witnesses. Both the alleged eye-witnesses, who are brother and cousin of the deceased respectively, had deposed in their respective evidence that relative of accused Allah Bux namely Abdul Lateef alias Tatoo Mazari, was a notorious criminal/thief and about 18 years ago he had entered in their village with intention to commit theft; however, he was expired in an encounter between the accused and villagers. Thereafter, a Faisla was conducted by the nekmard of the locality and a fine of Rs.10,00,000/- (Rupees Ten Lac only) was imposed upon the complainant party for causing death of Abdul Lateef Mazari, which amount was paid by them to the legal heirs of deceased Abdul Lateef Mazari. According to him, despite that; Allah Bux and others, accused in the present case, used to demand further amount of rupees ten lac from them and issued threats that in case of their failure to pay the same, they will commit murder of complainant party. He further deposed that they approached the nekmards of the accused party, who assured them that there is no apprehension to them as the right has been extended to the accused, therefore, the accused have no right to retaliate or to issue threats to them; however, due to old enmity and grudge, the accused caused murder of deceased Mehar Gul. The above fact regarding old enmity and Faisla having taken place between the parties, has also been admitted by the accused/appellants in their statements recorded under Section 342, Cr.P.C., wherein they clearly stated that there was old murderous dispute between deceased Mehar Gul and them, such case/FIR No.172 of 2013 under Section 302, Cr.P.C., was registered at PS Buxapur against deceased Mehar Gul and the present FIR was
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registered as a counterblast. They further stated that prosecution witnesses have deposed falsely against them due to enmity. 21. Now, I would like to deal with the pleas raised on behalf of the accused/appellants. As regards the defence plea that prosecution witnesses are closely related to the complainant as well as deceased, therefore, their evidence cannot be relied upon, for the purpose of conviction of the accused, it may be observed that it has been held time and again by the Superior Courts that mere relationship of the prosecution witnesses with the deceased cannot be a ground to discard the testimony of such witnesses. In this connection, reference may be made to the case reported as Zulfiqar Ahmed and another v. State (2011 SCMR 492), wherein it was held as under: "........It is well settled by now that merely on the ground of inter se relationship the statement of a witness cannot be brushed aside. The concept of 'interested witness was discussed elaborately in case titles Iqbal alias Bala v. The State (1994 SCMR 1) and…
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