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Petitioner: PAHAR KHOSO and others VS Respondent: The STATE and others
Court Name: Sindh High Court Judge(s): Naimatullah Phulpoto, Shamsuddin Abbasi Title: PAHAR KHOSO and others vs The STATE and others Case No.: Criminal Appeal No, D-292 and Criminal Acquittal Appeal No, D-327 of 2012 Date of Judgment:2018-05-02 Reported As: 2018 P Cr. L J 1240 Result: Appeal allowed
JUDGMENT
JUDGMENT SHAMSUDDIN ABBASI, J.---We intend to dispose of Criminal Appeal No,D-292 of 2012, filed by Appellants Pahar and Patang against the judgment dated 10.10.2012 passed by learned Additional Sessions Judge Kotri in Sessions No, 160 of 2008 (Re: State v. Sikandar and others) arising out of Crime No,36/2008 under sections 302, 324, 341, 427, 114, 147, 149, P.P.C. registered at Police Station Khanoth, whereby the appellants were convicted under section 302(b), P.P.C. and sentenced to death and to pay fine of Rs,300000/- each as compensation under section 544-A, Cr.P.C. to be paid to the legal heirs of both deceased and in case of non-payment they were ordered to further undergo S.I for one year. They were further convicted under section 149, P.P.C. to suffer R.I for 2 years and to pay fine of Rs,10000/- and in default of payment of fine, they shall suffer S.I for one month more, they were further convicted under section 324, P.P.C. to suffer R.I for 5 years each and to pay fine of Rs,50000/- to be paid to injured Zahoor Ahmed, in case of its default of payment, they shall suffer S.I for 3 months,' they were also convicted under section 427, P.P.C. to suffer R.I for one year and both to pay fine of Rs,10000/- and its default to suffer S.I for one month more and under section 341. P.P.C. to suffer R.I for one month and to pay fine of Rs,1000/- and in its default to suffer S.1 for 15 day's more. However, both the appellants were extended benefit of section 382-B, Cr.P.C. Learned trial court has also made a reference as Confirmation Case No,14/2012 for confirmation of death sentence. The learned trial court has also acquitted co-accused Sikander and Khadim Hussain by extending them benefit of doubt through same judgment. The complainant of this case has preferred Criminal Acquittal Appeal No,D-327/2012 against acquitted accused/respondents Nos,1 and 2. As all the appeals arise from the same judgment, therefore, we dispose of the same together.
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2. The brief facts of prosecution case as disclosed in the FIR lodged by one Mazhar Iqbal that on 26.10.2008, he being store keeper, Super Coal Mines Co; along with other employees of the company namely Haji Abid Hussain, Liaquat Ali, Javed and Nazeer Ahmed had gone to Hyderabad in a Toyota Hilux for purchasing some articles. The vehicle was being driven by Haji Abid Hussain. While returning, at about 10.40 p.m. when they reached near Andoo Jo Dhoro, on Road, found a 10 wheeler truck was standing there when they reached near the truck and saw 10 suspicious persons armed with weapons available there. Out of them, on headlight of the vehicle they identified accused Pahar Khoso, Patang and Khanu Siyal armed with Kalashnikovs, three others were armed with pistols and remaining were armed with rifles. Meanwhile, accused Pahar along with other accused fired upon them with their respective weapons. Haji Abid Hussain accelerated the speed of vehicle, but he sustained firearm injuries and the vehicle went out of control and stopped at some distance. They found Abid Hussain had sustained firearm injuries on right arm pit, left leg and left arm. They also found Liaquat Ali sitting on front seat and also sustained firearm injury on his right eye and died on spot. They communicated such information to Micro police picket and shifted Haji Abid Hussain in injured condition and body of Liaquat Ali to Jamshoro hospital, but on the way Abid Hussain succumbed to injuries. They had also found a truck bearing Regd: No,QAG-2665, where one Zahoor Ahmed was also lying in injured condition, having sustained firearm injury on his leg, he was also shifted to hospital. After usual formalities and conducting postmortems, the dead bodies were handed over to complainant party, thereafter, the complainant went to Police Station and recorded his statement being FIR No,36/2008. After usual investigation police submitted challan against the accused under sections 302, 324, 341, 427, 114, 148, 149, P.P.C. 3. Charge was framed against the accused Sikandar, Pahar and Khadim Hussain by learned trial court, in which they did not plead guilty and claimed to be tried. 4. Subsequently, absconding accused Patang was also arrested and police submitted supplementary challan and learned trial court framed the amended charge to which all accused pleaded not guilty and claimed for their trial. 5. During pendency of case, absconding accused Hakim Ali was also arrested and police submitted supplementary challan and he was acquitted by the trial court under section 265-K, Cr.P.C. vide order dated 10.05.2012, during pendency of trial. 6. Prosecution in order to prove its case had examined complainant Mazhar Iqbal at Ex.13, P.W Muhammad Javed at Ex.14, P.W Nazeer Ahmed at Ex.15, P.W Muhammad Abbas (mashir) at Ex.16, P.W Dr. Dileep Kumar at Ex.18, P.W ASI Mazhar Ali Pitafi at Ex.19, P.W. Zahoor Ahmed (injured) at Ex.21, P.W SIP Tarique Muhammad Ameen at Ex.22, P.W ASI Muhammad Yakoob at Ex.23, P.W Ghulam Mustafa Mess (Tapedar) at Ex.24, P.W Khadim Hussain (mashir) at EX.26. Thereafter, learned DDA closed the side of prosecution vide his statements Ex.27 and Ex.29. 7. Statements of accused were recorded under sections 342, Cr.P.C. in which they pleaded their innocence and denied the charges of alleged crime. Accused Sikander, Khadim Hussain and Patang neither examined themselves on oath nor led any evidence in their defence. Accused Pahar did not examine himself on oath. However, he examined D.Ws Motiyo and Muhammad Ramzan in his defence and produced copies of FIR, and civil suit pending against complainant party. 8. After hearing the parties and assessment of the evidence, learned trial court passed the judgment dated 10.06.2012, whereby convicted and sentenced the appellants Pahar and Patang as stated above, whereas, acquitted the accused Sikandar and Khadim Hussain. Against said judgment the above Criminal Appeal and Criminal Acquittal Appeal have been preferred. (15) Learned Counsel for appellants Pahar and Patang has contended that in fact incident was unwitnessed; that there were material contradictions in prosecution evidence; that Appellants have been involved due to enmity. He further contended that the FIR was delayed by 48 hours; as
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incident took place on 26.10.2008 at 10:40 p.m. whereas FIR was lodged on 28.10.2008 at 10:00 p.m. He further contended that the ASI Mazhar Ali asked complainant to lodge FIR but he replied that after burials of the dead bodies they would return back at Police Station for lodging the FIR. He further contended that FIR was not lodged for the whole day at Hyderabad/Jamshoro this shows that FIR was lodged after due deliberations and consultation, such fact has been admitted by complainant that he has lodged the FIR after consultation with his boss. He further contended that the delay in lodging the FIR has not been explained. He further contended that there was civil litigation between the accused party and complainant. He further contended that the Appellant Pahar had lodged FIR No,6/2007 against P.W Haji Nazeer Ahmed and others prior to this incident. He further contended that there was enmity between Nazeer Ahmed and Appellant Pahar Khan. He further contended that ASI Mazhar Ali has deposed that on 27.10.2008 he was on duty when at about 11.00 p.m. he received information by Micro Police Post and went there where he saw that a truck was parked on the road behind it, one Datsun Pick-up of new model was standing in which he found that injured Liaquat sustained injuries, while Abid Hussain died; the eye witnesses were neither present at the place of wardat nor they witnessed the incident but they have been set up. He further contended that P.W Muhammad Javed did not state the time of incident and P.W Nazeer Ahmed states that incident took place at 1040 hours (morning) whereas injured Zahoor Ahmed states that incident took place 10:00/10:30 a.m. He further contended that according to M.0 Dileep Kumar, the injuries were sustained by the deceased round about 9 p.m. He further contended that in the inquest report it is mentioned that death occurred during the course of robbery; police prepared inquest report before the registration of FIR so also mashirnama of injuries. He further contended that statement under section 161, Cr.P.C. of eyewitness Muhammad Javed was recorded after 10 days, 'whereas, statement of injured Zahoor Ahmed was recorded after 6 days of registration of the FIR. He further contended that identification was on headlight of the vehicle always treated as weak source of identification. He further contended that after 58 hours of the incident empties were recovered from the place of wardat. He further contended that there is no mention in mashirnama of place of wardat regarding the identification of accused on headlight of the vehicle. He contended that injured. Zahoor Ahmed has not supported the case of prosecution. He further contended that identification parade of accused Sikander was held but he has been acquitted on 10.10.2012 by learned trial court under section 265-K, Cr.P.C. He further contended that appellant Pahar was absconder and during investigation nothing, incriminating was recovered from him except from accused Sikander, who has been acquitted. He contended that the 10 empties were collected on 29.10.2008. He further contended that no empties of K.K. were recovered. He further contended that Accused Sikander was arrested on 06.11.2008 and on 11.11.2008 pistol was recovered from him. He further contended that there was delay of two months in sending the pistol and empties to the Ballistic Expert. He further contended that there was no evidence regarding safe custody of the empties and pistol during that period. He further contended that Complainant during investigation appeared at P.S on 02.01.2009 made further statement and implicated accused Hakim and Mehar and in further statement there was no mention regarding the name of appellant Pahar; and accused Hakim, who was subsequently involved and was acquitted by the trial court under section 265-K, Cr.P.C. against whom Criminal Acquittal Appeal No,D-180/2012 was filed by complainant Mazhar Ali before this Court, which was also dismissed. He further contended that the charge was also defective as it is mentioned in the charge that incident occurred on 26.10.2008 at 1040 hours (morning). He further contended that the same date and time has been mentioned in the statement of accused under section 342, Cr.P.C. incorrectly. He further contended that in the point for determination formulated by trial court time has been mentioned as 1040 hours (morning) whereas, incident had occurred at 10-40 p.m. He further contended that impugned judgment has been passed without reasons, which cannot be termed as judgment in the eyes of
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law. He further contended that the bullet shells were not recovered/collected from the vehicle in which incident took place. He further contended that identification on headlight of the vehicle was at the distance 20/25 fts. which is very difficult to identify in a very weak source of identification. He further contended that the witnesses were interested and there was no independent corroboration. He further contended that no recovery was effected from the appellants. Lastly, he prayed for acquittal of the appellants. In support of his contentions, learned Counsel for the appellants has placed reliance on the cases of (I) Shoukat All v. The State (2004 YLR 356), (2) Ghulam Qadir v. The State (2014 PCr.LJ 865), (3) Abdul Majeed v. The State (2001 YLR 2128), (4) Muhammad Hanif alias Pocho v. The State (2014 PCr.LJ 928), (5) Muhammad Afzal alias Abdullah and others v. The State (2009 SCMR 436), (6) Mst. Rukhsana Begum and others v. Sajjad and others (2017 SCMR 596), (7) Rahat Ali v. The State (2010 SCMR 584), (8) Muhammad Asif v. The State (2017 SCMR 486), (9) Shakeel Ahmed v. The State (SBLR 2015 Sindh 100), (10) Muhammad Asif v. The State (2008 SCMR 1001), (11) Abdul Razzaq and 3 others v. The State (2014 YLR 1479), (12) G. M. Niaz v. The State (2018 SCMR 506), (13) Gul Zaman v. The State and another (SBLR 2016 Sindh 1291), (14) Zeeshan alias Shani v. The State (2012 SCMR 428), Abdul Qadir alias Fauji v. The State and another (2017 YLR 2284), Muhammad Shah v. The State (2010 SCMR 1009), (17) Ishaq alias Kakan v. The State (SBLR 2016 Sindh 1157), (18) Habibullah alias Bhutto and 4 others v. The State (PLD 2007 Karachi 68), (19) Habib v. The State (2014 PCr.LJ 1067), (20) Muharram and another v. The State (2008 YLR 2441), (21) Tariq v. The State (2017 SCMR 1672) and (22) Muhammad Nadeem alias Banka v. The State (2011 SCMR 1517). 10. On the other hand, Mr. Aijaz Shaikh learned counsel for appellant/complainant Mazhar Iqbal has contended that the names of accused transpired in the FIR. He further contended that role has been assigned to them. He fuither contended that the place of incident is admitted; and the number of accused persons is mentioned in the FIR along with weapons and P.Ws have supported the prosecution case at trial except P.W Zahoor Ahmed. He further contended that ocular evidence was corroborated by the medical evidence along with circumstantial evidence i.e 10 empties of 7.62 mm and 5 empties of .32 bore pistol as well as broken glass of the windscreen of the vehicle so also datsun pick-up in which the complainant party were boarding having 19 bullet holes. He further contended that the delay has been explained as dead bodies were sent out of the province. He further contended that accused were acquitted by the trial court as their case was distinguishable. He further contended that accused were identified on headlight of the vehicle. He further contended that luckily eye-witnesses did not receive any injury as they were sitting on rear seat and deceased persons were sitting on the front seat of the vehicle. He further contended that further statement of the complainant was recorded to clarify the position and to give the names of remaining accused. He further contended that the trial court has wrongly and in the artificial manner acquitted the respondents. He further contended that the delay in recording 161, Cr.P.C. of the P.Ws in the circumstances of the case would not be fatal to the prosecution case. He further contended that death sentence has been rightly awarded to appellants Pahar and Patang and requested for dismissal of their appeal by maintaining the judgment to the extent of their conviction and sentence and further requested for setting aside of the judgment to the extent of acquittal of the respondents and prayed that the acquittal appeal may be allowed. 11. Shahzado Salim Nahyoon, D.P.G for the State has argued that appellants Pahar and Patang were rightly awarded death sentence by the trial court. He further argued that the judgment of the trial court with regard to the acquitted accused/respondents is speculative. He submits that acquittal appeal filed by Mazhar Iqbal against respondent Hakim Ali, which was dismissed by this court vide order dated 05.03.2018, said acquittal order has not been challenged before the Supreme Court. 12. Mr. Shabeer Hussain Memon learned Counsel for respondent Sikander in Criminal Acquittal Appeal No, D-327/2012 submitted that respondent Sikander was arrested on 6.11.2008. He further
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submitted that identification parade was held on 12.11.2008 after 6 days of his arrest but according to him identification was doubtful. He contended that complainant in his examination-in-chief has named respondent Sikander that he was demanding Bhatta from them but his name was not mentioned in the FIR. Finally, he argued that the prosecution has failed to prove it's case against respondent Sikander and trial court has rightly acquitted the respondents and this Court has already dismissed the acquittal appeal filed by complainant against acquittal of accused Hakim and as per prosecution story role of Sikandar Ali was identical to role assigned to accused Hakim and prayed for dismissal of the acquittal appeal. 13. Mr. Kashif Hussain, learned counsel for respondent Khadim Hussain in Criminal Acquittal Appeal No,D-327/2012 contended that the prosecution had not been able to prove it's case against respondent Khadim Hussain and he has been rightly acquitted by the learned trial court. He prayed for dismissal of the Criminal Acquittal Appeal. 14. Heard learned Counsel, for the parties and perused the record. We have carefully scanned ocular evidence of eye-witnesses, which rests upon P.W-1 Complainant Mazhar lqbal, P.W-2 Javed Ahmed, P.W-3 Nazeer Ahmed and P.W-4 Zahoor Ahmed (injured) who was the eyewitness of the incident. 15. P.W-1 Mazhar lqbal has deposed that he was store keeper, Super Coal Mines Co; and on 26.10.2008 he along with Haji Abid Hussain (who was driving the vehicle), Liaquat Ali (sitting with driving seat), Javed Ahmed and Nazeer Ahmed (both alongwith complainant were sitting on rear seats) were returning from Hyderabad on their vehicle bearing No,9678 KM. At about 10-40 p.m. when they reached at Habibullah curve on Road near Indoji Dohree and found one 10 wheeler truck was standing there. They stopped their van and saw that 10 armed persons came out, out of them three were armed with K.K and they identified them as Pahar Khan, Khano Siyal and Patang and four persons were armed with rifles and three were armed with pistols. Accused Pahar challenged the complainant and directed their companions that they are workers of Super Coal Mines, on that, they started firing on them wherein Haji Abid Hussain received bullet injuries on his left side of chest, wrist and on right thigh, whereas Liaquat Ali had received bullet injury on his right eye. Thereafter accused fled away and they also noticed that truck driver Zahoor had also received bullet injury. Thereafter complainant party informed Microw Wave Police Post and with help of police shifted all the injured persons to LMCH Jamshoro, where complainant party came to know that Abid Hussain and Liaquat Ali had been expired: Thereafter, postmortems were conducted of dead bodies of deceased persons and thereafter dead bodies were handed over to the complainant party for funeral ceremony. He further deposed that they send the dead bodies of deceased to their native places and on 28.10.2008 he went to Police Station Khanoth where police registered his FIR bearing Crime No,36/a008 under sections 302, 324, 341, 427, 114, 147, 149, P.P.C. This P.W further deposed that he was working in the Company since 2005 whereas the land of coal mine was leased out to the company in the year 1991. During cross-examination he admitted that the said land was leased out to one Muharram Khoso and such litigation was going on in civil court. He further admitted that accused Pahar Khoso was attorney of Muharram Khoso and he was appearing in the cases pending in between Muhammad Khoso and their Company. He further admitted the fact that Pahar Khoso had lodged FIR against Nazeer Ahmed and Abid Hussain at P.S Coal Mines bearing Crime No,06/2007 and according to him such FIR was cancelled but to next suggestion he admitted that challan has been submitted before the competent court of law. This P.W had contradicted his previous statement. In examination-in-chief he stated that they stopped their vehicle due to 10 wheeler truck, which was standing on the road and thereafter 10 persons came out towards them but in cross-examination he has deviated from this version and stated that their vehicle was slow and after firing on their vehicle, their vehicle was stopped about one furlong away from the place of incident (where firing took place). This shows that their vehicle was
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on speed and could not stop at the place of firing. 16. We have also examined the deposition of P.W Javed Ahmed, who made his statement in same line as stated by complainant Mazhar Iqbal. During cross-examination, this witness stated that accused attacked on them at the place of incident and they got slow down their vehicle but at the same time he again said that their driver made speed to their vehicle while seeing accused. This P. W stated that accused persons came from three corners and they crossed the accused persons within 30 second. This P.W denied the aspect that the complainant party faced the dacoits and they tried to escape from the scene of offence and accused fired on them. This P.W also admitted this fact that neither he has mentioned any description of accused in his statement recorded by police under section 161, Cr.P.C. nor statement under section 164, Cr.P.C. Even in both statements has not disclosed the name of any accused. 17. We have also examined the evidence of Nazeer Ahmed, who has also stated the same facts as given by both P.Ws. He has given different version regarding speed of the vehicle at the time of incident. He has stated that their vehicle was so speedy but due to receiving injuries their vehicle was slow and stopped after covering distance of one furlong. This P.W has given contradictory statement about Bhatta as complainant has stated that Pahar Khoso was taking Bhatta from their company but this P.W has stated that accused Pahar Khoso was demanding Bhatta but they did not pay the same to accused Pahar Khoso. This P.W has admitted that the names of accused persons were not mentioned in his statement under sections 161 and 164, Cr.P.C. but he stated that they disclosed the names of accused before learned Judge while recording statement under section 164, Cr.P.C. but learned Judge has not written their names. He has further stated that he has disclosed this fact during recording statement under section 164, Cr.P.C. that accused persons made firing from three sides but such fact was not written by police. He has further stated in his deposition that they made complaint to the Magistrate that why their whole statement was not recorded and why he (Magistrate) did not write the same as per their verbatim, but he admitted that they did not make any application in writing. Even, he has admitted that they had not submitted any application against the Magistrate. 18. We have also examined the deposition of P.W Zahoor Ahmed, who is the star witness of the incident and had received firearm injury. He has clearly stated that on the night of incident, he was proceeding from Habibullah Curve towards Indus Coal Mines at about 10/10-30 a.m. at that time he was driving the truck when he reached near Indro Ji Dhoro he saw 8/10 persons emerged on the road and started firing upon his truck and resultantly he received bullet injury on his left leg and due to darkness he did not see any further more. Thereafter, he was brought to hospital by his relatives on his own vehicle. He could not identify any of the accused present in court as at the time of incident there was darkness. 19. We have examined the motive, defence of appellants coupled with source of identification and delay of 48 hours in lodging' of FIR. The motive which is treated as backbone of any criminal case. Motive is always treated as double edged weapon, which cuts both sides. The complainant has disclosed the facts and motive in the FIR that he identified accused Pahar, Patang and Khano at the place of incident along with seven other accused (their names were not disclosed in the FIR) and accused Pahar Khoso after verification of their vehicle directed to his accomplices that this is the vehicle of Super Coal Mines and do not spare them, on that, accused party made firing at complainant party and resultantly two persons namely Abid Hussain and Liaquat Ali lost their lives and he further disclosed that there was dispute on land in between accused Pahar Khoso and the company. Accused Pahar had also taken the same plea that there was dispute over the land in between Super Coal Mines Khanoth and Muharram Khoso and accused Pahar was attorney of Muharram Khoso in civil litigation. He has produced certified copy of Civil Appeal No,28/2008 along with his statement under section 342, Cr.P.C. and he has further produced Special Power of
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Attorney allotment order of disputed land and certified copy of Form-VII of disputed land in faovur of Muharram Khoso. He has also produced certified copy of FIR bearing Crime No,06/2007 of P.S Coal Mines under sections 337-A(i), 337-F(i), 427, 447, 504, 148, 149, P.P.C. against Super Coal Mines. He has also produced two DWs in his defence namely D.W Motio at Ex.36 and D.W Muhammad Ramzan at Ex.37. Both D.Ws have stated that accused Pahar had gone to village Shadi Khan…
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