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Petitioner: Arslan Sanjrani VS Respondent: The State
Court Name: Sindh High Court Judge(s): Naimatullah Phulpoto, Zulfiqar Ali Sangi Title: Arslan Sanjrani vs The State Case No.: Criminal Jail Appeal No. D-31 and Confirmation Reference No. D-11 of 2015 Date of Judgment:2020-12-15 Reported As: 2023 YLR 1311 Result: Appeal dismissed
JUDGMENT
JUDGMENT ZULFIQAR ALI SANGI, J.---Through this criminal appeal, appellant Arslan son of Muhammad Sallah Sanjrani has impugned the judgment dated 04.09.2015, passed by learned Judge, Anti-Terrorism Court Shikarpur, in Special case No.11/2009, re; St. v. Arslan Sanjrani, arisen out of Crime No.10/2009 of Police Station New Foujdari Shikarpur; whereby the appellant was convicted under section 302(b), P.P.C. read with section 7 ATA, 1997 and sentenced to death. The appellant was directed to pay fine of Rs.300,000/-, to be paid to the legal heirs of deceased as compensation under Section 544-A, Cr.P.C. The learned trial Court has made captioned Reference for confirmation of death sentence or otherwise. 2. The facts of the prosecution case are that, on 15.01.2009 complainant Syed Baqar Ali Shah lodged FIR with Police Station New Foujdari, alleging therein that his daughter, namely, Maria Shah (now deceased) was under training for mid-wife in RBUT Hospital, Shikarpur, and in the evening she used to work at Charity Clinic of Dr. Imran Shaikh situated at Neem Khabar Curve. It is alleged that accused ArsIan Sanjrani demanded hand of Maria Shah and on refusal, he extended threats. On fateful day, the complainant along with his cousin Shah Jehan Shah was sitting at the clinic of Dr. Imran Shaikh; his daughter Ms. Maria Shah was sitting on a chair infront of them, at about 05.00 p.m. accused ArsIan Sanjrani entered into clinic having steel glass in his hand containing acid, which he threw at the face of Ms. Maria Shah and then he ran away. The complainant party found that face, right eye and other parts of body of Ms. Maria Shah were burnt due to throwing acid upon her. It is alleged that she was taken to Civil Hospital, Shikarpur, for immediate treatment and then the complainant went to Police Station New Foujdari at 1800 hours and lodged the report
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against accused/ appellant. It was recorded vide Crime No. 10/2009, under Sections 302, 354, 355, P.P.C. and 6/7 ATA, 1997. 3. After registration of FIR, I.O. conducted spot investigation, condition of injured girl was serious. She was referred to Burns Hospital Karachi, where she succumbed to injuries. Before her shifting to Karachi, one journalist recorded her interview. Accused was arrested on 23.01.2009. On the conclusion of usual investigation, challan was submitted against the accused for offences under sections 302, 354, 355, P.P.C. read with Sections 6/7 ATA, 1997 before the learned Judge, ATC, Shikarpur. Trial Court framed charge against the accused under above referred Sections at Ex. 02. Accused pleaded not guilty and claimed to be tried. 4.The prosecution in order to prove its case, examined PW-1 H.0 Awiz Khan, he produced daily diary at Ex.5-A, FIR, at Ex.5-B. PW-2 lady Dr. Samina Shaikh was examined at Ex.6, she produced provisional medical certificate at Ex.6-B. PW-3 Lady Dr. Mubina Siddiqui was examined at Ex.7, she produced postmortem report at Ex.7-B. PW-4 complainant Syed Baqar Shah was examined at Ex.8. PW-5 Mehtab Shah at Ex.9; PW-6 Nazir Ahmed at Ex.12, he produced mashirnama of injuries of injured/ deceased Maria Shah at Ex.12-A, mashirnama of place of vardat at Ex.12-B, memo. of inspection of dead-body at Ex.12-C, inquest report at Ex.12-D and memo. of recovery of burnt clothes of deceased at Ex.12-E. PW-7 Liaquat Ali Shah was examined at Ex.13, he produced sketch of place of vardat at Ex.13-A. PW-8 SIP Nadir Ali was examined at Ex.14, he produced memo. of arrest of accused at Ex.14-A. PW-9 Mr. Shahid Ali Civil Judge and Judicial Magistrate was examined at Ex.15, he produced 164, Cr.P.C statement of PW Shah Jahan at Ex.15-C. PW-10 Inspector Muhammad Ali Soomro was examined at Ex.16, he produced sketch of place of vardat at Ex.16-A, entries of daily- diary of various police station at Ex.16-B to 16-H, confessional statement of accused recorded by S.P Investigation at Ex.16-I, order of learned Civil Judge and Judicial Magistrate passed on application at Ex.16-J, entry of daily-diary regarding death of Mst. Maria Shah at Ex.16-K, photograph of Ms. Maria Shah at Ex.16-L. Thereafter, learned prosecutor submitted an application before the trial Court under Section, 540, Cr.P.C. for calling/ examining Dr. Imran and KTN News Reports at Ex.17, which was allowed, then learned Prosecutor submitted three copies of CD with his statement at Ex.18, copy of such CD was supplied to accused vide Receipt at Ex.19 and KTN report at Ex.20. The learned Prosecutor gave up Dr. Imran vide statement at Ex.21, while PW Jan Muhammad KTN Reporter was examined at Ex.22 as PW-11, he produced copy of CD at Ex.22-A. PW-12 Iqbal Din, S.P Investigation (Rtd) was examined at Ex.23. Lastly, the prosecution closed its side vide Ex.24. 5. Learned trial court recorded the statement of appellant under Section 342, Cr.P.C. at Ex.25, in which he denied the prosecution allegations against him and also denied to give statement on oath and to lead evidence in his defence. Learned trial Court on conclusion of trial passed. impugned judgment whereby convicted and sentenced the appellant, as stated above. 6. Learned counsel for the appellant criticized the impugned judgment and argued that the prosecution witnesses are closely related inter-se, and no independent witness has been, examined by the prosecution at trial; that the complainant and P.W Mehtab Shah are closely related to the deceased and according to him PW Mehtab Shah was not eye-witness of the incident, as at the time of incident he was present at his home; that prosecution witnesses have made contradictions, improvements and omissions in their evidence on the material points, therefore, their evidence is un-reliable and un-trustworthy; that present incident occurred on 15.01.2009 and on the said date Acid Kerosene was not a scheduled offence, therefore, it is submitted that trial held by learned ATC was corum non-judice. In support of this contentions learned counsel relied upon the case of Zain-ul-Abideen v. Additional Session Judge and 7 others (2020 PCr.LJ Note 19). He further submitted that no oath was taken by learned Judge, ATC before conducting the proceedings of this case which was mandatory requirement of law. Per learned counsel copy of disc-that was produced in evidence by the prosecution was not supplied to the
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accused at the time of submission of the challan; but it was supplied to the appellant after 5 years of the incident. It is admitted by learned counsel that application was submitted for production of the CD and copy was supplied to the appellant before recording evidence of journalist; that the CD was produced in evidence but there was no evidence with regard to the safe custody of the CD. Learned counsel next contended that charge was framed against the accused under Sections 302, 354 and 355, P.P.C. and 7 Anti-Terrorism Act, 1997, however finding with regard to the Sections 354 and 355, P.P.C. was not recorded by the trial Court. It is further argued that according to contents of the FIR, the appellant had issued threats to deceased and her father that in case hand of deceased is not given to the accused, he would face consequences. Learned counsel further contended that in the FIR presence of Dr. lmran Shaikh at his clinic is not mentioned but complainant in his evidence stated that Dr. Imran Shaikh along with patients was present at his clinic at the time of incident. Per learned counsel Dr. Imran Shaikh was not examined by the prosecution during trial but he was giyen-up by the prosecution two times. Per learned counsel Dr. Imran Shaikh was given up for the second time, when he was called on the ground that he has been won-over by the accused. Learned counsel contended that eye-witnesses Shah Jehan who was related to the complainant was also given-up by the prosecution, therefore, presumption would be that he was not prepared to depose before the Court in favour of the prosecution. Per learned second mashir of injuries and vardat has been examined by the prosecution but first mashir was not examined and second mashir has not deposed that glass in which Acid was brought was sealed in his presence. The second mashir who has been examined by the prosecution has admitted in his cross-examination that complainant Syed Bager Shah is on family terms with him. Learned counsel further contended that, burnt clothes, glass and chairon which deceased was sitting were not produced before the trial Court and glass was not sent to the Chemical Examiner for report. Learned counsel contended that no independent person from clinic was made as mashir. Per learned counsel the Investigating Officer /SIP Nadir Ali has also not produced glass and chair before the trial Court and he has not given description of the case property. Learned counsel further submitted that P.W Shah Jahan has also not been examined; his 164, Cr.P.C. statement may be kept out of consideration because his version is contradictory to the evidence of the complainant and he did not identify the accused in his 164, Cr.P.C. statement. Learned defence counsel further contended that, 161, Cr.P.C. statement of Ms. Maria Shah which was treated as dying declaration was not produced by the Investigating Officer. Learned counsel submitted that statement of accused recorded by the SP investigation Shikarpur is inadmissible in evidence. Learned counsel further contended that reasons have not been assigned as to why accused was not produced before concerned Civil Judge sand Judicial Magistrate having jurisdiction in the matter on the day when confessional statement was recorded before the S.P. Lastly it is submitted that Journalist had interviewed appellant as well as deceased without formal entry and Investigating Officer did not record 161, Cr.P.C. statement of Journalist Jan Muhammad. On all these scores, it is prayed for acquittal of the accused. In the end, it is submitted that in case, the Court is not convinced from the arguments advanced on behalf of appellant, at- least death sentence may be converted into imprisonment for life keeping in view mitigating circumstances in the case. 7. Learned Addl. P.G. controverted the arguments of learned appellant's counsel and submitted that the prosecution evidence has rightly been believed by the learned trial Court and the appellant has rightly been sentenced to death. He next contended that father of deceased had no enmity to falsely implicate the accused in this case; that the motive was very much evident and that has been proved at trial. He further added that point of jurisdiction for conducting the trial under the provisions of ATA, 1997 was questioned by the appellant in Cr. Revision Application No. D-34 of 2009 before this Court, which has already been dismissed and said orders have attained the finality; that P.W Journalist Jan Muhammad had been called as Court-witness and he was important from
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prosecution point of view; that the Journalist Jan Muhammad recorded narration of the incident as given by deceased; she had narrated the entire episode; that Journalist Jan Muhammad also interviewed the appellant in the jail who admitted his guilt, which extra judicial confession rightly was relied by the trial court. He further contended that evidence of S.P is admissible under Section 21-H of the Anti-Terrorism Act, 1997; that CD was properly produced in the evidence and was rightly relied by the trial Court. He further argued that PW Shah Jehan Shah and Dr. Imran Shaikh were given-up by the prosecution as they were won over by accused. Learned Addl. P.G. relied upon case of Saeed Akhtar and others v. The State (2000 SCM R 383) and argued that prosecution was not bound to produce all the witnesses. Lastly, it is argued by learned Addl. P.G. that prosecution succeeded in proving its case beyond a reasonable doubt and prayed for dismissal of the appeal. 8. We have heard the learned counsel for the appellant, learned Addl. P.G. and perused the record and have read the evidence of prosecution witnesses with their able assistance. 9. The first contention of the learned counsel for the appellant that Anti-Terrorism Court had no jurisdiction to try the present case has no force, as during trial an application under section 23 of the Anti-Terrorism Act was filed and was dismissed by the trial court vide order dated: 20-05-2009 and the same was assailed before this court in Cr. Revision No. D-34 of 2009 which was too dismissed vide order dated: 25.03.2013 and the same was not challenged by appellant before Honourable Supreme Court of Pakistan, thus attained finality. This Court while deciding the issue of jurisdiction in Criminal Revision Appln. No. D- 34 of 2009, filed by the appellant has observed as under:- The offence from very face of it seems to be very serious in which on account of refusal of a lady or her father for her marriage with the applicant she was murdered which is a heinous crime in nature because initially it disfigured the face of the victim to disable her to move in the society creating terror in the society and that may be a serious instance of insecurity amongst the ladies of the society. Such incident is taken place in the town creating serious insecurity and fear in the public so the same is required to be discouraged at this stage of the case when charge has not yet been framed. In view of the above, there is nothing appearing from the impugned order so as to call for interference by this Court. Accordingly this revision application is dismissed. However, the applicant shall be at liberty to repeat such application if so advised after the evidence of material P.Ws is recorded by the trial Court. Needless to say that the trial Court shall not be influenced by the observation, if any, made in this order as the case is to be decided by it on merits of the case in accordance with law." 10. The evidence produced by the prosecution in the shape of ocular evidence and medical evidence coupled with documentary evidence, includes medical certificate and Postmortem of deceased Ms. Maria Shah, recovery of steel glass in which accused brought acid and recovery of the burnt clothes of the deceased, established beyond any shadow of reasonable doubt that on 15-01-2009 at about 05.00 p.m. at the clinic of Dr. Imran Shaikh, deceased received injuries due to throwing the acid on her face and later-on died due to un-natural death in the hospital. Prosecution in order to prove unnatural death of deceased has examined, Dr. Samina Shaikh PW-2, who deposed that on 15.1.2009 she was posted as Medico Legal Officer at RBUT Hospital, Shikarpur. At 0600 p.m. injured namely Maria Shah daughter of Baqar Ali Shah was brought by S.H.O, Police Station New Foujdari Shikarpur, for examination, treatment and certificate. She examined her and found following injuries: 1. One burn injury present over the face involving Rt and left eye also Rt ear. 2. One burn injury involving the in front of the neck and both side of neck. 3. One burn injury involving the front of the chest of abdomen anteriorly.
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4. One burn injury involving the upper Rt arm and forearm. 5. One burn injury involving the both thigh anteriorly. 6. One burn injury the Rt foot on its dorsum surface. Doctor further deposed that injuries were result of liquid heated substance. She gave her first aid and then referred her to Civil Hospital, Karachi, for further treatment. She produced provisional medical certificate at Ex.6-B. She further deposed that after about one month she came to know that injured has died. Dr. Mubina Siddiqui PW-3,was also examined, she deposed that on 10.2.2009 she was posted as Women Medical Officer at RBUT Hospital, Shikarpur; at 0830 p.m. P.0 Talib Hussain of Police Station New Foujdari brought dead-body of Maria Shah daughter of Baqar Ali Shah for examination and certificate. She started postmortem of the dead-body at 0830 p.m. and finished at 1030 p.m. The doctor further deposed that she examined her and found following injuries: 1. One burn injury, swelling, pus formation involving the whole face and also the Rt ear. 2. One burn injury, swelling, pus formation involving the chest and abdomen anti blackish in colour. 3. One burn injury, pus formation involving the anti-surface of both eyes blackish colour. 4. One burn injury, swelling, pus formation in front of neck blackish in colour. 5. One burn injury involving right upper and forearm, blackish in colour. 6. One burn injury, swelling around, dorsal surface of right foot, blackish in colour. Doctor further deposed, that from external as well as internal examination of Ms. Maria Shah, she was of the opinion that death had occurred due to septicemia and cardio-respiratory arrest as a result of acid-burn wounds. All the injuries were ante-mortem in nature and sufficient to cause the death in normal course of life. 11. The prosecution examined H.C. Awiz Khan PW-1 (author of FIR) who deposed that on 15.1.2009, he was posted at Police Station New Foujdari and was duty officer; on same day complainant Syed Baqar Ali Shah came at P.S. and disclosed the fact of cognizable offence, as such he registered the FIR. Thereafter, he handed over FIR to S.I.O. for further investigation. 12. Bagar Ali Shah PW-4 (complainant) deposed that on 15.1.2009 at 0500 or 0530 p.m. he along with Shah Jahan Shah, Dr. Imran Shaikh and other patients were available at Clinic of Dr. Imran Shaikh situated opposite to Building Office Colony Neem Khabar Mor Shikarpur and while they were sitting, accused Arsalan Sanjrani came at the clinic, he was having steel glass in his hand and he went towards ladies waiting room, which was with partition, he poured acid upon Maria Shah, who raised cries and then accused ran away. The complainant further deposed that Maria Shah at that time was working at the clinic as mid-wife; he and others saw burn on some portion of body including face, right eye, chest and down ward. The complainant and Dr. Imran Shaikh took her towards Civil Hospital where treatment was started and in the meanwhile son of complainant Mehtab Shah, Shah Jahan Shah came there and they proceeded to Police Station' New Foujdari Shikarpur where he lodged FIR. He further deposed that police accompanied him to place of vardat, where they prepared mashirnama in presence of mashirs Nazir Ahmed Jakhro and Irshad Mahar; they then returned to hospital, where doctors informed them that they should take injured to Karachi for further treatment and management. He further deposed that Mehtab Shah took his daughter to burn center near Civil Hospital, Karachi, where she was admitted for 24-days and then expired and Mehtab Shah informed him on telephone that he was bringing the dead-body to Shikarpur. The complainant then informed the police about the death of his daughter Maria Shah who registered another report. Complainant further deposed that his statement was also recorded and police sent dead body of Maria Shah for postmortem. He was cross-examined at some length but we could not find any substance favourable to appellant, however during cross-examination by replying the suggestion made on behalf of the appellant he stated that "My daughter was educated. It is incorrect to suggest that she was literate and she wanted to marry of her own
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accord. It is incorrect to suggest that I was not allowing her free for marriage according to her will. It is incorrect to suggest that she had herself put acid on herself." From these suggestion, it is clear that the death was caused by burning from acid and the cause was the marriage of the deceased Ms. Maria Shah and the same was a motive setup in the FIR. 13. Mehtab Shah PW-5 was examined by the prosecution who deposed that on 15.1.2009 he was present in his house situated at Building Office Sanjrani Muhalla Shikarpur, it was 0500 p.m., he received telephone call from his father on mobile informing him that accused Arsalan Sanjrani had put acid on his daughter Maria Shah and they were taking her towards Shikarpur hospital; he then proceeded and reached civil hospital; the doctors had started the treatment and then they referred them to Karachi. He further deposed that, he took her and proceeded to Karachi, where he got her admitted in burn hospital Karachi; she remained under treatment in Karachi for some time and then expired on 10.2.2009. He then informed about the death of his sister to his father on telephone and then took dead-body to Shikarpur civil hospital on ambulance. He was cross- examined by the defence counsel at length but we could not find any substance favourable to the appellant. However during cross-examination he stated that "It is correct that my sister was highly qualified. It is incorrect that she wanted to marry out of her free will. It is incorrect to suggest that due to our pressure she put acid on herself." 14. Prosecution examined Nazir Ahmed PW-6 (Mashir) who deposed that on 15.1.2009 at about evening time at 7.00 p.m. he came to know that incident had taken place with the daughter of Syed Baqar Ali Shah; he proceeded to the hospital and arrived there at about 7 p.m. and saw that Ms. Maria Shah was trembling and she was in the ladies ward. He further deposed that ASI Nadir Ali Chang recorded the statement of girl in his presence and obtained his signature; he saw that her face was burnt including the neck and she worn yellowish cloths. The co-mashir was Irshad Ali. He further deposed that he then returned to clinic of Dr. Imran Shaikh viz. place of incident along with ASI Nadir Ali Chang and co-mashir Irshad Ali. He further deposed that on the western side of clinic steel glass was lying with which the accused had poured acid over Ms. Maria Shah and she was said to be present under partition in the clinic from the seat of doctor; one chair was also lying at some distance stained with acid. The police secured the glass and also took chair; such mashirnama was prepared. He further deposed that on 10.2.2009 he came to now that dead-body of Ms. Maria Shah was coming from Karachi in the Civil Hospital Shikarpur, such mashirnama was prepared by Inspector Muhammad Ali Soomro and co-mashir was same. This witness further deposed that Danistnama was also prepared by Inspector Muhammad Ali Soomro. He further deposed that on 11.2.2009, he along with others were available at condolence place, where Inspector Muhammad Ali Soomro came who secured the burn cloths which were sealed and prepared such mashirnama. 15. Syed Liaquat Ali Shah PW-7 (Tapedar) was examined who had prepared the sketch of place of incident and produced such sketch on record. 16. SIP/SHO Nadir Ali PW-8 was examined by the prosecution who deposed that on 15.2.2009, he was posted as I.O. at Police Station New Foujdari Shikarpur; H.C. Awiz Khan brought copy of FIR of Crime No.10/2009 and handed over it to him for investigation. He further deposed that complainant Baqar Shah came at his office, he took complainant, lady ASI Shagufta and proceeded to Civil Hospital Shikarpur for inspection of injuries of Ms. Maria Shah; they arrived it hospital in ward where injured was sleeping; he saw her face and got inspected her body through lady ASI Shagufta who informed that the chest, stomach, both arms and legs were burnt; such mashirnama was prepared in presence of mashir Irshad Mahar and Nazir Jakhro. He further deposed that, he then recorded 161, Cr.P.C statement of PW Shah Jahan Shah and thereafter he along with complainant visited place of vardat which was situated in the clinic of Dr. Imran Shaikh near Neem Khabar Mor, where he saw one chair, steel glass, table with cloth were lying; he sealed the steel glass and prepared
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such mashirnama in presence of same mashir. He further deposed that he also recorded 161, Cr.P.C statement of Dr. Imran Shaikh and then returned to his office and on 16.1.2009, he handed over papers to Inspector Muhammad Ali Soomro for further investigation and on 22.1.2009 he along with Inspector Muhammad Ali Soomro proceeded to Karachi and arrived there on 22.1.2009 in night and on 23.1.2009 Inspector Muhammad Ali arrested accused Arsalan from Sher Pao Colony Landhi Karachi in his presence, the co-mashir was P.C Talib. This witness was cross-examined but defence counsel had not shattered his evidence. 17. Mr. Shahid Ahmed PW-9 (Civil Judge and Judicial Magistrate) was examined who deposed that on 30.01.2009 he was posted as 7th Civil Judge and Judicial Magistrate Shikarpur; on same day S.I.O. Police Station New Foujdari Muhammad Ali Soomro submitted application for recording 164, Cr.P.C statement of PW Syed Shah Jahan Shah in Crime…
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