Full Judgment Text & Judicial Ruling

2026 Y L R 342 [Federal Shariat Court] Before Iqbal Hameedur Rahman, C.J, Khadim Hussain M. Shaikh and Ameer Muhammad Khan, JJ Parvaiz and another---Appellants Versus The State---Respondent Jail Criminal Appeals Nos. 06-K, 08-K and 02-K of 2019, decided on 19th March, 2025. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 396 & 149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qatl-i-amd, murder with dacoity, unlawful assembly, haraabah---Appreciation of evidence---Benefit of doubt---Withholding source of information regarding names and identities of accused---Scope---Accused were charged that they made firing upon the complainant party; the brother of complainant was hit and died during the dacoity---Complainant claimed that about two/four days prior thereto the main occurrence, he and his two brothers had the opportunity to see accused GS along with four unknowns---One of brothers of complainant was the deceased, his other brother had not been produced to state in Court about that fact, therefore, complainant became the sole person of that first episode to describe and prove as to the reconnaissance by the said accused and the exposure of their names and identity to him---Admittedly, all the four unknowns were strangers to complainant but he nominated them in the occurrence relying upon his queries from other persons of the town and claimed having knowledge about their identity by name---Complainant was bound to prove source of his knowledge of revealing the names and identity of said unknown accused but he did not opt to disclose even when asked in cross-examination, therefore, withholding his such knowledge gave rise to the mystery, making his statement regarding their nominations in the FIR as inadmissible in evidence to be culminated as hearsay---Role of Investigating Officer was to collect the evidence, he had not uttered single word about the first episode nor collected any evidence as to how the names of the unknowns were exposed to the first informer, hence nomination of the said unknown in the FIR remained a mystery and inadmissible in evidence---Moreover, it was in evidence that FIR had been registered prior to the claimed arrest of the accused persons---Appeal against conviction was allowed, in circumstances. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 396 & 149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qatl-i-amd, murder with dacoity, unlawful assembly, haraabah---Appreciation of evidence---Benefit of doubt---Defective investigation---Accused were charged that they made firing upon the complainant party, the brother of complainant was hit and died during dacoity---In this case, the claim of prosecution regarding arrest of four accused persons after a police encounter was important and had to be proved before the Court---Investigating Officer had not prepared any sketch of the said place of encounter---Although cross firing had been claimed by Investigating Officer, an act of firing upon the police party could not be considered as a minor offence, which otherwise was punishable under S.353, P.P.C and even under S.7 of the Anti-Terrorism Act, 1997, if it was covered under S.6 (m) (n) of the Act ibid, and as per Rule 25.13 of the Police Rules 1934, yet operative plan of the scene was required to be prepared for explanation of the scene but the same had not been prepared for highlighting the said venue---Appeal against conviction was allowed, in circumstances. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 396 & 149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qatl-i-amd, murder with dacoity, unlawful assembly, haraabah---Appreciation of evidence---Benefit of doubt---Credibility of the recovery witnesses doubtful---Accused were charged that they made firing upon the complainant party; the brother of complainant was hit and died during dacoity---Investigating Officer and SHO claimed the arrest of the accused from place of encounter, whereafter along with the contingent of the police the accused allegedly got recovered unlicensed pistols with empty magazine, cash amount, one gold chain, one wrist watch, two mobile phones from their personal search---Investigating Officer also claimed sealing the said recovered articles in presence of two witnesses, and prepared the recovery memos attested by them and then shifted the accused persons to the Police Station and registered the FIRs and handed over the said arrested accused to the Investigating Officer for investigation along with the total case property---Time of police encounter as stated by Investigating Officer was 10:40 a.m. to 11:20 a.m. and he also claimed the presence of recovery witness there, who signed the recovery memos at the place---Said recovery witness had been cross-examined on this point and stated that the police encounter continued from 11:00 a.m. to 11:15 a.m.---Identification of dead-body was made before the Medical Officer at the commencement of the post-mortem examination---Time as 10:30 a.m. was documented and proved by the Medical Officer---Time of identification of the dead-body and that of SHO joining from the place of occurrence for proceeding to the pursuit was concurrent, thus, the recovery witness was bound to explain his presence concurrently at two places otherwise manipulations on part of the police would be the result---Other recovery witness was also the marginal witness of Mashirnama of dead body and the memo. of possession of last worn clothes of the deceased---Said witness signed the said recovery memo, but it suffered with the same situation as that of other recovery witness---Simultaneously said witness claimed to be a member of the police raiding party and also a signatory to the recovery memos at the place of arrest of the culprits---One could not be deemed present simultaneously at two places apart, and if one claimed so and was proved in evidence to be present at two places, the onus shifted to such claimant---Therefore, it became clear that there existed manipulations and fabrications especially on part of the police---Hence, it could be inferred that either there was no police encounter or thatwitness was not present there---Hence, the credibility of the testimony of the said witnesses became doubtful and not believable---Appeal against conviction was allowed, in circumstances. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 396 & 149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qatl-i-amd, murder with dacoity, unlawful assembly, haraabah---Appreciation of evidence---Benefit of doubt---Safe custody of all the case property and transmission of the said articles to the Ballistic Expert not proved---Accused were charged that they made firing upon the complainant party, the brother of complainant was hit and died during dacoity---Investigating Officer collected four crime empties from the place of main occurrence besides the blood on the same date---Said witness was cross-examined by the defence; during the cross-examination he accepted it as correct that he did not make marking over the weapons in order to identify that which one was recovered from which accused and accepted it correct that at present he was not able to segregate the weapon recovered from accused---Said witness further deposed that he was unable to identify those empties recovered by him---Investigating Officer admitted that presently he could not identify the pistol recovered from accused and stated that at present it was not identifiable---Said witness stated that he did not remember at present that from the date of recovery till receipt of the weapons by the Ballistic Expert, where the case property was kept or retained---Said witness did not remember the name of the officials throughwhom the case property was transmitted to the Ballistic Expert---Said witness stated it correct that he could not say that which weapon was recovered from whom, whereas he accepted it correct that report of the Forensic Division contained the date of receipt of the weapons as 09.12.2010---Later on a Fire Arm Expert was summoned by the Court, he also clarified that the correct date of receipt of case property with the Ballistic Expert was 09.12.2010, meaning thereby that from the date of recovery that was 02.11.2010, the empties and the recovered pistols remained at some unknown place---Statement of Investigating Officerrevealed that the official who transmitted the case property remained unknown and was not a witness in this case---Police Official who kept the case property in the police station was also not a witness, therefore, the prosecution failed to prove on record the safe custody of all the case property vis-a-vis the transmission of the concerned articles to the Ballistic Expert---Place of arrest of the accused persons became doubtful and the claim of recoveries from the accused persons stood not proved and became inconsequential---Appeal against conviction was allowed, in circumstances. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 396 & 149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qatl-i-amd, murder with dacoity, unlawful assembly, haraabah---Appreciation of evidence---Benefit of doubt---Ocular account not proved---Accused were charged that they made firing upon the complainant party; the brother of complainant was hit and died during dacoity---Ocular account was advanced by complainant and recovery witnesses, who deposed the story of main occurrence---Worth of testimony of recovery witnesses showed that they were not the witnesses of the previous occurrence and also they were not the witnesses ofexposures of names of the unknown accused persons to complainant---Complainant himself failed to prove that fact of the exposure of names and identity of the said unknown culprits, therefore, the specific attribution of snatching of the articles during the occurrence of dacoity without holding of any identification parade and not be believed---Similarly the specific attribution of fire shots could not be believed for the same reason---Therefore, statements of said witnesses in that regard before the Court could not be considered of any worth---Beside that said witnesses were part of the manipulations carried out by the police---Complainant had assigned specific role to each of the five accused with names for snatching of cash, mobile phones, wrist watch and gold chain---Complainant admitted that he and the eye-witnesses did not become injured and even did not receive any scratch nor any sign of bullet was highlighted inside the shop on any place or object---Only four crime empties were recovered---Defence denied the presence of all the witnesses at the place of occurrence---Complainant categorically stated that after fall of deceased, the other accused persons who were also armed with pistols also made straight fire shots towards them with intention to kill but they fell down and their fire shots missed; this statement did not fit in the scenario so depicted of indiscriminate firing---Appeal against conviction was allowed, in circumstances. (f) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 396 & 149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qatl-i-amd, murder with dacoity, unlawful assembly, haraabah---Appreciation of evidence---Benefit of doubt---Justification for the presence of eye-witnesses at the time and place of occurrence not proved---Chance witnesses, evidence of---Accused were charged that they made firing upon the complainant party; the brother of complainant was hit and died during dacoity---Alleged eye0-witnesses were residents of a village located at six/seven kilometers from the place of occurrence, therefore, they might be considered as chance witnesses unless their presence at the scene of occurrence could be substantiated through any corroborative piece of evidence---Reasons for the presence of said witnesses as advanced by them was receiving of sale cash which otherwise remained an oral assertion as they did not provide any receipt of sale/purchase nor the Investigating Officer opted to collect any such evidence---Said witnesses had been contradicted qua their presence at the place of stated encounter and arrest with their presence at the hospital at the relevant times inter-se---Appeal against conviction was allowed, in circumstances. Wazeer Hussain Khoso for Appellants. Khadim Hussain Khuharo, Additional Prosecutor General, Sindh for the State. Date of hearing: 13th February, 2025. Judgment Ameer Muhammad Khan, J.---The Criminal Appeal No. 06-K of 2019 was filed by Parvaiz and Fateh Ali convicts through jail and was received in this Court by transfer vide the orders of Hon ble High Court of Sindh, Circuit Court Hyderabad dated 22.4.2019, thereafter vide order of this Court dated 10.6.2019, the murder reference and the Criminal Appeal No.08-K of 2019 filed by Ghulam Sarwar and Abdul Malik through Jail Superintendent, pending in the High Court of Sindh were requisitioned and received for decision before this Court. 2. The appellants Parvaiz, Fateh Ali, Ghulam Sarwar and Abdul Malik were tried in the Court of Additional Sessions Judge-I, Kotri, in case FIR No. 72/2010, Police Station Bhan, registered under Section 17(4) Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979) read with Section 324 P.P.C wherein they were convicted and sentenced as under:- Ghulam Sarwar Bhand and Abdul Malik to death, Fateh Ali and Parvaiz to imprisonment for life, under Section 396/149 P.P.C, all four accused were burdened with the compensation of Rs. 5,00,000/- each, payable to the legal heirs of Shuja Muhammad alias Buxial, deceased under Section 544-A Cr.P.C and also under Section 324/149 P.P.C for 07-years, R.I cum a fine of Rs. 10,000/- each and in default the payment thereof to further undergo 03-Months S.I, sentence to be passed concurrently with benefit of Section 382 B Cr.P.C . Murder reference to the extent of Ghulam Sarwar Bhand and Abdul Malik was forwarded and received in this Court; hence these appeals and the murder reference are the subject of decision herein. The Criminal Miscellaneous Application No. 5/K/2023 filed by Ghulam Sarwar Bhand, appellant/convict is pending adjudication; the same pertains to the merits of the case. The main appeal is being decided, therefore, the same is hereby dismissed. 3. The Brief facts as contained in FIR Exh.7/A, lodged by Abdul Malik, PW-1 regarding the occurrence taken place on 02.11.2010 at about 10:00 hours, reported on the same date at 11:00 hours, under Section 17(4) of Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979) read with Section 324 P.P.C, lodged at Police Station Bhan, District Jamshoro, stating therein that a shop located near Bhan Railway crossing for sale purchase of seeds/fertilizer was being run by him and his brothers including Shuja Muhammad alias Buxial, aged about 27/28 years and his other brothers also used to deal and sit there, a few days ago Ghulam Sarwar Bhand along with 4/5 persons started passing in front of their shop, on suspicion they investigated and inquired about the persons/outsiders being seen with said Ghulam Sarwar Bhand, they came to know that they were his friends and their names were Parvaiz son of Ayaz Ali, Fateh Ali son of Hidayatullah, both Chandio by caste resident of village Ghari, District Larkana, Abdul Malik alias Matto son of Abdul Aziz Mallah resident of Madehji, Tehsil Ghari Yaseen and one remained unknown. On the day of occurrence i.e. 02.11.2010, he along with his brothers Shuja Muhammad alias Buxial, Muhammad Hashim, his relative Muhammad Baqar son of Muhammad Qasim, Usama son of Muhammad Baqar Rahpoto and Muhammad Khan son of Ahmed Khan Rahpoto, resident of Bilawalpur, Tehsil Sehwan were present at their said shop, when at about 10:00 a.m, Ghulam Sarwar Bhand, Parvaiz Chandio, Abdul Malik alias Matto Mallah came and stood on the shop adjacent thereto and in the meanwhile his other friends namely Fateh Ali Chandio and one un-known reached on motorcycle, all said five took out their pistols, raised hakled and directed them to keep sitting silently and commanded to handover to them whatever was with them. Parvaiz Ali Chandio robbed Rs. 25,200/- from the first informer, Fateh Ali robbed one Rado watch, a golden chain weighing about 1 and tola and cash amount Rs. 5,000/- from his brother Muhammad Hashim, accused Abdul Malik alias Matto robbed cash amount of Rs. 40,000/- from his brother Shuja Muhammad alias Buxial, and Rs. 25,000/- from Muhammad Baqar and a Nokia phone, the un-known accused person robbed Rs. 4,000/- and one Nokia Mobile from Muhammad Aslam, accused Ghulam Sarwar and Abdul Malik alias Mattoo took out counted cash amount of Rs. 64,800/- from the drawer (Daraz). His brother Shuja Muhammad alias Buxial resisted on which Abdul Malik Mallah made straight fire with his pistol on Shuja Muhammad alias Buxial hitting him on the left side above the breast, in the meanwhile Ghulam Sarwar Bhand also resorted to firing with his pistol hitting on his said brother in front of chest, he fell down while crying, the other accused persons also made straight firing upon them with intent to murder them, they fell on the ground and the fire shot missed. The culprits took the motorcycle 125 of the complainant party and went away to Bhan city. Shuja Muhammad alias Buxial had succumbed to the injuries. In the meanwhile SHO Bhan, Ghulam Akbar Chandio along with his staff hearing the firing shots reached at the spot. The first informer remained with the dead body of his brother whereas his brother Muhammad Hashim, his relative Muhammad Baqar, Muhammad Aslam and Muhammad Khan Rahpoto boarded with the SHO in the mobile and went to pursue the accused. The dead body was shifted to Government Hospital, Bhan where Ali Nawaz Ghadi, ASI, P.S Bhan reached, he completed the formalities. The detail of the stolen property is as under:- i. One motorcycle bearing No. Nil of black color, Engine No. 3662592 and Chassis No. 49033, Model-2009. ii. Two Nokia mobile phones. iii. Total Cash amount Rs. 1,64,000/- iv. One Gold Chain weight about 1 and Tola. v. One Rado wrist watch. 4. The learned trial Court on receipt of report under Section 173 Cr.P.C and completing the formalities, charge sheeted the present four appellants/convicts, whereas one Azmat was a proclaimed offender , under the two heads, for murder of Shuja Muhammad alias Buxial while committing Haraabah co-jointly and for attempt to commit murder with their common object, the appellants pleaded not guilty and claimed trial. 5. The prosecution evidence was summoned and recorded. The gist of which is as under:- PW-1 Abdul Malik, the first informer, eye-witness and the victim reiterated the same story as mentioned supra while claiming that the contents of FIR Exh.7/A, were read over to him and he had signed the same beside identification of the recovered case property vide exhibited Articles A to I respectively comprising one Rado wrist watch, one golden chain, cash amount of Rs. 1,60,000/-, two mobile phones, four pistol of 30-bore with magazines beside two motorcycles. PW-2 Muhammad Baqar, an eye-witness, victim and the marginal witness of the memos. Muhammad Aslam PW-3, is the eye-witness, victim of the occurrence and also the marginal witness of memos. PW-4 Ghulam Akbar, DSP, on 02.11.2010 he was SHO at P.S Bhan Saeeda Abad, on hearing the firing shots vide the departure entries No. 13 at 10:10 hours in the roznamcha, he along with his staff Muhammad Yaqoob, Muhammad Saleem and Mumtaz Ali, Head constables, P.C Nazeer Ahmed and DPC Abdul Hameed proceeded to the place of occurrence where people were gathered at a shop located in between Police Station and Railway Phatak, there he came across Abdul Malik Rahpoto who disclosed him about escape of five persons after commission of occurrence while disclosing their names as Ghulam Sarwar, Parvaiz, Fateh Ali Chandio, Abdul Malik Chandio alias Matto along with one un-known by riding on two motorcycles comprising one of the culprits and the second taken away by them belonging to the complainant party, stopped outside their shop, four persons Aslam, Hashim, Baqar and one other joined them on the vehicle. He came to know that one out of five culprits, riders of the two motorcycles got down at the chowk in the town while remaining four were moving towards the by-pass, he went and when reached at Johi link road close to the said riders, he informed to SHO Khuda-abad and the investigation Incharge Saeed Ahmed Channa who also reached there along with their staff. Motorcycle riders were commanded alighting from the motorcycle; they went in the nearby fields of standing crops resorted firing upon them. The police party retaliated and in defence made firing upon the accused consuming 15/20 minutes, in exchange of the firing, then they apprehended the culprits by encircling them off, arrested them who disclosed their names as Parvaiz Chandio, Fateh Ali Chandio, Abdul Malik and Ghulam Sarwar Bhand. The accused were searched out resulting into pistol with empty magazine, one cloth pocket (Gathri) containing cash Rs.1,00,000/- (one lac) from Parvaiz Chandio, an un-licensed pistol with empty magazine from Fateh Ali resulting into recovery of one Gold chain, one Rado wrist watch, two Nokia Mobile phones with cash amount of Rs. 60,000/-, then one un-licensed pistol with empty magazine from Ghulam Sarwar Bhand accused, unlicensed pistol with empty magazine from Abdul Malik Mallah. This PW also took into possession two motorcycles from the place of occurrence. He prepared memos of recoveries attested by Aslam Rahpoto and Baqar PWs vide memo. Exh.8/A, the accused were taken to police station Bhan, he produced departure roznamcha entry No. 13, Exh.10/A, he also produced the FIRs Nos. 73/2010, 74/2010, 75/2010, 76/2010 and 77/2010 of P.S Bhan, Exh.10/B to Exh.10/F, respectively and he also gives the detail of recovered articles and proves the memos. PW-5, Ali Nawaz, ASI , this PW on 02-11-2010 inspected the dead body of deceased Shuja Muhammad alias Buxial, when he reached at health centre Bhan, prepared the injury statement, inquest report by inspecting the dead body, took last worn clothes after the post-mortem examination. PW-6 Dr. Abdul Sattar, this PW as MLO at health centre Bhan, on 02.11.2010 at about 10:30 a.m vide letter Exh.13/A and Exh.13/B, conducted the post-mortem examination on the deadbody of Shuja Muhammad alias Buxial and observed as under:- The dead body wearing blood stained clothes of black militia color Shalwar Kameez with white color Azarband (Nara). The body of deceased was warm and rigor mortis absent all over the body. He found following injuries on the person of above named deceased:- INJURY NO. 1. Fire arm injury on left side of chest 3 cm above the nipple with blackish, burnt and inverted margin measuring 1.5 c.m x 1.5 cm x cavity deep. (wound of entrance). INJURY NO. 2. A fire arm injury at mid-epigastric region with burnt margin and inverted margin. (wound of entrance). INJURY NO. 3. Gutter-Shaped lacerated fire arm injury on left side of back of chest measuring 2 cm x 1.5 cm x cavity deep (wound of Exit). INJURY NO. 4. Lacerated wound on 5th 6th lumber spinal (Cord) vertebra measuring 2.5 cm x 2 cm x cavity deep (wound of Exit). He opined that from the external and internal examination the above mentioned injuries are ante-mortal and death has been occurred due to rupture of heart and main aerota caused by Fire arm and instant death had been occurred. He issued postmortem report of deceased as Exh.13/C in original which bears his signatures. PW-7, Illahi Bux Tapedar, this PW prepared the site plan of occurrence, the sketch is Exh.14/A. PW-8 Saeed Ahmed, SI is the I.O of this case. On 02.11.2010, while he was posted as SIO, Saeeda-abad and was present out of the police station for investigation of a case, he on receipt of the mobile phone call of his SHO Ghulam Akbar, Inspector, PW-4 joined him in pursuit of the accused persons, on the same day at about 10:40 to 11:20 A.M this PW along with other PWs succeeded to apprehend the accused at the spot, affected recoveries as already mentioned. He investigated this case, register FIRs and investigated the cases subject matter of FIR Nos. 72/2010 to 77/2010, inspected the place of occurrence in case FIR No. 72/2010, collected blood from place of occurrence, beside four empties of pistol 30-bore and one live bullet from the place of occurrence, took the same into custody and sealed vide mashirnamas, he also inspected the place of occurrence subjected mater of FIR No. 73/2010, under Sections 324/353 P.P.C, P.S Bhan, inspected the place of occurrence, collected 10-empties shell of 30-bore pistol, five of G-3…

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