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Official Citation: 2024 YLR 165
Court / Jurisdiction: Sindh High Court
Year of Decision: 2022
Decision Date: 2022-06-02
Parties: Ali Hassan vs The State
Ruling Summary: This decision was rendered by the Sindh High Court on 2022-06-02, officially reported as 2024 YLR 165. In this matter between Ali Hassan 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 165
Court Name: Sindh High Court Judge(s): Amjad Ali Sahito, Zulfiqar Ali Sangi Title: Ali Hassan vs The State Case No.: Criminal Appeal No. D-45 and Criminal Rev. Application No. D-57 of 2024 Date of Judgment:2022-06-02 Reported As: 2024 YLR 165 Result: Order accordingly
JUDGMENT
r JUDGMENT ZULFIQAR ALI SANGI, J. By this single judgment we intend to dispose of the above captioned Criminal Appeal filed by the appellant and Criminal Revision Application filed by the complainant as the same are arising out of one and same Crime. Appellant/Accused Ali Hassan impugned the judgment dated 17.06.2014 passed by learned Judge Anti-Terrorism Court Naushahro Feroze Camped at Central Prison Sukkur, whereby the appellant was convicted under Sections 302(b) 149, P.P.C. read with section 6/7 ATA of 1997 and sentenced to suffer imprisonment for life as Tazir and to pay fine of Rs.500,000/-, in default thereof to suffer S.I for six months more; for the offence under section 13(e) Arms Ordinance to suffer R.I for three years and to pay fine of Rs.10,000/-, in default thereof to suffer S.I. for three months more. The sentences were ordered to run concurrently and the benefit of section 382-B, Cr.P.C. was also extended to him. While the Criminal Revision Application has been filed by complainant Hafiz Ali Dur for enhancement of the above sentences. 2. Succinctly the facts of the prosecution case are that Complaint Hafiz Ali Dur Janwari lodged report on 17.08.2009 at 0500 hours stating therein that Allama Ali Sher Hyderi was his elder brother and was Chief Pattern of banned organization Sipah-e-Sahaba Pakistan. On 16.08:2009 at 11.30 p.m, the complainant along with his brother Allama Ali Sher Hyderi, Molvi Abdul Kareem Mari, Fareed Ahmed Abbasi, bodyguards Abdul Qayoom Janwari and Muhammad Islam Janwari and driver Imtiaz Ahmed Phulpoto proceeded in double cabin vehicle to village Dost Muhammad Abro Taluka Kingri for JALSA. After JALSA they were returning to their Madrasah on the night of 17.08.2009, at about 3.00 a.m. when they reached on Abra Seepage drain at Ahmedpur road suddenly from the left side of the road (10) armed persons emerged from dates palm garden and they all started
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indiscriminate firing upon the vehicle of complainant party. On the headlight of the vehicle, the complainant party identified the culprits as Qalander Bux Jageerani armed with Kalashnikov, Talib Hussain Jageerani with a DBBL gun, Oshaq Ali Jageerani with Rifle, Hayat Ali Jageerani with Kalashnikov, Muneer Husain Jageeraniwith Kalashnikov, Ali Hassan Jageerani with Rifle, Inayat Ali Jageerani with G-3 rifle, while three persons were unknown who were armed with. Kalashnikov, rifle and gun. After sustaining the firearm injuries by driver Imtiaz Ahmed the vehicle went out of his control and-tracked down from the road towards the left side in ditches and stopped there, at that time accused Qalander Bux made a straight shot upon Imtiaz Ahmed which hit him on right side of the neck while accused Hayat Ali made shot upon Fareed Ahmed Abbasi which hit him on his left leg, accused Muneer Hussain made shot with Kalashnikov upon Allama Ali Sher Hyderi which hit him on the right side below the nipple, the gunshot of accused Talib Hussain was hit to Molvi Abdul Kareem on his right leg, accused Inayat Ali fired from G-3 Rifle upon Allama Ali Sher Hyderi which hit him on his right leg, they fell down in the vehicle after raising cries. Both the bodyguards of the complainant party made firing in their self-defence on which all the accused escaped away by raising slogans and saying that by following the instructions of their religious leader they have murdered an opponent religious leader and that they belong to banned Tehreek-e-Jaffria. Thereafter complainant found driver Imtiaz Ahmed Phulpoto was dead, Allama Ali Sher Hyderi was lying unconscious, and Fareed Ahmed Abbasi and Molvi Abdul Kareem were lying in injured condition. They also found the dead body of one accused Oshaq Ali Jageerani who was killed by his companions/accused in the firing and the vehicle of the complainant party had also bullet marks on the windscreen and its three sides. On the fire reports and cries, the villagers of nearby villages came there and with their help, the complainant party pulled out their vehicle from the ditch and then complainant party immediately took the dead body of deceased Imtiaz Ali and inured persons towards Civil hospital Khairpur for treatment but in the way Allama Ali Sher Hyderi succumbed to injuries and died. Complainant leaving the witnesses over the dead bodies and injured persons at Civil Hospital Khairpur went to the police station and lodged FIR. At the end of the FIR, it was alleged that the above named accused due to religious dispute at the instigation of leaders of banned Tehreek-e-Jaffria namely Ali Abbas Kazmi, Choudhry Sajjad Hussain, Sageer Hussain Zaidi had committed the murders of Imtiaz Ahmed and Allama Ali Sher Hyderi and also caused firearm injuries to Fareed Ahmed Abbasi and Molana Abdul Kareem and that they used to issue threats of dire consequences to the complainant party prior to the present incident. 3. The facts of Crime No.97/2009, under section 13(e) Arms Ordinance is that on 24.09.2009 accused Ali Hassan during interrogation in Crime No.84/2009, under sections 302, 324, 148, 149, P.P.C. and 7 ATA of Police Station Pirjo-Goth agreed to produce the weapon used by him in the commission of the offence and led the complainant party headed by SIP Zulfiqar Qureshi to bridge near village Chatan Shah and produced 44 bore Rifle along with a magazine containing five live bullets, taking out from bushes and disclosed that it was same weapon which was used by him in the commission of the offence. Thecomplainant sealed the property on spot in presence of mashirs, prepared such memo and brought the accused and property to the Police Station where such FIR was lodged on behalf of the State. 4. After usual investigation, challan was submitted to the court having jurisdiction. The trial court after completing legal formalities framed a Charge against the appellant/accused to which he pleaded not guilty and claimed to be tried. 5. The prosecution in order to prove its case examined PW-2 Complainant Hafiz Ali Dur at Ex-12, who produced FIR No.84/2009, at Ex.12-A and his further statement at Ex.12-B, PW-3 Muhammad Islam at Ex.13, PW-4 Abdul Kareem at Exh.14, PW-5 PC Manzoor Hussain at Ex.15, who produced memo of arrest of accused Ali Hassan at Ex.15-A, PW-6 Fareed Ahmed at Exh.17, PW-7 HC 'Muhammad Nawaz at Ex.18, who produced lash chakas forms at Ex.18-A and Ex.18-B, receipt of dead body at Ex.18-C,
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memo of securing clothes of deceased at Ex.18-D and memo of formal arrest of accused Sajad Hussain at Ex.18-E, PW-8 HC Abdul Jabbar at Ex.19, who produced lash chakas form of deceased Oshaq Ali at Ex.19-A and receipt of dead body of deceased Oshaq Ali at Ex.19-B, PW-9 Talib-ud- Moula at Ex.20, who produced memo and two inquest reports at Ex.20-A to 20-D. memo of inspection of vehicle at Ex.20-E, memo and inquest report at Ex.20-F and Ex.20-G, memo of bloodstained clothes of deceased Oshaq Ali at Ex.20-H, memo of sealing bloodstained clothes of deceased Imtiaz Ahmed and Allama Ali Sher Hyderi at Ex.20/I, PW-10 SIP Manzoor Hussain at Ex.21, who produced carbon copy of police letter at Exh.21-A, PW-11 Mr. Barkat Ali at Ex.23, who produced police letter at Ex.23-A, postmortem report at Ex.23-B, PW-12 Dr. Hafiz-ur-Rahman Soomro at Ex.24, who produced MLC of injured Abdul Kareem at Ex.24-A, MLC of injured Fareed Ahmed at Ex.24-B, three X-ray plates at Ex.24-C to Ex.24-E, police letters at Ex.24-F and 24-G, postmortem report and lash chakas form of Allama Ali Sher Hyderi at Ex.24-H and 24-I, postmortem report and lash chakas form of Imtiaz Ahmed at Ex.24-J and Ex.24-k, PW-13 Tapedar Allah Warayo at Ex.25, who produced sketch of vardat at Ex.25-A, PW-14 Atiqullah Memon at Ex.26, who produced memo of recovery of crime weapon at the pointation of accused Qalander Bux at Ex.26-A, memo of recovery of crime weapon at the pointation of accused Ali Hassan at Ex.26-B, memo of recovery of crime weapon at the pointation of accused Sajad Ali at Ex.26-C, PW-15 SIP Zulfiqar Ali Qureshi at Ex.27 who produced two reports of chemical examiner and two reports of forensic at Ex.27-A to 27-D, three copies of roznamcha entries at Ex.27-E to 27-G, copy of FIR No.97/2009 at Exh.27-H, copy of FIR No.96/2009 at Exh.27-I, two other roznamcha entries at Ex.27-J and Ex,27-K, copy of FIR, "No.117/2009 at Exh.27-L. Thereafter learned DDPP closed the side of prosecution vide his statement at Ex.28. 6. The statement of the accused under Section 342, Cr.P.C. was recorded at Ex.29, in which he has denied the allegations of the prosecution and claimed his innocence. However, neither he examined himself on oath nor led any evidence in defence. After recording evidence and hearing the parties, the learned trial Court convicted the accused as stated above. 7. Learned Counsel for the Appellant has contended that the Appellant is innocent anthhas falsely been implicated by the Complainant due to a dispute over a plot with his brother co-accused Qalander Bux while the present appellant at the time of the alleged incident was residing in Bungalow No.1 Government Elementary College for (Women) Khairpur; that there is unexplained delay of 4-1/2 hours in registration of FIR as such consultation and deliberation cannot be ruled out; that no specific role has been assigned to the appellant; that the charge is defective; that the complainant has made exaggeration in his evidence by saying that that the present appellant made straight fire with his rifle ,which hit to brother of complainant Allama Ali Sher Hyderi which is contradictory and creates serious doubt but it was not considered by the trial court; that no incriminating article i.e. rifle has been recovered from the possession of the present appellant which shows that neither he was available at the vardat nor participated in the alleged incident; that there were material contradictions in the evidence of prosecution witnesses and the case of the prosecution is not free from doubt; that learned trial Court has brushed aside the material contradictions in the evidence; that the impugned judgment is clear example of misreading and non-reading of evidence; that a single dent in Prosecution case, which seems to he necessary, goes in favour of accused. In support of his contention, learned Counsel placed reliance upon the cases of Muhammad Mansha v. The State (2018 SCMR 772), Muhammad Imran v. The State (2020 YLR 1139), Ijaz v. The State and another (2020 YLR 1620), Abdul Razzaq and another v. The State (2013 YLR 788) and Muhammad Ashraf v. The State (2012 SCMR 419). 8. Learned Counsel representing the Complainant submitted that there is no delay in registration, of FIR; that complainant has been fully supported by all the witnesses who have remained firm, consistent and corroboration to each other on all material points; that as per section 367(5), Cr.P.C. in case of 302, P.P.C. the normal punishment is death and if the court sentences other than death
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the court shall state in its judgment the reasons as to why sentence of death was not passed while awarding the lesser sentence which learned trial court did not mention in its judgment. Lastly, he submitted that the appellant/accused has committed the murder of deceased Ali Sher Hyderi which is a heinous offence hence learned trial Court has rightly convicted the appellant but awarded lesser punishment which may be enhanced. He in support of his contention placed reliance on the cases of Irfan Saeed and others v. The State and others (2012 PCr.LJ 63) and Muhammad Latif v. The State (PLD 2008 SC 503). 9. Learned Additional Prosecutor General has contended that all the PWs have deposed in the same line; that the prosecution evidence is reliable and confidence-inspiring. Lastly, he prayed that by dismissing the instant appeal, the conviction awarded by the learned trial Court may be maintained rather than enhanced. 10. We have heard learned Counsel for the Appellant, learned counsel for the complainant as well as learned Additional Prosecutor General and have carefully examined the material available on record with their able assistance. 11. The incident in the present case is of nighttime which occurred on 17.08.2009 at about 3.00 a.m. the case of the prosecution in respect of the identification of the accused is that they were identified on the headlights of the vehicle. The complainant was sitting on the front seat of the vehicle whereas the driver/ deceased Imtiaz Ahmed was driving the double cabin vehicle. The brother of the complainant Allama Ali Sher Hyderi was sitting in the backseat in-between Fareed Ahmed and Molana Abdul Kareem. Two guards were also sitting in the dickey (Dala). Suddenly seven (7) nominated and three unidentified accused persons duly armed with weapons emerged from dates palm garden and started indiscriminate firing upon the vehicle from the front and both sides. Due to firing, the driver received firearm injury and the vehicle went out of his control and stopped in ditches on the left side of the road. Due to firing the driver, Imtiaz had died on the spot whereas three persons namely Allama Ali Sher Hyderi, Fareed Ahmed and Molvi Abdul Kareem sustained firearm injuries and became seriously injured. The complainant also added that one accused Oshaq Ali had been killed in the firing of his accomplices. They on the headlights of the vehicle saw and identified the accused persons. The complainant in his cross-examination stated that they saw the accused persons from a distance of 40/50 paces. The complainant also stated that the accused persons made fire shots at a distance of 7/8 paces. The complainant stated during cross-examination that he saw the accused persons who were making firing from left and right sides on the deceased Allama Ali Sher Hyderi by turning his face. PW-3 Muhammad Islam had deposed that when they reached Abra Sem Nali they noticed at about 3.00 am that 10 persons duly armed came, suddenly firing started from all three sides and he on the headlights of the vehicle saw each culprit. This witness during his cross-examination stated that they were sitting on the rear open portion of the single cabin. He further stated in his cross-examination that the accused made firing from the left, right and front sides of their vehicle. PW-4 Abdul Kareem also deposed that he identified the accused persons on the headlights of the vehicle which. Were 10 in number? He stated that they saw the accused persons from a distance of 20 to 50 paces. This witness also admitted that it was a dark night. PW-6 Fareed Ahmed deposed that at the time of the incident 10 persons came in front of them and made indiscriminate firing on them and they were identified by him on the search light and headlights of the vehicle. The narration of occurrence given by PWs, as aforesaid, is repellent to senses. It was a nightly occurrence and they were sitting in the double cabin vehicle. Though it has been mentioned that they identified the culprits in the lights of the said vehicle yet it is hardly believable that they could see the assailants when they had been firing desperately. All the PWs were equally under direct and immediate threat of death but still, they were able to give a photographic narration of the occurrence by attributing fire shots at the deceased and injured at the hands of 10 accused persons at a distance of 40/50 paces. It is
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observed that the only source of light available with the PWs by which they saw the appellant firing at the deceased was the headlights of the double cabin vehicle but the said double cabin vehicle was not produced before the court. After scanning the record it transpired that the police has also not taken into possession the vehicle in which the alleged eye-witnesses were travelling and they witnessed the occurrence in the light of the supra mentioned vehicle. The mashirnama of inspection of the vehicle also scanned but nothing is mentioned in it about the availability of searchlights or the headlights of the vehicle which was the source of identification. In the circumstances of the case at hand, the identification of the accused on the headlights of the vehicle is a weak type of evidence. Honourable Supreme 'Court of Pakistan in the case of Sardar Bibi and others v. Munir Ahmed and others (2017 SCMR 344) has held as under:- "From the above discussion, it is quite clear that in this case FIR was chalked out after consultation and deliberation. The delay in the FIR and postmortem examination further confirms that FIR and documents i.e. inquest report etc. were prepared much after the given time. The source of light i.e. bulbs etc. was not taken into possession during investigation to establish that the witnesses who were allegedly at the distance of more than 100 feet could identify the assailants. So the identification of the assailants was also doubtful in such circumstances of the case. Honourable Supreme Court of Pakistan in another case of Khalil v. TheState (2017 SCMR 960) has held as under:- 12. The presence of the complainant Hafiz Ali Dur is also not established nor is his evidence in this respect believable. The complainant stated that he was sitting on the front seat of the vehicle, but surprisingly neither he nor his two guards Abdul Qayoom and Muhammad Islam had sustained any firearm injury. The complainant has disclosed that both the injured and deceased were sitting on the rear seat of the vehicle. It cannot be believed by a prudent mind that the bullets were passing from him and were hitting the deceased and injured and he was noting the same. However, the complainant admitted in his cross-examination by stating that "I was sitting on the front seat and at the time of firing I put my head down for some time and thereafter again
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seated properly to see the incident. Accused were continuously making fire shots and it continued for about 5/6 minutes. It is correct that I did not receive any type of injury." Such evidence of the complainant is not believable as it is not possible that the bullet after crossing him without hitting him goes and hits a person sitting behind him. Further the complainant was not remembering the names of those people who invited them on the night of the incident. All these facts established that the complainant was not present at the time of the incident and he has disclosed the facts in the FIR on the narration of someone else, and thereafter also improved the case at the time of recording his evidence before the trial court. In such circumstances, the evidence of the complainant is not reliable nor trustworthy or confidence-inspiring. "Falsus in uno, falsus in Omnibus" PLD 2019 Supreme Court 527. 13. The other PWs/eye-witnesses also gave contradictory evidence and made dishonest improvements in their evidence. PW-03/eye-witness Muhammad Islam in his cross-examination admitted that "We due to late night under the conditions of sleeping and on hearing fire shots we became alert. At that time our vehicle was on the road and thereafter our vehicle got down on the rice field and our arms fell down. Front side of the vehicle there was a palm Date garden. At the time of making firing the accused were on the left, right and front of vehicle. Accused were on the right and left side of the vehicle and they were surrounding our vehicle when it was fallen down. Due to firing we become afraid and remained in our vehicle". However, he admits during cross- examination that he made 12 or 13 fire shots (which he had not disclosed at the time of investigation), and the empties of their weapons were either lying in the vehicle or lying on the ground. Whereas the complainant disclosed that their vehicle went into ditches. From the perusal of the memo of inspection of Double Cabin Vehicle Ex-20/E, no empty was secured by the I.O. of the case neither from the vehicle nor from the ditches. The PW-3 Muhammad Islam admits that he is a close relative of the complainant and he has further added that he had not seen the dead body of the deceased Oshaq Ali in the rice field. In cross-examination, he admits that "Dead body of Oshaq was lying 7 or 8 feet away from our vehicle... It is correct that accused Ali Hassan is school teacher in a government school. I do not know if Ali Hassan was previously shown as accused in any criminal case by us...lt is correct that it was dark night when incident was taken place". Whereas PW-4 Abdul Kareem disclosed in his evidence that the dead body of deceased Oshaq Ali was lying on the road at the place of the incident. PW-4 Abdul Kareem and PW-6 Fareed Ahmed almost disclosed the same story narrated by the complainant. The prosecution gave up PW-Abdul Qayoom. PW-4 Abdul Kareem also made improvements in his evidence while disclosing that searchlights were fixed on the top of the vehicle. The complainant and eye-witnesses have not supported his version in respect of the searchlights as to whether the same were available at the top of the vehicle or not nor was it disclosed by the I.O. of the case while preparing the memo of inspection of vehicle Ex-20-E. 14. Turning to the case of the prosecution in respect of the participation of appellant Ali Hassan Jageerani and the role played by him at the time of the incident as alleged by the prosecution during recording evidence that appellant Ali Hassan Jageerani fired from rifle upon deceased Ali Sher Hyderi which hit him on his right knee it is observed that the present incident took place on 17- 08-2009 at 3.00 am in the night hours and the FIR was registered on the same day at 0500 hours, the complainant while recording his FIR has not assigned any role against the present appellant Ali Hassan Jageerani nor during the investigation, he made a complaint against the police officials that his FIR was not registered according to his verbatim. However, during the investigation on 24- 09-2009, a further statement of the complainant was recorded wherein he changed his version given in the FIR and nominated another set of accused persons including the accused mentioned in the FIR as accused. Even in the further statement recorded after about 16 days of the incident and the FIR, no role has been assigned against the present appellant Ali Hassan Jageerani. The
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complainant in the FIR in respect of the role of the accused persons stated that "Due to receiving firearm injury by driver Imtiaz Ahmed Phulpoto, the vehicle went became out of his control and stopped.in ditches in the left side of road. Accused Qalander Bux Jageerani made straight fire upon Imtiaz Ahmed which hit to him on right side of neck. Straight fire made by Hayat Ali hit to Eareed Ahmed Abbasi in his left leg, Munir Hussain Jageerani made fire of Kalashnikov upon brother Ali Sher Hyderi which hit below the right nipple, Talib Hussain Jageerani made straight fire of shotgun upon Molvi Abdul Karim which hit on his right leg. Inayat Ali Jageerani made fires of G-3 upon my bother Allama Ali Sher Hyderi which hit on his right, leg, blood was oozing from all the injured." 15. The appellant was arrested on 08.09.2009 and a further statement of the complainant was recorded on 24-09-2009 after about 16 days of the arrest of the appellant even then no role was assigned against the appellant by the complainant. The evidence of the complainant and the eye- witnesses was recorded on 02-05-2012, 09-05-2012 and 18-10-2012 after about three years wherein they changed/ improved the case by leveling direct role against the appellant Ali Hassan Jageerani that he fired from his rifle which hit Ali Sher Hyderi on his knee. We have also scanned the medical evidence produced by the prosecution while conducting the postmortem doctor Hifz-ur- Rahman found the following injuries on the body of deceased Ali Sher Hyderi:-- 1. Lacerated type punctured wound size 3 c.m in diameter present over abdomen above the umbilicus into abdominal cavity deep. (wound of entry). 2. Lacerated type punctured wound size 3.5 c.m. x 3 c.m present over right side of abdomen at lumber region (wound of exit). 3. Lacerated type punctured wound size 0.5 c.m in diameter present over posterior aspect of right thigh at the level of upper 1/3rd area. (wound of entry). 4. Lacerated type punctured would size 2.5 c.m in diameter present over medical side of right thigh. (wound of exit). 5. Lacerated type punctured wound size 0.5 c.m in diameter present over lateral aspect of middle 1 / 3rd of right thigh with inverted margins. (wound of entry). 6. Lacerated type punctured wound size 3 c.m in diameter present over medical aspect of right thigh with clinical fracture of under lying bone.…
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