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Official Citation: 2024 YLR 1766
Court / Jurisdiction: Sindh High Court
Year of Decision: 2022
Decision Date: 2022-03-28
Parties: Bashir Ahmed and others vs The State
Ruling Summary: This decision was rendered by the Sindh High Court on 2022-03-28, officially reported as 2024 YLR 1766. In this matter between Bashir Ahmed and others 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 1766
Court Name: Sindh High Court Judge(s): Muhammad Saleem Jessar Title: Bashir Ahmed and others vs The State Case No.: Criminal Appeals Nos. S-195, S-197 of 2019 and S-232 of 2021 Date of Judgment:2022-03-28 Reported As: 2024 YLR 1766 Result: Order accordingly
JUDGMENT
JUDGMENT MUHAMMAD SALEEM JESSAR, J. I intend to dispose of the above three criminal appeals by this common judgment as the incident, facts and evidence as well as the FIR in all these criminal appeals are same. 2. The appellants are aggrieved by the judgment dated 17.07.2019 passed by learned Model Criminal Trial Court/1st Additional Sessions Judge, Hyderabad, in Sessions Case No. 53 of 2004, in Crime No.02/2004 of PS Tando Jam, registered under sections 302, 324, 504, 147, 148 and 149, P.P.C., whereby the appellants Ameer, Raja, Bashir, Lal Muhammad, and Muhammad Khan alias Dado, were convicted under section 265-H(ii), Cr.P.C. and sentenced under section 144, P.P.C. to suffer R.I. for two years. The appellants were further sentenced under section 302(b), P.P.C. for life imprisonment and also to pay fine of Rs.100,000/- each, if recovered, to be paid to the legal heirs of the decease, as provided under section 544-A, Cr.P.C. and in default to suffer simple imprisonment for six months more. They were also extended benefit of section 382-B, Cr.P.C. Appellant Aziz Ahmed (Cr. Appeal No. 232/2021) was convicted under section 265-H(ii), Cr.P.C. and sentenced under section 144, P.P.C. to suffer R.I. for two years. He was also sentenced under section 504/34, P.P.C. to suffer R.I. for two years. He was also sentenced under section 302(b)/34, P.P.C. to undergo life imprisonment and to pay fine of Rs.100,000/- under section 544-A, Cr.P.C., which, if recovered, was to be paid to the legal heirs of the deceased Shamsuddin. He was also extended benefit of section 382-B, Cr.P.C. 3. Brief facts of the prosecution case as disclosed in the FIR are that complainant Hakim Ali lodged his report bearing Crime No.02/2004 under sections 302, 324, 147, 148, 149, P.P.C. at Police Station
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Tando Jam, Hyderabad, stating therein that he is zamindar and his younger brother Shamsuddin alias Shaman son of Taj Muhammad alias Tajoo Nizamani, aged about 30 years, was residing near his house and he was doing his private business. On 12-01-2004, while he was sitting in his house he heard gun report from Otaq (out house) of his relative Muhammad Bux Nizamani, as a result of which Muhammad Bux also came out from his home and they both headed towards the Otaq where they saw that light of bulb was available and they saw that Ameer Nizamani armed with double-barrel gun, Shamsuddin alias Shamman Nizamani armed with .12-bore pistol, Dost Ali Nizamani armed with double barrel gun, Raja armed with iron rod, Aziz Ahmed armed with pistol, Bashir Ahmed armed with revolver, Lal Muhammad armed with hatchet, Dado Nizamani armed with pistol, who while abusing came out of the Otaq and when they entered in the Otaq, they saw that his brother Shamsuddin alias Shaman Nizamani has sustained injuries of gun fire over his left leg on the knee and also sustained firearm injuries on his right foot and injury was also found on the other part of the body and he was bleeding from his injuries and also from his head. Jahangir has also injuries of pallet due to firing at both of his legs and he was bleeding and in their presence, Shamsuddin succumbed to his injuries. On enquiry, Jahangir and his son Wasi Ahmed told them that they all three were sitting in the Otaq when at 10-00 pm, while the light was available from the bulb, accused Ameer Nizamani, Shamsuddin alias Shamoon Nizamani, Raja Nizamani, Dost Ali, Aziz Ahmed, Bashir Ahmed, Lal Muhammad and Dodo Nizamani came in the Otaq and immediately, they started abusing them and threatened them that they would not spare them as so many times due to rotation of water they have quarreled with them and have insulted so many times so today, they will take revenge. So saying they started firing their guns, pistol and gave blows with iron rod and hatchet. Ameer Nizamani had caused fire arm injuries to his uncle Shamsuddin alias Shaman and he fell down on the ground, thereafter, Raja Nizamani caused iron rod blows and Lal Muhammad Nizamani gave hatchet blows and accused Dost Ali also fired his gun and accused Shamsuddin alias Shamoon Nizamani also fired his pistol and accused Aziz Ahmed with intention fired straight at him so he sustained pallet injuries on his legs, thereafter, accused Bashir Ahmed fired his pistol and Dado Nizamani also fired his pistol. He bow down so he did not sustain injury, thereafter arrangements were made through his son Wasi Ahmed and Muhammad Bux for transport for taking injured Jahangir and his deceased brother to Tando Jam. Jahangir was taken to Civil Hospital, Hyderabad by his father Muhammad Bux for treatment and dead body of Shamsuddin alias Shaman was taken to Rural Health Centre, Tando Jam where his son remained with dead body and now he has come to lodge report that due to old enmity due to rotation of water, accused Ameer Nizamani and others with common intention resorted to violence and they fired their guns, pistols, revolver, and used iron rod and hatchet, as a result of which his brother Shamsuddin has been murdered and Jahangir was injured. He has to report that investigation be conducted as they had taken the licensed pistols of his brother Shamsuddin alias Shaman. 4. After completing usual investigation, the accused persons were challaned before the concerned court showing the accused persons Ameer, Raja, Bashir Ahmed and Lal Muhammad in custody in the charge sheet, while remaining accused persons were shown as absconders. 5. The R & Ps of instant case were received by the trial court from the court of District and Sessions Judge, Hyderabad, by way of transfer as the court was designated/assigned as Model Criminal Trial Court vide Notification No.RHC/PA/2019 dated 19-03-2019 of the High Court of Sindh Karachi, for its disposal as expeditious justice initiative (EJI). 6. The necessary case papers were supplied to the accused persons vide their receipt as Ex:1. Formal charge was already framed against the accused persons at Ex:5, to which they pleaded `not guilty' and claimed for trial vide their pleas at Exs:6 to 11. 7. The prosecution examined Hakim Ali as PW-1 at Ex:21, Muhammad Bux alias Hakim as PW-2 at Ex:23, Jahangir as PW-3 at Ex:27, Ashique Ali as PW-4 at Ex:28 (who produced memo. of dead body,
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memo. of lash chakas form, and danishnama, memo. of place of incident, mashirnama of injuries, mashirnama of arrest, mashirnama of recovery, mashirnama of arrest of accused Lal Muhammad and Bashir as Ex:28/A to Ex:28/H), Wasi Ahmed as PW-5 at Ex:29. Senior MLO who produced provisional and final certificate as Ex:30/A and Ex:30/B respectively), SIP Ghulam Nabi as PW-7 at Ex:31, MLO Ghulam Ali (who produced postmortem report as Ex:32/A). SHO Shah Nawaz as PW-9 at Ex:35. ASI Allah Obhayo as PW-10 at Ex:36, statement of ASI Ghulam Shabbir as PW-11 at Ex:37 (who produced report, statements, photocopy of prescription doctor, and office order as Ex:37/A to Ex:37/H respectively). SIP Ghulam Nabi as PW-12 at Ex:38. Thereafter, learned DDPP closed the side of the prosecution vide his statement at Ex:39. 8. Statements under section 342, Cr.P.C of accused persons were recorded at Ex:40 to Ex:44. In their statements the accused persons refuted all the allegations levelled against them by the prosecution and claimed to be innocent. In their statements the accused neither wanted to lead any evidence in their defense nor desired to examine themselves on oath. 9. Thereafter the learned trial court framed the following points for determination: Point No. 1. Whether on 12-01-2004 at 2200 hours at the otaq of Muhammad Bux Nizamani situated at Tando Qaiser accused Ameer Ahmed, Raja Bashir Ahmed, Lal Muhammad, and Muhammad Khan and absconding accused Aziz Ahmed, Dost Ali and Dodo and accused Shamsuddin alias Shaman (since dead duly armed with deadly weapons viz. double barrel gun, pistol, revolver, .12 bore pistol, assembled unlawfully for their common object to commit offence by means of criminal force against the complainant party? Point No.2: Whether deceased Sham sud din son of Taj Muhammad Nizamani died un-naturally? Point No.3. Whether on 12-01-2004 at 2200 hours at the otaq of Muhammad Bux Nizamani situated at Tando Qaiser accused Ameer Ahmed, Raja Bashir Ahmed, Lal Muhammad, and Muhammad Khan and absconding accused Aziz Ahmed, Dost Ali and Dodo and accused Shamsuddin alias Shaman (since dead), duly armed with deadly weapons viz. double-barrel gun, pistol, revolver, .12 bore pistol, iron rod, and hatchet with their common intention gave abuses to Shamsuddin son of Taj Muhammad, Jahangir and Wasi Ahmed and made fire, accused Ameer shot, accused Lal Muhammad caused lathi blow, and accused Raja caused iron rod and committed Qatl-i-Amd of deceased Shamsuddin son of Taj Muhammad Nizamani with their common intention? Point No.4: Whether on 12-01-2004 at 2200 hour at the Otaq of Muhammad Bux Nizamani situated at Tando Qaiser Raja Bashir Ahmed, Lal accused Ameer Ahmed, Muhammad, and Muhammad Khan and absconding accused Aziz Ahmed, Dost Ali and Dodo and dead accused Shamsuddin alias Shaman duly armed with deadly weapons viz. double barrel gun, pistol, revolver, .12 bore pistols, iron rod, and hatchet, with their intention accused Aziz, Dost Ali and Common Shamsuddin gave injuries to P. Ws Jahangir and Wasi Ahmed? Point No.5. What should the Judgment be? 10. The trial court after recording evidence and hearing the arguments of the learned D.D.P.P for the State and the learned Counsel for the appellants as well as the complainant, answered the points as proved, and convicted and sentenced the appellants as mentioned above. Hence these appeals. 11. Heard learned counsel for the appellant as well as learned counsel for the complainant and APG for the State. 12. Syed Tarique Ahmed Shah, learned counsel appearing on behalf of all the appellants, except appellant Ameer, submits that offence is unseen and therefore there had been contradictions with regard to the registration of FIR, time of incident as well as the post-mortem notes taken by the Medico Legal Officer. He next submitted that provisional medical certificate issued in favour of injured/P.W Jehangir is delayed for about 10 days; whereas final medical certificate was also issued
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with a delay of 07 months hence, according to him, all these facts were fatal to the prosecution case and rose many questions with regard to authenticity of the evidence of injured/P.W Jehangir. He also submitted that per prosecution case/FIR, appellant Dost Ali (since absconder) was having DBBL gun in his hand, appellant Shamsuddin (since died during trial) was having country made pistol in his hand and appellant Aziz Ahmed (in custody) was having pistol in his hand, they all have caused jointly firearm injuries to P.W Jehangir; however, he had received all injuries on his legs with pellet(s). He submitted that injuries allegedly sustained by injured/P.WN Jehangir were also recognized by Medico Legal Officer to be caused by smooth weapons like cartridges/gun/country made pistol, therefore, injuries allegedly attributed to appellant Aziz Ahmed, who was armed with pistol cannot be used against him, as there is no evidence against him though injured/P.W Jehangir before the trial Court had deposed that he had sustained bullet injuries on his person, which according to Mr. Shah, is contradictory to available evidence. He further submitted that injuries allegedly sustained by injured P.W Jehangir were opined by Medico Legal Officer to be falling under section 337-F(ii), P.P.C., which carries maximum punishment of three years. Mr. Shah further argued that appellant Lal Muhammad at the time of alleged offence was armed with hatchet and appellant Raja was having iron rod in his hand and both allegedly caused injuries to deceased Shamsuddin, which landed on his person; however, appellant Ameer who was having DBBL gun in his hand through which he made fire and thereby is alleged to have caused murder of deceased Shamsuddin; however, he has been acquitted from the charge of said offence bearing Crime No.07/2004, registered at Police Station Tando Jam, under section 13(d) Arms Ordinance, 1965 by the Court of Civil Judge/Judicial Magistrate-IV, Hyderabad in Cr. Case No.88 of 2007 (re: The State v. Ameer). He further submitted that post-mortem report was delayed for about 27 hours hence it is also additional ground that the prosecution had not come with clean hands. He next submitted that incident allegedly had occurred in odd hours of night viz. 10:00 p.m. of 12.01.2004 and source of identification as disclosed in the FIR, was electric bulb; however, said bulb neither was secured nor shown by the complainant to I.O at the time of inspection of place of incident. He also submitted that 161, Cr.P.C. statement of injured P.W Jehangir was also delayed by about 09 days and he even too did not identify the culprits; however, learned counsel admitted that in his evidence before the trial Court the said witness had implicated all accused with the commission of alleged offence. 13. As far as accused Bashir Ahmed and Muhammad Khan are concerned, Mr. Shah submitted that at the relevant time both allegedly had caused firearm injuries to P.W Wasi but he did not sustain any injury and fires allegedly made by them were proved ineffective. He also submitted that both appellants namely Bashir Ahmed and Muhammad Khan had allegedly produced their respective offensive weapons; however, both of them have been acquitted of the charges of said cases, therefore, their implication in this case is doubtful. He prayed for grant of appeals as well as acquittal of the appellants. In support of his contentions, he placed reliance on the cases of Muhammad Ashraf Javeed and another v. Muhammad Umar and others (2017 SCMR 1999), Sardar Bibi and another v. Munir Ahmed and others (2017 SCMR 344), Azhar Mehmood and others v. The State (2017 SCMR 135), Mst. Sughra Begum and another v. Qaiser Pervez and others (2015 SCMR 1142), Muhammad Imran v. The State (2020 SCMR 857), Muhammad Asif v. The State (2017 SCMR 486), Sufyan Nawaz and another v. The State and others (2020 SCMR 192), Nazir Ahmad v. The State (2018 SCMR 787), Mashooque Ali v. The State (2018 YLR 1533) and Irshad Ahmed v. The State (2011 SCMR 1190). 14. Mr. Wazeer Hussain Khoso, learned counsel for appellant Ameer in Cr. Appeal No.S-197 of 2019 submitted that though appellant Ameer is nominated in the FIR with specific role; however, due to material contradictions with regard to delay in post-mortem notes as well as non-recovery of the electric bulb and the offence having been occurred in odd hours of night, his implication in this
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case is doubtful. He further submitted that injury No.8 sustained by deceased Shamsuddin has been shown by the Medico Legal Officer as blackening and tearing; however, such fact has not been brought on record, which suggests that offence was unseen and complainant party due to enmity over water rotation have falsely implicated them in this case. He; however, adopts the remaining arguments as advanced by learned counsel for remaining appellants and also prayed for grant of appeal as well as acquittal of appellant Ameer. In support of his contentions he placed reliance on the cases of Amin Ali and another v. The State (2011 SCMR 323), Zafar v. The State and others (2018 SCMR 326), Muhammad Asif v. The State (2017 SCMR 486) and Muhammad Shah v. The State (2010 SCMR 1009). 15. On the other hand, Ms. Rameshan Oad, the learned A.P.G appearing for the State opposed the appeals and submitted that prosecution has led direct evidence against the appellants, therefore, minor contradictions as claimed by the defence counsel may not vitiate the evidentiary value of the prosecution evidence, which on other hand has been corroborated with circumstantial evidence. She further submitted that delay in post-mortem notes cannot be taken into consideration, as Honourable Supreme Court of Pakistan in the case of Abdur Rehman v. The State (1998 SCMR 1778), where even no postmortem examination was conducted yet the appellants therein were convicted for the capital charge. She also submitted that as far as no ballistic report is concerned, it does not cause any harm to the prosecution case and in support of her contention she placed reliance on the case reported as Muhammad Afzal v. The State (2021 SCMR 289). She also submitted that injured/P.W Jehangir is the eye-witness, who had supported the case of the prosecution by implicating all the accused/appellants in this case hence minor contradictions arising due to passage of time could not divert the direct evidence available against the appellants. She; however, could not controvert the fact that appellants Bashir Ahmed and Muhammad Khan had been attributed ineffective firing and P.W Waseem had not sustained even single scratch on his body at the hands of these appellants. She admitted that though offensive weapons were allegedly recovered from appellants Bashir Ahmed and Muhammad Khan yet both of them have been acquitted of the charge. She on Court query admitted that injuries allegedly sustained by P.W Jehangir as is evident from Medico-legal certificate/evidence are pellet injuries and per prosecution case co-accused Dost Ali, who is absconding, was having DBBL gun and has not been arrested so far, while remaining two accused namely Shamsuddin and Aziz Ahmed were having pistols for which no evidence is available on record that injured Jehangir had sustained any bullet injury on his person. She has very candidly conceded that though the injured Jehangir had deposed before the trial Court that he sustained bullet injuries yet it does not have corroboration from any corner. She, however, reiterated her contention that accused Ameer, Lal Muhammad and Raja were assigned specific role of causing injuries to deceased Shamsuddin and since all three of them had caused injuries conjointly to him, therefore, they are liable to be held responsible for the offence they had committed. In support of her contentions she relied on the cases of Saleem Zada and others v. The State and others (2019 SCMR 1309), Asfandiyar v. The State and others (2021 SCMR 2009), Gulshan Shah v. The State (2021 SCMR 1456) and Mazhar Ellahi v. The State (2020 SCMR 586). 16. Mr. Muhammad Hashim Laghari, learned Counsel for the complainant, also opposed these appeals and submitted that the prosecution has led direct evidence against the appellants which was corroborated by the circumstantial evidence and on certain minor contradictions or lacunas left by prosecution during evidence may not vitiate the evidentiary value of the prosecution witnesses as one innocent person has lost his precious life and other has received multiple injuries on his person. He further submitted that contention raised by learned counsel for the appellants that deceased had enmity with other communities caries no weight, as complainant party may
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not implicate or substitute the real culprits with others and that the plea without corroboration cannot be taken into consideration. 17. As regards motive as shown by the appellants with regard to the valuable property owned by them in Tando Adam city, the learned counsel submitted that neither a single piece of evidence has been brought on record nor survey numbers of said property has been mentioned / brought on record. He further emphasized that neither said land is in possession of the complainant party nor the appellants were dispossessed from it as still they are well enjoying the same, therefore, it is an afterthought motive formed by the appellants to vitiate the prosecution case. In support of his contentions, he placed reliance on the cases Sharafuddin alias Sharfoo and another v. The State (2022 YLR 324), Muhammad Rashid and another v. The Stare (2022 YLR 119), Ghaffar Ali v. The State and another (2021 SCMR 354), Afsar Ali v. Majid Khan and another (2021 PCr.LJ 705), Syed Asif Ali v. The State (2020 PCr.LJ Note 179), Imran Khan and others v. The State (2020 PCr.LJ Note 187), Abdul Sattar v. The Stare (2018 YLR Note 5) and Muhammad Mansha v. The State (2016 SCMR 958). 18. So far as point No.2 is concerned, the finding of the trial Court that the evidence of the doctor/MLO is material, who has specifically stated in his evidence that the deceased died due to fire arm injuries. Thus, point No.2 was correctly answered in affirmative. 19. On the other points, the case of the prosecution rests on ocular evidence of two prosecution witnesses i.e. PW-3 Jehangir (the injured witness) and PW-5 Wasi Ahmed. In support of the ocular evidence as corroborative evidence, there is the evidence of the complainant PW-2 Muhammd Bux alias Hakim, PW-Dr. Baldev, Sr. MLO (Exh. 30 at page 241) and PW-Dr. Ghulam Nabi, retired MLO (Exh.32) apart from other witnesses. 20. First, I will take the deposition of the PW-2-complainant, namely, Muhammad Bux alias Hakim son of Noor Muhammad (Exh.23 at page 180 of R&P). Firstly, in the FIR lodged by him, he has named all the accused/appellants A by name. In his deposition also he has fully narrated the facts with minute details and has exactly given the details of the portion of the incident seen by, him i.e. of the going away of the appellants from the place of incident with their arms/weapons. He has clearly stated that on the gun shot report he came out from his home and met Muhammad Bux Nizamani and they went towards the Otaq and there they saw the appellants/accused fully armed and gave the details of the arm in the hand of the each appellant/accused using abusive language and going away. He further states that he saw PW Jehangir lying injured and Wasi Ahmed (typed as Waseem Ahmed in some places) was also available but was hiding and came out after the arrival of the complainant. On inquiry, he informed the complainant that all the accused came inside the Otaq and said that they (complainant party) were not providing them water and also insulting them, "accused Amir fired from his double barrel gun, Raja caused him iron rod blow and Lal Muhammad caused hatchet blow to Shamsuddin. PW Jehangir informed that Dost Ali fired from his gun, Shaman from TT/Pistoland Aziz also fired from pistol." In cross-examination he clearly admitted that he has not seen the incident by his own eyes. He also stated the accused did not attack them. He stated that his house is at a distance of about one furlong from the place of incident. He admitted that he did not know the name of the Suzuki driver who took the dead body and the injured. It is natural that a person taking dead body of his younger brother and an injured relative could not be expected to keep such details in mind. Thus, the circumstantial evidence produced by this witness corroborated the evidence of eye-witness Jehangir. 21. PW-3, Jehangir Nizamani son of. Muhammad Bux (page 196 of R&P) is the injured of the incident and is an eye-witness. He has given the details of the incident seen by him. He has assigned specific roles to each appellant and the firearm/weapon held by them. He was cross-examined by learned counsel for the appellants/accused but his testimony could not be shaken at all. He is the eye-witness of the incident who also sustained injuries in the incident. He has categorically denied
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the suggestion that at the time of incident there was no electricity in the area. No contradiction of note could be pointed out in his deposition. 22. PW-5 Wasi Ahmed has also narrated the same story and assigned the identical roles to the appellants. He stated that accused Ameer abused them and made straight fire at his uncle Shaman, while Lal Muhammad caused him hatchet blow. He also stated that Dost Ali caused bullet injury from DBBL gun to Jehangir. He stated that he saved himself by sitting down and hiding. 23. PW- Dr. Baldev, Senior Medical Officer, LUMH, Hyderabad, was examined as Exh.30. In his examination in chief he stated that on 13.1.2004 he was posted as MLO, LUMH, Hyderabad and at 2.20 a.m. injured Jehangir came with police letter No.Cr/2/2004 dated 12.1.2004 of PS Tando Jam for examination and certificate. He was examined by the said doctor and a provisional certificate was issued showing the injuries sustained by him; however, final report was reserved as the injured was sent to X-ray. On receiving the X-ray report the final report was prepared. He was cross-examined by the defense counsel; however, no noteworthy contradiction was found in his deposition. 24. The prosecution also examined Dr. Ghulam Ali, retired MLO, as Exh.32. He stated that he was posted as MLO at RHC Tando Jam on 14.1.2004 when dead…
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