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Petitioner: Muhammad and another VS Respondent: The State
Court Name: Federal Shariat Court Judge(s): Syed Muhammad Farooq Shah, Muhammad Noor Meskanzai Title: Muhammad and another vs The State Case No.: Jail Criminal Appeal No.19/K of 2018 Date of Judgment:2019-09-06 Reported As: 2022 YLR 967 Result: Appeal allowed
JUDGMENT
JUDGMENT MUHAMMAD NOOR MESKANZAI, C.J.---This appeal calls in question the legality , validity and propriety of the conviction and sentence recorded by learned Sessions Judge, Badin vide its judgment dated 01.09.2007. 2. It is pertinent to mention here that earlier the appellants were found guilty and awarded capital sentence by the Trial Court vide judgment dated 31.03.20 07. However , on appeal, the said judgment was set aside by the High Court of Sindh on 23.05.2007 on the ground that the judgment flagrantly militates against the mandatory provisions of the section 367, of Cr.P.C. Resultantly , the case was remanded for re-writing of the judgment. The learned Trial Court after hearing the parties again found the appellants guilty of the offences and the following sentences was awarded:- "hence they are convicted and sentenc ed under section 304(i)(b,) P.P.C. for committing the Qatl-i-Amad of deceased and convict them to suffer life imprisonment under section 302(b), P.P. C. and also to pay compensation of one lac each to the legal heirs of deceased as provided under section 544(a), Cr.P.C. In case of default in payment of compensation, the accused shall suffer R.I. for one year more. The accused are also convicted and sentenced under section 457, P.P.C. to suffer R.I. for 5-years and to pay fine of R.s.5000/- each to the legal heirs of deceased and in case of default in payment of fine, the accused shall suffer R.I for six months more. Both the sentences shall run concurrently . The benefit of section 382-B, Cr .P.C. is extended in favour of accused." 3. The appellants feeling dissatisfied with their conviction and sentences, filed the Cr. Appeal No. 5-199 of 2007 before Hon'ble High Court of Sindh, Circuit Court, Hyderabad. It is pertinent to mention that besides the appeal filed through private counsel, the appellants and two other co-convicts filed a Jail Appeal bearing No. Cr. Jail Appeal No. S-220/2007, through Superintendent Central Prison, Hyderabad in the High Court of Sindh, Circuit Bench, Hyderabad. The present appellants filed an application for the suspension of their sentences which was granted by the Hon'ble High Court of Sindh, Circuit Bench, Hyderabad vide its order dated 18.08.201 1.
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4. It appears that the two appellants i.e. Khadim Hussain and Noor Muhammad served the awarded sentence and on completion of the sentence, came out of the prison on 04.04.2014 and 27.03.2015 respectively . 5. Later on, the Hon'ble High Court of Sindh, transferred the appeals to this Court on the ground that it had no jurisdiction to hear the matter , vide Administration Letter No.2740 dated 28.02.2018 of Assistant Registrar , High Court of Sindh, Circuit Court, Hyderabad . The two appeals i.e. Cr. Appeal No.5-199 of 2007 and Cr.. Jail Appeal No. S-220/ 2007 received from Hon'ble High Court were registered in this Court, Bench Registry at Karachi as Cr. Appeal No.18/K of 2018 and Jail Cr. Appeal No.19/K of 2018 respectively . On 11.05.2018, both the appeals were admitted to regular hearing. However , the appeal of appellants Khadim Hussain and Noor Muhammad (Cr.A.No.18- K of 2018) was disposed of by this Court vide Order dated 23.10.2018 the operati ve portion of the order reads as under:-- 'it has been pointed out that present appellant is also cited as appellant No.3 in Jail Appeal No. 19-K of 2018, assailing the vires of same judgment recording conviction against him, already admitted for regular hearing. 2. Further proceedings in the present appeal as such will be an exercise in futility . 3. Disposed of accordingly ." The appellants 1 and 2 did not press the appeal, so to such extent appeal was dismissed as withdrawn. 6. The learned Counsel for the appellants contended that there was no material, whatsoever in nature, available on record justifying conviction of the appellants. He maintained that admittedly the inmates of the house at initial stage categorically stated that three un-identified persons entered the house, chained the door of the room from outside and upon noise inmates got up. The victim tried to open the door which attracted the assailants and harsh-words were exchanged, meanwhile, the door on a kick of one of the assailants got opene d and at that juncture one of the accused made straight firing on Uris, which resulted in his death. Upon cries of the inmates, Karim Bux and Atoo Sheedi, being immediate neighbours, reached and were apprised of the incident with a request to procure the attendance of Noor Muhammad, the uncle of victim. The edifice of the prosecution story got constructed on the basis of this version which appears in the FIR lodged by Noor Muhammad, whose attendance was procured in the house by Karim Bux and Atoo Sheedi. However , with the arrest of accused i.e. 11.01.2000, the three ladies came forward with a new fabricated story , which was accepted by the trial Court that culminated in conviction of the four innocent persons. It was maintained that two co-convicts, appeared before this Court and stated that they are not interested to prosecute the appeal as they had already served their sentence. The learned Counsel stressed that there is no independent evidence availab le on record to connect the appellants with the commission of the alleged offence. Hence, they are entitled for acquittal. 7. The learned Additional Prosecutor General tried to controvert the contentions so raised by contending that the accused were identified but due to threat extended at the time of the commission of the offence they remained silent and did not disclose the names and the identity of the accused in their statements recorded under section 161, Cr.P.C. He further submitted that after arrest of accused, identification parade was conducted, the witnesses identified the assailants with specific roles . The prosecution witnesses also recorde d their statements under section 164, Cr.P.C., which were produced by them before the Court. The learned trial Court, after proper appraisal of material available on record, rightly concluded that the accused have committ ed cold blooded murder of an innocent person by trespassing into his house. Hence, the sentence so awarded is not open to any legal exception. 8. We have heard the learned Counsel for the parties and gone through the available record with their valuable assistance. 9. The brief resume of the prosecution case is that on 16.12.1999, complainant got registered FIR No. 201/ 1999 with the allegation that some unknown persons have committed murder of his nephew Muhammad Uris. The complainant suspected one Muhammad Moosa Memon as culprit because 10/11 days prior to the occurrence there was an altercation between Uris and Muhammad Moosa Memon, who extended threats of dire consequences. According to FIR, the inmates of the house were sleeping and on some noise they woke up. The victim Uris wanted to go outside by raising lalkara but the door was chained from outside and could not be opened. In the meanwhile, there was exchange of harsh words among the accused persons and Uris. The door got opened by a kick of one of the assailants, Uris was fired at with a pistol by a culprit and the assailants made their escape good. The hues and
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cries attracted the immediate neighbours Karim Bux and Atoo Sheedi. On their arrival, they were told the entire story by the three inmates i.e. Mst. Kalsoom PW.2, Mst. Kaz Bano PW.3 and Mst. Rukhsana PW.4 that un- identified persons made fire upon Uris and got him killed and Karim Bux and Atoo Sheedi were requested to procure the attendance of Noor Muhammad, the paternal uncle of the deceased. Karim Bux and Atoo Sheedi went to the house of Noor Muhammad, intimated him of the situation, who came along with said persons to the house of victim and in the meanwhile Muhamm ad Azam, brother of the deceased, also came from hospital. Noor Muhammad went to police station for lodging report. 10. That the Trial Court has recorded conviction at the strength of statements of three P.Ws i.e. 02 to 04 recorded under section 164, Cr.P.C. and that of recorded by the Court. Since the learned trial Court did not reproduce the gist of the evidence and merely referred to the theme of the statements recorded under section 164, Cr.P.C. and the statements recorded before the Court, therefore, we deem it appropriate to reproduce the gist of both the statements, enabling the reader to asses, evaluate and find as to Whether the conclusions drawn by the trial Court were not absolutely perverse and contrary to the gist and theme of the statemen ts. To better understanding the matter , let first the FIR be reproduced and then the gist of statements. "Today night 1 was sleeping in my hous e and I was awaken by Karim Bux son of Nago Kasai and Atto son of Muhammad Sheedi on 16.12.1999 at about 03:15 and they informed that three persons have entered in your nephew's house and has murdered him. On such fact of Karim Bux and Attoo Sheedi, I along with Karim Bux, Attoo Sheedi together came at the home of my nephew Muhammad Uris. Where I asked from Mst. Kalsoom wife of my nephew , she stated that she and her husband Uris were sleeping on the Bed inside the room . Mst. Kaz Bono has been guest in our house for the last 13/14 days. Mst. Kalsoom stated that when we were sleeping in the room at about 03:00 a.m. we heard noise of the people outside the room in the Varanda in the cradle on which we awoke . Uris tried to go outside but the room was bolted from the outside on which he raised lalkara and said who are you and open the door and have quarreled. Meanwhile one person from the outside suddenly hit the door and door was opened, Uris was standing beside the window . The said person at once made straight fire upon Uris with pistol which hit Uris in the left side ribs and he fell down. Thereafter , we raised cries, the small girl Rukhsana saw through the window that three persons went outside the house while running . Thereafter , Rukhsana opened the door of room from the outside and we saw Uris was dead. We raised cries in the home . Meanwhile my nephew Azam who was with his father in Badin Hospital came in the house. Azam disclosed that abou t 10/11 days ago my brother has quarreled with Moosa Memon in the city, Moosa Memon issued threat to my brother that he (Mosa) would see him (Uris). My nephew Uris has no enmity with any other body except Mosa Memon. I did not know the names of persons but I have doubt that because of enmity Mosa Memon or any other person has murdered my nephew Uris in his home with the fire of pistol." (Emphasis supplied) 11. Gist of the statements of PWs is as under:-- Complainant Noor Muhammad appeared as PW .1 and in his statement before the Court, stated as under: "Deceased Uris was my nephew . The incident took place about four years back. I was sleeping in my house on 16.12.1999. There was knock on the door. I got up went outside by opening the door, 1 saw Akoo Sheedi and Abdul Karim Kasai standing. They inform ed me that few un-identified culprits entered in the house of my nephew Uris. They committed robbery . The culprits after committing robbery , chained the door of the room when Uris, and his family members woke up, they resisted and tried to open the door forcibly . The culprits pushed the window which was opened wherefrom one of the culprits fired at Uris as a result thereof he fell down on the cot. The P. W. Rukhsana raised cries which attracted the neighbours. The culprits after firing at Uris decamped from the scene. The P.W. Rukhsana came out from the window which was opened by forcible push of the culprits. The P. W Rukhsana also opened the outer door of the house. The other P. Ws on the cries of P. W. Rukhsana also got up and raised cries. The neighbours came there including Akoo and Abdul Karim. I left the neighbourers in the house and went to the Police Post City Badin. The SHO Mohammad Soomar Solangi was present to whom I narrated the incident.; Such entry was made in the record. The SHO Soomar Solangi left the City PP with the subordinate staff and including me went at the Police Station Badin. Where Soomar Solangi Wormed to Ali Raza Laghari duty Officer
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about the incident. Thereafter , we came to the house of Mohammad Uris, where the police observed the legal formalities. The Police removed the dead body for Civil Hospital for Post Mortem. Where the Dr. Hishmat Khawaja conducted the Autopsy over the dead body thereafter , the dead body was handed over to us. I lodged the FIR at about. 10-0 A.M I produce the FIR at Ex:12-A and say that it is same, correct and bears my signature. I also produce. the NC vide Ex:12-B and say that it is same, correct and bears my signature. Police also prepared the mashirnama of place of vardat. After 20/25 days, Mohammad Manganhar came on the Cabin of Mohammad Salleh Abbasi after drinking the wine in intoxicating position, abused Mohammad Saleh Abbasi, who gave application to the PP Badin. Whereupon, Mohammad Soomar Solangi arrested the accused Mohammad Manganhar from his house. During search, the Police recovered one cloth bag. The accused, Khadim Sheedi, Mohammad Manganhar , Ashraf Mallah committed the murder of deceased along with Nooro Chishti. The accused present in the court are same. (Emphasis supplied) 12. PW .2 Mst. Kalsoom in her statement before the Court stated as under:-- "Deceased Uris was my husband. The complainant is my paternal father -in-law . The incident took place about four years back. I, my husband, wife of brothe r of husband, Kazbano, P. W. Rukhsana and children were sleeping in the house when at about 3-0 a.m. we hoard noise and voice of persons in the house, therefore, we got up. I saw four armed persons namely Khadim Hussain Sheedi, Nooro Sheedi, Mohammad Mang anhar and Ashroo Mallah were present in the house. Accused Khadim Hussain Sheedi fired at my husband as a result thereof he fell down. We raised cries, the accused extended threats not to raise cries otherwise they will kill us. The Police came at our house after half an hour. We narrated the incident to Police. The complainant lodged the FIR. My statement was recorded by Police. My 164 Cr.P.C. statement was also recorded before Magistrate. The accu sed present in the Court are same. I produce the 164 Cr.P.C. statement at Ex:13-A and say that it is same, correct and bears my signature. (Emphasis supplied) 13. Mst. Kalsoom recorded her statement under section 164, Cr .P.C. and stated as under:-- "On 16.12.1999, me, my husband Uris, my husband's sister Kazbano and Rukhsana were sleeping in the house at about 3:00 a.m. We heard noise of fire, upon which we all woke up. My husband opened the door and went outside. The windows were open and through the windows we saw Khadim Sheedi with pistol in his hand made straight fire on my husband Uris who fell down. Nooro Kushti was having a revolve r in his hand and Ashraf Mallah was having dagger in his hand. Muhammad Manganhar having in his hands our two boxes. They issued threats that if you disclosed we will murder you. Out of fear we did not disclose that to anybody . Thereafter police conducted investigation and arrested the accused persons and recovered stolen articles. Thereafter , we came out of fear and we narrated the same facts to police.' (Emphasis supplied) 14. PW .3 Kazbano stated in her statement before the Court as under:-- "Deceased was my brother . Complainant Noor Muhammad is my uncle. This incident took place about 4 years back. My father Jumoon was suffering from paralysis, therefore, she came to his house on the night of the incident, I was also staying there and sleeping at the relevant time. I got up on the commotion. My brother Uris also got up and we were watching as to who had entered in the house when I saw Nooro Kashti was armed with dagger , Khadim was armed with pistol, Ashraf was armed with Revolver , and Mohammad Mallah was holding the theft articles. Khadim Sheedi fired from his pistol at my brother Uris as a result thereof he fell down on the ground. The accused threatened us if we disclose this fact, they will also kill us, therefore, we remained silent. The accused were arrested after 20/25 days, the Police recovered the theft articles from their possession. My statement was recorded by the Police. My statement under section 164, Cr.P.C. was also recorded before Magistrate. I produce the same at Ex:14-A and say that it is same, correct and bears my signature. The accused present in the court are same." (Emphasis supplied) 15. Mst. Kazbano, in her statement under section 164, Cr .P.C., stated as under:-- "Since two months I have been residing in home of my father as my father has been paralyzed. On 16.12.1999, my brother Uris, my Bhabi Kalsoom and my sister Rukhsana were sleeping in the house. At about 3:00 a.m we heard noise of fire, upon which we all, my brother Uris, my Bhabi Kalsoom and my sister Rukhsana woke up. We saw in
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the light of bulb through the windows. We saw Khadim Sheedi with pistol in his hand, Nooro Kushti was having a revolver in his hand and Ashraf Mallah was having dagger in his hand. Muhammad Manganhar was having in his hands our two boxes. Khadim Sheedi with pistol in his hand made straight fire on my brother Urtis who fell down. They issued threats that if you disclose they would murder them like Uris. Out of fear we did not disclose that to anybody . Thereafter , police conducted investigation and arrested the accused persons and recovered stolen articles. Thereafter , we came out of fear and we narrated the same facts to police." (Emphasis supplied) 16. In statement before the Court PW .4 Mst. Rukhsana stated as under: "Deceased was my brother . Complainant is my uncle. This incident took place about 4 years back. It was about 3-0 a.m., I, my brother Uris, P. W Kazbano and children were sleeping in the house when at about 3-0 p.m. we heard noise and voice of persons in the house, therefore, we got up and saw four armed persons namely Khadi m Hussain Sheedi, Mohammad Manganhar and Ashraf Mallah were present in the house. Accused Khadim Hussain Sheedi fired at my brother as a result thereof he fell down. We raised cries, the accused extended threats not to raise cries otherwise, they will kill us. The Police came after half an hour to our house. We narrated the incident to Police. The complainant went to the Police Station and lodged such FIR. My statement under section 161, Cr.P.C. was recorded by Police. My statement under section 164, Cr.P.C. was also recorded before Magistrate. I produce the such 164, Cr.P.C. statement at Ex:15- A and say that it is same, correct and bears my signature. The accused present in the Court are same." (Emphasis supplied) 17. Mst. Rukhsana stated in her statement under Section 164, Cr .P.C. as under:-- "At about 26/27 days 'back me, my broth er Uris, my Bhabi Kulsoom and my sister Kazbano were sleeping in the house. At about 3:00 a.m. we heard noise of fire, upon which me, my brother Uris and other woke up. My brother opened the door and hakkled. Meanwhile we saw Khadim Sheedi with pistol in his hand made straight fire on my brother Uris who fell down. We saw Nooro Kushti was having a revolver in his hand and Ashraf Mallah was having dagger in his hand. Muhammad Manganhar having in his hands our two boxes. Khadim Sheedi with pistol in his hand made straight fire on my brother Uris who fell down. They issued threats that if you disclose they would murder them like Uris. Out of fear we did not disclose that to anybody . Thereafter , police conducted investigation and arrested the accused persons and recovered stolen articles. Thereafter , we came out of fear and we narrated the same facts to police." (Emphasis supplied) 18. PW . 5 Azam stated in his statement before the Court as under:-- "This incident took place about 5 years back. At the time of incident, I was present in Civil Hospital Badin along with my father Mohammad Juman. When I came at 3.30 a.m., I saw deceased Mohammad Uris lying on Palang received bullet injuries on the chest. Mst. Kazbano informed me that three persons came in the house and fired with pistol upon the deceased. PW. Karim Bux and Atoo Sheedi came there. At the time of incident, my sister Kazbano, Mst. Rukhsana, brother's wife Kalsoom and other family members were sleeping in the house. My sister Mst. Kazbano informed me that accused Khadim Hussain armed with pistol fired with deceased Mohammad Uris. Prior to this incident, there was no exchange hot words with accused and deceased Mohammad Uris. Thereafter , my uncle complainant went to the Police. Station and lodged such FIR. My statem ent under section 161, Cr.P.C. was recorded by Police. 1 had not seen the accused at the time of incident." (Emphasis supplied) 19. PW .6 Karim Bukhsh while recording his statement before the Court stated as under:- "This incident took place on 16.12.1999. It was about 3-0 a.m., I raised cries towards the house of Mohammad, Uris. Atoo, Shoukat, Aloo rushed towards the cries, and saw deceased Mohammad Uris lying on the Palang. Mst. Kalsoom and Kazbano were present and informed me that the un-known persons fired with pistol and killed Mohammad Uris. I then called Noor Mohammad from his house, came there. Kalsoom further informed that three un-identified persons killed Mohammad Uris. Complainant Noor Mohammad went to the Police Station and lodged such FIR. My statement under section 161, Cr.P.C. was recorded by Police. The accused present in Court had not seen by me at the time of incident." (Emphasis supplied) 20. PW .7 Muhammad Hanif stated in his statement before the Court as under:- "I know deceased Mohammad Uris. This incident took place about 5/6 years back. Police prepared Danishnama of dead body of deceased Mohammad Uris. Police prepared such mashirnama. I produce the same at Ex:19-A and
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say that it is same, correct and bears my signature. Voluntarily says, that the Police obtained my signature on empty paper as Ex: 19-A. Police prepared the Danishnama of dead body of deceased. I produce such mashirnama at Ex: 19-B and say that it is same, corre ct and bears my signature. Police prepared the mashirnama of place of Vardat which was shown by me to P. Ws. 1 produce the same at Ex: 19-C and say that it is same, correct and bears my signature. I showed the empty bullet of pistol. Police prepared such mashirnama. I produce the same at Ex: 19-D and say that it is same, correct and bears my signature. Police prepared the mashirnama of clothes of dececded, in my presence. I produce the same at Ex: 19-E and say that it is same, correct and bears my signature. The accused Khadim Hussain, Noor Muhammad, Mohammad, Mohammad Ashraf were not arrested in my presence. Police only obtained my signatu re on empty paper . I produce such mashirnama at Ex: 19-F and say that it bears my signature. Police has also not recovered dagger from accused Ashraf. Police only obtained my signature on empty paper . 1 produce such mashirnama at Ex:19-G and say that it bears my signature. Police has not recovered the stolen clothes in my presence. Police only obtained my signature on empty paper . I produce such mashirnama at Ex: 19-H and say that it bears my signature. Police has not recovered any Pistol from the possession of accused Khadim. Police only obtained my signature on white paper . I produce such mashirnama at Ex: 19-1 and say that it only bears my signature. I had not identified the accused in identifi cation parade. Police only obtained my signature on white paper . 1 produce such mashirnam a at Ex:19-J and say that it bears my signature. Police has not recovered the Pistol and its licence in my presence. Police obtained my signature on white paper . 1 produce attested P/S copy of mashirnama of recovery of Pistol and its, at Ex: 19-K, and say that it bears my signature on white paper . Police has not recovered golden ornaments in my presence. Police only obtained my signature on white paper . 1 produce such mashirnama at Ex: 19-L and say that it bears my signature. The accused present in Court are .same. The property produced in Court were not shown me by the Police. Police only obtained my signatures on respective mashirnamas gore:- At this stage, the learned DDA for the State declares witness hostile and request for permission to cross-examination from witness." (Emphasis supplied) 21. The record reveals that during the course of investigation, Moosa and two other persons were arrested. However , were let off. The present convicts were arrested on suspicion. Complainant when appeared as PW.1 before the Court, he, though, mainly stuck to…
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