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Petitioner: Rehmat Ali and 2 others VS Respondent: The State
Court Name: Federal Shariat Court Judge(s): Syed Muhammad Farooq Shah, Muhammad Noor Meskanzai Title: Rehmat Ali and 2 others vs The State Case No.: Jail Criminal Appeal No. 4-K of 2018 Date of Judgment:2019-07-05 Reported As: 2022 YLR 611 Result: Appeal allowed
JUDGMENT
JUDGMENT SYED MUHAMMAD FAROOQ SHAH, J.---The Appellants had been booked and tried in case FIR No. 19/2008 registered at Police Station Makki Shah, District Hyderabad at about 21:45 hours, on 10.03.2008, in respect of offences punishable under section 17(4) of The Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with section 109, P.P.C. After full dressed trial, by pronouncing the judgment on 23.07.2016, the learned trial Court convicted the Appellants under section 265-H(ii), Cr.P.C. The Appellants were sentenced to life imprisonment as Ta'zir but the offence for which they were sentenced has not been mentioned though under section 367(2), Cr.P.C., it is mandatory that the judgment should specify the offence and the section of the Pakistan Penal Code or any other law as the case may be, under-which the accused were convicted and the punishment to which they were sentenced. No offence or section of the Penal Code or Hudood laws was mentioned under which the Appellants have been sentenced, so the earlier judgment delivered by the learned trial Court on 23.07.2016 was set aside by this Court and the case was remanded back to the learned trial Court for re-writing the judgment in accordance with the provisions of the Code of Criminal Procedure. 2. While re-writing the judgment, pronounced on 24.01.2018, impugned herein, the learned trial Court arrived at the conclusion the due to lack of evidence/proof as mentioned under the Hadood Laws, the punishment under section 17(4) of The Offences Against Property (Enforcement of Hudood) Ordinance, 1979 could not be awarded, therefore, while invoking the provision of section 20 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, the Appellants have been convicted for an offence punishable under section 396, P.P.C. and sentenced to suffer life imprisonment as "Ta'zir". They were also directed to pay an amount of Rs.200,000/- (Rupees Two Lac) each, as compensation, as provided under section 544-A, Cr.P.C; in failure to pay the compensation amount, they shall further undergo two years R.I., each. Compensation amount if recovered, shall be distributed amongst the legal heirs of deceased Imran son of Alam Khan. Benefit of section 382-B, Cr.P.C. has
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been extended to them. The case against absconder/acdused Ali Nawaz and Mir Muhammad was kept on dormant file till they are arrested and produced before the Court. 3. Through the captioned jail criminal appeal, forwarded by the Superintendent Central Prison Hyderabad on 10.02.2018 to this Court, the Appellants/convicts have prayed to set aside the impugned judgment on facts and grounds averred in the memo of appeal. 4. Succinct story of the prosecution case as narrated by the complainant Zulfiqar Ali in the FIR (Exh.09/A) is that at about 9:45 p.m., he along with his brother Imran and brother-in-law Wali Dad were present at home in his room, whereas his father , younger brother Jamal and other inmates of the house were present in the adjacent room, when four unknown persons armed with pistols forcibly entered his room. They on show of pistols had snatched mobile phones of the complainant and his brother-in-law Wali Dad; two of the accused went in the adjacent room. Later on, the brother of the complainant Jamal informed that accused had taken out the gold ornaments from the Almirah. On resistance, one of the accused fired with his pistol which hit Imran, brother of the complainant on his chest. The complainant and other house inmates had seen from the window of their house that culprits went towards "Hill Top Chari" in a blue colour Suzuki Alto Car. Then the father of the complainant informed on phone # 15 Madadgar police, who came and took the injured Imran to Civil Hospital, Hyderabad, where injured Imran had died as a result of the said firearm injury . On registration of the FIR, investigation was conducted by the concerned police and six (6) accused including the present Appellants were found involved in this case. Amongst other three accused Saleem Sheikh had died during investigation, accused Mir Muhammad was declared proclaimed offender by the 10 whereas Ali Nawaz absconded during the trial. The detail of stolen property as mentioned in the FIR is as under: i. One set of gold Ornament, weighing about 4 tolas. ii. One pair of small earrings and one pair of large earrings weighing about 24 grams. iii. Cash, denomination of dif ferent currency notes, total Rs. 45,000/-. iv. One mobile phone of Sony Ericson Model P-1 with two SIMS. v. One mobile phone of Samsung Model C-68 with two sims. 5. Ishtiaque Ahmed SIO (PW.5/ Exh.28) took up the investigation, received blood stained clothes of deceased in sealed condition, empty bullets, blood taken from vardat and conducted procee dings regarding deceased duly prepared by ASI Amjad Khushk along with FIR. He proceeded to the place of incide nt as per rnashirnama of vardat already prepared by ASI Amjad Khushk. He recorded statement under section 161, Cr.P.C. of PWs Wali Dad, Jamal and Alam, received post mortem report of deceased but could not succeed to make arrest of the culprits till his transfei from Police Station Makki Shah. Subsequently , the investigation was entrusted to SIP Nek Muhammad, who recorded further statement of the complainant, wherein the complainant disclosed IMEI number of robbed mobile phone. The Appellants Rehmat Ali and Ali Nawaz were apprehended by police of Police Station Qasimabad @ Hyderabad, for committing offences under section 13-D" Arms Ordinance. He arrested both the accused after obtaining their custody and produced them before Judicial Magistrate-XII, Hyderabad for Identification parade and during ID parade both the accused namely Rehmat Ali and Ali Nawaz were identified by PWs Wali Dad and Jamal Bhatti. During interrogation on 28.05.2008, the Appellants Rehmat Ali and All Nawaz admitted their guilt and disclosed the names of their accomplices namely Punhon Machhi and Saleem Sheikh. Then one Mir Muhammad had shown the house of deceased. The accused Dalho was driver of the car in which the culprits came for commission of the crime. The Appellant Rehmat Ali voluntarily prepared to produce two robbed mobile phones from residential quarter of Saria Textile Mill Kotri. The Appellant All Nawaz also prepared to produce two robbed golden earrings, which he had kept in his quarter situated in Gharibabad Colony Jamshoro. Investigation Officer recorded such statements of accused and made arrangements of private mashirs. He called mashir Shah Zaib and Azhar , who acted as marginal witnesses of memo of recovery (Exh.30-B). Accused Ali Nawaz had also voluntarily produced two golden earrings, lying in trunk which were recovered under proper memo of recovery (Exh. 30-C). Crime weapon viz .9mm pistol along with four live bullets were recovered by ASI Ayaz Baladi from accused Rehmat Ali, handed over to him in sealed parcel, which was sent by him to the ballistic expert along with empties recovered from the place of incident. He had also sent the clothes of deceased for chemical examination and after completion
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of necessary investigation, submitted the challan against arrested accused Rehmat Ali and Ali Nawaz by showing the names of remaining four accused as absconders. On 09.06.2008, ASI Ayaz Baladi arrested absconder accused Punhal alias Punhoo Machhi and recovered unlicensed weapon from his possession, his custody in this case was also obtained by the investigation officer on 10.06.2008, on the same day, Identification parade of accused Punhoo Machhi was conducted through eye-witnesses before the concerned magistrate and thereafter he submitted the supplementary challan of accused Punhal alias Punhoo. 6. A perusal of record reflects that challan under section 173, Cr.P.C. was submitted against Six (6) accused persons. The concerned magistrate had taken the cognizance on 12.06,2008. In calendar of final report, accused Ali Nawaz and Rehmat Ali have shown in custody whereas remaining four (4) accused namely Punhal alias Punhoo, Saleem Sheikh, Dalho Mangwar alias Rajesh and Mir Muhammad were shown as absconder . 7. Amended charge (Exh.15) against four (4) arrested accused namely Rehmat Ali, Ali Nawaz, Punhal alias Punhoon and Dalho Mangwar alias Rajesh along with two absconding accused namely Mir Muhammad and Saleem Sheikh (deceased) was framed on 09.03.2010. The Appellants did not admit commission of offence, punishable under section 17(4) of The Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with section 109, P .P.C. and claimed to be tried. 8. To substantiate its case, prosecution examined all material witnesses. The complainant/PW .1 Zulfiquar Ali (Exh.09), produced FIR (Exh.09-A). PW.2 Alam Khan (Exh.10). PW.3 Wali Dad (Exh.1 1), produced mashirnama of clothes (Exh.1 1-A), receipt of receiving the dead body (Exh.1 1-B), inquest report as Exh.1 1-C, mashirnama of vardat as (Exh.1 1-D), Identification test made before the Court of learned Civil Judge and JM-XII, Hyderabad for accused Rehmat and Ali Nawaz (Exh.1 1-E) and Identification test for accused Punhal (Exh.1 1-F). PW.4 Dr. Javed Iqbal examined as Exh.12, produced letter of SHO (Exh.,12-A), medical certificate as Exh.12-B. Learned DDPP for State gave up PW Jamal vide statement (Exh.13). On arrest of accused Dalho Mangwar , amended charge (Exh.15) was framed. During trial, the Appellant Ali Nawaz absconded, therefore he was declared as proclaimed offender . After framing of amended charg e, the complainant/PW Zulfiqar Ali was again examined as Exh.24. PW Alam Khan (Exh.25), PW Wali Dad (Exh.26), PW Dr. Javed Iqbal (Exh.27), PW SIP Ishtiaque Ahmed as (Exh.28), PW ASI Amjad Hussain (Exh.29), produ ced lash chakas form (Exh.29-A). PW Shah Zaib (Exh.30-A), produced carbon copy of mashirnama of arrest and recovery (Exh.30-A), mashirnama of recovery (Exh.30-B) and another mashirnama of recovery (Exh.30-C). PW ASI Ayaz Hayat Baladi (Exh.31), produced attested copy of roznamacha entry (Exh.31.A) and mashirnama of arrest of accused Punhal alias Punhoo and recovery (Exh.31-B). PW Mr. Irshad Hussain, Civil Judge and Judicial Magistrate (Exh.32), PW Mr. Haleem Ahmed, Civil Judge and Judicial Magistrate (Exh.33) and PW SIP Nek Muhammad Rind (Exh.34), produced carbo n copy of entry No.30 (Exh.34- A), attested copy of entry No.37 (Exh.34-B), entry No.43 (Exh.34-C), original Criminal Ballistic Division report (Exh.34- D) and report of Chemical Examiner (Exh.34-E). 9. On conclusion of prosecution evidence, statements of accused persons " were recorded under section 342, Cr.P.C. The Appellants by professing their innocence have alleged their false implication by the prosecution in this case. However , neither they appeared as their own witness under section 340(2), Cr.P.C., nor they examined any witness in their defence. 10. We have given due consideration to the arguments advanced by the learned counsel representing both the parties and have carefully perused the material on record with their valuable assistance rendered by them. 11. Insofar as, unnatural death of deceased Imran on 10.03.2008 by receiving firearm injury is concerned, the learned counsel representing the Appellants did not contest the said point. However , with regard to the charged allegations that accused/Appellants Rehmat Ali, Punhal alias Punhoo, Dalho Mangwar alias Rajesh along with absconding accused Ali Nawaz, Mir Muhammad and expired accused Saleem Sheikh duly armed with deadly weapons during commission of Harabah/robbery in the house of complainant, situated at District Council building, Hyderabad had committed Qatl-i-Amd of deceased Imran, with firearm injury , learn ed counsel submitted that there was no corroborative evidence from any independent source, in support of ocular evidence. Learned counsel next argued that the ocular account is based on Identification parade which does not fulfill the legal requirements as prosecution witnesses have not disclosed that how they came to know about the Appellants/accused. Learned
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counsel for the Appellants contended that there was no independent eye-witness in the instant case. After arguing the matter at length, learned counsel representing the Appellants made an alternative prayer that in view of peculiar circumstances of this case, to meet the end of justice, the conviction and sentence passed against the Appellants may be reduced to one already undergone by them. 12. Conversely , learned Addl. Prosecutor General contended that the Appellants have specifically been involved by the eye-witnesses in commission of dacoity with murder of a young man and with their common intention had committed the heinous offence, therefore, the observations and findings of the learned trial court are well reasoned and plausible. Moreso, the occurrence has fully been supported and corroborated by the complainant Zulfiqar and eye-witnesses namely Alam Khan and Wali Dad, while deposing that on 10.03.2008 at 21:45 hours, they along with PW Jamal were present in their flat, when four armed accused entered into the flat and on gunpoint robbed Rs.45,000/-, gold ornaments and mobile phone from them; when deceased Imran grappled with the accused persons, one of the accused fired upon Imran at his chest, in result of which he had fallen down on the ground and then accused went away on a car; deceas ed Imran succumbed injury in the way to the hospital. In the morning, the complainant proceeded to police station Makki Shah, where he lodged the FIR. Subsequently , on arrest of the accused, they were picked up by the eye-witnesses during Identification parade held before the learned Judicial Magistrate, Hyderabad and they were also identified at the trial. Learned State counsel argued that eye-witnesses were cross-examined at length but their evidence has not been shaken on material points; that no material contradiction or inconsistency was brought on record. While placing reliance on the case of Mushtaque alias Shaman v. The State (PLD 1995 SC 46), learned State counsel argued that the variance in the testimony of a witness or inconsistency on the points which are immaterial would not lead to such conclusion and result as the variation may be due to mere lapse of memory or confusion caused in their mind by a relentless cross-examination. Reliance has also been placed on the case of Roshan and others v. The State reported in PLD 1976 SC 557. While addressing the Identification parade, learned State Counsel submitted that while accepting the legal sanctity of said Identification parade held before learned Civil Judge and Judicial Magistrat e-XII, Hyderabad, PW Wali Dad had identified the accused and said memos of Identification were signed by the learned Judicial Magistrate. That the ocular testimonies adduced by the prosecution are fully corroborated by the circumstantial evidence. Lastly , learned State counsel stated that the prosecution witnesses have no reason or any motive to falsely implicate the present accused in the murder of deceased Imran because nothing has been brought on record against the brother of (complainant) and father of deceased, that there was any or animosity to falsely implicate the Appellants, by exonerating the real robbers, therefore, the prosecution has succeeded to establish its case against the Appellants beyond any doubt. 13. Ocular account of the prosecution case hinges upon deposition of four (4) prosecution witness. It shall be advantageous to briefly narrate their testimonies hereinbelow; PW.1/ Complainant Zulfiqar Ali, real brother of deceased Imran while corroborating the contents of the FIR stated that on 10.03.2008, at about 21:45 hours, he along with his brother-n-law Wali Dad and his younger brother Imran were sitting in room of his flat situated in District Council Flats, Thandi Sarak, Hyderabad. In other room of his flat, his father Alam Khan and his brother Jamal were available along with other family members. At that time all of sudden four persons entered in his house with open faces. Out of those culprits two entered in his room, duly armed with pistols. The faces of those persons were opened and they robbed mobile phones from him and PW Walidad and threatened them not to make any resist otherwise they would kill them. Suddenly , he heard noise of his brother Jamal who disclosed that the culprits were going after committing robbery . They also came out from room into corridor whereby his brother Imran scuffled with culprits. One of the culprit fired upon his brother Imran on his chest who had fallen down. In reply to a cross-question, the complainant denied that police got identified the accused Rajesh through them at police station, however admitted that accused Rajesh was seen by them in Court during hearing. In lengthy protracted cross-examination, the evidence of complainant has not been shaken by the learned defence counsel. However , the complainant has clarified that the Alto car was parked at about 12 ft. distance from their flat @ link road/Latifabad road; stated that he identified the recovered articles during trial. He
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has categorically denied suggestions put by the learned counsel that accused Rehmat Ali has been involved in this case at the instance of PW W ali Dad. PW Alam Khan (Exh.10) has fully supported the complainant while deposing, that two accused took Rs.45,000/- cash from the cupboard and had also taken the gold ornaments; when he came out from the room he saw that his son-in-law Wali Dad, his sons Zulfiqar and Imran were ahead and two persons were behind them. He has further stated that when they raised cries, his son tried to capture the accused by grapplin g with them. One of the accused made straight fire on the chest of his son. He has further stated that they saw from the window that four culprits joined remaining two culprits already sitting in the vehicle and went towards Will Top Cinema". His son injured (Imran) succumbed injury in the way to the hospital. He has categorically stated that he can identify the culprits as he had seen their faces. During trial, the witness pointed accused Rehmat Ali who was sitting along with six other UTPs, produced in one chain in Court and said that he had fired upon his son Imran. The learned trial Court had noted that "While pointing out towards accused Rehmat, the witness became, emotional and started weeping." Thereafter , the witness pointed towards accused Ali Nawaz and said that he entered in his room along with other accused who is not available in Court and then the witness pointed towards accused Punhal alias Punhoo and stated that he was also amongst those accused who appeared in his flat. This witness was also subjected to lengthy cross-examination but no specific or notable contradiction has brought by the defence in their favour . Third eye-witness of the prosecution, PW Wali Dad (Exh.26) while deposing similar facts of the occurrence stated that on 10.03.2008 he was sitting in the house of his brother-in-law complainant Zulfiqar Ali Bhatti. He, Zulfiqar Ali, deceased Imran were sitting in one room and in second room Jamal and his father-in-law Alam Khan were. sitting. Suddenly four persons entered in their room, who were armed with pistols. They pointed out their pistols towards them and threatened them to be calm. One of them snatched the mobile phone from them. Two remained in their room and two went in the room which was opposite to their room. After a little time, his brother-in-law Jamal raised cries that two persons after committing robbery of valuable articles/golden ornamen ts were going away . On hearing cries, they came out from room and saw that the accused were standing over them. They all came in the courtyard and saw that deceased Imran grappled with culprits, one of the culprit directly fired upon Imran with his pistol, which hit on the chest of Imran. Imran has fallen down and thereafter all four culprits went out of the quarter . They saw from the window that all four culprits seated in a blue colour Alto car and went away towards Hill Top Incline. They took injured Imran to the hospital in Rickshaw while their father informed the police on telephone number 15. At 10:00 p.m. doctor declared that Imran has died at 20:45 hours; police came at the hospital and conducted necessary legal formalities. Thereafter , FIR was recorded by Zulfiqar his brother-in-law and in the month of May, 2008 police asked them to appear in the Court of Judicial Magistrate-XII, Hyderabad for Identification test of the accused which was held and he identified two culprits standing in a row. The learn ed trial Court has noted that the witness pointed out to accused. Rehmat Ali and Ali Nawaz and stated that they both were identified by him. Thereafter , in the month of June, 2008, they were directed to appear before the Court of Judicial Magistrate-XII, Hyderabad for Identification of another accused who was also identified by them. The learned trial Court has noted that witness correctly pointed to the accused Punhal and stated that he was identified by him in the month of June, 2008 before concerned magistrate. This witness has also put his signature as a marginal witness on memo of Identification of accused. Rehmat Ali and Ali Nawaz, and produced the memo of Identification of accused Punhal alias Punhoo. During evidence, the witness pointed to accused Rehmat Ali, Punhal and Nawaz All produced in Court and stated that they were identified by him before the magistrate. The learned trial Court noted that the witness pointed to accused Rehmat Ali and stated that he had fired upon the deceased with pistol, which caused death of Imran. He has also identified the looted mobile phone to be the same looted from him. This witness had also identified blood stained clothes of the deceased and the blood containing in a bottle secured by the police during investigation. He identified the accused Rehmat Ali, Ali Nawaz and Punhal present in Court to be the same who committed house trespass in their dwelling and committed Qatal of deceased Imran and looted the property from their house. This witness was also cross-examined at length, spreading on 8 pages but no specific contradiction has brought on record by the learned defence counsel.
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14. Medical evidence of prosecution is consisting on testimony of Dr. Javed Iqbal, who deposed that on 10.03.2008 at 10:50 p.m., ASI Amjad of Police Station Makki Shah had brought the dead body of deceased Imran, aged about 18 years for postmortem. He conducted the postmortem of deceased and found following injuries on his person: 1(A). Lacerated punctured wound of firearm size about 01 cm in diameter over right side of chest, 2 cm above and lateral to nipple to inverted margins, this is wound of entry . 1(B). Punctured lacerated wound of firearm size about 1.5 cm in diameter below left axilla at inverted margins, this is wound of exit. Dr. Javed Iqbal opined that death of Imran had caused due to excess of bleeding, in result of injury caused with firearm. 15. The circumstantial evidence adduced by the prosecution is briefly discussed as under: PW.5 SIP Ishtiaque Ahmed, deposed that on 11.03.2008 he received FIR No.19/2008 and visited the place of incident along with complainant, received blood stained clothes of deceased in sealed condition, empty bullets, blood collected from vardat and received papers regarding deceased duly prepared by ASI Amjad Khushk. He then recorded statements under section 161 Cr.P.C. of PWs Wali Dad, Jamal and Alam, received postmortem report of deceased from medical officer. On 02.5.2008, he could not complete the investigation due to his transfer from Police Station Makki Shah. PW.6 Amjad Hussain ASI stated that on 10.03.2008 at about 21:55 hours he received wireless message regarding dacoity at District Council Flats. He was on the way to the place of incident, wherein he was informed by the complainant Zulfiqar that his brother Imran had received bullet injuries and was shifted to hospital. Thereafter , he rushed to the Civil Hospital Hyderabad, where he came to know that injured Imran had expired and his dead body was lying at mortuary . He received dead body from the MO and handed over the same to Wali Dad (brother in law of the deceased). He received clothes of deceased from medical officer and recovered the same under mashirnama of recovery (Exh.1 1-A). Then he visited the place of vardat on 11.03.2008 at about 0040 hours, where he found blood on the floor and one empty bullet of .9mm pistol. He collected the blood and empty bullet from place of occurrence…
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