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Petitioner: GHULAM MUSTAFA VS Respondent: The STATE anothers
Court Name: Sindh High Court Judge(s): Nadeem Akhtar, Shahnawaz Tariq Title: GHULAM MUSTAFA vs The STATE anothers Case No.: Criminal Appeal No.D-107 and Criminal Revision Application No.142 of 2013 Date of Judgment:2014-06-03 Reported As: 2014 YLR 2091 Result: Appeal allowed
JUDGMENT
JUDGMENT ' SHAHNAWAZ TARIQ, J.---By this common judgment, we intend to decide and dispose of Criminal Appeal No. 107 of 2013 and Criminal Revision Application No. 142/2013, as both are filed against the same judgment. 2. Through instant Criminal Appeal the appellant namely Ghulam Mustafa son of Ghulam Rasool Halepoto has sought his acquittal against the conviction awarded to him and remittance of compensation amount, while by Criminal Revision the complainant has prayed for enhancement of quantum of sentence of R.I.14 years already awarded to the appellant, and also to set aside acquittal of co-accused namely Muhammad Rafique and Punhoo vide same judgment under section 265-H(i), Cr.P.C. 3. Both parties have assailed the impugned judgment dated 27-8-2013 passed by the learned Sessions Judge, Tando Allahyar in Sessions Case No. 5/2012 (Old No. 119/2005), F.I.R. No. 31/2005, Police Station Tando Allahyar under sections 302, 324, 337-F(vi), and 34 P.P.C., whereby the appellant was convicted to suffer R.I. For 14 years and also to pay compensation of Rs.10,00,000 to the legal heirs of deceased under section 544-A, Cr.P.C. In case of failure in payment of compensation, the appellant shall further undergo S.I. For 6 months. However, he was extended the benefit of section 382-B, Cr.P.C. 4. Relevant facts leading to the prosecution case are that complainant Muhammad Hafeez lodged F.I.R. At Police Station Tando Allahyar stating therein that he owned 5-00 acres agricultural land at Hyderabad Mirpurkhas Road, which he has been cultivating since 1979. One Ghulam Rasool and his sons Ghulam Mustafa and Muhammad Rafique used to pressurize him to sell his land which is adjacent to their lands. Complainant was using 10 feet path of irrigation for visiting his land and
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accused persons had never objected since last 24/25 years. On 11-2-2005, he came at his land and found path was dismantled and ploughed, he inquired from accused persons that why had they dismantled his way upon which they replied that they would not allow him to use the path. Complainant then narrated such facts to Engineer Irrigation Naseer Division, who after inquiry issued certificate that said path was irrigation boundary. Complainant handed over said certificate to SDO Tando Allahyar and S.H.O. Tando Allahyar. After 4/5 days, SDO Tando Allahyar brought A.S.-I. At place of incident and after demarcation, allowed the complainant to use the path. Complainant used to visit his lands daily and two days prior to the incident, he appointed Syed Hussain Shah as Chowkidar of the path so that accused should not dismantle it. After 3/4 days, when he visited his land, accused issued threats not to use the path otherwise he would be killed, so complainant moved such application to police station. On the day of incident, Syed Hussain Shah Chowkidar informed him in the morning that above named accused had again dismantled the path and had issued threats of murder hence complainant moved another application to police. Complainant along with his sons, SIP Anti-Corruption Ghulam Muhammad and Bilal Hafeez came at the place of incident. At the petrol pump one Muhammad Maaz Bari came for purchasing petrol. In the meanwhile two vehicles came and above named persons came out from vehicles adjacent to the land of complainant. Accused Ghulam Mustafa was having a .12 bore shotgun, accused Muhammad Rafique was having a repeater and accused Punhoo Lashari was having a .7 MM Riffle and started firing upon the complainant party. Accused Ghulam Mustafa made straight fires upon Ghulam. Muhammad while others made fires upon complainant and others. Complainant took the shelter to save himself. It was 12.30 p.m. In the meanwhile one Suzuki loaded with sugarcane came and they also saw the incident of firing by the accused party. Accused persons fled away by car While accused Ghulam Mustafa was apprehended with his gun and vehicle. Suzuki driver disclosed his name as Abdul Rajput who was transporting sugarcane from the land of Haji Lakhadino to Hyderabad. Complainant alleged that on instigation of Ghulam Rasool, accused made fires and committed murder of his son Ghulam Muhammad. 5. After registration of F.I.R., police reached at the place of incident and arrested accused Ghulam Mustafa from the room of the office of Mujahid Petrol Pump and prepared memo of place of incident. Police arrested accused Punhoo Lashari from the gate of Taluka Hospital, Tando Allahyar in injured condition. After completing investigation, charge sheet was submitted in. Concerned Court against accused persons to face their trial. 6. Requisite documents were supplied to accused vide Exh.l. Charge was framed by the trial Court as Exh.2, but accused pleaded not guilty and claimed to be tried vide their pleas Exhs.3 to 5 respectively. 7. To establish its case, prosecution has examined P.W.1 complainant Mohammad Hafeez as Exh.6, who produced photo copy of his application moved to S.H.O. Police Station Tando Allahyar at Exh. 6/A, F.I.R. At Exh.6/B, receipt of receiving of dead body at Exh. 6/C. SIP Ghulam Hussain was called as court witness for his evidence in respect of application of complainant moved to S.H.O. Police Station Tando Allahyar, photocopy of which was produced by him at Exh.6/A. He was examined as CW-1 at Exh.7. P.W.2 Bilal Hafeez one of the eye witness of the incident as Exh.8, P.W.3 Moaz Bari who was present at the place of incident and witnessed the same, was examined at P.W.3 as Exh.9, P.W.4 Mujahid Hussain, the owner of Mujahid Petrol Pump where accused Ghulam Mustafa was made to sit and incident had also taken place near to said Petrol Pump, was .Examined as Exh.10, P. Ws. Abdul Rafique Mubarak Ali were died as such they were not examined vide statement as Exh.11 and learned DPP also given up both witnesses vide his statement at Exh.12, P.W. Inspector Pathan Khan Kaka was also not examined being not material witness, who was given up vide statement at Exh.
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13. P.W. A.S.-I. Ghulam Qadir Shoro was also not considered to be a material witness, hence he was given up vide statement at Exh.14., Prosecution also did not examine Syed Hussain Shah, he was given up vide statement at Exh.15. Dr. Abdul Latif, who had conducted postmortem of the deceased was examined as P.W.5 at Exh.16 who produced postmortem report of the deceased at Exh.17, letter of police for conducting postmortem at Exh.18, his letter to S.H.O. Tando Allahyar for collecting pallets recovered from the body of deceased at Exh.19, his letter addressed to S.H.O. Police Station Tando Allahyar in respect of final medical certificate at Exh.20. SIP Gul Sher, who had conducted investigation of above crime was examined as P.W.6 at Exh.21, he produced dead body examination from at Exh.22, inquest report at Exh.23, memo of dead body at Exh.24, memo of securing clothes of deceased at Exh. 25, memo of place of incident and recovery at Exh.26, memo of arrest of accused Ghulam Mustafa and recovery of gun as Exh. 27, memo of arrest of accused Punhoo as Exh.28, memo of arrest of accused Ghulam Rasool Halepoto (who was subsequently let off by the police and whose name was placed in column No.2) as Exh.29. Letter to Mukhtiarkar for deputing Tepedar for preparation of sketch of place of incident as Exh.30. Another memo of arrest of accused Ghulam Mustafa and recovery of gun as Exh.31, letter of S.H.O. Police Station Tando Allahyar addressed to S.H.O. Police Station Nasarpur at Exh.32, roznamcha entry dated 20-5-2005 at Exh.33, special report at Exh.34, Chemical Examiner report at Exh.34/A, FSL report at Exh. 34/B, CTC of crime No. 35/2005 under section 13-D Arms Ord. At Exh. 34/C, CTC of deposition of SIP Gul Sher before Judcial Magistrate in respect of 13-D case at Exh.34/D, map of the place of incident prepared by I.O. At Exh.34/E. On application under section 540, Cr.P.C. Moved by learned counsel for accused, DSP Jameel Ahmed Siyal was examined as CW-1 as Exh.35, who produced reinvestigation report at Exh.36, letter of AIGP Crime addressed to AIGP Investigation at Exh.37. Photographs of place of incident as Exh.38/A to Exh.38/D. Letter to Executive Engineer Irrigation at Exh.39, rough sketch of place of incident at Exh.40, statement of complainant Muhammad Hafeez at Exh.41, investigation report at Exh.42. Tapedar Ali Muhammad being well-conversant with the signature and handwriting of late Tapedar Abdul Aziz, who had visited the place of incident and prepared sketch of the place of incident, was examined as P.W.7 at Exh.43. He produced sketch of the place of incident at Exh.44. Learned DPP vide his statement as Exh.45, closed the side of the prosecution. 8. Statement of appellant Ghulam Mustafa under section 342, Cr.P.C. Was recorded as Exh.46, whereby, he denied the allegations levelled by the prosecution and claimed to be innocent. He further stated that P. Ws. Have deposed against him due to enmity. He did not examine himself on oath, however, he examined Aftab Ahmed Soomro, (Rtd. Deputy Commissioner and A.S,-I. Ghulam Qadir as defence witnesses, and also filed his written statement under section 265-F(5), Cr.P.C. And produced certified photo copies of plaint of suit No.3/2005, Ghulam Mustafa and others v. Muhammad Hafeez, plaint of Suit No.33/2005, Ghulam Mustafa and others v. Government of Sindh and others, Interim order on application under Order XXXIX Rules 1 and 2 C.P.C., photo copy: of F.I.R. Drafted in hand writing of Aftab Soomro, Deputy Commissioner, copy of application under section 22-A, Cr.P.C. Filed on 7-4-2005 before the court of learned Sessions Judge, Hyderabad, copy of order passed on said application, copy of acquittal Judgment in case of 13-D of Arms Ordinance, copies of Judgment and Decree passed in Suit No.33/2005 for cancellation of letter of sanction issued by Irrigation Engineer as Irrigation Boundary as annexures A to J respectively. 9. Statement of accused Punhoo under section 342, Cr.P.C. Was recorded as Exh.46, whereby he denied the alleged offence and claimed to be innocent and stated that P.Ws. Have deposed against them due to enmity, and he produced his statement under section 265-F(5), Cr.P.C. As annexure B, however, neither he examined himself on oath nor led defence. 10. Statement of accused Rafique under section 342 Cr.P.C. Was recorded as Exh.47, whereby he denied the alleged offence and claimed to be innocent and stated that P. Ws. Have deposed against him due to enmity. He produced his statement under section 265-F(5), Cr.P.C, two
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certificates issued by Rashid Memorial Welfare Organization certifying that, he was on duty on 3-4- 2005 as Canteen Supervisor from 9-00 a.m. To 3-00 p.m. As annexure A to C respectively. He did not examine himself on oath, but he examined Muhammad Sadiq, Chief Security officer and Nadeem Akhtar, Admn. Officer of Rashid Memorial Welfare Organization of. Tando Allahyar. Muhammad Sadiq, Chief Security Officer of Rashid Memorial Welfare. Organization of Tando Allahyar, as D.W-1 as Exh.50, Nadeem Akhtar, Admn Officer of Rashid Memorial Welfare Organization of Tando Allahyar as DW-2 as Exh.51, Aftab Ahmed Soomro as DW-3 as Exh.52 and A.S.-I. Ghulam Qadir as DW-4 as Exh.53. Defence closed its side for evidence as Exh.54. 11. On the basis of prosecution evidence, learned trial Court formulated the following points for determination:- (1) Whether on 3-4-2005 at 1230 hours at the land of complainant Muhammad Hafeez situated near Mujahid Petrol Pump, Tando Allahyar, deceased Ghulam Muhammad had received firearm injury and met with his unnatural death? (2) Whether on the above said date time and place, accused Ghulam Mustafa alias Raja, Punhoo. Lashari and Muhammad Rafique with their common intention had issued fires upon deceased, Ghrdam Muhammad and committed his murder? (3) What offence, if any, has been committed by the accused? (4) What should the decision be? 12. Learned trial Court after considering the evidence adduced by the prosecution and defence, convicted accused Ghulam Mustafa alias Raja and acquitted accused Muhammad Rafique and Punhoo Lashari. 13. We have heard Mr. Hidayatullah Abbasi, learned counsel for the appellant, Mr. Shahid Ahmed Shaikh, learned A.P.-G. For the State and Mr. Muhammad Aslam Bhatti, learned counsel for the complainant at the length and have scrutinized the record with their assistance. 14. Mr. Hidayatullah Abbasi, learned counsel for the appellant has contended that appellant is innocent and was falsely implicated by the complainant by concealing material facts in F.I.R. As such his entire evidence has lost its evidentiary value. He further contended that as the deceased was SIP in Anti-Corruption police as such Chacha Murtaza (Rtd) DIG Police, Aftab Ahmed Soomro DC and Mulazim Hussain DSP Anti-Corruption remained present at P.S and they have malafidely lodged the F.I.R. With due deliberation after 4.30 p.m. While in F.I.R. Its time was falsely mentioned at 1.00 p.m. P.Ws. Have admitted that at the time of lodging of F.I.R. Those Senior Police Officers were present at police station. 15. He further urged that complainant has not mentioned in F.I.R. For causing maltreatment to the appellant by him and also detaining him in a room of Petrol pump. P.Ws. Being relatives and close friends of complainant, are interested as such they deposed falsely against the accused. Complainant himself got reinvestigation of the case through Crime Branch Police, where he in his statement had stated that he had implicated accused Ghulam Rasool and Rafiq in hot haste, as such this admission is sufficient to falsify the entire prosecution story. Due to influence of senior officers, police had not investigated the case properly and honestly and even police had refused to lodge counter F.I.R. Of the appellant for causing injuries by the complainant party, therefore, such F.I.R. Was lodged by accused under the order of Justice of Peace. The appellant has already been acquitted under section 13-D Arms Ord. 16. He further contended that under the dictation of Senior Police Officers F.I.R. Was lodged at Police Station Tando Allahyar, while the incident had occurred in Deh Qubi which falls within the jurisdiction of Police Station Nasarpur as SHO Police Station Tando Allahyar, SIP Gul Sher was in league with retired DIG and DC, however F.I.R. No. 6/2005 which was lodged by the accused under the order passed by Sessions Judge/Justice of Peace, Hyderabad at Police Station Nasarpur. He further contended that admittedly, Survey No. 127 owned by the appellant falls within Deh Amri and
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P.W-7 Qazi Ali Muhammad, Supervising Tapedar has admitted in his evidence that the place of incident has been shown in Survey No. 127 of Deh Amri. Point A has been shown as place where the dead body of deceased was lying and at point B petrol pump has been shown. The distance between point A and B are shown as 20 Ft. Point D is the office of the petrol pump which is at the distance of 263 ft from the point A, therefore, claim of P.W.4 Mujahid Hussain that he is witness the incident could not be believed as admittedly at the time of alleged incident he was sitting inside his house. The disputed path is situated on the land of appellant in Survey No.127 which falls in Deh Armi. The complainant malafidely has not mentioned in F.I.R. Regarding the injuries caused to the appellant and co-accused Punboo as such his statement cannot be believed. 17. He further contended that the appellant filed suit against complainant on 2nd April 2005 while incident took place on very next day i.e. 3-4-2005. P.W.5 I.O. SIP Gul Sher has made two statements regarding the recovery of gun from the appellant as at first hand he deposed that he recovered shotgun from the accused, while in cross he admitted that gun was handed over to him by the complainant and accused was in semi unconscious condition. I.O. Further admitted that place of incident was Deh Qubi as he came to know through Tapedar. He further contended that allegedly incident occurred at 12.30 p.m. And then dead body was shifted to Civil Hospital Tando Allahyar where postmortem was conducted by Doctor and completed the same at 4.30 P.M, while the complainant has admitted in his evidence that from place of incident he went to Civil Hospital and after postmortem he lodged F.I.R. At Police Station Tando Allahyar at 1.00 p.m. Which is not the case of lodging of F.I.R. With delay, but is a case of committing fraud while lodging the F.I.R. 18. He vehemently contended that allegedly complainant caught hold of the appellant and snatched the shotgun from him and same was sent to Ballistic Expert, and as per report, said shotgun was not used during the incident. He further contended that complainant stated that fire was made from the distance of 25 ft as such it was not possible for the complainant to catch hold of the appellant and snatched shotgun from him and even as per postmortem report bleeding of wounds and all injuries were caused on the chest which is not possible if the fire was made from shotgun from a distance of 25 ft. He further contended that Ballistic Report and postmortem report are conflicting as the number of the cartridges and size of pellets are different. As per Mushirnama empties were recovered near the dead body, but it was not possible because allegedly fire was made from a distance of 25 ft. He further contended that the learned trial Court has not considered the cross-examination conducted by the defence counsel and has only relied upon the examination-in-chief of the complainant and other P.Ws. Appellant had produced 22 documents along with his statement, but same were not discussed at all in the impugned judgment and even case law cited by the defense counsel were not considered by the learned trial Court. He further contended that motive was with the appellant and not with the complainant as it was case of the complainant that path from the appellant land was acquired by irrigation department for common use, but appellant had filed suit against such permission of irrigation department and against the complainant and his suit was decreed declaring that there was no path from appellants land and the documents of the irrigation department which were relied upon by the complainant was declared as bogus, therefore, learned trial Court has wrongly held in impugned judgment that motive was on the side of the appellant and not the complainant. The improvements made by P.Ws. And concealment of major facts by them had made the case of prosecution highly doubtful. He lastly urged that co-accused were acquitted on same set of evidence, therefore, appellant may also be acquitted on the well settled principle of consistency. He has relied upon PLD 1953 Federal Court 93, 2011 PCr.LJ 1801, 1992 PCr.LJ 2092, 1993 SCMR 550, 2007 SCMR 605, 2011 SCMR 629, 1995 SCMR 1345, 2008 SCMR 1572, PLD 1986 Pesh. 188, 2007 SCMR 1825, 1990 SCMR 158, 1998 PCr.LJ 779 Karachi, 2011 SCMR 513, 2010 SCMR 97, 2003 SCMR 1374, 1970 PCr.LJ
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652, 1991 PCr.LJ 2253 Karachi, 1987 PCr.LJ 1502 Karachi, 1994 SCMR 1928, 2004 PCr.LJ 942 Karachi and 1998 PCr.LJ 1876 Karachi. 19. Mr. Muhammad Aslam Bhatti, learned counsel for the complainant has contended that complainant is owner of 4-30 acres of land in Survey No.125 which is situated at the verge of Survey No.127 and accused were compelling the complainant to sell his land. The motive of the offence is very much available in F.I.R. And all P.Ws. Have stated that appellant had caused fire arm injury to the deceased which hit him on the left side of his chest. Ocular evidence is also corroborated by the medical evidence, and minor contradictions will not negate the entire evidence of the prosecution witnesses. 20. He further contended that appellant had created false drama by filing counter F.I.R. No.6 of 2005 against the complainant party only to save them from the consequences of heinous crime of murder committed by them. He lastly contended that criminal appeal is liable to be dismissed and criminal revision may be allowed and accused persons may be awarded death sentence, as they had committed murder of the deceased. He has relied upon 2010 SCMR 1719, 2009 SCMR 99, 2011 SCMR 1148, 2000 YLR 65, 2010 SCMR 166, 1973 SCMR 219 and 1988 SCMR 370. 21. Mr. Shahid Ahmed Shaikh, learned APG has adopted arguments advanced by the learned counsel for complainant. He has contended that prosecution has proved its case against accused by examining material witnesses, therefore, criminal appeal is liable to be dismissed. 22. To unfold the truth of the controversy, we would like to scrutinize the evidence of complainant and other main P.Ws.. 23. Relevant portions of evidence of P.W.1 complainan't Muhammad Hafeez (Exh.6) are repraduced as under:-- "This incident had taken place on 3-4-2005. At that time I along with my sons deceased Ghulam Muhammad and Bilal Hafeez went to our land situated in Deh Amri, Tando Allahyar. When we reached, we noticed Rafique and Ghulam Mustafa were available there. ' Accused Ghulam Mustafa threatened us that in case we would go to our land, we would be murdered. After receiving such threats I went to Police Station Tando Allahyar along with my son Ghulam Muhammad and submitted a written application and obtained receipt of the same. I produce photo copy of my application at Exh.6/ A. After filing application at Police Station, I came back on my land and noticed that accused were not available there. We waited for police but The police did not cOme. At about 1130 hours 4twa vehicles came, in one Ghulam Mustafa,4his brother Baga alias Rafique, hari of Ghulam Mustafa namely Punhoon and in other car father of accused Ghulam Mustafa namely Ghulam Rasool and two unknown persons came. Accused Punhoon, Rafique and Ghulam Mustafa alighted from the vehicle. Accused Ghulam Mustafa was holding. DBBL Gun, Punhoon had rifle .7 MM and Rafique had repeater. Accused Ghulam Mustafa issued straight fire upon me as I was standing at the corner of my land but suddenly my son came and pushed me aside and fire hit him on his chest. My son fell down on the ground and died at the spot. I caught hold accused Ghulam Mustafa, snatched gun from him and beaten him. Several other persons gathered at the spot who also beaten the accused. We brought accused Ghulam Mustafa at petrol pump in the meantime police reached at the spot. Rafique and father of accused Ghulam Mustafa namely Ghulam Rasool left the place in white car whereas we handed over accused Ghulam Mustafa to police and his companion Punhoon and his brother Baga had fled away. Police collected empty cartridges and empty bullets of .7 MM rifle 3 and 4 in number. I then went to Police Station Tando Allahyar again says first of all we went to hospital where the dead body had already been dispatched. Doctor conducted post mortem of deceased and I then came to Police Station Tando Allahyar and lodged F.I.R. It is a fact that I have not mentioned in F.I.R. That in other car, father of accused namely Ghulam Rasool and two unknown persons came and remained sitting in it. It is a fact
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that I moved an application for reinvestigation of crime and my statement was recorded by Crime Branch Police. I see my statement recorded by Crime Branch and say that it bears-my signature. Accused Ghulam Mustafa issued fire from the distance of about 25 feet. Other accused Rafique alias Baga was also at the same distance and issuing fire in the air. I reached at the hospital at 4.00 or 4.30 PM. I know DSP Moulazim Hussain of . Anti-Corruption. I also know (Rtd) DIG Chacha Murtaza. I also know Aftab Soomro (Rtd.) DC. They all had come at P.S before lodging of F.I.R. It is incorrect to suggest that due to our firing my son received firearm injuries and died at the spot. It is a fact that in F.LR. It is not mentioned that after apprehending accused Ghulam Mustafa, I beaten him so also other persons. It is a fact that it is also not mentioned in F.I.R. That 1 locked the accused in the room of petrol pump." (Emphasis added) 24. Relevant portions of evidence of P.W.2 Bilal Hafeez (Exh.8) are reproduced as under:-- "On the day of incident I along with my father and deceased brother had gone to our land situated in Deh Abri, Tando Allahyar. We noticed that Ghulam Mustafa and Rafique were available there who threatened us not to go on our land otherwise would be killed. 1 remained there whereas my father and deceased brother went to Police Station Tando Allahyar. After about half an hour, they both came from Police Station, as we were available" on our land, two vehicles came. Accused…
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