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Official Citation: 2024 YLR 328
Court / Jurisdiction: Federal Shariat Court
Year of Decision: 2023
Decision Date: 2023-12-31
Ruling Summary: This decision was rendered by the Federal Shariat Court on 2023-12-31, officially reported as 2024 YLR 328. In this matter between the Petitioner and the Respondent, 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 328
Court Name: Federal Shariat Court Judge(s):Khadim Hussain M. Shaikh, Syed Muhammad Anwar, Muhammad Noor
JUDGMENT
Reported As: 2024 YLR 328 Result: Appeal allowed Judgment
JUDGMENT MUHAMMAD NOOR MESKANZAI, C.J. At the very outset, it is pertinent to mention that appellant Sholo alias Rasool Bux for the second time is before this Court, previously he had filed Jail Cr. Appeal No. 15/1/2019 before this Court against judgment dated 29.06.2019. This Court, after hearing the learned Counsel for the parties allowed the appeal and remanded the case vide judgment dated 30.10.2019, relevant portion is reproduced as under: "For what has been discussed above and with the consent of the parties, we are inclined to accept the appeal and set aside the conviction recorded vide judgment dated 29.06.2019 and remand the case to the trial Court with direction to further examine the accused under section 342, Cr.P.C by putting all the relevant pieces of evidence sought to be used against the accused. The Jail authorities must ensure production of the accused before the Court for further examination of the accused under section 342, Cr.P.C. The trial Court shall conclude the proceedings within one month after the receipt of this judgment and record of case." 2. The trial Court, after compliance with the remand Order, once again found the appellant guilty of the offence and awarded the following sentence: "accused Sholo alias Rasool Bux son of Manglo Shar is convicted under section 265 (II). Cr.P.C. and sentenced to death penalty, by hanging him through neck till his death, as provided under section 302(b), P.P.C. and to pay Rs. 200,000/- compensation to LRs of deceased Hidayatullah as provided under section 544-A, Cr.P.C. in case of default he shall suffer R.I for one year." Benefit of Section 382-B, Cr.P.C was extended to the appellant.
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3. Feeling aggrieved with the conviction recorded and sentence awarded this Criminal Appeal has been preferred in this Court. The learned trial Court has sent Murder Reference to this Court for confirmation of death sentence awarded to appellant Sholo alias Rasool Bux. 4. Through this single judgment we propose to dispose of the above-referred two connected matters i.e. Jail Crl. Appeal No.3/I of 2021 'Sholo alias Rasool Bux v. The State.' and Crl. Murder Reference No.2/I of 2021 'The State v. Sholo alias Rasool Bux' as both arise out of a common judgment dated 24.02.2021 passed by the learned Additional Sessions Judge (Hudood) Sukkur Camp at Central Prison-I, Sukkur. 5. Brief facts of the case are that FIR No. 18 of 2006 was lodged by the complainant Allah Dino at Police Station Geehalpur, District Kashmore on 27.09.2006 wherein he alleged that on 26.09.2006 at 05:30 p.m. he along with his sons Sanaullah and Ali Dost were in their house, when they heard cries of "Robbery, Robbery", raised by his son Hidayatullah who was returning back after grazing his cattle. On the said hue and cries, he along with his sons Sanaullah and Ali Dost went towards the place of noise where they saw Sholo alias Rasool Bux armed with K.K, Miandad with Rocket Launcher, Sultan with Rocket Launcher, Soomro with K.K, Yaseen, Dodo, Melao alias Melo, Habib, Jallan, Saindad, Shandad, Basheer son of Saindad, Bishak, Mehrab, Basheer son of Muhammad Hassan, Hassan, armed with K.Ks, all by caste Shar resident of village Katcha area Geehalpur, Taluka Kashmore and 10 unidentified persons armed with K.Ks had encircled Hidayatullah. Accused Sholo alias Rasool Bux challenged and told the complainant that he has unlawfully occupied their land as such they will not spare him (complainant party), saying so all the accused persons on the force of weapons drove cattle of complainant party. Hidayatullah tried to grapple with them, on that accused Sholo alias Rasool Bux fired at Hidayatullah with his K.K which hit him and he fell down by raising cries. The rest of the accused made aerial firing in order to create terror and harassment. On receipt of injury on his neck Hidayatullah succumbed to his injury. The complainant and his son were armless, therefore, could not do anything, however, on report of gunshot fire the other villagers reached at that venue but accused went towards southern side along with cattle. 6. Mehrab son of Mughal and Bashir son of Muhammad Hassan were arrested on 02.10.2006 whereas the rest of the accused remained absconder and the record shows that Mehrab and Bashir absconded from the jail. Similarly, two other accused persons namely Jallan son of Balo and Bashir son of Saindad were arrested on 10.12.2012 who have also absconded. Present appellant Sholo alias Rasool Bux and acquitted accused Bashir son of Muhammad Hassan were arrested from jail on 10.12.2012 as they were already in jail in connection with some other case. 7. The case was initially tried by Anti Terrorism Court-II Sukkur and subsequently transferred to the file of Sessions Judge Kashmore at Kandhkot on 15.11.2018. 8. Charge was framed on 14.03.2019 to which the accused did not plead guilty and claimed trial. The prosecution examined as many as seven witnesses to prove its case. 9. After remand of the case, the learned trial Court recorded fresh statement of accused Sholo alias Rasool Bux under Section 342, Cr.P.C. wherein the accused denied all the allegations and pleaded innocence. Neither he proposed to record his statement under Section 340(2), Cr.P.C nor opted to produce defence witnesses. The learned trial Court, after hearing the parties, found accused Sholo alias Rasool Bux guilty of offence and sentenced him as mentioned in Para-2. 10. The learned Counsel for the appellant while reiterating the grounds of appeal inter-alia contended that the FIR has been lodged with inordinate delay without explanation but the trial Court while appreciating the facts of the case failed to adhere to this legal aspect. According to the learned Counsel, the FIR was lodged after deliberation, consultation and a number of persons being armed with respective weapons have been nominated. It was further submitted that there is no independent evidence to support the prosecution case. All the PWs are inter-se related, therefore, being interested witnesses the trial Court must have had appreciated the evidence with
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care and caution keeping in view the relationship of the witnesses. The learned Counsel maintained that the witnesses have not supported each other on material points. According to the learned Counsel for the appellant, the story put forth by the prosecution does not appeal to a prudent mind, as it is not possible to form such a huge assembly just for robbery of some cattle. The learned Counsel further maintained that the appellant has been ascribed of causing one injury, therefore, the capital sentence in such circumstances was not warranted at all. She prayed for acquittal of the convict. 11. The learned Counsel for the complainant while controverting the arguments addressed by the learned Counsel for the appellant contended that the prosecution has proved its case to the hilt. No doubt, apparently there is delay in lodging of FIR but plausible explanation has been offered by the prosecution. Admittedly, there was no conveyance and since the incident took place at 05:30 p.m. and thereafter without facility of any conveyance it was not possible for the complainant to remove the dead body to police station and lodge FIR. The witnesses being inmates of house were available and their presence is natural, upon call of the victim they reached at the venue. The witnesses have narrated the facts, as had happened in a natural way without exaggeration. Despite lengthy cross-examination, all the witnesses stuck to their gun. Hence, in such circumstances, mere delay itself cannot be treated as a ground to wash out the prosecution case. The trial Court, after proper appraisal of evidence, awarded death sentence, which is the normal sentence in such state of affairs. The appellant remained absconder for almost six years, which is an additional ground to support the contention that appellant being the principal accused intentionally and willfully remained absconder, besides the appellant is a desperate and hardened criminal as a couple of cases have been lodged against him, the copies of respective FIRs would be produced before this Court. He prayed for dismissal of appeal. 12. The learned Additional Prosecutor General Sindh adopted the arguments of the learned Counsel for the complainant and submitted that the trial Court, after proper appraisal of material available on record, has rightly recorded conviction, which is not open to any legal exception. Hence, the appeal be dismissed and Murder Reference be answered in affirmative. 13. I have heard the learned Counsel for the parties and have gone through the record minutely. The perusal of the record reveals that the incident took place in the year 2006, whereas the trial Court for the first time concluded the trial in the year 2019 for the reasons, firstly, the accused remained absconder for a long period and in this case for the first time was arrested in the year 2012, while he was already in custody in another case. Secondly, the case was initially proceeded with by Anti-Terrorism Court and subsequently transferred to the file of Additional Sessions Judge/Model Criminal Trial Court Judge, Kandhkot. The trial so conducted culminated in conviction of the appellant while the co-accused Bashir was acquitted. The convict challenged his conviction, appeal was allowed and case was remanded for the reasons contained in judgment dated 30.10.2019. 14. After remand, the trial Court observed the legal formalities and complied with the observations, again found the appellant guilty of offence and awarded capital punishment. The conviction is based on 'ocular account, medical evidence and recovery of shells as corroborative piece of evidence. Ocular account was furnished by two PWs i.e. complainant, father of victim and PW Ali Dost. The complainant narrated the facts in a natural way, supported the contents of FIR in letter and spirit. Lengthy cross-examination was conducted but the learned Defence Counsel failed to shake and shatter the statement. No omission, contradiction or improvement could be brought on record. Similarly PW Ali Dost, who too was an eye-witness of the incident, supported PW Allah Dino on each and every material aspect. During the course of cross- examination the PW stuck to his gun despite lengthy cross-examination nothing favourable to accused could be extracted.
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15. PW M.O Doctor Mushtaq Ahmed produced MLC and postmortem report. MLC corroborates ocular account in as much as -the PWs deposed that the firing was made from a very short distance. The presence of blackening on entrance wound corroborates the ocular account. Although no recovery of crime weapon was effected as admittedly the convict was arrested after six years but nevertheless the recovery of empty shells from venue cannot be over looked. The recovery of empty shells of various kind of weapons also corroborate the ocular account, inasmuch as, the accused were numerous and armed with different kind of weapons. Except very minute and immaterial contradiction, the prosecution evidence is straight forward, coherent, confidence inspiring and not suffering from any defect rendering it inadmissible. PW Haji Badal and I.O. supported the prosecution case and remained firm to their stance without having been shaken. Admittedly, PWs are inter-se related but mere relationship is not fatal for acceptability of statement unless it suffers from any inherent defect or the PW be bent upon to book the accused falsely by improving his version dishonestly, or the statements do not ring true or being a chance witness, one cannot offer plausible explanation for his presence at the venue. Admittedly, venue is located at a distance of about 200 paces from the house of victim, where the complainant along with victim and other PW Ali Dost, Sanaullah and rest of the family members resided. This position has not been disputed. The presence of inmates in house and particularly in rural area at the evening time is a natural phenomenon. Moreover, throughout cross-examination the presence of eye-witnesses have not been disputed nor denied. Therefore, no reason to doubt the presence of eye-witnesses at venue. 16. Of course, there is delay of more than twelve hours in lodging FIR, but in my opinion the delay has been explained plausibly. The victim after sustaining injury instantaneously expired. From the very beginning it has been stated that due to non-availability of conveyance they could not remove the dead body to police station. Even by removal of dead body from venue to house the night might had fallen. Early in the morning without wasting time and by arranging conveyance the dead body was removed to police station. The statements under Section 161, Cr.P.C. of the PWs were recorded on the same day. Therefore, at night time journey to police station located at a distance of 5 k.m. might not have been safe. Secondly, delay is understandable, the complainant party helplessly observed the death of a family member with their naked eyes. Fear of another attack though not expressed by them categorically yet such apprehension prevailing upon their mind cannot be ruled out particularly in the wake of conduct and whereabouts of the accused party. Some accused were arrested but they made their escape good even from jail. Some accused are still absconder and by now only one accused was found guilty whereas one accused has been acquitted. In such circumstances, to stuck on a technicality i.e. the delay, perhaps may not be a legal and viable approach nor would serve the ends of justice. The trial Court rightly concluded that the delay has plausibly been explained. 17. Appellant remained absconder for a considerable period. He was arrested from jail when he was under custody in another criminal case. The list of cases provided by Counsel for complainant in Sindhi language, the detail is as under: 1. FIR No. 17/2001 at P.S. Gheehal Pur offence under Sections 13-D, 7-C Arms Ordinance; 2. FIR No. 07/2003 at P.S. Gheehal Pur offence under Sections 337-A(ii), F(i), 147, 148, 149, 114, 504, P.P.C. and Section 13-A Arms Ordinance; 3. FIR No. 17/2010 at P.S. Gheehal Pur offence under Sections 324, 353, 401, 148, 149, P.P.C.; 4. FIR No. 14/2010 at P.S. Gheehal Pur offence under Sections 324, 353, 401, 148, 149, P.P.C. and Section 13-D Arms Ordinance.; 5. FIR No. 03/2010 at P.S. Gheehal Pur offence under Sections 324, 353, 147, 149, P.P.C.; 6. FIR No. 13/2009 at P.S. Gheehal Pur offence under Sections 302, 337-H(ii), 148, 149, 114, P.P.C. ; 7. FIR No. 42/2011 at P.S. Gheehal Pur offence under Sections 324, 353, 148, 149, P.P.C.;
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8. FIR No. 20/2008 at P.S. Gheehal Pur offence under Sections 324, 147, 149, P.P.C. and Section 3/4 EXP. Act; 9. FIR No. 23/2008 at P.S. Gheehal Pur offence under Sections 17(1), 17(2) Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and Sections 147, 149, P.P.C.; 10. FIR No. 18/2006 at P.S. Gheehal Pur offence under Sections 17(3), 17(4) Offences Against Property (Enforcement of Hudood) Ordinance, 1979, 3/4 EXP. Act, 7 ATA and Sections 147, 149, P.P.C.; 11. FIR No. 18/2002 at P.S. Gheehal Pur Offence under Sections 379, 215, P.P.C. 12. FIR No. 31/2011 at P.S. Miani Badani offence under Sections 324, 511, 427; 504, 337-H(ii), 148, 149, P.P.C., 6/7 ATA and 3/4 EXP. Act; 13. FIR No. 11/2009 at P.S. Gheehal Pur (Katcho) offence under Sections 365-A, 148, 149, P.P.C., 6/7 ATA and 17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979; Urdu translation reflects that appellant is involved in a couple of heinous cases. The list contains that more than 11 FIRS lodged at Police Station Geehalpur and one FIR at Police Station Miani wherein the appellant was nominated in different offences mostly regarding attempt to qatl-i- amd, assault, robbery, dacoity etc. Responding to question regarding abscontion he admitted his abscontion with the explanation that due to tribal enmity he absconded but during this period he indulged in criminal activities. Of course, no judgment regarding fate of the above cases has been placed before us, nevertheless, the worth of the FIRs and allegations contained therein carry sufficient weight and reflect the conduct of the accused. 18. Finally, as per the prosecution case, besides robbery of buffalos the dispute over landed property was also a set up as motive. As per statements of PW.1 and PW.2 the complainant party was threatened to vacate the village. Motive to this extent was even admitted by defense counsel by giving such suggestion in cross-examination. Moreover, the convict, while recording his statement under Section 340(2), Cr.P.C. on 19.04.2017 before Judge, Anti-Terrorism Court, Kashmore at Kandhkot, categorically stated that they have been nominated in this case on account of dispute over landed property. He nce, the motive also stands proved and corroborates the prosecution case. It is pertinent to mention here that though after remand the accused did not record his statement before trial Court under Section 340(2), Cr.P.C., nevertheless, his earlier statement under Section 340(2) is part of the record and cannot be ignored. 19. As a sequel to above discussion, it can safely be concluded that the prosecution proved the guilt to the hilt beyond any shadow of doubt. The trial Court after proper appreciation of material available on record rightly recorded conviction to which no exception can be taken. The record reveals that the convict has been nominated in more than 10 cases of heinous nature, such a conduct i.e. his involvement in a series of heinous cases create a legal impediment in his way for leniency as far as quantum of sentence is concerned. Therefore, the appeal is dismissed and the Murder Reference is answered in affirmative. Sd/- Justice Muhammad Noor Meskanzai, Chief Justice I have appended my separate note. Sd/- Justice Dr. Syed Muhammad Anwer, Judge With due regards and utmost respect for my Hon'ble brother Judge Mr. Justice Muhammad Noor Meskanzai 1 am not in agreement with the finding of guilt of the appellant rendered by him, therefore, I have rendered my own separate judgment. Sd/-
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Justice Khadim Hussain M. Shaikh, Judge JUDGMENT KHADIM HUSSAIN M. SHAIKH, J. I have had a privilege to go through the judgment authored by my Hon'ble brother Judge Mr. Justice Muhammad Noor Meskanzai, the Chief Justice, having also gone through the record and evidence minutely. In my considered opinion, this is a case of acquittal, therefore, I am unable to concur with the finding of guilt of the appellant, rendered by his lordship Mr. Justice Muhammad Noor Meskanzai, for the following reasons:- 2. From a perusal of the record, it would be seen that the alleged incident was shown to have taken place on 26.09.2006 at about 05:30 p.m, while the subject FIR was lodged on 27.09.2006 at 07:15 a.m. i.e. after about 14 hours of the incident; the distance between the place of incident and the police station as shown in the FIR Ex.11/A was only 5/6 kilometers and in my humble view the report relating to the incident could be lodged by the complainant party within an hour by covering such distance of 5/6 kilometers even by foot; the statement under Section 161, Cr.P.C of alleged eye- witness Ali Dost, who happened to be the son of complainant Allah Dino and real brother of deceased Hidayatullah, was recorded with further delay of more than six hours even from the lodgment of the FIR, as is evident from the deposition of Investigating Officer Inspector Amanullah Shah, who has stated that "I recorded the statement of PW Ali Dost at 01:00 or 01:15 p.m, I recorded the statement of PW Ali Dost on the same day when PC Zulfiqar produced the blood stained clothes of deceased before me", despite the fact that per prosecution PW Ali Dost remained available at the police station from 07:00 a.m. till dispatch of the dead body to hospital at 10:00 a.m. and there is no plausible explanation for such an inordinate delay in lodgment of the FIR and in recording statement of the said PW; it is reiterated that the delay in lodgment of the FIR has been viewed with grave suspicion, how much it throws clouds of suspicion on the seeds of prosecution, depends upon a variety of factors, it requires careful scrutiny when number of accused is large; if such delay having resulted in embellishment, being a creation of afterthought, going to the extent of being fatal to the prosecution case, assumes great importance in absence of convincing explanation, which prima facie points out to fabrication of the prosecution story, like the case one in hand, in which such an inordinate delay in lodgment of the FIR and in recording statement of the PW under Section 161 Cr.P.C without plausible .explanation thereof, in the wake of previous hostility between the parties over the landed property as is reflected from the FIR, more particularly, when 16 persons with their names parentage and addresses, most of them belonging to one and the same family, along with 10 unknown persons, are implicated in this case by throwing very wide net, being significant could not be lost sight of, and under the given circumstances, the possibility of false implication of the appellant after consultations and deliberaticiis could not be ruled out. Reliance in this context is placed on the case of Akhtar Ali and others v. The State (2008 SCMR 6), wherein the Hon'ble Supreme Court of Pakistan has held that:- "It is also an admitted fact that the FIR was lodged by the complainant after considerable delay of 10/11 hours without explaining said delay. The FIR was also not lodged at Police Station as mentioned above 10/11 hours delay in lodging of FIR provides sufficient time for deliberation and consultation when complainant had given no explanation for delay in lodging the FIR." In the case of Ayub Masih v. The State [PLD 2002 SC 1038], the Hon'ble Supreme Court of Pakistan has held that: "Unexplained inordinate delay in lodging the FIR is an intriguing circumstance, which tarnishes the authenticity of the FIR, casts a cloud of doubt on the entire prosecution case and is to be taken into consideration while evaluating the prosecution evidence. It is true that unexplained delay in lodging the FIR is not fatal by itself and is immaterial when the prosecution evidence is strong
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enough to sustain conviction but it becomes significant where the prosecution evidence and other circumstances of the case tend to tilt the balance in favour of the accused." In case of Muhammad Asif v. The State [2017 SCMR 486], the Hon'ble Supreme Court of Pakistan has held that: "There is a long line of authorities/precedents of this Court and the High Courts that even one or two days unexplained delay in recording the statements of eye-witnesses would be fatal and testimony of such witnesses cannot be safely relied upon." 3. On my own independent evaluation of the evidence, I find that it was day time incident, for, on 26.09.2006 (the date of incident) the sunset time in the vicinity, where the alleged incident had taken place was at 06:20 p.m. and the offence was shown to have taken place at 05:30 p.m. i.e. 50 minutes before the sunset time and needles to say that from sunset to dusk there is always span of nearly 40 to 50 minutes there; PW Ali Dost Shar, who claimed himself to be one of the eye- witnesses of the occurrence, attempting to improve the prosecution case, stated in his evidence that "it as odd hours of the night and there was no conveyance, therefore, we did not proceed to PS at that time", which even otherwise could hardly be termed to be a plausible explanation for such an inordinate delay of 14 hours in lodgment of the FIR; PW Ali Dost, who per prosecution, accompanying the mashirs and police, went to the place of vardhat and showed them that place, has stated that "Investigating Officer Inspector Amanullah Shah proceeded from PS to place of vardhat along with us just after our reaching at PS Geehalpur; and, I.O secured 20 empty bullets of K.Kov and 20 empty bullets of G.3 rifle from the place of vardhat lying in scattered manner"; while Investigating Officer Inspector Amanullah Shah has deposed that "I secured 20 empty bullets of G.3 rifle, 40 empty bullets of 7.62 bore (bore of Kalashnikov) and 5 empty cartridges of .12 bore" (bore of shot gun) and whereas PW mashir Haji Badal has deposed that "the police secured 40 empty bullets of K.Kovs and 20 empty bullets. of G.3 rifles", seeing the case property, he went on to depose that "the case property available in the Court viz 60 empty bullets and clothes of the deceased are same whereas five empty cartridges of .12 bore available with the case…
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