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Petitioner: Abdul Hafeez @ Mumtaz Kalhoro & another VS Respondent: The State
Court Name: Sindh High Court Judge(s): Muhammad Karim Khan Agha, Zulfiqar Ali Sangi Title: Abdul Hafeez @ Mumtaz Kalhoro & another vs The State Case No.:(1) Criminal Jail Appeal No. D- 46 of 2015 (2) Crl. Confirmation Reference
JUDGMENT
Reported As: 2021 SHC 722 Result: Appeal disposed off Judgment JUDGMENT Zulfiqar Ali Sangi, J. This common judgment would dispose of the above captioned Criminal Jail Appeal No. D- 46/2015 filed by both the appellants and Criminal Confirmation Reference/ case sent by the learned trial Court for confirmation of death sentence awarded to the appellant Abdul Hafeez alias Mumtaz. Both the appellants have assailed the judgment dated 11.5.2015, passed by learned Judge, Anti-T errorism Court, Larkana, in Special Case No.40/2014, re; State v. Abdul Hafeez and another , arising out of Crime No.121/2014 of P.S Hyderi (District Larkana), under Sections 302, 387, 34 P.P.C, read with Section 7 (a) & (h) Anti-T errorism Act, 1997, whereby they were convicted and sentenced as under: (a) Appellants Abdul Hafeez alias Mumta z and Noor Muhammad have been convicted and sentenced for offence under Section 387 read with Section 34 P.P.C to suffer R.I for seven years with fine of Rs.20,000/- each and in case of default of payment of fine to suffer S.I for three months more. (b) Appellant Abdul Hafeez alias Mumtaz has been convicted for offence under Section 302 (a) read with Section 34 P.P.C and sentenced to death . He was directed to be hanged by neck till he is dead. He was also ordered to pay compensation of Rs.100,000/- to the heirs of deceased Akhtar Ali as compensation and in case of default shall suffer S.I for six months more. (c) Appellant Noor Muhammad was conv icted for offence under Section 302 (b) read with Section 34 P.P.C and sentenced to suffer imprisonment for life. He was also ordered to pay compensation of Rs.100,000/- to heirs of deceased Akhtar Ali as compensation and in case of default to suffer S.I for six months more. (d) Appellant Abdul Hafeez alias Mumtaz was convicted for offence punishable under Section 7 (a) of Anti- Terrorism Act, 1997 read with Section 34 P.P.C and sentenced to death . He was directed to be hanged by neck till
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he is dead. He was also ordered to pay fine of Rs.100,000/- and in case of default shall suffer further S.I for six months more. (e) Appellant Noor Muhammad was convicted for offence punishable under Section 7 (a) of Anti-T errorism Act, 1997, read with Section 34 P.P.C and sentenced to suffer imprisonment for life. He was also ordered to pay fine of Rs.100,000/- and in case of default shall suffer further S.I for six months more. (f) Appellants Abdul Hafeez alias Mumtaz and Noor Muhammad were also convicted for offence under Section 7 (h) of Anti-T errorism Act, 1997, read with Section 34 P.P.C and sentenced to suffer R.I for seven years ; they were also ordered to pay fine of rs.20,000/- each and in case of default to suffer S.I for six months more. 2. The brief facts of the prosecution case are that, on 08.10.2014 complainant Gulzar Ali Langah lodged F.I.R with Police-station Hyderi, Larkana, alleging therein that, Akhtar Ali Langah was his nephew , who was working as Compounder at the Clinic of Dr. Gobind Ram, which is situated in front of Zulfiqar Bagh, who was in tension since few days and disclosed him that a person, namely , Abdul Hafeez Kalhoro was coming from time to time at Clinic and asked him to pay "Bhatta" to him and also his doctor; otherwise he will cause damage to his property and life. They were in search of said Abdul Hafez. On the fateful day, complainant along with his relative Zaheed Ahmed Memon and Jinsar Ai Langah was going at the Clinic to meet his nephew Akhtar Ali, who was available at Clinic. They were chitchatting there; it was 09.00 a.m. when two persons entered in Clinic whose faces were open. One of them was identified to be Abdul Hafeez alias Mumtaz Kalhoro. The accused took out pistols from their folds and aimed upon complainant party . Accused Abdul Hafeez alias Mumtaz Kalhoro asked complainant' s nephew Akhtar Ali that they had demanded "Bhatta" from him and his doctor again and again to which Akhtar Ali refused to pay "Bhatta". Meantime, accused Abdul Hafeez alias Mumtaz Kalhoro fired from his pistol upon Akhtar Ali which hit him and he fell down and started bleeding; then the accused person made their escape good from the Clinic. The complainant party being empty handed did not chase the accused persons. The complainant found that his nephew had received firearm injury on his left side of face above the lip, which was exited from right side neck near the ear through and through, blood was oozing. The injured was shifted to Casualty ward after receiving letter from police, but he was referred to Hyderabad for further treatment; however he died at about 04.05 p.m. Hence his dead-body was brought back and after postmortem and burial the complainant went to police-station and lodged report to the above ef fect. 3. The police after usual investigation submitted challan of the case on 22.10.2014 in the concerned Court showing appellant Abdul Hafeez alias Mumtaz Kalhoro as in custody , while one unknown accused was shown in list of absconders. However , on 04.12.2014, a subsequent report/ challan was submitted by the police against appellant Noor Muhammad. 4. After completing legal formalities learned trial Court framed the charge against appellants at Ex.7, to which they pleaded not guilty and claimed their trial. 5. The prosecution in order to prove its case examined PW-1 complainant Gulzar Ali at Ex.9; he produced F.I.R at Ex.9-A and Receipt at Ex.9-B. PW-2 Zaheed Ahmed (eyewitness) was examined at Ex.10. PW-3 Jinsar Ahmed (eyewitness) was examined at Ex.11. PW-4 Gul Muhammad (mashir) was examined at Ex.12; who produced mashirnama of inspection of dead-body of deceased and mashirnama of place of incident. PW-5 Dr. Ashok Kumar was examined at Ex.13; who produced carbon copy of police letter and postmortem report of deceased. PW-6 PC Muhammad Idrees (Corpse bearer) was examined at Ex.14. PW-7 PC Irfan Ahmed (mashir) was examined at Ex.15; who produced mashirnama of arrest of accused Abdul Hafeez alias Mumtaz Kalhoro and recovery from him. PW-8 PC Hussain Bux (mashir) was examined at Ex.16; who produced mashirnama of arrest of accused Noor Muhammad. PW-9 Muhammad Ilyas (the I.O of the case) was examined at Ex.17; who produced letter No.3927-31 dated 13.10.2014 issued by S.S.P Larkana about constitution of J.I.T; copy of ballistic expert' s report and chemical report. PW-10 Haq Nawaz (Tapedar) was examined at Ex.19; who produced police letter and sketch of place of incident. PW-11 Inspector Faheem Ahmed was examined at Ex.21. PW-12 SIP Azhar Ahmed (Investigation Officer) was examined at Ex.22; who produced attested photocopy of police letter . PW-13 Gul Muhammad Chandio (Civil Judge & Judicial Magistrate) was examin ed at Ex.23; who produced police letter and mashirnama of identification- parade of accused Noor Muhammad. The evidence of PC Ayaz Ali, Abdul Karim and Abdul Ghani was given-up by
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learned Prosecutor vide his statement Ex.18 and Ex.24, respectively . However , Prosecutor by moving an application under Section 540 Cr.P.C re-called PW Abdul Karim Gaad and Abdul Ghani and lastly the prosecution closed its side vide Ex.25. 6. The statements of appellants were recorded in terms of Section 342 Cr.P.C. at Ex.26 and Ex.27, in which they denied the prosecution allegations against them. They did not examine themselves on oath nor lead evidence in their defence. 7. The learned trial Court after hearing learned counsel for the parties passed the impugned judgment, whereby appellants were convicted and sentenced, as stated-above, which has been impugned before this Court by way of filing captioned appeal. While, learned trial Court has sent criminal reference for confirmation of death-sentence in view of Section 374 Cr .P.C. 8. Learned counsel for the appellants assailed the impugned judgment and argued that the prosecution witnesses have made contradictions, improvements and omissions in their evidence on the very material points, therefore, their evidence is un-reliable and un-trustworthy . Learned counsel further submitted that, there was inordinate delay in registration of the F.I.R, for which no plausible and satisfactory explanation was offered by the complainant, but this fact has not been considered by the trial Court while passing impugned judgment. Learned counsel further added that, appellant Abdul Hafeez alias Mumtaz Kalhoro was convicted in cases of Arms Act and police- encounter , however on appeal he was acquitted by this Court in both cases vide judgment dated 20.9.2019 passed in Crl. Jail Appeal No. S- 117 of 2016 and judgment dated 28.3.2019 passed in Crl. Jail Appeal No. S- 118 of 2016. Learned counsel has placed on record certified true copies of these judgments. Learned counsel lastly submitted that, case of prosecution is full of doubts and it is well settled principle of law that benefit of even slightest doubt must go in favour of the accused. In support of his contentions learned counsel for the appellants relied upon the cases of Tariq Parvez v. The State (1995 SCMR 1345 ), Liaquat Ali v. The State (2008 SCMR 95), Patan v. The State (2015 SCMR 315), Muhammad Asif v. The State (2017 SCMR 486), Muhammad Ilyas and another v. Ameer Ali and another (2020 SCMR 305), Sabir Ali alias Fauji v. The State (2011 SCMR 563), Shafqat Mehmood and others v. The State (2011 SCMR 537), Ayub Masih v. The State (PLD 2002 Supreme Court 1048) and Muhammad Imran v . The State ( 2020 SCMR 857 ). 9. Learned Addl. PG and learned counsel for complainant controverted the arguments of learned appellants' counsel and submitted that the prosecution case has rightly been believed by the learned trial Court and the appellants have rightly been awarded conviction. They next contended that it was broad day time incident in which an innocent young person lost his life at the hands of appellants; that the motive was proved by the prosecution during trial; that ocular version is fully supported by the medical evidence. Lastly it was argued that the prosecution had succeeded in proving its case beyond a reasonable doubt and prayed for dismissal of the appeal. They relied upon casesof Imam Bux versus The State (PLD 1983 SC-35 ), Mawas Khan versus The State and another (PLD 2004 SC 330), Muhammad Tahir Aziz versus State and another (2010 P.Cr.L.J 1787), Hameed Khan alias Hameedai versus Ashraf Shah and another (2002 SCMR 1155), Muhammad Arshad versus The State (2004 SCMR 1645 ) and Niaz Ahmed versus State ( 2014 YLR 1 125 "Quetta"). 10. We have heard the arguments of learned counsel for the parties and perused the material available on record and gone through the case law relied by them with their able assistance. THE MAIN PROSECUTION WITNESSESS GA VE THEIR EVIDENCE AS UNDER:- 11. Complainant Gulzar Ali Langah (eye witness)/ PW-1 deposed that this incident took place on 08.10.2014 and on same day his nephew namely , Akhtar Ali aged about 35 years was working as Compounder at the Clinic of Dr. Gobind Ram situated at Zulfiqar Bagh, Larkana, a few days before the incident his nephew Akhtar Ali came to him at his shop and told him that one person namely Abdul Hafeez Kalhoro was issuing him threats and demanding "Bhatta" from him, so also from Dr. Gobind Ram. On 08.10.2014, he alongwith Jinsar Ahmed and Zaheed Ahmed were sitting at the Clinic of Dr. Gobind Ram and were chitchatting with his nephe w Akhtar Ali. At that time it was about 09.00 a.m.when two persons with open faces came at the Clinic and asked his nephew Akhtar Ali that they had demanded "Bhatta" from him so also from the Dr. Gobind Ram, but he has not paid "Bhatta". He identified one accused person namely , Abdul Hafeez alias Mumtaz son of Panjal Khan Kalhoro. He deposed that accused Abdul
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Hafeez fired from his pistol upon his nephew Akhtar Ali, which hit him on his mouth . On sustaining the firearm injury he fell down on the ground , blood was oozing from his injury; after firing both the accused persons ran away . He deposed that they took injured Akhtar Ali to Causality department at Larkana. The doctor after providing the first-aid to the injured referred him to Hyderabad. On the same day, when they were going to Hyderabad, the injured died on the way. They then came back to the Casualty department at Larkana. He then leaving the witnesses over the dead body of deceased went to police station to lodge the F.I.R of this incident, which was registered and then he came back to Casualty Larkana alongwith police and the police saw the dead body of deceased Akhtar Ali; prepared such mashirnama of inspection of the dead body of deceased. He showed place of vardat to police on same day in presence of mashirs, namely , Gul Muhammad and Saleem. Then police took dead body of deceased to the hospital for postmortem and report and after postmortem dead body was handed over to him by the police. He further deposed that on 04.12.2014 the identification parade of accused Noor Muhammad was held through him and witnesses Jinsar and Zaheed Ahmed in the Court of IV-Civil Judge & Judicial Magistrate, Larkana. Complainant was cross examined at some length but we could not find any substance favourable to appellants. Defence counsel even did not suggest any enmity or ill-will against this witness as to why the present appellants were involved by the complainant party in the murder case. 12. Zaheed Ahmed PW-2 (eye witness) has deposed that he is eyewitnesses of this incident and this incident took place on 08.10.2014; he alongwith compla inant Gulzar Ali and Jinsar Ahmed were sitting at the Clinic of Dr. Gobind Ram and chitchatting with Akhtar Ali. At that time it was about 9.00 a.m., two accused persons with open faces came on motorcycle at the Clinic; he identified one accused person, namely , Abdul Hafeez. Accused Abdul Hafeez asked deceased Akhtar Ali that they (accused) were asking him to pay "Bhatta" himself and Dr. Gobind Ram, but you have not paid "Bhatta". On saying so accused Abdul Hafeez fired from his pistol upon deceased Akhtar Ali, which hit him on his face. On sustaining the firearm injury he fell down on the ground; blood was oozing from his injury . They then took Akhtar Ali to Casualty department at Larkana for his treatment. The doctor after providing the first-aid to the injured referred him to Hyderabad for further treatment and on the same day when they were taking injured to Hyderabad, he expired on the way at about 4.05 p.m. they then came back to Casualty department at Larkana. He further deposed that complainant then leaving him and Jinsar Ahmed over dead-body of deceased Akhtar Ali went to Police station to lodge the F.I.R. He deposed that his statement under section 161 Cr.P.C was recorded by the police. He deposed that on 04.12.2014 identification parade of accused Noor Muhammad was held through him and complainant Gulzar Ali and P.W Jinsar in the Court of IV-Civil Judge & Judicial Magistrate, Larkana and he identified accused Noor Mohammed before the magistrate. This witness was also cross examined by the defence counsel, no enmity or ill-will was suggested only it was the suggestions on behalf the appellants that witness was not present at the time of incident and he was not a witness to the incident for which this witness negated. 13. Jinsar Ahmed PW-3 (eye witness) in his evidence before learned trial Court deposed that this incident took place on 08.10.2014, when he alongwith complainant Gulzar Ali and Zaheed Ahmed were sitting at the Clinic of Dr. Gobind Ram and were chitchatting with Akhtar Ali, it was 9.00 a.m. two accused persons with open faces came on motorcycle at the Clinic; he identified one accused namely , Abdul Hafeez. Accused Abdul Hafeez asked deceased Akhtar Ali that they (accused) were asking him to pay "Bhatta" himself and so also Dr. Gobind Ram, but they have not paid "Bhatta". Saying so, accused Abdul Hafeez fired from his pistol upon deceased Akhtar Ali, which hit him and sustaining firearm injury he fell down on the ground; blood was oozing from his injury . He further deposed that they took Akhtar Ali to casualty department at Larkana for his treatment and the doctor after providing first aid to injured Akhtar Ali referred him to Hyderabad for further treatment and on same day when complainant was taking injured to Hyderabad he expired on the way at about 4.05 p.m, then they returned back to Casualty department at Larkana. He deposed that the complainant left him and Zaheed Ahmed over dead body of deceased and went to police station Hyderi to lodge F.I.R. He further deposed that his statement under Section 161 Cr.P.C was recorded by the police. He deposed that on 04.12.2014 identification parade of accused Noor Muhammad was held through him and complainant Gulzar Ali and PW Zaheed Ahmed in Court of IV-Civil Judge and Judicial Magistrate, Larkana and he had identi fied accused Noor Muhammad before the Magistrate. He was cross
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examined by the defence counsel, no enmity or ill-will was suggested against this witness for false implication only it was the suggestions on behalf the appe llants that witness was not present at the time of incident and he was not a witness to the incident. 14. Gul Muhammad PW-4 (Mashir) deposed that on 08.10.2014 police inspected dead body of deceased Akhtar Ali and prepared such mashirnama in his presence and co-mashir was Saleem. He further deposed that police also prepared inquest-report of deceased in their presence. The police also visited place of vardat on 08.10.2014 at 2300 hours shown by complainant in his presence and in presence of co-mashir Saleem, wherefrom the police recovered empty bullet of pistol and blood stained earth and sealed the same on spot separately and also prepared such mashirnama. His evidence went unchallenged and only it was suggestion on behalf of the appellants that all the mashirnamas were signed by him at police station and he deposed falsely to which he denied. 15. Dr. Ashok Kumar PW-5 (MLO) deposed that on 08.10.2014 he was working as Medico Legal Officer at Chandka Medical College Hospital, Larkana. On the same day, he received dead body of deceased Akhtar Ali Langah at 10.15 p.m. through PC Muhammad Idrees of P.S Hyderi under police letter for conducting postmortem examination and report. He further deposed that injured was brought in CMC Hospital Larkana in the evening time in serious condition and after providing the first-aid he was referred to LMC Hospit al Hyderabad on 08.10.2014 but he expired on the way, then he was brought again to CMC Hospital, Larkana, for postmortem. He conducted postmortem examination of deceased. He started postmortem examination at 10.30 p.m. on 08.10.2014 and completed it at 11.30 p.m. on same date. He deposed that on external examinatio n of dead body of deceased he found following injuries: (i) Lacerated punctured wound measuring 1 cm in diameter muscle deep, margins inverted at mid of upper lip and frontal upper teeth were broken (wound of entry). (ii) Lacerated punctured wound x cm x 1.5 cm cavity deep, margin averted at back of right ear at mastoid region (wound of exit). The medical officer further deposed that on internal examination of dead body he found that blood vessels were ruptured at the site of injury , maxillary artery upper incisors teeth and maxillary bond were fractured, mouth pharynx ruptured; while other organs were healthy and intact. He further deposed that on internal and external examination of dead body of deceased Akhtar Ali he was of the opinion that death of deceased occurred due to hemorrhage and shock as a result of injury to major blood vessel i.e. maxillary artery; the injury was sufficient to cause death in ordinary course of nature and it was ante-mortem in nature and has been cause by firearm discharge . He was also cross examined but nothing brought on record by defence which favours the appellants. 16. PC Muhammad Idrees PW-6 depos ed that on 08.10.2014 SIP Ilyas Sangi handed over him dead body of deceased for postmortem examination and report, which he handed over to Dr. Ashok Kumar and after conducting postmortem doctor handed over dead body to him, which he handed over to paternal uncle of deceased, namely , Gulzar . He further deposed that he also handed over blood stained clothes of deceased to SIP Ilyas Sangi. His evidence was also not shaken during cross examination. 17. PC Irfan Ahmed PW-7 deposed that on 21.10.2014 he was working as Constable at P.S Hyderi and on same day he alongwith SIP Ilyas Sangi, PC Muhammad Punhal, PC Muhammad Aslam and driver PC Ashfaque Ali boarded in official vehicle for patrolling under roznamcha entry No.12 at 1500 hours and when they reached Dhani Bux Oil Mill near bank square, SIP Ilyas Sangi received spy information that accused Abdul Hafeez Kalhoro required in this case alongwith his companion are standing near Kabeer Shah graveyard and after receiving such information they reached at pointed place, where they saw two persons armed with pistols; he identified one accused, namely , Abdul Hafeez Kalhoro and on seeing the police party they started firing upon them and tried to make their escape good. He further deposed that they also made firing upon them and arrested accused Abdul Hafez Kalhoro alongwith pistol. SIP Ilyas Sangi conducted personal search of accused Abdul Hafeez Kalhoro and recovered two currency notes of Rs.50/- and pistol alongwith two live bullets; the accused disclosed about pistol to be unlicensed; SIP made him and PC Muhammad Punhal as mashir and prepared such mashirnama of arrest and recovery; the pistol was sealed at the spot. During cross examination it is sugges ted that appellant Abdul Hafeez
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was not arrested during the encounter and the mashirnama was prepared at police station. Nothing favourable to appellants was brought on record. 18. PC Hussain Bux PW-8 deposed that on 02.12.2014 he was working as Constable at police station Market and on same date, he alongwith Inspector Faheem Farooqi, PC Ayaz Ali and Driver H.C Wazir Ali left police station for investigation of the case of P.S Hyderi and when they reached Empire road Larkana, Inspector Faheem Farooqi received spy information that one person is going from Pir Sher road to Kamber Wah; on receiving such information they reached at pointed place, where they saw one person was going by way. They alighted from vehicle and arrested him. Inspector Faheem Farooq enquired from him about his name etc. who disclosed his name as Noor Muhammad Mirbahar and on his personal search nothing was secured. This witnesses further deposed that he and PC Ayaz Ali were nominated as mashirs and Inspector prepared such mashirnama of arrest and obtained their signatures. During cross examination arrest as alleged by the prosecution was denied and it was suggested that appellant Noor Muhammad was arrested from his house. 19. SIP Muhammad Ilyas PW-9 deposed that on 08.10.2014 he was working as SIP at P.S Hyderi and on same date complainant Gulzar Langah came at Police station and disclosed facts of cognizable offence, which he incorporated in book under Section 154 Cr.P.C. He further deposed that he accompanied complainant and his subordinates to Clinic of Dr. Gobind Ram where dead body of Akhtar Langah was lying; he prepared mashirnama of seeing dead body in presence of mashirs. He further deposed that mashirs of mashirnama of seeing dead body were Gul Muhammad and Saleem Langah. He handed over dead body to PC Muhammad Idrees to take it to hospital for postmortem and report; he also prepared inquest-report of deceased in presence of same mashirs. He further deposed that on 08.10.2014 he visited place of vardat shown by complainant in presence of same mashirs and prepared such mashirnama; he recovered blood stained earth and one empty bullet of 30-bore from place of vardat and also sealed blood stained earth and empty bullet at spot. He further deposed that he recorded statements under section 161 Cr.P.C of PWs Zaheed Memon and Jinsar Langah. He deposed that on 21.10.2014 he arrested accused Abdul Hafeez from Kabir Shah graveyard near Zulfiqar Bagh in presence of mashirs PC Irfan and PC Muhammad Punhal and on his personal search recovered one pistol of 30-bore alongwith two live bullets and two currency notes of Rs.50/-, sealed the pistol at place of arrest of accused and recovery and prepared such mashirnama. He further deposed that on 13.10.2014 the S.S.P Larkana constituted J.I.T in which he was one of the members. He further deposed that he received ballistic expert report and chemical report. This witness was cross examined but his evidence was not shattered by the defence counsel, no enmity or ill-will suggested against this…
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