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Petitioner: Sikandar Ali Lashari VS Respondent: The State
Court Name: Sindh High Court Judge(s): Muhammad Ali Mazhar, Agha Faisal Title: Sikandar Ali Lashari vs The State Case No.:(1) Special Cr. A.T. Appeal No.261 of 2018 (2) Special Cr. A.T. Appeal No.262
of 2018 (3) Special Cr. A.T. Jail Appeal No.311 of 2018 (4) Conf. Case (A.T.A) No.13 of 2018 Date of Judgment:2020-04-20 Reported As: 2020 YLR 2543, 2020 SHC 308 Result: Application disposed off Judgment Muhammad Ali Mazhar , J: The aforesaid Special Cr. ATA and Special Cr. A.T. Jail Appeals have been filed by the appellants to challenge the judgment pass ed by learned Anti-T errorism Court No.II, Karachi on 29.8.2018 in Special Case No.91/2014, (FIR. No.12/2014 lodged under Section 302/109/34 PPC read with Section 7 of ATA, 1997 at P.S.GOR Hyderabad) and Special Case No.92/2014 (FIR No. 55/2014, lodged under Section 23-A/24 & 25 of Sindh Arms Act, 2013, P.S. Jamshoro, Hyderabad) whereby both the appellants have convicted to death penalty under Section 302, 109, 114 of PPC and Section 6 & 7 of ATA 1997. Conviction for 14 years rigorous imprisonment was also recorded under Section 23 (i) A, 24 and 25 of the Sindh Arms Act 2013 with further direction to Sikandar Ali Lashari and Irfan to pay compensation to the legal heirs of the deceased. 2. The short-lived facts of the prosecution case are as under: FIR No.12/2014 was lodged by Hunain Tariq on 20.2.2014 under Section 302/109/34 PPC read with Section 7 of ATA, 1997 at Police Station GOR Hyderabad that he dwells with his uncle Khalid Hussain Shahani, Session Judge Jacobabad whose eldest son Aqib Huss ain aged about 18 to 19 years was student of first year of Hamdard University Karachi. On 19-2-2014, the complainant along with his cousin Aqib Hussain and his mother Shams un Nisa, sister Komal and Nimra and younger brother Adil left for the Judicial Complex , Hyderabad after Magrib prayer in car to visit Aijaz Khaskheli. They left Judicial Complex Hyderabad at about 9.30 or 10.00 p.m for home. Aqib Hussain was driving the car whereas Shams-un-Nisa, Adil, Komal, Nimra and complainant were also sitting in car. They were going through Niaz Stadium, when at about 10.25 pm, they reached adjacent to Southern Corner , WAPDA Sports when silver colour corolla car, crossed and wedged/blocked them . The complainant saw that four persons, armed with weapons, alighted, opened the door of the car and from my cousin Aqib Hussain enquired his name whether he is son of Session Judge and studying in Hamdard University . The person sitting on the driving
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seat shouted that he is Aqib Hussain and do not spare him. Upon which two perso ns caught hold of Aqib Hussain and one of them fired at Aqib Hussain 15 to 16 times then Aqib fell down, the accused had also fired at Aqib Hussain when he had fallen down. According to the complainant, he and other persons sitting in Aqib' s car had seen all 05 persons in the headlights of car and could identify them. When they came out from car Aqib was found dead and drenched in blood. He was brought to Civil Hospital, Hyderabad in a Rickshaw where doctors confirmed Aqib' s death. The complainant lodged the FIR that silver car had followed them from Judicial Complex Hyderabad and in this car aforesaid accused persons in collusion with each other committed the murder of his cousin. 3. Sardar Latif Khosa, learned counsel for the appellant Sikandar Ali Lashari argued that no accused was nominated in the FIR. The prosecution case against Sikandar Ali Lashari admittedly does not allege his physical participation in the occurrence. Ocular/Eye witnesses are only family members. The deceased along with other eye witnesses were travelling in their own car but surprisingly the deceased was taken to the hospital in a Rickshaw . The ocular account of pulling out deceased from the car and firing from point blank range as in such eventuality the injuries were bound to carry the scars of burning and charring. Pir Fareed Jan mana ged so called video confession. PW-18: Irshad Baig who fixed CCTV camera and produced CD and USB was not an expert. Sikandar Ali Lashari was not told by SSP that his statement was being recorded. Pir Fareed Jan SSP did not appear as witness in the case therefore the CD/USB is inadmissib le in term of recent judgment of Supreme Court in Judge Arshad Malik' s Case (PLD 2019 SC 675). Sikandar Ali Lashari remained in custody for a month and 25 days and video recording was made on 20.3.2014 under induceme nt and deceitful means by practicing fraud. Video recording doesn't spell out command to kill rather Sikander Ali Lashari stated that "if Barkat Lashari said so, you should blacken my face and make me ride a donkey , you can write it down. You said you will help me". Recovery was planted on 1.04.2014. PW-19 Muhammad Asim, In charge of digital Investigation Cell stated that all the CDR' s he produced in the court are computer generated from SSP Office. He voluntarily said that franchise companies had sent CDR' s through email. 4. It was further contended that Sikandar Ali Lashari was implicated purely on circumstantial evidence. No evidence worth to incriminate Sikandar Ali Lashari with the charge of abetting or masterminding. It was further contented that Sikandar Ali Lashari was posted as District & Sessions Judge in Jamshoro, Kotri in year 2010, where Muhammad Khan Kheshkheli filed an application for lodging FIR against some individuals including PIR Fareed Jan, then DPO Operation and in capacity of District and Session Judge Sikandar Lashari passed an order on 29.4.2010 for lodging FIR, therefore Pir Fareed Jan was annoyed and implicated Sikandar Lashari to take revenge. 5. He further argued that Article 164 of QSO expressly authorizes Court to allow to produce evidence that may have become available because of modern devices or techniques in such cases as it may consider appropriate. Audio Cassette and tape recorders were thus, admissible in evidence. On the other hand, Indian Supreme Court has clarified that tape recorded conversa tion can only be relied upon as corroborated evidence of conversation deposed by any of the parties to the conversation and in the absence of any such conversation, the tape recorded conversation is indeed, no proper evidence and cannot be relied upon. (Ref: Mahbir Parsand Verma Dr. Surinder Kaur (1982) 2 SCS 258). 6. It was further contended that the preamble of ATA Act, 1997 clearly indicates that it was promulgated for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences. So, in the cases of the terrorism, the mens rea should be with an object to accomplish the act of terrorism and carrying out terrorist activities to overawe the state. The learned counsel relied on following judicial precedents: 1. 2019 SCMR 301 (Majeed alias Majeedi & others v. The State). Accused had not been nominated in the FIR and according to the prosecution he was implicated upon his own disclosure allegedly made before the local police when he had been arrested in connection with some other case. In such backdro p cautious approach had to be adopted in placing a whole hearted reliance upon the statement made by the complainant before the Trial Court. Accused was acquitted of the charge by extending the benefit of doubt. 2. 2018 SCMR 577 (Kamal Din alias Kamala v. The State). In the FIR the culprits had not been nominated and they were mentioned as unknown. One of the injured eye-witnesses had acknowledged before the Trial Court that the accused persons had been shown to him at the police station before holding of the test identification parade.
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Proceedings of the test identification parade clearly showed that the accused had not been picked up by the eye- witnesses with reference to any role played by him during the occurrence. 3. 2017 SCMR 486 (Muhammad Asif v. The State). Once prosecution witnesses were disbelieved with respect to a co-accused then, they could not be relied upon with regard to the other accused unless they were corroborated by corroboratory evidence which came from an independent source and was also unimpeachable in nature. 4. PLD 2019 S.C. 488 (Kanwar Anwaar Ali Special Judicial Magistrate in the matter of). Evidentiary value and object of test identification parade in criminal cases stated. Test identification parad e and correct pointing out of an accused person by an eye-witness therein was not a substantive piece of evidence. Evidence offered through identification proceedings was not a substantive piece of evidence but was only corroborative of the evidence given by the witnesses at the trial. It had no independent value of its own and could not as a rule, form a sufficient basis for conviction though the same may add some weight to the other evidence available on record; identification parade was necessary only where the offender was a complete stranger to the witnesses. Whole object of the identification proceedings was to find out whether the suspect was or was not the real offender; failure to hold a test identification parade was not always fatal to the prosecution's case. 5. 2009 SCMR 230 (Muhammad Akram v. The State). Prosecution witnesses had made diverge nt statements at the trial about delivery of ransom amount exonerating one accused. If the prosecution witnesses could involve one accused in a false case, then their statements qua the other accused could not be relied upon in the absence of very strong, independent and corroboratory evidence against them. Recovery of weapons was also of no consequence as the same were never sent to any Expert to determine whether they were in working order or not. Prosecution evidence was not free from doubt, benefit of which must be given to the accused as a matter of right and not of grace. 6. 2019 YLR 337 (Syed Muhammad v. The State). If two distinctive interpretations or explanations of law and facts were available, the one which favored accused, must be followed. Accused could not be deprived of benefit of doubt, merely because there was only one circumstance, which created doubt in the prosecution story . 7. 2019 PCr.LJ 442 (Abdul Baqi v. The State). For awarding conviction on the basis of extra judicial confession, three-fold proof was required i.e. firstly , it was in fact made; secondly; that it was voluntarily made; and thirdly , it was truly made. Judicial or extra judicial confession could be made sole basis for conviction of an accused, if the court was satisfied and had believed that it was true and voluntary and was not obtained by torture, coercion or inducement. 8. 2017 SCMR 2026 (Fayyaz Ahmad v. The State). To believe or rely on circumstantial evidence, it was imperative for the prosecution to provide all links in an unbroken chain, where one end of the same touched the dead body and the other the neck of the accused. To carry conviction on a capital charge it was essential for the courts to deeply scrutinize circumstantial evidence because fabricating of such evidence was not uncommon. Minute and narrow examination of circumstantial evidence was necessary to secure the ends of justice. For a case resting on circumstantial evidence prosecution had to establish the case beyond all reasona ble doubts. Beyond "reasonable doubt" did not mean any doubt but it must be accompanied by reasons, sufficient to persuade a judicial mind for placing reliance on the same. To draw an inference of guilt from such evidence, the court had to apply its judicial mind with deep thought, extra care and caution and whenever there was any indications showing the design of the prosecution of manufacturing and preparation of a case, the courts had to show reluctance in believing it unless it was judicially satisfied about the guilt of accused person and the required chain was made out without any missing link. 9. PLD 2019 Lahore 366 (Yasir Ayyaz v. The State) . Qanun-e-Shahadat. Article 164 had revolutionized the scope to accommodate modern innovative techniques to secure, preserve and repro duce the information, hitherto unavailable. Said provision of law indepe ndently provided a wide mechanism to bring on record evidence through visual, audio, digital, sonic or biological and other means on the basis of information capable to establish or negate any fact in issue, certainly subject to integrity of the procedure/process duly qualified in the case. 10. 2013 SCMR 383 (Azhar Iqbal v. The State) . (c) Criminal Procedure Code. Statement of an accused recorded under S.342, Cr.P.C. was to be accepted or rejected in its entirety and where the prosecution's evidence was found
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to be reliable and the exculpatory part of such statement was established to be false and excluded from consideration, then the inculpatory part of such statement might be read in support of prosecution's evidence. 11. 2009 SCMR 230 (Muhammad Akram v. The State). For giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts. Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession but as a matter of right. 12. 2018 SCMR 372 (Atta ur Rehman & another v. The State). Death sentence reduced to imprisonmen t for life. Mitigating circumstances. Sentence of death was withheld when it was not clear as to whether a particular accused was actually responsible for causing death or not. 13. 1999 YLR 2250 (Gulzar Hussain Awan v. Akbar) . Article 164. Audio/video cassette and evidence of tape- recorded conversation could be made admissible in evidence. 14. PLD 2020 Supreme Court 61 (Ghulam Hussain and others vs. The State in which honurable Supreme Court held that for an action or threat of action to be accepted as terrorism within the meanings of section 6 of the Anti-T errorism Act, 1997 the action must fall in subsection (2) of section 6 of the said Act and the use or threat of such action must be designed to achieve any of the objectives specified in clause (b) of subsection (1) of section 6 of that Act or the use or threat of such action must be to achieve any of the purposes mentioned in clause (c) of subsection (1) of section 6 of that Act.... It is further clarified that the actions specified in subsection (2) of section 6 of that Act do not qualify to be labeled or characterized as terrorism if such actions are taken in furtherance of personal enmity or private vendetta. 7. Mr. Abdul Razzak, learned counsel for the appellant Irfan Khan though adopted the arguments of Sardar Latif Khan Khosa. However he added that according to charge sheet Sikanadar Lasha ri disclosed during interrogation that appellant Muhammad Irfan Khan @ Faheem was his accomplice in the crime but Sikandar Lashari in his statement recorded under Section 342 Cr.P.C clearly stated that he does not know him. The ocular statements of eyewitnesses PW-1 to PW-4, relatives of the deceased were false that they were accompanied with the deceased when he was dragged out from the car and firing upon him. All four witnesses given different statement regarding holding hands of Aqib Shahani whereas the Doctor's report establishes that Aqib Shahani had received many bullets. If the appellant enfolded the deceased from his back, Irfan would have also sustained bullet injuries. He further argued that MLO was not competent in Medical and Forensic Science. The appellant Irfan could not be linked with the incident. He relied on following judicial precedents: 1. 2010 SCMR 1706 (Muhammad Asghar alias Nannah vs. The State) . Onus rests on prosecution to prove guilt of accused beyond a reasonable doubt throughout the trial and it never shifts to accused except in cases falling under Art. 121 of Qanun-e-Shahadat, 1984, but it is inextricably linked to presumption of innocence of accused. Two concepts i.e., "proof beyond reasonable doubt" and "presumption of innocence" are so closely linked together that the same must be presented as a unit. Presumption of innocence is the golden thread of criminal justice then proof beyond a reasonable doubt is silver and these two threads are forever intertwined in the fabric of criminal justice. Reasonable doubt is real doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence, it is the doubt that is honestly entertained and is reasonable in the light of evidence after a fair comparison and careful examination of entire evidence. 2. 2011 SCMR 474 (Muhammad Saleem vs. Muhammad Azan). Prosecution witnesses while appearing in court made improvements in their statements to strengthen prosecution case, such improvements had cast serious doubt on veracity of such witnesses. High Court was also justified to come to concl usion that medical evidence was in conflict with ocular evidence, therefore, reliance on such ocular testimony was unsafe. 8. Peer Asadullah Shah Rashidi, learned counsel for the complainant argued the object of killing was to content family honour alone. The eye witnesses have stated that victim was fired and fell down despite that he was being fired. No cross examination was conducte d by the appellants from eye witnesses and MLO on the injuries. The eye witness PW Hunain Shahani in examination in chief clearly stated that the person who dragged him out held him from his arms on his back side and the one who had knocked the glass of window of our car fired at him indiscriminately . When Aqib was fired upon he fell down and thereafter too he was being fired upon. About 16/17
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bullets were fired. It is afterthought that S.S.P . Pir Fareed Jan Sarhandi due to personal grudge implicated Sikandar Ali Lashari in this case. It was further contended that against Irfan, four eye witnesses assigned him direct role of holding arms of the deceased from back, whereas other accused Ghulam Abbass Siyal (absconder) fired as many as 17/18 firearm shots on deceased. It was further averred that messages data received from the mobiles of deceased by the Investigation Officer got first clue that deceased and Miss Keenjhar D/o Sikandar Lashari were in a relationship, cook of Sikandar Lashari namely Malook saw them in a room of house of Sikandar Lashari, narrated this to wife of Sikandar Lashari, who in turn informed Sikandar Lashari, he maltreat ed Miss Keenjhar and shown his anger . Further , the data reveals that deceased was being chased by official police guard of Sikandar Lashari namely Morchana and deceased felt threats to his life. The evidence of motive is available everywhere in all pieces of evidence. 9. It was further averred that CDR data of Sikandar Lashari shows that he was using SIM of PW Abdul Saleem Afridi at his own IMEI number and he remained in regular contact with accused Barkat Lashari (absconder), who in turn was in contact with actual killers. The data further reveals that Sikandar Lashari was in contact with his guard Morchana through his own and other sim of Afridi. Many notices under section 94 Cr.P.C were sent to Sikandar Lashari to produce his mobile for forensic opinion and daughter but he failed therefore, adverse inference can be drawn against him under Article 129 of Qanoon-e-Shahadat Order 1984. The learned counsel further pointed out some admissions from video recording of interrogation and relied on Article 42 of Qanun-e-Shahadat Order , 1984. The video was played in open court by Trial judge and it was found audible, true and genuine. 10. It was further contended that the crime weapons were recovered by police on pointation of Sikandar Lashari in presence of two private witnesses. The empties of recovered weapons also matc hed with the empties recovered from crime scene and both the FSL Reports are available on record which makes the case of the prosecution strong enough. One arm license of absconder Farhan Siyal was also found with crime weapons. The transcripts of voice recordings were also produced by Investigation Officer in which Miss Keenjh ar has admitted that she was in love with the deceased. The learned counsel denied that learned Judicial Magistrate Ihsan Malik applied Section 6 of A.T.A., 1997 because he was student of Mr. Khalid Hussain Shahani in Law College. The order of learned magistrate forwarding the case to A.T.C. was not challenged. The recording of 164 Cr.P.C. statements and conducting identification parades was done in his official duties being area magistrate of P.S. GOR colony . The same magistrate recorded version of witness Manzoor Deeper who had resiled from his statement under Section 161 Cr.P.C. A large size of photo of absconding accused Ghulam Abbas Siyal was shown to identifying witnesses, since this photo was available in the crime record of accused which was brought by police for the purpose of identification parade due to the fact that Ghulum Abbas Siyal had absconded. In support of his contention, the learned counsel referred to following dictums:- 1. AIR (33)1946 Calcutta 156 (Dhanapati De and others vs. Emperor .) A confession is a statement which either admits in terms the offence or at any rate substantially all the facts which constitu te the offence. The statement of an accused which is not self-exculpator y but which does minimize the part he took in the offence and which ascribes to himself a part much less important and much less active than that ascribed to others named by him is a confession. 2. PLD 2016 S.C. 17 (Malik Muhammad Mumtaz Qadri v. The State) . (c) In a case of murder two questions were of paramount importance, first, was it the accused person facing the trial who had committed the murder in issue?; and second, if it was the accused person facing the trial who had committed the murder in issue then did he have any factual or legal justification for committing that murder?. Ground for mitigation of sentence could not be pressed into service on the basis of some thing which had never been proved on the record. Significance of motive in a case of murder was to establish as to who would be interested in killing the person murdered and such factor was to provide corroboration to the ocular account furnished by the prosecution but where the accused person admitted killing the deceased there the primary purpose of setting up the motive stood served. 11. Mr. Khadim Hussain, Additional Prosecutor General though subscribed the arguments move forward by the learned counsel for the complainant, however he added that news of this brutal murder of Aqib was published in so many newspapers which created insecurity and sense of fear in society that son of District Judge is not even safe.
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This also caused resentment in the lawyers community who went on boycott, city of Larkana was also closed due to this incident. The eye witnesses were also frightened who could not come out from car. He further argued that motive of this murder is obvious that Sikandar Ali Lashari was annoyed to know the love affair of his daughter with Aqib and Sikandar Lashari admitted in video that he is responsible of this crime. Accused Sikandar Ali Lashari has not examined himself on oath nor he has produced his daughter Keenjar to deny . He further argued that data of messages, video CD and voice messages produced in court indisputably proved that Sikandar Al Lashari was the mastermind and strong ocular testimony is also available on record against Irfan. 12. Heard the arguments. The learned trial court has extensively considered the entire evidence led in the trial and we have also vetted and scrutinized the evidence. The learned trial court declared proclaimed offenders to accused Barkat, Ghulam Abbass, Iqbal, Morchand/morchana on 11.6.2014. The charge was framed on 8.01.2016 and both the present appellants pleaded not guilty and claimed the trial. The indispensable gist and or pith and substance of the testaments deciphering from record are that P.W-1, Hunain Tariq deposed entire incident whereas PW-2, Shams-un-Nisa, PW-3, Komal Shahani and PW-4, Adil Hussain all corroborated the statement of PW-1 and deposed the same; PW-11, Syed Babar Ali Shah stated that he heard the firing and stopped at one side and due to this incident harassment was created amongst the public and after firing PW stopped the Rickshaw , thereafter , Aqib was taken to Civil Hospital. In the Identification Parade PW-1 to PW-4 all identified Ghulam Abbas Siyal from his photo and in another Identification Parade also identified Irfan who dragged out the deceased from the car and held his hands from flipside and Ghulam Abbas Siyal fired on Aqib on which he was fallen down, thereafter , more gunshots were fired on him; MLO Dr. Baldevo Maheshwari who conducted postmortem avowed that deceased sustained 19 injuries out of which three were in his genital organs; PW-21, Razi Khan Almani produced the FSL report. It was also brought on record by means of the data of two mobile phones to show that deceased Aqib Shahani was in unvarying…
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