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Official Citation: 2024 YLR 1713
Court / Jurisdiction: Federal Shariat Court
Year of Decision: 2022
Decision Date: 2022-11-30
Parties: Abdul Razzak alias Bagro and another vs The State and another
Ruling Summary: This decision was rendered by the Federal Shariat Court on 2022-11-30, officially reported as 2024 YLR 1713. In this matter between Abdul Razzak alias Bagro and another and The State and another, 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 1713
Court Name: Federal Shariat Court Judge(s): Khadim Hussain M. Shaikh, Syed Muhammad Anwar (C.J) Title: Abdul Razzak alias Bagro and another vs The State and another Case No.: Jail Criminal Appeal No. 01-K of 2021 and Criminal Revision No. 02-K of 2021 Date of Judgment:2022-11-30 Reported As: 2024 YLR 1713 Result: Appeal allowed
JUDGMENT
JUDGMENT KHADIM HUSSAIN M. SHAIKH, J. Appellant Abdul Razzak alias Bagro son of Atta Muhammad Chandio has called in question judgment dated 10.12.2020, passed by the learned Additional Sessions Judge-II, Kamber, District Kamber/Shandadkot in Sessions Case No.308 of 2010 re-The State v. Akhtiar Kalhoro and others, emanating from Crime No.136 of 2010 registered at Police Station Shandadkot for Offences under Sections 17(2), 17(3) and 17(4) of The Offences Against Property (Enforcement of Hudood) Ordinance, 1979, ("The Ordinance"), whereby appellant Abdul Razzak alias Bagro ("The appellant") has been convicted for offences under Section 302 (b) of The Pakistan Penal Code, 1860 (XLV of 1860) ("The Penal Code") for committing murder of Amanullah son of Mehrab Mugheri ("The deceased") and sentenced to suffer rigorous imprisonment for life as Tazir and to pay Rs.500,000/- (five lac) as compensation to the legal heirs of the deceased under the provisions of Section 544-A of The Code of Criminal Procedure, (Act V of 1898) ("The Code") and in case of default of payment to further undergo S.I for three years more; and, the appellant has also been convicted for offence under Section 397 of The Penal Code and sentenced to suffer rigorous imprisonment for seven years as Tazir and to pay compensation of Rs.200,000/- (two lac) to the victim/injured PW Mehar and in case of default of payment thereof he is to undergo simple imprisonment of 18 months more. The above sentences were ordered to run concurrently with benefit of Section 382-B of The Code. 2. Briefly, the facts of the case are that on 31.05.2010, at about 1600 hours complainant Mehar Ali son of Sain Rakhio Mugheri appeared at Police Station Shandadkot and lodged the subject FIR, stating therein that on 31.05.2010 he, his brother Mehrab and his nephew (the deceased), on one
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motorcycle driven by Amanullah and whereas his relative Khamiso son of Shadi Khan Mugheri on another motorcycle, while were returning from Shandadkot city to their village, at about 1245 hours when they reached near the watercourse of Sher Muhammad Jarwar, on the road leading from Shandadkot towards Garhi Khero, they saw three unknown persons standing there, with one motorcycle, who on seeing again would he identified by them. Of them, one person was having Kalashnikov and the rest two were armed with pistols, who aiming their weapons at the complainant party, stopped their motorcycles. One culprit, who was having Kalashnikov, robbed mobile phone from Amanullah (the deceased) and on the resistance to snatching of motorcycle, the rest two culprits, who were armed with pistols, made fires from their pistols at the complainant's brother Mehrab and his nephew Amanullah, who fell down raising cries. Then the culprits drove away motorcycles including the complainant party's motorcycle through Shahpur Jamali Link Road. Then the complainant found Mehrab lying injured, having two firearm injuries on his right leg near knee, while Amanullah was lying unconscious, having firearm injury on right side of his chest. The complainant party then took both of the injured persons to Taluka hospital Shandadkot, where after first aid, they were referred to CMC hospital Larkana for further treatment, but on their way to CMC hospital Larkana Amanullah Mugheri succumbed to his injuries at about 03:00 p.m. Then the complainant sent injured Mehrab to CMC hospital Larkana for treatment and took dead body of deceased Amanullah to Taluka hospital Shandadkot and then leaving his dead body there he appeared at police station Shandadkot and lodged the subject FIR. Three accused namely Akhtiar, Abdul Khalique and appellant Abdul Razzak alias Bagro were arrested, who after usual investigation, were sent-up with the report under Section 173 of The Code to face their trial. However, on 09.08.2010, co-accused Akhtiar and Abdul Khalique were murdered in the Court premises of the Court of Additional Sessions Judge Shandadkot in police custody when they were brought there for their trial and such FIR was registered against the culprits of that crime. In such view of the matter, a formal charge was framed only against Abdul Razzak alias Bagro (the appellant) vide Ex.3 to which he pleaded not guilty and claimed his trial vide his plea Ex.4. 3. In order to prove its case, the prosecution examined as many as 08 (eight) witnesses, namely ASI Ayaz Chandio, the author of the FIR at Ex.05, who produced the FIR at Ex.05/A; Tapedar of Tapa/Deh Pathan namely Muhammad Paryal at Ex.06, who produced sketch of place of incident at Ex.06/A; complainant Mehar Ali at Ex.07; injured Mehrab at Ex.08, who produced the form of identification parade at Ex.08/A; mashir Shah Muhammad at Ex.09, who produced memo. of inspection of dead body at Ex.09/A, memo. of the place of incident Ex.09/B, memo. of the inspection of injuries of injured Mehrab Ex.09/C and the memo. of arrest of the accused Abdul Khalique, Akhtiar and Abdul Razzak (the appellant) at Ex.09/D; Investigating Officer ASI Muhammad Khalid Gopang at Ex.10, who verified the memos. Ex.09/A to 09/D, and produced the Lash Chakas Form and inquest report at Ex.10/A and Ex.10/B; Corpse Bearer P.0 Muhammad Ranjhan at Ex.12, who produced the receipt of handing over dead body of the deceased at Ex.12/A and MLO Dr. Muhammad Idress at Ex.13, who produced the provisional and final MLCs of injured Mehrab at Exs.13/A and 13/B, provisional MLC of the deceased and his postmortem report at Ex.13/C and Ex.13/D as PW 01 to 08 respectively. Then, the side of prosecution was closed vide statement at Ex.14 and whereafter the statement of the appellant under Section 342 of The Code was recorded, wherein he denying the prosecution allegations, professed his innocence and his false implication by the complainant party, further contending therein that on 31.05.2010 he was !arrested by Miro Khan Police, who falsely implicated him in Crime No.55 of 2010 under Sections 324, 353 of The Penal Code and later on he was falsely implicated in this case on the same day at P.S Shandadkot. Accused of this case namely Akhtiar and Abdul Khalique alias Arbelo have been murdered by the complainant party in the Court premises of the Additional Sessions Judge Shandadkot on 09.08.2010 in police custody and such FIR was registered against them he produced the copy of FIR No.55 of 2010 of P.S Miro Khan and he
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claims to have been acquitted from that case by the learned 1st Additional Sessions Judge Kamber; he also produced certified copy of the FIR No.176 of 2010 of P.S Shandadkot under Section 353 of The Penal Code he, however, neither examined himself on oath nor did he produce any person as his defence witness. At the conclusion of trial and after hearing the parties' counsel, the learned trial Court has convicted and sentenced the appellant vide impugned judgment dated 10.12.2020 as discussed in paragraph-I supra. 4. Having felt aggrieved by the impugned judgment dated 10.12.2020, the appellant has preferred the captioned Jail Criminal Appeal, while the learned Prosecutor General of Sindh has filed the captioned Criminal Revision Petition for enhancement of the sentence by converting the sentence of life imprisonment awarded to the appellant into death sentence. 5. The learned Counsel for the appellant, who also represents him in subject Criminal Revision Petition, has mainly contended that the appellant is innocent and he has been falsely implicated in the subject case; that the name of the appellant does not find place in the FIR; that the identification parade of the appellant is illegal and managed one; that there are material contradictions in the evidence led by the prosecution, and, that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. The learned counsel has prayed for acquittal of the appellant and for dismissal of the Criminal Revision Petition. 6. Learned Additional Prosecutor General, Sindh has mainly contended that the prosecution by examining 08 witnesses and producing all the necessary documents including postmortem report, MLCs, memos. of place of vardhat, recovery of empties, danistnama, sketches, arrest of the appellant and blood stained clothes of the deceased etc, has proved its case against the appellant beyond any shadow of doubt, per learned Additional Prosecutor General, Sindh, the learned trial Court has rightly convicted the appellant, but disputing the sentence of imprisonment for life awarded to the appellant, the learned Additional Prosecutor General, Sindh has prayed for dismissal of the instant appeal and enhancement of the sentence by converting imprisonment of life awarded to the appellant into death penalty. 7. We have considered the submissions of learned counsel for the parties and have gone through the evidence brought on the record with their assistance. 8. From a perusal of the record, it would be seen that the appellant was not nominated in the FIR. The culprits, who committed the subject offence, were not known to the complainant and other two alleged eye-witnesses namely injured Mehrab and Khamiso. The descriptions such as features and physiques etc of the culprits were not given in the FIR. Complainant Mehar Ali in his FIR stated that one culprit, who was equipped with Kalashnikov, snatched mobile phone from his nephew Amanullah, and on the resistance of his brother Mehrab and nephew Amanullah to snatching of their motorcycle, the two culprits, who were armed with pistols, made fires from their pistols at Amanullah and Mehrab; in the joint identification parade test shown to have been carried out before the learned Civil Judge and Judicial Magistrate-I Shandadkot on 05.06.2010, the complainant and two other alleged eye-witnesses namely Mehrab and Khamiso allegedly picked out the appellant and two other co-accused namely Abdul Khalique and Akhtiar as the culprits of the subject crime, however, they neither attributed any specific role in the commission of the offence to the appellant or even to the two other arrested co-accused named above nor did they state about any weapon carried by any of them at the time of incident, but when the complainant appeared in witness box, he deposed that "the culprit, who was armed with Kalashnikov, robbed away one Nokia mobile phone from Amanullah; the culprits also tried to rob bike from Amanullah, on which Amanullah resisted whereupon accused Akhtiar armed with pistol made fire from his pistol upon my nephew Amanullah on his chest; accused Akhtiar also made two fires upon the knee of my brother Mehrab" and that "Akhtiar and Abdul Razzak had TT pistols and accused Abdul Khalique had KK", besides, the complainant there were two other alleged eye-
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witnesses of the occurrence namely Mehrab and Khamiso; of them alleged eye-witness PW Khamiso, having been given up, was not examined by the prosecution and whereas the rest alleged eye-witness injured Mehrab, who appeared as PW.4 Ex.8 deposed that "they (the culprits) robbed away one mobile from my son. They also tried to rob the bike from my son Amanullah. My son Amanullah resisted, on which accused Akhtiar armed with pistol made fire from his pistol upon my son Amanullah, who receiving the fire shot on left side of his chest, fell down. Accused Akhtiar also made two fires upon me, which I received on my right knee. I also fell down. Thereafter, accused Akhtiar took our bike and went away", thereby both the aforesaid alleged eye-witnesses examined by the prosecution have not only contradicted the prosecution version as set-out in the FIR, but they have also made a vain attempt to improve the prosecution case qua the contents of the FIR Ex.5/A and memo. of identification parade Ex.7/A, obviously with dishonest intention so as to bring the prosecution case in line with the medical evidence, which revealed one injury on the person of deceased Amanullah and two injuries on the person of injured Mehrab, that rendcred the credibility of both the aforesaid examined alleged eye-witnesses doubtful and no explicit reliance can be placed upon their evidence in view of the well settled law. 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 a settled maxim when a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness had improved his statement dishonestly, therefore, his credibility becomes doubtful on the well known principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witness. See Hadi Bakhsh's case PLD 1963 Kar. 805." In case of Muhammad Mansha v. The State [2018 SCMR 772], the Hon'ble Supreme Court of Pakistan has held that:- Once the Court comes to the conclusion that the eye-witnesses had made dishonest improvements in their statements then it is not safe to place reliance on their statements. It is also settled by this Court that when ever a witness made dishonest improvement in his version in order to bring his case in line with the medical evidence or in order to strengthen the prosecution case then his testimony is not worthy of credence. The witnesses in this case have also made dishonest improvement in order to bring ' the case in line with the medical evidence (as observed by the learned High Court), in that eventuality conviction was not sustainable on the testimony of the said witnesses. Reliance, in this behalf can be made upon the cases of Sardar Bibi and another v. Munir Ahmad and others (2017 SCMR 344), Amir Zaman v. Mahboob and others (1985 SCMR 685), Akhtar Ali and others v. The State (2008 SCMR 6), Khalid Javed and another v. The State (2003 SCMR 1419), Mohammad Shafiqe Ahmad v. The State (PLD 1981 SC 472), Syed Saeed Mohammad Shah and another v. The State (1993 SCMR 5S0) and Mohammad Saleem v. Mohammad Azam (2011 SCMR 474). 9. Furthermore, injured Mehrab, who could be termed to be a star witness for the prosecution, Investigating Officer ASI Muhammad Khalid Gopang and mashir Shah Muhammad, they all did not identify appellant Abdul Razzak in the trial Court when they recorded their evidence on 31.10.2019 and 31.07.2019 respectively, for, injured Mehrab and Investigating Officer stated that "accused present in Court is Akhtiar", who in fact was appellant Abdul Razzak and not Akhtiar, rather the latter, who was co-accused in this case, was already murdered along with other co-accused Abdul Khalique in the Court premises of the Court of Additional Sessions Judge Shandadkot as far as back on 09.08.2010 in police custody i.e. nine years prior to their evidence and whereas Shah Muhammad, who allegedly acted as mashir for several purposes including the mashir of arrest, stated that "the accused present in the Court is same, but I do not know his name".
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10. It further reveals that although the prosecution claimed that the appellant and his two co- accused namely Abdul Khalique and Akhtiar were arrested by police of Miro Khan P.S on the same day at 1330 hours i.e. shortly after the subject incident occurred at 1230 hours as is evident from the FIR No. 136 of 2010 of P.S Shandadkot involved in this case and FIR No.55 of 2010 of P.S Miro Khan produced by the appellant through his statement under Section 342 of The Code, but nothing has been brought on the record to show if the mobile and motorcycle, which were allegedly snatched from deceased Amanullah and others, were recovered from any of the above arrested accused and even crime weapons allegedly used in the commission of the offence were not shown to have been recovered from them (the accused) despite their having remained in continuous custody under remand after their arrest upto 16.06.2010 when the challan was submitted; it is also strange enough that four empties of .30 bore pistol collected from the place of incident vide memo. of inspection Ex.9/B, were not shown to have been sent to ballistic expert for his expert opinion, for, neither any FSL report in this respect was produced in evidence by the prosecution nor raid any official witness including Investigating Officer ASI Muhammad Khalid Gopang state about sending the aforesaid article to FSL; if the Investigating Officer had any impression that the aforesaid article might be the corroborative piece of circumstantial evidence in the instant case, he should have sealed the same forthwith and handed over the same to some responsible police official of the police station for safe custody, but it never happened as the same were left somewhere without taking any care for getting them analyzed from the ballistic expert and as such nothing is brought on the record to show that the alleged four empty shells, secured from the place of incident, were fired from two different weapons as claimed by the complainant in the FIR or they were fired from one weapon as claimed by the complainant and injured Mehrab in their evidence. 11. Patently, the prosecution case mainly rested on the identification parade of the appellant purportedly held on 05M6.2010 before the learned Civil Judge and Judicial Magistrate-I Shandadkot, due to the fact that the culprits, who committed the subject offence, were not known to the complainant and other two alleged eye-witnesses injured Mehrab and Khamiso (not examined); their descriptions such as their features and physiques etc were also not given in the FIR; the appellant and his two co-accused Abdul Khalique and Akhtiar were arrested by the police of Miro Khan police station in another case on the same day of incident i.e. 31.05.2010; complainant Mehar Ali and injured Mehrab claimed to have visited police station Miro Khan along with other alleged eye-witness Khamiso (not examined) to see the arrested accused including the appellant 4/5 days before the test identification parade in question held on 05.06.2010 as is revealed from their evidence, in that the complainant has deposed that "I came to know about the arrest of the accused on the same day of the incident. On the same day I along with Mehrab and Khamiso including police arrived at P.S"; injured Mehrab also admitted his visiting police station Miro Khan for the purpose of seeing the arrested accused, but he contradicting the complainant, stated that on the following day of the incident he along with Mehar (the complainant) and Khamiso had visited the police station Miro Khan, deposing that "we came to know regarding the arrest of the accused on the same day; I had visited the P.S Miro Khan on the net day of the incident along with Mehar and Khamiso; according to the Complainant they went to police station Miro Khan in a police mobile and whereas per injured Mehrab they went to police station by hiring a private vehicle from Larkana city, but no one among the staff of police station Miro Khan was either cited as witness or was examined by the prosecution; even the official witnesses examined by the prosecution did not state about the complainant's and/or other prosecution witnesses' visiting police station Miro Khan; the Investigating Officer stated that "I had issued notice to complainant one day prior to the identification parade" i.e. one day prior to the formal arrest of the accused including the appellant in this case and despite having knowledge about the arrest of the appellant and two other co-accused namely Abdul Khalique and Akhtiar by the police of Miro Khan
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P.S, they were not shown arrested by the police of P.S Shandadkot in this case for four days and it was on 05.06.2010 at 0920 hours when their formal arrest was shown by Investigating Officer ASI Muhammad Khalid Gopang vide mashirnama of arrest Ex.9/D; the prosecution case was that all the three accused named above including the appellant were arrested from judicial lockup at P.S Miro Khan vide mashirnama of arrest Ex.9/D as was deposed by Investigating Officer Muhammad Khalid Gopang, but mashir of arrest namely Shah Muhammad Mugheri did not state about arrest of the three accused named above and instead he without taking name of any accused stated that "on 05.06.2010 the ASI had again called me and co-mashir Muhammad Umar at the Shandadkot P.S and then we went to judicial lockup Miro Khan, where, the accused was confined in another case. The ASI had arrested him and prepared the imagine mashirnama in our presence"; the appellant and two above named co-accused were shown to have been put to identification parade before the learned Civil Judge and Judicial Magistrate-I Shandadkot after taking their custody from police station Miro Khan and covering distance of nearly 15 kilometers, but nothing was brought on the record to show that necessary precautions to secure and hide the identity of the arrested accused from the PWs before their putting into identification parade test, were adhered to; even otherwise, the memo. of identification parade Ex.8/A reveals that the appellant and the other two arrested accused (now dead) had not been identified with reference to any role played by them during the incident, which in our humble view, should have been specific with their role so as to complete the picture of the crime and reinforce the case against the accused for commission of the crime, and if a witness is able to pick out an accused person amongst the crowd it does not prove that he had identified that accused person as having taken part in the subject crime, rather it might merely mean that the witness happens to know that accused person by sight; moreover, the material evidence of the identification is the evidence of witnesses including the Magistrate, under whose supervision and mashirs, in whose presence such identification parade test was carried out, given in the Court as to how and under what circumstances the witnesses came to pick out a particular . accused person and the details of the part which that accused took in the commission of crime in question for the simple reason that the statement made by any witness at an identification parade could be used to corroborate his evidence given in the Court. Three witnesses namely injured Mehrab, Investigating Officer ASI Muhammad Khalid Gopang and mashir Shah Muhammad did not identify the appellant in the trial Court during their evidence as discussed supra and hence the identification parade in question, which could at the best be used as a corroboratory piece of evidence, was of no help to the prosecution; neither the learned Magistrate in whose supervision nor anyone among the two mashirs namely Muhammad Ilyas and Raheem Buksh, in whose presence, the alleged identi:ication parade was carried out, have been examined by the prosecution to substantiate the subject dentification parade; PWs namely complainant Mehar Ali and injured Mehrab claimed to have visited Police Station Miro Khan for the purpose of seeing the accused including the appellant on their arrest i.e. 4/5 days prior to the alleged identification parade test, conducted before the learned Magistrate on 05.06.2010. In such view of the matter, the possibility that the police had got the accused including the appellant identified by the witnesses prior to the identification parade test cannot be ruled out and under these circumstances, the aforesaid unsubstantiated joint identification parade, suffering from the illegalities and infirmities discussed supra, has got no evidentiary value. 12. Apart from the above, there are also several other material and glaring contradictions in the evidence led by the prosecution coupled with numerous infirmities and admissions, adversely reflecting upon- the prosecution case e.g the complainant in his evidence has deposed that "on the same date, I brought ASI Muhammad Saleh Gopang at Taluka Hospital Shandadkot where he inspected dead body of my nephew Amanullah and prepared such memo. of inspection of dead
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body and inquest report in presence of mashirs Shah Muhammad Mugheri and Muhammad Umar Mugheri. Thereafter, I also took ASI Muhammad Saleh Gopang to place of incident and on my pointation, above named ASI inspected the place of incident in presence of same mashirs and he secured 04 empties of pistol from the spot and above named ASI also secured the blood stained earth and sealed the same separately. Thereafter, ASI Muhammad Saleh prepared such memo on the spot in presence of above named mashirs at 1645 hours. Thereafter, I along with ASI Muhammad Saleh Gopang and same mashirs…
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