ASHRAF Versus State
FAHIM AHMED SIDDIQUI, J.--- Both the appeals being Criminal Jail Appeal bearing No.D-46/2013 and Criminal Appeal bearing No.D-85/2017 are arising out of one and same crime bearing No.80/1997, for the offences under sections 302, 147, 148, 149, P.P.C. registered at Police Station Tando Adam, as such, heard and are decided by this common judgment. The appellant Ashraf through the Criminal Jail Appeal has assailed his conviction judgment dated 10.06.2013, passed by learned 1st Additional Sessions Judge, Sanghar in S.C. No.10/1998, emanating from Crime No.80/1997 for the offence punishable under sections 302, 147, 148, 149, P.P.C., registered at Police Station Tando Adam whereby trial Court after finding the appellant guilty; sentenced him to death for an offence under Section 302(b), P.P.C. and a reference for confirmation of death sentence was also sent to this Court. While the appellant Ali Hassan through Criminal Appeal has assailed his conviction judgment dated 10.06.2013, passed by learned 1st Additional Sessions Judge, Sanghar in S.C. No.10-A/1998, emanating from the same crime and trial Court after finding the appellant guilty; sentenced him for life imprisonment with direction to pay sum of Rs.6,00,000.00 [Rupees six hundred thousand only] as compensation in terms of section 544-A, Cr.P.C., if recovered, to be paid to the legal heirs of six deceased persons; in default whereof, he was ordered to undergo R.I. for 12 months more. However, benefit of section 382-B, Cr.P.C. was extended to him. It is worthwhile to mention here that the appellant Ali Hassan filed "Criminal Appeal No.S-65/2013" but since appellant Ashraf was awarded death sentence in the same crime who challenged the same in Criminal Jail Appeal No.D-46/2013, therefore, his criminal appeal was ordered to be fixed along with Criminal Jail Appeal No.D-46/2013 and a new number viz. Criminal Appeal No.D-85/2017 was assigned to the appeal of appellant Ali Hassan.
2. The factual matrix of the case as stated by the complainant Bahadur are that he is residing in village Rajo Mari, Taluka Tando Adam along with his father Muhammad Hassan, uncles Din Muhammad, Jhando, cousin Qadir Bux, Muhammad Qasim and Bachal; on the night of 29.06.1997, they went inside the village mosque to offer 'Isha prayer' along with them his cousin Manthar, Muhammad Murad, Ghulam Hyder and and 20/22 other villagers were offering Isha prayer in the village mosque. It was about 2145 hours, accused persons namely, Sheroo Rind armed with G.3 Rifle and accused Guddo alias Niaz Makorani armed with K.K. entered the said village Mosque. They both told the complainant party not to move from their position and not to try to escape. Accused Sheroo Rind told the complainant party that those belong to Mehkani caste may stand separately in one row while other people belonging to Mari case to stand separately in another row. Complainant and his cousin, Manthar stood in the queue with the people belonging to Mari caste. Within their sight accused persons brought the father of complainant Muhammad Hassan, uncles Din Muhammad, Jhando, cousins Muhammad Qasim, Qadir Bux and Bachal outside the village mosque. Behind them they also came out from the mosque. On bulb light of mosque they saw other accused namely Ashraf Buriro, Laloo Talpur, Jumoo, All Hassan Leghari with Kalashnikovs, accused Nooro Rind with the DBBL gun and one unidentified accused holding a 7 MM rifle. Accused Sheroo Rind told other accused persons that today is the day of taking revenge of Janoo Rind, Porho Mari and others. He directed all the accused persons not to spare these people. Within their sight all accused directly fired upon the father of complainant Muhammad Hassan, uncles Din Muhammad, Jhando, cousins Muhammad Qasim, Qadir Bux and Bachal. At the relevant time complainant party were empty handed and due to fear maintained silence. After killing them, accused started aerial firing and while raising slogans went away. He and P.Ws. went near his family members and found them dead and blood was oozing from their bodies. Leaving the P.Ws. and villagers at the dead bodies, complainant went to Police Station Tando Adam and lodged instant case.
3. After usual investigation, the police submitted the final report before the concerned Judicial Magistrate, who took cognizance of the offence. The learned trial Court framed charge against the appellants, who pleaded not guilty and claimed trial.
4. In order to establish their case, the prosecution examined PW-01 Dr. Muhammad Arshad [Exhibit-08], who produced police letter and post mortem reports of all deceased persons [Exhibits-08/A to G] respectively. PW-02 Muhammad Siddique [Exhibit-09], who produced mashirnama of place of occurrence and dead bodies and Danishtnamas/inquest report [Exhibit-09/A to G] respectively.
PW-03 Rasool Bux [Exhibit-10], who produced receipt of dead bodies [Exhibit-10/A]. During trial, appellant Ali Hassan Leghari took the plea of being juvenile offender on the basis of school leaving certificate on which medical board was constituted and appellant Ali Hassan Leghari was declared as juvenile offender by the trial Court so also his case was ordered to be tried separately. Thereafter, amended charge was framed against the appellant Ashraf Buriro. Moreover, after separation the case of appellant Ali Hassan, prosecution also examined complainant Bahadur [Exhibit-15], who produced FIR [Exhibit-15/A]. PW Manthar [Exhibit-16]. PW Ghulam Hyder [Exhibit-17]. PW Muhammad Ayoob [Exhibit-19], who produced sketch in triplicate [Exhibit-19/A]. PW/I.O. Manzoor Hussain Khoso [Exhibit-20], who produced statements under sections 161 and 162, Cr.P.C. of PWs Manthar and Ghulam Hyder [Exhibit-20/ A and B]. Prosecution had submitted chemical examination report through statement [Exhibit-21]. PW Abdul Nabi was examined [Exhibit-23], who produced statement of PW Murad under sections 161 and 162, Cr.P.C. [Exhibit-23/A]. PW Ali Nawaz [Exhibit-24], who produced the memo of last worn clothes of deceased persons [Exhibit-24/ A]. PW/I.O. Zameer Baig [Exhibit-27]. After closure of the side of prosecution, statement of appellant Ashraf under section 342, Cr.P.C. was recorded [Exhibit-29]. In his statement, he denied all the allegations levelled against him by the prosecution and claimed his innocence. Appellant Ashraf also examined himself on oath [Exhibit-30].
5. While pressing instant appeals, Mr. Dilbar Khan Leghari, learned counsel for appellant submits that the prosecution case is not free from doubt as the incident was taken place at night time and source of identification of such a huge number of culprits appears to be weak. According to him, the case of the prosecution is also not believable as at the time of incident appellant Ali Hassan was about 13 years of age and he was declared Juvenile during trial and offence of such a nature from a 13 years old boy is hardly possible. The motive described by the complainant is weak and there is no independent witness available.
6. Syed Shafique Ahmed Shah, learned counsel for the appellant Ashraf after adopting the arguments advanced by Mr. Dilbar Khan Leghari, advocate submits that appellant Ashraf is not the resident of the locality, as such, his identification by the complainant party itself creates serious doubt. He submits that appellant Ashraf is originally resident of some other District i.e. Jacobabad and not of District Sanghar.
7. The learned Additional Prosecutor supports the impugned judgment and submits that the witnesses are all natural witnesses and it will make no difference if some of the prosecution witnesses are relatives inter se. She points out that one of the prosecution witnesses does not belong to the complainant community.
8. We have heard the arguments and gone through the entire matter. The alleged incident was taken place on 29.06.1997 at the time when the complainant party was available in Masjid of the village to offer Isha prayer. The motive of the incident is described as the incident happed a few months back wherein some dacoits were killed in a police encounter and the other gangsters of that dacoits' group considered that the people of Mehkani community are responsible for spying to police against them. At the time of incident the culprits directed the persons belonging to Mehkani community to stand separately while the other community of village i.e. belonging to Mari Tribes, was directed to stand separately. All nominated accused made firing upon those, who were belonging to Mehkani tribe and caused death of six innocent persons on the spot. The incident was promptly reported to police, as such, there is no chance of deliberation and consultation for false involvement of the appellants. There is no serious contradiction noted in the depositions of the prosecution witnesses especially amongst eye-witnesses. One of the eye-witness namely Ghulam Hyder belonging to Mari tribe, as such, he is an impartial independent witness. The medical evidence is in line with ocular account. Since all the nominated accused have showered bullets upon the deceased, therefore, all of them are equally responsible for the offence. As far as, the question of identification is concerned, it has come on the record that they identified the culprits in blub lights, which is sufficient source for identification within the vicinity of village. It will make no difference that appellant Ashraf is not belonging to the same vicinity or District, as the gangs of criminals may comprise persons of different communities belonging to different areas. It is common for our villages that the people know well about the gangsters and dacoits and can easily identify them. Since one of the appellants is having similar role has been awarded sentence for life as there is general allegation of firing levelled against all the accused persons, therefore, we consider that it will be proper that the death sentence awarded to the appellant Ashraf be converted into imprisonment for life.
9. The upshot of the above discussion is that both the appeals merits no consideration, as such, the same are dismissed. However, death sentence of the appellant Ashraf is altered to Rigorous Imprisonment for life, consequently, the death reference is replied in negative. Above are the reasons for our short order dated 13.11.2018.
With above modification both the appeals stand dismissed.
JK/A-82/Sindh Sentence reduced.