P L D 2002 Karachi 471 (PLP)

The prosecution in support of its case examined P. W.1 Jungle Khan Mirbahar Exh.9, he produced the sketch of the Vardat in quadruplicate as Exh.9/A.. P.W.2 Dr. Mushtaq Ahmed Memon, C.M.O., Civil Hospital, Thatta as Exh.10, he produced letter of S. H. O. as Exh.10/B, letter for the treatment and, certificate of P. W. Allah Warayo and Bhooro as Exh.10/C, certificate of injury of P. W. Muhammad Sharif as Exh. 10/D, and those of P.Ws. Bhoro as Exh.10/E. Allah Warayo as Exh.I09F, P.W.3 Allah Bhiryo Jokhio (complainant) as Exh.l1, who produced the F.I.R. as Exh.11/A, P.W.4 Kazi Shah Muhammad Azhar, Civil Judge and F.C.M., Gharo as Exh.12, he produced memo. of identification parade of accused as Exh.12/A and as Exh.12/B. Statements under section 164, Cr.P.C. of P. Ws. Sadiq Ali and Abdul Rehman as Exh.12/C mid Exh.12/D. P. W.5 Sadiq Ali as Exh.13, P.W.6 Abdul Rehman Jokhio as Exh.14. P.W.7 Bhoora Hindu as Exh.15. P.W.B Allah Bharayo as Exh.16. P.W.9 Muhammad Sharif Jokhio as Exh.17 and P.W.10 Jumo as Exh.18. The application of S.S.P. for summoning P.W. Muhammad Saleem Jokhio as Exh.19. P.W.11 Muhammad Saleem Jokhio; Mashir of identification as Exh.20. P.W.12 Muhammad Ramzan Jokhio as Exh.21 who produced Mashirnama and inquest report as Exhs.21/A and 21/B respectively, Mashirnama of the injury of deceased Muhammad Essa as Exh.21/C, Mashirnama of the injury on the person of P.W. Muhammad Sharif, Allah Bharayo and Bhoro Hindu as Exh.21/D, Mashirnama of Vardat/incident as Exh.21/E, receipt of the clothes of deceased received from M.D. as Exh.21/F, Mashirnama of the arrest of accused Abdul Ghafoor and Safdar as Exh.21/G, Mashirnama of the recovery of wrist‑watch from accused Mazar as Exh.21/H, Mashirnama of the production of pistol and two live cartridges as Exh.21 /I, Mashirnama of the recovery of the pistol and one empty cartridge and one live cartridge, one double‑barrel gun containing two live cartridges as Exh.21/J. The statement of S.S.P. whereby he had given up P.Ws. Bhago, Allah Bux and Hamzo as Exh.22. P.W.13 Sohrab Khan Pitafi as Exh.23. P.W.14 Ghulam Fareed Jatt, S.H.O. Police Station Gharo as Exh.24, he produced Chemical Examiner's Report as Exh.24/A, F.I.R. No.42/99 under section 13‑E as Exh.24/B F.I.R. No.44 of 1999 under section 13‑E as Exh.24/C, F.I.R. 45 of 1999 under section 13‑E as Exh.24/D, ballistic expert report as Exh.24/E. The learned S.S.P. appearing on behalf of the prosecution closed the prosecution side by statement as Exh.25. The appellants/accused in their statements recorded, under section 342, Cr.P.C. Exh.26, Exh.27, Exh.28, Exh.29 and Exh.30 denied the allegations made against them by the prosecution and stated that they were falsely implicated by the S.H.O. due to dispute and that they were innocent. The appellants/accused did not examine themselves on oath. They also did not examine any witness in their defence. The trial Court after hearing the learned counsel appearing on behalf of the parties convicted/sentenced the appellants/accused Abdul Ghafoor, Alloo and Sardar as stated hereinabove and acquitted the accused Barkat and Maaar. We have heard Mr. Azizullah K. Shaikh learned counsel on behalf of the appellants accused and Mr. Habib Ahmed learned Assistant Advocate- General on behalf of the State and perused the record and proceedings of the trial Court. . It. is argued by Mr. Azizullah K. Shaikh learned counsel appearing for appellants that the names of the accused did not appear in F.I.R. The identification on torch light is a weak piece of evidence and it is always viewed with great caution and care. The ocular evidence is untrustworthy, as the trial Court has acquitted two of the accused on the basis of same evidence the identification parade was defective and the trial Court committed an error in placing reliance on the same. The trial Court failed to evaluate and appraise the evidence in right direction and' that the prosecution has failed to prove case against the appellants and the benefit of doubt be given to them. The learned A.A.‑G. appearing for the State has supported the impugned judgment. He stated that the complainant and injured witnesses had no animosity with accused to implicate them in a heinous offence. The ocular evidence of injured witnesses is supported by medical evidence and recovery of crime weapon. The robbed shot‑gun was recovered from the possession of appellant Safdar. He, however, argued that death sentence of appellants Abdul Ghafoor and Safdar be altered to imprisonment for life as they did not cause injuries to deceased. The star witnesses of the prosecution are injured Sharif, Allah Warrayo and Bhooro, as all the aforesaid three witnesses sustained injuries at the time of incident. Therefore, their presence at the scene of offence cannot be doubted. Although the complainant Allah Bharayo and Sharif were present at the scene of offence but they did not sustain injuries. P. W . Bhooro was examined as P. W .7. He stated that on the night of incident at about 3‑00 a.m. he and Sharif Bugho were sleeping on the roof of the shop when three accused came on the roof and tied them. They robbed gun and wrist‑watch from Sharif and demanded keys from him. He raised cries which attracted Essa (deceased), Allah Bharayo, Allah Warayo, Allah Bux and Hamzo. They had torches in their hands and they came running. He deposed that out of three culprits two were armed with pistols whereas third one had hatchet in this hand. They brought them to the ground floor where two other culprits were present with hatchets. One of them who was a fatty man of a fair complexion fired at Essa. Another culprit who was of normal build caused tire‑arm injuries to Sharif, whereas third culprit caused him hatchet blow on his head. The fourth one caused hatchet injury to Allah Warayo. P.Ws. Allah Warayo, Essa, Sharif and Bhooro fell down after sustaining injuries. This version is supported by the P.Ws. Allah Warayo, Muhammad Sharif and other P.Ws. The prosecution witnesses were cross-examined at length but their testimony remained unshattered. Accused were identified by the aforesaid injured witnesses on torch lights as well as on moon‑light. The culprits were very close to them. The incident occurred on 24‑7‑1999 and the accused were arrested on 28‑7‑1999 and 29‑7‑1999. Identification test of accused Abdul Ghafoor, Safdar and Alloo was held on 30‑7‑1999. They were correctly picket‑up by P.W. Allah Barrayo, Bego, Allah Warrayo, Allah Bux, Hamzo and Bhooro. The identification test of accused Barket Ali took place on 10‑8‑1999. The aforesaid witnesses correctly picket out the culprits from identification test. This piece of evidence is fully supported by First Class Magistrate namely Kazi Shah Muhammad Azhar P.W.4 and Mashir Muhammad Saleem. The ocular evidence and the identification test are further supported by the recovery of weapons from accused Abdul Ghafoor, Safdar and Alloo the recovered weapons were used in the commission of offence. The report of Ballistic Expert is positive. The accused Abdul Ghafoor and Safdar were arrested on 28‑7‑1999, whereas accused Alloo was arrested on 29‑7‑1999. Accused Abdul Ghafoor volunteered and produced crime weapon i.e. one pistol and three live cartridges. The pistol contained one empty red shell. On 1‑8‑1999 accused Safdar Ali produced one pistol containing one empty, one live cartridge and shotgun which were robbed from P. W Sharif. The Mashirnamas were prepared in presence of Mashirs Muhammad Saleem and Muhammad Ramzan. Accused Alloo led poilce party to the recovery of T.T. Pistol alongwith three live cartridges and a hatchet on 5‑8‑1999. The police recovered abovesaid weapons and prepared Mashirnama in presence of Mashirs S.I.P. Sohrab Khan and Constable Karim Bux. Fire‑arm weapons were recovered from all the accused and separate, cases under section 13‑E Arms Ordinance were registered against them. The recovery of weapons from accused Abdul Ghafoor, Safdar and Alloo is supported by the Mashirs as well as Investigating Officer. So far case of accused Barket Ali is concerned; the allegations are that he caused injuries to P.W. Bhooro. P.W. Bhooro deposed that accused Barkat caused him injuries with back side of hatchet. This ocular version is supported by the medical evidence. Accused Barkat Ali was picked‑up in identification test by the P.Ws. including injured Bhooro,, to whom he caused injury. The said accused, however, is acquitted by the trial Court and no acquittal appeal is filed by the State, therefore, we do not find it proper to further comment upon it. The allegations against accused Mazar are that a robbed watch and a fire‑arm weapon were recovered from his possession. His identification test was not held. Section 411, P.P.C. is not a scheduled offence. He.was, therefore, rightly acquitted on the principle of abundant caution by the trial Court. So far the quantum of punishment is concerned, we have been disturbed a bit as all the three accused have been awarded death penalty. The learned Assistant Advocate‑General has argued that the, punishment of death in respect of appellants Abdul .Ghafbor and Safdar be reduced to imprisonment for life. These two appellants did not cause injuries to deceased. So far appellant Alloo is concerned, he is alleged to cause fatal blow to deceased. The incident took place during night and names of the appellants were not disclosed in the F.I.R. The witnesses subsequently picked up the accused in identification test. In view of the above facts and circumstances of the case, the identification of fire during night time on torch light may lead to mistaken impression to the viewer. We, therefore, treat it a mitigating circumstance and alter the sentence of appellant Alloo from death to imprisonment for life as an abundant caution without reducing quality or standard of evidence. Resultantly the conviction and sentences awarded to the appellants /accused by the trial Court are altered and modified as under:‑‑ (1) The conviction and sentence of death awarded under section 302, P.P.C. to appellants, Abdul Ghafoor son of Muhammad Umer Palari, Alloo son of Haji Rahim Dino Jokhio and Safdar son of Hamzo Ali Gorar is altered and is reduced to imprisonment for life and fine of R's.1,00,000 (Rupees one lac only). In default of payment of tine to suffer R.I. for two, years more. (2) The conviction and sentence awarded by the trial Court under section 394/34, P.P.C. to appellants to suffer imprisonment for life and fine of. Rs.50,

000. In default of payment of fine to suffer imprisonment for two years is maintained. ' (3) Conviction and sentences awarded to appellants/accused Abdul Ghafoor Palari, Safdar Gorar, and Alloo Jokhio under section 13‑E Arms Ordinance to undergo R.I. for seven years are also upheld. The appellants shall have the benefit of section 382‑B, Cr.P.C., ally the sentences shall run concurrently. Reference for confirmation of death sentence is declined. With the above modification in the sentences, the appeal stands', disposed of. S.A.K./A‑334/K Order accordingly.