HIGH COURT OF SINDH AT KARACHI

Criminal Jail Appeal No.166 of 2010

Appellant              :         Shahid Ali

through Mr. Nadeem Ahmed Azar, Advocate.

Respondent          :         The State through Mr. Khadim Hussain,

Assistant Prosecutor General, Sindh.

None present for complainant

Date of hearing     :        27.03.2019

Date of Judgment :        27.03.2019

J U D G M E N T

Abdul Maalik Gaddi, J.– Through this jail appeal, the appellant Shahid Ali son of Imam Din has assailed the legality and propriety of the judgment dated 24.02.2010 passed by the learned IV^th Additional Sessions Judge, Karachi (East) in Sessions Case No.235 of 2004              (re: The State v. Shahid Ali), in Crime No.64 of 2004 registered under Section 302 PPC at police station Zaman Town, Karachi, whereby the learned trial Court after full dressed trial, convicted and sentenced the appellant as stated in point No.3 of the impugned judgment. For the sake of convenience, it would be proper to reproduce the findings of Point No.3 of impugned judgment, which reads as under:-

“Point No.3.

          After evaluation of whole evidence available on record, I am of the firm opinion that the prosecution has succeeded in bringing the guilt of the accused at home regarding murder of deceased Mst. Nadra, the wife of complainant and by keeping in view the facts and circumstances as discussed above, the accused present in custody is hereby convicted and sentenced to undergo for Life Imprisonment. The accused is also entitled for benefit of Section 382-B Cr.P.C. He is remanded back to central prison Karachi to serve out the above sentence.”

2.       The brief facts of the prosecution case leading to the filing of this appeal are that on 23^rd April 2004 at about 1800 hours complainant Gohar Ali son of Bux Ali, resident of house situated at Kachi Abadi, New Noorani Basti, Sector D-48, Korangi Karachi, came at police station and stated that he is residing at the given address along with his wife and family and working in NS Factory, KIA as Compressor Fitter and from the wedlock of his wife Nadra, two children taken birth but died. On 23.04.2004, he as routine went to his job and at about 3:00 p.m. his younger brother Miraj through factory’s phone asked that immediately come at home. When he reached at his house, the ladies of muhallah informed him that his wife Nadra was taken to Korangi Hospital by his father and his mother in law in serious condition and then he went to Korangi Hospital, he found his wife dead with the sign of torture on neck and hand and on different parts of her body and his younger sister Nasreen informed him that her brother-in-law, finding his sister-in-law Nadra alone in the house entered there on the pretext of taking onion and killed her after committing rape with Nadra. He requested for legal action in the matter. Hence, this FIR.

3.       It also appears from the record that after registration of FIR, the investigation was carried out by SIP Ghulam Mohiuddin, who arrested the accused on 20.04.2004 and after recording the statements of PWs under Section 161 Cr.P.C. and completing all the formalities, submitted the final report against the appellant in the Court of law.

4.       It appears from the record that charge was framed on 02.11.2004 at Ex.2 against the appellant by the learned trial Court, to which appellant pleaded not guilty and claimed to be tried vide his plea at Ex.2-A.

5.       At trial, in order to establish accusation against appellant, prosecution had examined PW-1 complainant Gohar Ali at Ex.3, who produced the FIR, memo of inspection of place of incident at Exs.3-A and 3-B; PW-2 Dr. S. Farhat Abbas at Ex.4, who produced letter addressed to him by SI Ghulam Mohiuddin for medical examination of accused and ML No.J-3357/2004 at Exs.4-A and 4-B; PW-3 Nasreen at Ex.5; PW-4 Ali Murad at Ex.6, who produced memo of arrest of accused and rough sketch of place of incident at Exs.6-A and 6-B; PW-5 Dr. Asia Rehman at Ex.7, who produced letter addressed to him for cause of death by ASI Muhammad Safdar, post mortem report No.229/2004 and cause of death certificate at Exs.7-A to 7-C; PW-6 ASI Muhammad Safdar at Ex.8, who produced memo of inspection of death body of deceased, inquest report and receipt regarding handing over the death body as Exs.8-A to 8-C; PW-7 Pervaiz Qadir Memon, Judicial Magistrate at Ex.9, who produced application filed by Investigating Officer for recording of 164 Cr.P.C. of two PWs and statements of Mst. Asma and Bux Ali at Exs.9-A to     9-C respectively; PW-8 Asma at Ex.11; PW-9 Muhammad Ibrahim at Ex.12 and PW-10 Muhammad Miraj at Ex.13. These witnesses were cross examined by the counsel for the appellant. Thereafter, leaned DDPP closed the prosecution side vide Statement at Ex.14.

6.       Statement of appellant was recorded under Section 342, Cr.P.C. at Ex.15 in which he has denied the allegations as leveled by the prosecution by stating that he is innocent and has been falsely implicated in the case because there was a dispute with the complainant Gohar Ali on the construction of house of complainant as he being mason constructed the same but complainant has not given him labour charges for two months, but implicated him in the case and he has not committed any murder and the complainant better know about the murder of his wife and prior to incident, his mother-in-law extended threats that they will sent him behind the bar if he demanded money and after quarrel he went to Multan Punjab and on the day of incident, he was not present in Karachi and police arrested him from Multan. However, appellant neither examined himself on Oath nor led any evidence in his defence.

7.       Learned counsel for the appellant has contended that that the judgment passed by the learned trial Court is against the law and facts who while delivering the judgment did not take into consideration the evidence already on record in its true perspective and has erred in law that the accused has committed the offence. Per learned Counsel, the case against the appellant is false and has been registered by the complainant in order to usurp the labour charges as he constructed the house of complainant and there are material contradictions between the statements of witnesses. Per learned Counsel, in the instant case, there is contradictory evidence brought on record to connect the present accused with the commission of alleged murder of deceased lady, and all the private witnesses are interested witnesses and no motive has been brought on record due to which the accused allegedly committed the murder of deceased lady, hence, the case of prosecution is not free from doubt and the benefit of doubt may be extended to the accused by acquit him from the charge. Lastly, he prayed that appeal may be allowed.

8.       Conversely, learned Assistant Prosecutor General, Sindh while opposing the aforesaid contentions submitted that the prosecution has fully established its case against the appellant beyond reasonable doubt by producing consistent/convincing and reliable evidence and the impugned conviction and sentence awarded to the appellant is the result of proper appreciation of evidence brought on record, which needs no interference. Lastly, he prayed that the appeal may be dismissed as the appellant has committed serious and heinous offence.

9.       I have carefully heard the learned counsel for the parties at a considerable length and scanned the entire evidence and documents available on record.

10.     In order to substantiate the case, prosecution has examined in all ten (10) witnesses. The allegation against the accused is that on 23.04.2004, the present appellant inside the house of complainant situated in Katchi Abadi, New Noorani Basti, Sector 48-D Korangi Karachi, has committed Qatl-e-Amd. The complainant, who was employed in NS Factory, when informed by his younger brother namely Miraj on factory’s phone, he immediately came to his house and ladies of mohallah informed him that his wife was taken to Korangi Hospital by his father and mother-in-laws in a serious condition and then he went to Korangi Hospital and found his wife dead with sign of torture in her neck, hand and on different parts of her body and his younger sister Nasreen (PW-3) informed him that her brother-in-law (present appellant) finding his sister-in-law Mst. Nadra alone in the house, entered there on the pretext of taking onion and killed her after committing rape with Mst. Nadra. Since the first eye witness of the case is Mst. Nasreen with whom the conversation of appellant was taken place just before the incident and her age has been shown as fourteen (14) years, so also, she is a star and natural witness of the case, as well as, she had seen the accused while entering in the house of deceased, who was also inside the house, therefore, in my opinion, her evidence is very material for just decision. Thus, it would be appropriate to reproduce the evidence of the said witness, which reads as under:-

“Examination-in-Chief:

On 23.04.2004, I went to my school namely Al-Tayyab School and was getting education in class one. It was Friday, thereafter, I took lunch with deceased Nadra and asked her to go out from the house for playing. In the street accused Shahid met me and asked me who are present at the house. I told him that only my Bhabi Nadra was present in the house. The accused replied me that he is going to taking onion from my house. The accused also asked me to go his house as there was milad shareef in his house. I went to house of accused. Thereafter, accused returned back to his house after an hour. The clothes of the deceased was dirty due to mud. The accused disclosed me that my Bhabi is sleeping. Soon after I reached to my house and found my Bhabi was found dead. Thereafter, accused disclosed from his house. Police recorded my statement 161 Cr.P.C. in the evening in 7:00 p.m. on the said day. The accused present in Court is same.

Cross Examination:

At present I am in class VI. I can read urdu. It is correct that whatever I have stated in my statement U/S 161 Cr.P.C. is correct. It is correct that it is not mentioned in my statement U/S 161 Cr.P.C. that I have taken lunch with my Bhabi Nadra. It is correct that it is not mentioned U/S 161 Cr.P.C. that accused met me in street when I was playing. Voluntarily says that I have specifically disclosed those facts before police. It is correct that it is not mentioned in my statement U/S 161 Cr.P.C. that accused Shahid sent me to his house for milad shareef. It is correct that it is not mentioned in my statement U/S 161 Cr.P.C that when accused returned back to his house after one hour. It is correct that it is not mentioned in my statement U/S 161 Cr.P.C that accused had asked me that Bhabi was sleeping in her house and you may not go to the house. It is incorrect that there was dispute between accused and my family due to transaction of money.”

From the perusal of above evidence, it appears that at the time of incident, PW-3 Mst. Nasreen was very much available at the time of incident and she had seen the accused while entering in the house of Mst. Nadra and when she came back, she came to know that her Bhabi was lying died. It appears from the record that Mst. Nasreen is a near relative of complainant. No enmity exits in between Mst. Nasreen and accused/appellant, therefore, her statement could not be said as false. However, I have also gone through the cross examination of Mst. Nasreen, but no question was put to her by the appellant’s Counsel that she is/was giving false evidence. This witness although put on lengthy cross examination, but she did not shatter from her evidence.

11.     Now I come to the evidence of PW-8 Mst. Asma available on record at Ex.11 of the R&Ps. She in her examination-in-chief deposed that on the relevant date and time, she was standing near the house of Mst. Nadra (deceased) with her goat and had seen the appellant coming from the house of deceased in nervous condition and it has come on record that appellant restrained her not to go in the house of deceased as she was not available in the house, however, as per record, it reveals that immediately, said PW-8 Mst. Asma entered into the house in order to confirm her absence, as soon as, she entered into the house, she found deceased Nadra lying on the floor and one dupatta was in her neck and other dupatta was in her mouth. She tried to drop the water in her mouth, but it came out from her mouth and she was died. It also appears from the record that her statement under Section 164 Cr.P.C. was also recorded before the Magistrate in which she has reaffirmed the same facts. The accused was provided opportunity to cross examine the said witness under Section 164 Cr.P.C., but he did not avail the opportunity. This witness has also having no inimical terms with the appellant. She is also natural and star witness. Even then, this witness although put on lengthy cross examination, but she also did not shatter from her evidence.

12.     Statement of Mr. Pervaiz Qadir Memon, the then Judicial Magistrate, before whom the statement of PW-8 Mst. Asma, was recorded at Ex.9, who deposed that statement of Mst. Asma was recorded before him.

13.     I have also gone through the evidence of PW-5 Dr. Asia Rehman, Women Medico Legal Officer, available on record at Ex.7, who produced the medical reports at Exs.7-A to 7-C, with the able assistance of the parties’ Counsel and come to the conclusion that the cause of death was declared by the doctors as unnatural. However, learned Counsel for the appellant also not disputed this fact.

14.     It also appears from the record that this unfortunate incident took place on 23.04.2004 at about 1300 hours, whereas, FIR was registered on same day at about 1800 hours without any inordinate delay. Appellant has been nominated in FIR with specific allegation that at the time of incident, the present appellant has committed the murder of Mst. Nadra after strangulation and the presence of appellant while entering in the house of Mst. Nadra and coming out were noted by PW-3 Mst. Nasreen and PW-8 Mst. Asma respectively, who in their respective evidence have clearly implicated the present appellant in the commission of offence. No ill will has been alleged against them by the appellant. These witnesses are natural witnesses though these witnesses have been cross examined at length, but they have not been shattered in evidence. It is argued by the Counsel for the appellant that PW-3 Mst. Nasreen, PW-8 Mst. Asma and complainant are near relatives to the deceased, therefore, their evidence in this matter could not be relied upon in this case to maintain the conviction. Reverting to the contention as raised by learned Counsel for the appellant, it is suffice to say that mere relationship of the witnesses with the deceased would not per se be good enough to label them with interestedness unless the parties have previous background of hostility, but in this respect, no convincing and concrete evidence is available on record that parties having inimical terms with each other in past.

15.     As observed above, total ten (10) prosecution witnesses were examined by the trial Court, they have fully supported the prosecution case and statement of accused was also recorded under Section 342 Cr.P.C. in which he explained that on the day of incident, he was not available at Karachi and he had gone to Multan after quarreling with the complainant for the dispute of money with him. No cogent/documentary evidence is on record to show that some labour amount were outstanding against the complainant for the purpose of construction of house, therefore, this ground appears to be false and has been taken just to save his skin.

16.     The appellant has also taken the plea of ‘ali bi’ and his false implication in his statement under Section 342, Cr.P.C. It is pertinent to mention here that this incident was took place on 23.04.2004 and the statement of accused/appellant was recorded on 15.01.2010, since then for about five and half (5½) years has been lapsed, but the appellant remained mum and never moved any application regarding his contention of plea of ‘ali bi’ before any forum. Burden to prove that the appellant was at Multan at the time of incident heavily lay upon the appellant to prove this fact, but as observed above, there is only oral assertion of the appellant that he was out of city at the relevant time, but he did not examine himself either on oath nor led any evidence in this regard. All ten (10) witnesses have been examined in this case, but this fact has not been confronted to them in evidence in this regard. Merely saying that he was out of city is not enough unless some cogent and concrete evidence is on record, which is lacking in this case, therefore, appellant has failed to prove the burden lay upon him to the effect that he was out of city.

17.     In view of above, I have also considered the version of both the parties put forward by them through evidence and put the same in juxtaposition then I found that the version of the complainant seems to be more plausible and convincing while the version of the appellant/accused appears to be dubious and has also not been proved. The discrepancies highlighted by the learned Counsel for the appellant in the statement of prosecution witnesses are of minor in nature and are not so material to discard their testimony.

18.     In view of the above facts and circumstances of the case, no illegality has been found/pointed out in the impugned judgment. Learned trial Court while passing the impugned judgment has appreciated all the facts involved in the case. I, therefore, under the facts and circumstances of the case, could not find any merit in this appeal, which is dismissed along with listed application.

19.     This appeal was dismissed after hearing the learned Counsel for the parties on 27.03.2019 and these are the reasons thereof.

JUDGE

Faizan A. Rathore/PA*