IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Criminal Appeal No.D –119 of 2016
Present:
Mr. Justice Muhammad Iqbal Mahar
Mr. Justice Amjad Ali Sahito
Appellant: Abdul
Jabbar S/o Abdul Sattar Memon,
through Mr. Zuber Ahmed Rajput, Advocate.
Respondent: The State, through Mr. Abdul
Rehman Kolachi, Deputy Prosecutor General
Date of hearing: 08.11.2018
Date of decision: 08.11.2018
J
U D G M E N T
AMJAD ALI SAHITO, J:- The above-named appellant was tried by learned Judge,
Anti-Terrorism Court Naushahro Feroze in Special Case No.80/2015 St. Vs. Abdul Jabbar and another, for offence punishable under Sections 302,34 PPC and 7 Anti-Terrorism Act, 1997 arising
out of Crime No.217/2015 registered with Police Station Naushahro Feroze and
was convicted and sentenced to suffer imprisonment for life under Section 302(b)
PPC r/w Section 7(a) Anti-Terrorism Act, 1997 and to pay compensation of Rs.100,000/-
to the legal heirs of deceased Mst. Hameedan, in case of default of payment of
compensation, to suffer S.I for one year more, however benefit of Section 382-B Cr.P.C was given to the appellant.
2. The concise facts as depicted in FIR lodged
on 23.09.2015 at 1500 hours by complainant ASI Sultan Ahmed Lohach on behalf of
the State at police station Naushahro Feroze, are that on the fateful date, he along
with his subordinates HC Muhammad Haroon, PC Ghulam Qadir Chandio, PC Rasool
Bux Solangi and DPC Abdul Hakeem Wagan, in Government vehicle No.SP-7501 duly
armed with official arms and ammunitions vide entry No.13 at 1300 hours were on
patrolling duty and during patrolling they received spy information that on the
National Highway road near Bhiria bye-pass at about 1:30 p.m accused Abdul
Jabbar S/o Abdul Sattar and Abdul Sattar S/o Umed Ali Memon have murdered Mst.
Hameedan wife of Naseer Memon by causing her Knife blows (Chhuri). On receipt
of such information, he went towards the place of incident and found a dead
body of a woman lying on the road side which was covered with black cloth
(Chadar), her neck was slaughtered and she was having injuries on backside of
neck and was bleeding. After necessary formalities, the dead body was taken to
hospital and leaving the dead body there for postmortem, the complainant
appeared at police station and registered the FIR on behalf of the State.
3. After
completing the investigation, the Investigation Officer filed report under
Section 173 Cr.P.C before the competent Court of Law. The learned trial Court
after observing all the legal formalities
framed charge against the present appellant and acquitted accused Abdul Sattar at
Ex.3 to which they pleaded not guilty and claimed trial.
4. In order
to establish accusation against the appellant, the prosecution examined PW-1 WMO
Dr. Farah Baloch at Ex.6, she produced postmortem report, inspection form of
dead body, copy of receipt at Ex.6/A to 6/C; PW-2 Tapedar Wazir Ahmed at Ex.7,
who produced sketch at Ex.7/A; PW-3 Complainant ASI, Sultan Ahmed Lohach at
Ex.8, who produced attested copy of entry, Danishnama, memo of inspection of
place of incident, copy of FIR, photographs, memo of arrest & body search, memo
of release of detainee Mst. Hameedan, photocopy of application filed under
section 491 Cr.P.C, Photostat copy of notice, copy of roznamcha entry, memo of
last worn clothes at Ex.8/A to 8/I respectively; PW-4 HC Muhammad Haroon at
Ex.9; PW-5 ASI Sikander Ali at Ex.10; PW-6 WASI Arbab Ali at Ex.11; PW-7 WPC
Allah Dino Khushk at Ex.12; PW-8 SIP Abdul Shakoor at Ex.14, who produced
carbon copy of police letter at Ex.14/A; PW-9 I.O Inspector Hamid Ali Jumani at
Ex.15, who produced case diary and order and chemical report at Ex.15/A to 15/C.
Thereafter learned DDPP for State closed the side of prosecution at Ex.16;
PW-10 Naseer Khan Memon was also examined at Ex.17.
5. Statements
of the appellant and acquitted accused Abdul Sattar were recorded under Section
342 Cr.P.C at Ex.18 and 19, wherein they denied the prosecution allegations
leveled against them and prayed for justice and the appellant further stated that
he went to police station Bhiria City for registration of his FIR regarding the
murder of his sister, as some unknown persons had committed the murder of his
sister but police involved him in this case. The appellant examined himself on oath but did not led
any evidence in defence.
6. After
full fledge trial, co-accused was acquitted while the appellant was convicted
by the trial Court vide judgment dated 15.06.2016, which has been assailed
before this Court through instant Criminal Appeal.
7. Mr. Zubair
Ahmed Rajput, learned counsel for the appellant argued that the impugned
judgment is against the law and facts of the case; that the present appellant
is innocent and has falsely been implicated in this case by the police; that
this is unseen incident and not a single person has been shown as eyewitness of
the incident from the nearby areas; that deceased Mst. Hameedan was murdered by
some unknown dacoits on her resistance during robbery and they cut her neck;
that after the arrest the appellant was not produced before the Magistrate for
recording his statement under Section 164 Cr.P.C; that all the witnesses are
police officials and not a single private person has been associated to corroborate
the version of the complainant and P.Ws; that there are material contradictions
in the evidence of the prosecution witnesses which have demolished the whole
case of the prosecution; that Nisar Ahmed, the brother of the deceased, was not
examined and all the formalities were completed within 05 hours and 20 minutes,
thus lastly he prayed for acquittal of the present appellant.
8. Mr. Abdul
Rehman Kolachi, learned Deputy Prosecutor
General while rebutting the contentions of learned counsel for the appellant
submitted that the appellant had committed murdered of her sister, hence no one
was ready to come forward to register the FIR, therefore, ASI Sultan Ahmed
lodged the FIR on behalf of the State; that it has been brought on record that
the appellant and his father had detained the deceased Mst. Hameedan in their
house and did not produce her before the Court of learned Sessions Judge
Naushahro Feroze; that the appellant in his statement recorded under Section
340(2) Cr.P.C has admitted that lastly deceased was with him, when three
persons came on a motorcycle and tried to rob her but her resistance one of the
dacoits having knife (Churri) in his hand cut her throat, resultantly she died
at the spot; that no enmity has been pleaded by the appellant that he has been
falsely implicated in this case by the police; that after recording statement
on oath under section 340(2) Cr.P.C burden has been shifted upon the accused to
prove his innocence as he has admitted himself that the deceased was with him
at the time of incident; that the appellant appeared at police station Bhiria
City along with blood stained (knife) Churri and admitted that he has committed
murder of Mst Hameedan; that blood stained Churri (knife) and blood stained earth
were sent to the Chemical Laboratory and such Chemical Report is brought on
record which shows that the knife (Churri) was stained with human blood; that
the version of the appellant that during robbery deceased was murdered by the
dacoits is belied by P.W-10 Naseer Khan; that the prosecution has brought
strong circumstantial evidence against the appellant Abdul Jabbar to connect
him with the commission of the offence; that the appellant has failed to
produce any cogent evidence to believe that he has been falsely implicated in
this case. Lastly he submitted that the prosecution has proved its’ case against the appellant beyond any shadow of doubt,
hence he prayed for dismissal of the instant appeal.
9. We have
heard the learned counsel for the parties and have perused the record. On
careful perusal of material brought on record, it appears that the prosecution
case rests upon circumstantial evidence. In this respect prosecution examined
complainant ASI Sultan Ahmed, he deposed that on 23.09.2015 during patrolling
they received information that appellant Abdul Jabar and acquitted accused Abdul
Sattar have committed murder of Mst Hameedan, wife of
Naseer Khan, at National High Way road near Taluka Board. On such information,
they went to the place of incident and found that a dead body of one lady was
lying on the road leading from Sukkur to Karachi and her neck was cut. After
completing all the formalities, he sent the dead body to the hospital for post
mortem examination, thereafter the dead body was
handed over to her brother Nisar. He further deposed that on the same day at
about 1730 hours WASI, Arbab Ali of PS Bhiria City informed him that accused
Abdul Jabar has appeared at PS along with blood stained Churri. On such
information the Police party went to PS Bhiria City and arrested the appellant
Abdul Jabar at PS and secured blood stained Churri which was sealed in presence
of the mashirs. His evidence is corroborated by other PWs, including IO. Hamid
Ali. PW. WASI, Arbab Ali also confirmed the version of
the complainant and PW Muhammad Haroon. He deposed that on 23.09.2015, he was present
at PS as WASI where duty officer Sikander Ali Lakhair and other police
officials were also present. At about 1730 hours accused Abdul Jabbar s/o Abdul
Sattar Memon appeared at police station along with blood stained Churri and
disclosed that he along with his father has committed murder of his sister Mst.
Hameedan, wife of Naseer Memon, at National Highway link road near Taluka Board
Naushahro Feroze, he informed
complainant ASI Sultan Ahmed about the presence of accused Abdul
Jabbar at police station Bhiria city. During enquiry, the accused Abdul Jabbar
disclosed that today viz. 23.09.2015 application under Section 491 Cr.P.C filed
by husband of deceased, namely, Naseer Khan was fixed for hearing and the
Sessions Judge directed them to produce Mst. Hameedan in Court, hence on such
direction he along with his father took Mst. Hameedan on motorcycle and
committed her murder at link road. He further disclosed that they were annoyed
with her and her husband, therefore, he and his father
Abdul Sattar have committed her Qatl-e-Amd. He has denied the suggestion that
accused had appeared at police station Bhiria city for registering the FIR
against unknown accused persons for the murder of his sister Mst. Hameedan.
10. The
prosecution has examined PW-7 WPC Allahdino, who has also supported the version
of the WASI Arbab Ali. Thereafter PW Inspector /I.O Hamid Ali was examined, who
deposed that on 12.10.2015, he was posted as Incharge Investigation for
Anti-Terrorism cases and on the same date SIP Ali Akber Khokhar, SHO Police
Station handed over the case papers of initial investigation of crime
No.217/2015 for further investigation and found that the entire investigation
was completed, he has produced case diary dated 23.9.2015 which shows that
husband of deceased namely Naseer Khan had filed an application under Section
491 Cr.P.C for illegal detention of Mst. Hameedan, hence on such application,
learned Sessions Judge Naushahro Feroze directed the appellant Abdul Jabbar and
his father Abdul Sattar to produce the detainee but resultantly she was
murdered, he has also produced report of the Chemical Examiner at Ex.15/C
regarding the blood stained earth and Churri recovered from the appellant,
which were received in positive. The prosecution also examined Naseer Khan,
though he denied the murder of Mst. Hameeda at the hands of the appellant,
however, he admitted that he saw that the neck of his wife was cut and she was
thrilling, but it is surprising to note here that he was shown present along
with accused/appellant Abdul Jabbar and Abdul Sattar, but being a husband he did not shift the dead
body to hospital or approached the police station, but police received
information through telephone that a dead body is lying at the road leading
from Sukkur to Karachi. Thereafter the prosecution closed its side and the
appellant Abdul Jabbar examined himself on oath and deposed that husband of
Mst. Hameedan filed an application before the Court of learned Sessions Judge
Naushahro Feroze, and notice was issued to him and his father, they appeared
before the Court of learned Sessions Judge and on enquiry they disclosed that
Mst. Hameedan did not accompany them to the Court, on such statement the
learned Sessions Judge directed them to produce the detainee for recording her
statement and on such direction, the appellant went to village and while returning
back reached at Taluka Board near fields of Banana, three persons came on
motorcycle and robbed him and his sister, his sister resisted to the robbers on
which one of the accused cut her throat, he raised cries on which the people
passing through the road came at the place of incident but accused ran away
while throwing the knife at the place of incident. He informed the villagers
regarding the incident, this occurrence took place in
presence of his father and husband of the deceased.
11. The record
further revealed that the husband of the deceased Mst. Hameedan, namely, Naseer
Khan filed an application u/s 491 Cr.P.C before learned Sessions Judge
Naushahro Feroze for recovery of his wife Mst. Hameedan and in the said
application, her husband in Paragraph. 4 of the application has clearly
mentioned that the opponents viz, Abdul Jabar and Abdul Sattar, father and
brother of deceased have illegally detained her in their house and so many
times she tried to return back to the house of her husband Naseer, but both the
opponents namely Abdul Sattar and Abdul Jabbar seriously beaten and tortured
her, as such the life of the detainee is in danger, whereas, notices were
issued with direction to the SHO police station Bhiria City to produce the
detainee (Mst. Hameedan) on the next date of hearing. On 23.09.2015 Naseer Khan
husband of the deceased Mst. Hameedan was present and accused Abdul Sattar and
Abdul Jabbar were also present in Court, whereas SHO submitted report that Abdul
Sattar and Abdul Jabbar did not produce the detainee Mst. Hameedan, they were
directed by the learned Sessions Judge to produce the detainee before the Court
and the matter was kept aside for second call. On Court direction, appellant
Abdul Jabbar Memon went to his house in order to bring Mst. Hameedan but did
not return back to Court. PW Naseer Khan, though he has not implicated the
appellant but in his cross-examination has admitted the company of deceased
with appellant and deposed that “It is a
fact that Abdul Jabbar informed me on cell phone at about 12:30 p.m that I am
bringing your wife on motorcycle to Sessions Court and you may come out from
Sessions Court to meet with your wife”.
12. Furthermore
investigating officer Inspector Hamid Ali produced case diaries Ex.15/A dated
23.09.2015, which reads as under:-
“Applicant is
present opponents namely Abdul Sattar and Abdul Jabbar are. Report sent by SHO
police station Bhiria city, opponents Abdul Sattar and Abdul Jabbar have not
produced defence, therefore, they were directed to produce detainee before this
Court within Court time and matter was kept for second call.
And on very same day another diary
viz. 23.09.2015 at 2:45 p.m was written which is as under:-
“This matter was
called, applicant is present. Opponents Abdul Sattar and Abdul Jabbar are
called absent, they have not produced the detainee. Put off to 30.9.2015 for
hearing.”
From the
above evidence, it is established that lastly deceased Mst. Hameedan was in
company of appellant Abdul Jabbar Memon. Hence the first requirement of the
last seen stands proved.
13. The second
requirement is that the timing when the deceased was lastly seen with the
accused and subsequently she was murdered. In this case on the Court direction
the appellant went to his village to bring the deceased Mst. Hameedan for
recording her statement as she was in his company; at the time of filing
application under Section 491 Cr.P.C by the husband of the deceased Mst.
Hameedan. It has been clearly mentioned that “when detainee tried to return back to applicant, both the opponents
seriously beaten her and tortured and the life of the detainee was in danger at
the hands of the opponents viz. appellant Abdul Jabbar and Abdul Sattar".
Furthermore, the claim of the appellant is that some unknown dacoits committed
murder of the deceased Mst. Hameedan, for a moment if it is believed that the
version of the appellant is correct, even then it is beyond imagination that
after murder any brother will leave the dead body of his sister alone on a road
and would not call any relative to look after the dead body and will approach
the police. It appears from the evidence that the husband of the deceased has
approached the Court that his wife is trying to join him but appellant Abdul
Jabbar and his father Abdul Sattar are not allowing her to join, therefore,
apprehending danger to the life of his wife, Naseer Khan filed an application
u/s 491 Cr.P.C, when the learned Sessions Judge Naushahro Feroze directed the
appellant and his father to produce detainee Mst. Hameedan for recording her
statement, then the appellant went to his village and on the way committed the
murder of Mst. Hameedan, hence the motive to commit the murder of deceased also
stands proved. Furthermore, in this case the dead body was identified by another
brother of the deceased, namely, Nisar Ahmed, but he failed to register the FIR
against the accused persons ultimately ASI Sultan Ahmed lodged FIR on the same
day viz. 23.09.2015 at about 1500 hours whereas the incident took place on very
same day at about 1300 hours, hence FIR was registered without any delay.
14. The last
seen evidence is also corroborated by the medical evidence, as the WMO Dr.
Farah Baloch, who had conducted postmortem of the deceased Mst. Hameedan on
23.09.2018, deposed that she started postmortem at about 2:15 p.m and finished
the same at about 3:15 pm. From the external examination, she has found the
following injuries on the person of the deceased:-
(i) Incised wound measuring 12 c.m x 5.5 cm into
muscle deep on right side of neck above right clavicle extending upto the
infront of neck, cutting also the trachea at the level of hyoid bone.
(ii) Incised wound measuring 7 c.m x 4 c.m
into muscle deep on right side of neck below the right ear.
On
internal examination of the dead body of deceased, she found cut of vessels of
the neck, contained few quantity of blood at the side, stomach contained new
amount of gastric juice, small intestine contained few amount of semi-digested
food, large intestine contained few amount of digested food and fecal material
while other all organs are healthy. From external as well as internal
examination, she was of the opinion that the death of deceased occurred due to
cut of trachea, shock and excessive bleeding, caused by sharp cutting object.
Both injuries individually or collectively can cause death in ordinary course
of life. Both the injuries were ante mortem in nature. Probable duration
between injuries and death instantaneously while between death and postmortem
was about one hour.
15. The
deceased was lastly in company of appellant, when she was murdered and motive
set up in this case, stood established, post mortem
examination on the dead body of the deceased was also conducted with no lapse
of time which proved un-natural death. The FIR was lodged promptly. The
investigating officer during the course of investigation secured blood stained
earth from the place of incident and the appellant/accused produced blood
stained Churri, which were sent to the Chemical Examiner and the report is
positive, hence the above piece of evidence substantiates the testimony of
complainant and his witnesses. No enmity has been claimed by the appellant
against the police officials for his false implication in this case. The
appellant in his statement recorded u/s 340(2) Cr.P.C admitted that lastly the
deceased was in his company but he denied her murder, therefore we are of the
considered view that strong chain of events stands established in the case and
connects the appellant with the commission of offence.
16. The upshot
of the above discussion is that the prosecution has successfully established
its case against appellant Abdul Jabar, learned counsel for the appellant has
failed to point out any material illegality or serious infirmity committed by
the learned trial Court while passing the impugned judgment, which in our view
is based on appreciation of the evidence and the same does not call for any
interference by this Court, thus the conviction and sentence awarded to the
appellant by the learned trial Court are hereby maintained and instant criminal
appeal filed by the appellant is merits no consideration which was dismissed by
our short order.
17. The above
are the detailed reasons of our short order dated 08.11.2018.
Judge
Judge
ARBROHI