IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No.D-03 of 2020

Criminal Reference No.D-01 of 2020

 

         Before:

                                  Mr. Justice Muhammad Junaid Ghaffar

                                  Mr. Justice Irshad Ali Shah

 

         

Appellants                    :    1). Mst.Naheed w/o Bashir Ahmed Khushik

                                           2). Nadir Ali s/o Muhammad Umar Khokhar

                                                      3). Abdul Ghaffar s/o Moula Bux Khaskheli

     Through Mr.Sarfraz Khan Jatoi, Advocate

 

Complainant                        :     Hussain Bux s/o Muhammad Naseer Khushik

     Through Mr.Rafique Ahmed Abro, Advocate

 

The State                       :    Through Mr.Ali Anwar Kandhro, A.P.G 

 

Date of hearings           :     05.08.2020 & 12.08.2020          

Date of decision            :     19.08.2020                       

 

J U D G M E N T

 

IRSHAD ALI SHAH, J; The appellants by way of instant appeal have impugned judgment dated 08.01.2020, passed by learned 3rd Additional Sessions Judge/MCTC, Larkana, whereby they have been convicted and sentenced as under;

“I, therefore, convict the accused Mst.Naheed wife of Bashir Ahmed Khushk daughter of Abdul Latif Khokhar, accused Nadir Ali son of Muhammad Umar Khokhar and accused Abdul Ghaffar son of Moula Bux Khaskheli for committing offence of hatching conspiracy punishable under section 120-B PPC and sentence all of them to undergo R.I for two years with benefit of 382-B Cr.PC. I also convict all the above named three accused persons for committing offence punishable under section 201 PPC, whereby they caused the dead body of deceased Bashir Ahmed to disappear and sentence all of them to undergo R.I for seven years with benefit of 382-B Cr.PC and also to pay fine of Rs.100,000/- by each accused. Both the sentences shall run concurrently. Since all the three accused persons committed murder of deceased Bashir Ahmed by hatching conspiracy meaning thereby mens-rea was there therefore there are no mitigating circumstances to award less punishment than the death penalty. I therefore convict all the above named accused persons for committing offence punishable under section 302(b) PPC for committing murder of deceased Bashir Ahmed and sentence all of them to death”.

 

2.                The narration of the incident as is divulged in the FIR by complainant Hussain Bux is to the following effect;

“Complaint is that my brother Bashir Ahmed was Managing Director in Muslim AID, N.G.O. Somewhat four years back, he married with Mst.Naheed daughter of Abdul Latif Khokhar, aged about 32 years, r/o originally Shahdadkot, at present Karachi. One year back, my brother started to live separately with his wife Mst.Naheed in a house on rent, which is situated adjacent to Taluka Hospital Chowk, Shahdadkot. Mst.Naheed was demanding divorce from my brother Bashir Ahmed and such complaints were made by him with us. Bashir Ahmed and we were oftenly offering prayer in Masjid, Ehl-e-Hadees, Shahdadkot. On 08.09.2014, at about 09.00 p.m, my brother Bashir Ahmed went to his house after seeking permission from me and my brothers Nazir Ahmed and Muhammad Zaman. Today, at morning, he did not turn for “Nimaz”, there arose suspicion with us. On 09.09.2014, we came to know that a dead body of a person has been secured from water at the bridge of Tanwari Shakh. Me and my above named brothers went there and found the dead body to be of our brother Bashir Ahmed. It was found sustaining blows on right and left side of his forehead, his both eyes were found filled with clotted blood, his face was found swelling and some black marks were found on his back, his dead body was taken to Taluka Hospital, Shahdadkot, and now I am      reporting that Mst.Naheed to get rid from my brother Bashir Ahmed, has committed his murder in collusion with  other by way of torture after administering some intoxicant substance to him and then have thrown his dead body in Tanwari Shakh”.

 

3.                After registration of FIR, SIO/SIP Shahid Ahmed undertook the investigation of the case, apprehended the appellants, secured bag, motorcycle and pistol allegedly used by the appellants in commission of the incident and after usual investigation submitted challan of the case before the Court having jurisdiction.

4.                At trial, the appellants denied the charge and the prosecution to prove it examined PW-01 complainant Hussain Bux at Exh.04, he produced FIR of the present case, PW-02 Nazir Ahmed at Exh.05, PW-03 Muhammad Zaman at Exh.06, PW-04 Mashir Bangul Khan at Exh.07, he produced memo of arrest of appellants Nadir Ali, Abdul Ghaffar, memo of recovery of motorcycle, memo of examination of dead body of deceased, memo of recovery of bag, memo of arrest of appellant Nadir Ali (in Arms Ordinance case), memo of recovery of unlicensed pistol, Danistnama, memo of arrest of appellant Mst.Naheed, PW-05 Corpse bearer PC Sanaullah at Exh.08, PW-06 Ayaz Ali at Exh.09, PW-07 Mr.Himath Ali at Exh.11, through him were produced 164 Cr.PC statements of PWs Nazir Ahmed and Muhammad Zaman, PW-08 Tapedar Dost Muhammad at Exh.13, he produced sketch of vardat, PW-09 SIO/SIP Shahid Ahmed, he produced roznamcha entries, FIR Crime No.129/2014 of P.S A-Section Shahdadkot, report of the Chemical Examiner, PW-10 Medical Officer Dr. Roshan Ali at Exh.15, he produced provisional and final postmortem reports on the dead body of deceased and then closed the side.  

5.                The appellants in their statements recorded u/s.342 Cr.PC denied the prosecution’s allegation by pleading innocence; they did not examine themselves on oath or any one in their defense.

6.                On conclusion of trial, learned trial Court found the appellants to be guilty for the above said offence and then convicted and sentenced them, as stated above, by way of judgment, which is impugned by the appellants before this Court by way of instant appeal. Simultaneously, a reference is also made by learned trial Court for confirmation of “death” sentence awarded to the appellants in terms of Section 374 Cr.PC. The appeal and reference now are being disposed of by way of instant judgment. 

7.                It is contended by learned counsel of the appellants that the appellants being innocent have been involved in this case falsely by the complainant party in order to deprive Mst.Naheed being widow of the deceased of her legitimate right of inheritance; the FIR of the incident has been lodged with unexplained delay of about one day; none indeed has seen the appellants committing the alleged incident; no poison was detected in viscera of the deceased; no mark of violence was found on neck of the deceased and the appellants have been convicted and sentenced by learned trial Court on the basis of extra-judicial confessions allegedly made before the police, those even otherwise are inadmissible in evidence in terms of Article 38 of Qanun-e-Shahadat Order, 1984. By contending so, he sought for acquittal of the appellants. In support of his contentions, he has relied upon cases of MD.Nazir Hossain Sarkar and another Vs. The State (1969 SCMR-388), 2. Ihansullah Vs. The State (1997 P.Cr.L.J-1403), 3. Ahmed Ali Vs. Abdul Hanan and another (2004 P.Cr.L.J-788), 4. Allah Ditta Vs. The State (1980 P.Cr.L.J-163), 5.Azeem Khan and another Vs. Mujahid Khan and others (2016 SCMR-274), 6.Gulab Khan and another Vs. The State (PLD 1971 Karachi-299), and 7. Ismail and another Vs. The State(1991 P.Cr.L.J-536).  

8.                It is contended by learned counsel for the complainant and learned A.P.G for the State that the appellants in collusion with each other have committed death of an innocent person in very clandestine manner and then in order to save themselves from legal consequences have thrown his dead body in “Shakh”; the every circumstances connect the appellants with commission of the incident and on arrest from them has been secured the crime weapon, bag and motorcycle; the evidence of the prosecution has rightly been believed by learned trial Court with cogent reasons on the basis of discovery of new facts through the appellants by way of their statements made before the police. By contending so, they sought for dismissal of the appeal and confirmation of death sentence to the appellants. In support of their contentions, they have relied upon cases of Zakir Khan and others Vs. The State (1995 SCMR-1793), 2. Dr.Javaid Akhtar Vs. The State (PLD 2007 Supreme Court-249), 3. Gul Nawaz Vs. The State (1998 P.Cr.L.J-1730), 4. Khair Muhammad alias Khairo and another Vs. The State and another (2018 P.Cr.L.J-617), 5. Imran and three others Vs.The State (2007 P.Cr.L.J-721), 6. Naseer Ahmed and others Vs. The State (2009 P.Cr.LJ-573), 7.Sohail Ahmed Vs. Federation of Pakistan(PLD 1993 Federal Shariat Court-44) and 8.Hafiz Abdul Waheed Vs. Mrs. Asma Jehangir and another (1997 SD-453).

9.                We have considered the above arguments and perused the record.

10.              The deceased admittedly was living separate from his brothers and his death is not witnessed by any one. The appellants apparently have been involved in this case on the basis of information furnished by PWs Nazir Ahmed and Muhammad Zaman that they were found moving the dead body of the deceased through their motorcycle and on the basis of their statements before the police, whereby they have allegedly admitted their guilt. 161 Cr.PC statements of PWs Nazir Ahmed and Muhammad Zaman, as per SIO/SIP Shahid Ahmed were recorded on 15.09.2014. If it was so, then it was with delay of about six days even to FIR, which was lodged with delay of one day. No plausible explanation to such delay in recording 161 Cr.PC statements of the said PWs is offered by the prosecution, which suggests that the said PWs have been introduced in the case by the complainant party subsequently only to involve the appellants in this case falsely, therefore, their evidence could hardly be relied upon.

11.              In case of Abdul Khaliq vs. The State (1996 SCMR-1553),    it has been observed by Hon’ble Apex Court that;

“----S.161---Late recording of statements of the prosecution witnesses under section 161 Cr.P.C. Reduces its value to nil unless delay is plausibly explained.”

 

12.              The allegation of administering intoxicant substance to the deceased has come to an end when medical officer Dr. Roshan Ali stated that no poisonous substance on chemical examination was found in visceras of the deceased.

13.              The dead body of the deceased as per the complainant was taken by him and his witnesses to Taluka Hospital, Shahdadkot. No explanation to such act is offered by the complainant. Be that as it may, by doing so, the complainant destroyed the valuable piece of evidence in shape of recovery of the dead body, which legally was to have been recovered by the police itself. There is no memo of place where the deceased was allegedly done to death. The delay of one day in lodgment of FIR, which is not explained plausibly, could not be overlooked.

14.              In case of Mehmood Ahmed & others vs. the State & another (1995 SCMR-127), it has been held by Honourable Apex Court that;

“Delay of two hours in lodging the FIR
in the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate”.

 

15.              The dead body of the deceased was not found lying in bag, when it was secured by the complainant party. No blood mark was found on bag, which allegedly was secured by the police from the appellants on their pointation. If such bag would have been used in moving the dead body of the deceased, then it might have been found stained with blood. The allegation of the complainant party that the appellants moved the dead body of the deceased through single motorcycle is appearing to be doubtful in its nature, simply for the reason that the dead body of a well built person could hardly be moved by two persons through single motorcycle. The bruise and incised wounds found available on dead body of the deceased could hardly suggest that those were caused to him by the appellants with “butt” of the pistol. In that situation, the recovery of pistol by the police allegedly from the appellants on their pointation could hardly lend support to the case of prosecution. In these circumstances, it would be hard to maintain the conviction against the appellants on the basis of unreliable and untrustworthy evidence furnished by the complainant and his witnesses and/or on the basis of the statements of the appellants allegedly made by them before the police, admitting their guilt, which even otherwise could hardly be used as evidence in terms of mandate contained by Article 38 of Qanun-e-Shahadat Order, 1984.  

16.              In case of Faheem Ahmed Farooqui vs. The State              (2008 SCMR-1572), it has been held by Honourable Apex Court that;

 

“single infirmity creating reasonable doubt regarding truth of the charge makes the whole case doubtful.

17.              The case law which has been relied upon by learned A.P.G for the State and learned counsel for the complainant is on distinguishable facts and circumstances. In case of “Zakir Khan and others” (supra), it was relating to abduction and in that case, the accused were arrested at the time when they were found guarding the abductee. In the instant case, none has been abducted. In case of “Dr.Javed Akhtar” (supra), it was held by the Honourable Court that when witness was not cross examined by the accused regarding a portion of examination in chief, such portion would be deemed to have been accepted by the accused. In the instant case, very involvement of the appellants is found to be doubtful. In case of “Gul Nawaz” (supra), it was held by Honourable Court that testimony of witnesses cannot be discarded merely for the reason that none from the locality has come forward to depose as witness. In the instant case, no issue of independent witness is involved.  The prosecution has failed to prove its case against the appellants beyond shadow of doubt. In case of “Khair Muhammad @ Khario and another” (supra), the FIR of the incident was lodged by the complainant who died subsequently. In the instant matter, the deceased was not found to be injured before his death. In case of “Imran and three others” (supra), it was held by the Honourable Court that negligence of the police was not sufficient to demolish the prosecution case. In the instant case, the police obviously has supported the complainant party by foisting the recovery upon the appellants. In case of “Naseer Ahmed and others” (supra), the accused were convicted on the basis of disclosure of new facts with regard to committing unnatural offence with deceased and subsequent recovery of mobile phone and incriminating articles. In the instant case, no new disclosure is made by the appellants and recovery made from them has been found to be doubtful. In case of “Sohail Ahmed” (supra), Section 34 PPC was sought to be declared repugnant to injunction of Islam. In the instant case, no issue of repugnancy of Section 34 PPC against the injunction of Islam is involved. In case of “Hafiz Abdul Waheed” (supra), the issue of marriage of Muslim female was involved. In the instant matter, no issue of marriage of Muslim female is involved.

18.                  In view of the facts and reasons discussed above, the impugned judgment is set aside. Consequently, the appellants are acquitted of the offence for which they have been charged, tried and convicted by learned trial Court by extending them benefit of doubt, they are in custody and shall be released forthwith in the present case, if are not required in any other custody case.

19.              The appeal preferred by the appellants and reference made by learned trial Court for confirmation of death sentence to the appellants are disposed of accordingly.

20.              Death sentence not confirmed.

 

 

                                                                                                J U D G E

 

 

                                                             J U D G E                                   .