Judgment Sheet
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Criminal
Appeal No. D – 131 of 2017
Present.
Mr. Justice
Naimatullah Phulpoto &
Mr.
Justice Abdul Mobeen Lakho.
Date
of hearing: 12.09.2019
Mr. Zakir
Hussain Bughio Advocate for the appellant.
Mr. Aftab Ahmed Shar, Additional Prosecutor
General.
J U D G M E N T
NAIMATULLAH
PHULPOTO, J. Shakeel
Ahmed appellant along with his father Niyamat Ali (since acquitted) faced trial
before learned Anti-Terrorism Court Naushehro Feroze, in special cases Nos. 34/2016 and 35/2016 for offences under sections 302, 376,
201, 34 PPC read with section 6/7 of Anti‑ Terrorism Act-1997 and under
sections 23(1) (a), 32 Sindh Arms Act 2013. After regular trial, vide Judgment
dated 09.09.2017 accused Niayamat Ali was acquitted of the charges. However,
accused Shakeel was convicted U/S 302 (b) PPC read with section 7(1) (a) of
Anti-terrorism Act, 1997 and sentenced to imprisonment for life. He was also
convicted U/S 201 PPC and sentenced to three years R.I. Appellant has been
ordered to pay compensation of Rs. 100,000/- (One lac) to be paid to the legal
heirs of deceased Mst. Gul Naz Arain, in terms of Section 544-A Cr.P.C, in case
of default in payment of compensation, accused was ordered to suffer R.I for
one year. Appellant has also been convicted U/S 23(1) (a) read with section 32
of Sindh Arms Act 2013 and sentenced to five years R.I. Appellant has been extended
benefit of section 382-B Cr.P.C.
2. Brief facts of the prosecution case as
disclosed in the FIR are that on 18.09.2015, ASI Abdul Majid lodged FIR on
behalf of state at Police station Bhirya road, it was recorded vide crime No.61
of 2015 for offences under sections 302, 34 PPC alleging that ASI Abdul Majid
was incharge at Police station Bhirya road on 18.09.2015, he received a letter
from IIIrd Civil Judge & J.M Naushehro Feroze for conducting proceedings
U/S 174 Cr.P.C. On 21.06.2015 Haji Niyamat Ali son of Ghulam Rasool Arain
appeared at P.S alleging therein that Mst. Gul Naz was his daughter and she had
committed suicide by means of pistol. WMO conducted her post mortem examination,
in which it was mentioned that death of deceased has been caused by means of
sharp cutting weapon. Complainant further stated that Mst. Gul Naz (his
daughter) has been murdered by some unknown persons. FIR was recorded under the
above referred sections against unknown persons. Investigation was entrusted to
DSP Muhammad Shareef. He visited the place of vardat on 18.09.2015 at 5.00 pm,
it was shown to him by Niyamat Ali. I.O could not find blood stained earth due
to lapse of time and prepared mashirnama in presence of private mashirs Faiz
Muhammad and Muhammad Fahad. On 4.10.2015, I.O went to the house of deceased
Mst. Gul Naz where he recorded 161 Cr.P.C statements of Niamat Ali, Shakeel,
Mst. Sehreen and Mst. Nasreen. I.O recorded statements of four persons on
08.10.2015 residing at the distance of one furlong away from the house of
deceased. On 22.10.2015 dead body was examined after exhumation by the medical
board and grave was pointed out by the father of the deceased. Thereafter, DSP
Muhammad Shareef / I.O prepared report for disposal of case under ‘A’ class
before Civil Judge & J.M Bhirya city but concerned Magistrate did not agree
with the report of the I.O and ordered for re‑investigation of the
case/crime.
3. J.I.T was constituted and
mainly investigation was conducted by DSP Sijawal Khan. He inspected place of
vardat. Again on 03.03.2016, recorded statement of Mst. Mukhtiaran (wife of
Niamat Ali Arain). On 30.03.2016, he came at Police station Bhirya road and
arrested accused Shakeel and Niamat and prepared such mashrinama, in presence
of mashirs ASI Shuaib and PC Shakeel. I.O recorded statements of Riaz Hussain,
Faiz Muhammad and Mst. Sehreen and other persons of the locality under section
161 Cr.P.C, in which according to I.O they stated that Shakeel (appellant) had
committed murder of deceased Mst. Gul Naz. Thereafter, investigation was
transferred to third I.O Muhammad Qasim Malik.
4. Third I.O DSP / Inspector
Muhammad Qasim has stated that he received investigation of crime No. 61/2015
registered at Police station Bhirya road under sections 302, 34 PPC as DSP
Sijawal had become ill. On 13.04.2016,
Investigation Officer produced Mst. Sehreen, Aamir and Abdul Rasheed before 1st
Civil Judge & J.M Bhirya for recording their statements U/S 164 Cr.P.C but
it was recorded on 14.04.2016. I.O interrogated accused Shakeel who prepared to
produce Axe (KAAT) used by him in the commission of offence and accused led
police party to his house from where he produced crime weapon lying under the
straws, it was secured by I.O in presence of mashirs and sealed at spot. I.O
sent crime weapon to Chemical Examiner Rohri for report and submitted interim
challan against accused before learned Judge Anti-Terrorism Court Naushehro
Feroze. I.O received spy information that PC Safdar had received one memory
card, which showed that accused Imran owner of Shan Public School had committed
rape with deceased Mst. Gul Naz. On 27.04.2016, Investigation Officer along
with ASI Shoaib, PC Shakeel was present at PS, where PC Safdar appeared and
handed over said memory card to the I.O. It was played by him and saw that
accused Imran had committed rape with Mst. Gul Naz. I.O got prepared CD and
photographs of memory card and sealed in
presence of mashirs ASI Shoaib and PC Shakeel. I.O on the same date, recorded
statements of PWs PC Safdar Hussain, Mst. Sehreen, Aaamir, ASI Shoaib and PC
Shakeel, Rafique Arain and Nasir Pervez U/S 161 Cr.P.C and lodged FIR against
Shakeel Ahmed on behalf of State U/S 23(1) (a), 32 Sindh Arms Act 2013, it was recorded
by Investigation Officer on behalf of State vide crime No.18/2016 at PS Bhirya
Road. Third I.O secured pistol in the proceeding No. 02 /2015 U/S 174 Cr.P.C
from Malkhana of Police Station Bhirya road and sealed in presence of mashirs
ASI Shoaib and Pc Shakeel, pistol was sent to FSL for report. On 12.05.2016, I.O formally arrested accused
Shakeel Ahmed in crime No.18/2016 of PS Bhirya road from lock up and prepared
such mashirnama in presence of mashirs ASI Shoaib and PC Shakeel. On the
conclusion of usual investigation, he
submitted challan against the accused under sections 302, 201, 376, 34 PPC read
with section 6/7 of Anti-Terrorism Act,1997 against accused Shakeel Ahmed and
Niamat Ali while showing Imran and Shahzad were shown as absconders.
5. Learned Judge Anti-Terrorism Court
Naushehro Feroze completed formalities against absconding accused and declared
them as Proclaimed Offenders. D.D.P.P submitted an application U/S 21(m)
Anti-Terrorism Act for amalgamation of case U/S 23 (1) (a) PPC with main case,
that application was allowed by the trial Court and joint trial was ordered.
6. Learned trial Court framed charge
against appellant Shakeel Ahmed and Niamat Ali at Exh.11 for offences under
Sections 302, 201 34 read with section 7(1) (a) of Anti-Terrorism Act, 1997 and
23(1) (a) & 32 of Sindh Arms Act 2013. Both appellants / accused pleaded not guilty and claimed to be tried.
7. In order to prove its case, prosecution
has examined PW-1 Sehreen Arain at Ex.
14, PW-2 Aamir Ali Arain at Ex. 15, PW-3 Rasheed Ahmed at Ex.16, PW-4
1st Civil Judge and Judicial Magistrate Bhiria City at Ex. 17. PW 5 ASI
Muhammad Nooh Sahito at Ex.18. PW-6 DSP Muhammad Sharif Abbasi AT Ex.19. PW-7
ASI Abdul Majid Dehraj at Ex.20. PW-8 ASI Shoaib Abbasi at Ex.21. PW-9 Muhammad
Saleem at Ex.22. PW-10 Dr. Qutibuddin Memon at Ex.23. PW-11 Dr. Gul Bibi at Ex.24
she produced postmortem report at Ex.24/A. PW-12 Nasir Pervaiz Cheema Jatt at
Ex.25. PW-13 Riaz Ahmed Keerio at Ex.26.
PW-14 Faiz Muhammad Keerio at Ex.27. PW-15 Tapedar Atta Muhammad Rajpar at
Ex.28, he produced sketch at Ex.28/B. PW-16 PC Safdar Ali Jatoi at Ex.29. PW-17
Inspector Muhammad Qasim Malik at Ex.30, he produced Chemical Examiner's report
at Ex.30/B. PW-18 Muhammad Rafiq Arain at Ex.31. PW-19 ASI Muhammad Iqbal
Kalhoro at Ex.32. PW-20 DSP Sijawal Khan Khaki at Ex.33. p.Ws produced relevant
record before trial Court. Thereafter, prosecution side was closed.
8. Trial
Court record statements of the accused Shakeel Ahmed and Niamat Ali U/S 342
Cr.P.C at Exh. 36 and 37. Both accused denied prosecution allegations and claimed
false implication in this case. Accused
Shakeel Ahmed who has been convicted by the trial Court, raised plea that pistol was found near the
dead body of deceased Mst. Gul Naz and prosecution has failed to examine
independent witnesses. Police officials / P.Ws have deposed against him falsely
at the instance of accused Shahzad and Imran. Accused Shakeel declined to
examine himself on oath, however, he has examined D.Ws Allah Warrayo , Ghulam
Mustafa and Niaz Hussain in his defense. In a question, what else, he has to say, the
appellant has replied as under:
“
Sir, Mst. Gul Naz has committed suicide due to black mailing of accused Imran
and Shahzad, she was teacher in their private school and both accused after
committing zina with the deceased have recorded her movie that is why she has
committed suicide with desi pistol which was secured by police from place of
incident. Police has managed this case against us after getting bribe from
accused Imran and Shahzad to save themselves from the allegation of murder.”
Accused
Niamat (since acquitted) did not examine himself on oath and claimed false
implication in this case. Accused Niamat in his defence had examined DW Ashique
Hussain.
9. Learned
trial Court after hearing learned counsel for the parties and assessment of the
entire evidence vide judgment dated 09.09.2017 acquitted accused Niamat Ali ,
however, convicted Shakeel Ahmed as stated above. Hence, this appeal is filed.
Facts
of this case as well as evidence produced before the trial Court find an
elaborate mention in the judgment passed by trial Court and, therefore, same
may not be re-produced here so as to avoid duplication and unnecessary
repetation.
10. Mr. Zakir
Hussain Bughio, learned advocate for appellant Shakeel mainly argued that
deceased had committed suicide but police for the mala fide reasons involved
appellant in this case who is the brother of the deceased; it is further argued that incident was
un-witnessed; that prosecution had failed to collect circumstantial pieces of
evidence against the appellant; that on
same set of evidence, one accused namely Niamat Ali has been acquitted by the
trial Court and appellant on same set of evidence has been convicted by the
same trial Court without their being an independent or strong corroboration. In support of contentions, he has relied upon
the cases reported as Majeed alias
Majeedi and others v. The state (2019 SCMR 301), Altaf Hussain v. The State (2019
SCMR 274), Munir Ahmed and another v. The State and others (2019 SCMR 79), Ghulam Rasool and another v. The State (SBLR
2005 FSC 19), Moulana Muhammad Taqi Usmani v. The State (1995 SCMR 1345), Khalid
Javed and another v. The State (2003 SCMR 1419), Wahid Bakhsh alias Bhutto v.
The State (2018 P.Cr.L.J 1417), Tariq Hussain and another v. The State (2018
MLD 1573), Pahar Khoso and others v. The State (2018 P.Cr.L.J 1240) and Hayatullah
v. The State (2018 SCMR 2092).
11. Mr.
Aftab Hussain Shar, Additional PG submits that no doubt incident was
un-witnessed but there is strong circumstantial evidence which connects the
appellant in the commission of offence. He has submitted that appellant had
motive to commit the murder of deceased. It is argued that prosecution had
established it’s motive at trial. Learned Additional P.G prayed for dismissal
of the appeal.
12. We have
carefully heard learned counsel for the parties and scanned the entire evidence
available on record.
13. As regards to the unnatural death of
Mst. Gul Naz Bibi is concerned, prosecution has examined Dr. Gul Bibi WMO R.H.C
Bhirya city (PW 11). W.M.O has deposed that on 21.6.2015 she was posted as
WMO at RHC Bhirya city. On the same day, she received dead body of Mst. Gul Naz,
daughter of Niamat Ali Arain through Police station Bhirya road for conducting
her post mortem examination and report. She started post mortem examination at
2.00 pm and finished at 3.00 pm on the same date. From external examination of dead
body of deceased, WMO found following injuries.
1. Incised
wound measuring 12 cm x 2.5 cm x bone exposed on right side of face extending
from cheek to right mandible.
2. Incised
wound measuring 16 c.m x 3 c.m x bone exposed on mid of vault extending from
right parietal to left parietal region.
3.
Multiple incised wounds on occipital region, causing
crushing of occipital bone and loss of whole brain matter from cranial cavity.
From internal examination of the
dead body, WMO found fracture of right and left parietal bone, right temporal,
mandibular bone and occipital bone. The membranes were lacerated and contained
blood, brain matter was out of cranial cavity.
From the external as well as
internal examination of dead body, WMO was of the opinion that death of
deceased had occurred due to hemorrhage shock and was caused by sharp cutting
weapon. All the injuries were individually and collectively sufficient to cause
death in ordinary course of life. The probable duration between injuries and
death was instantaneously, while time in between death and post mortem was
about 5 to 6 hours. WMO was cross examined, she has denied the suggestion that
she had issued post mortem report at the instance of police. It may be observed
that J.I.T was constituted and dead body was exhumed. Prosecution has examined
Dr. Qutubuddin PW 10 at Exh.23. Medical Board opined as under.
“ 1. The deceased died due to cumulative effect
of hemorrhage, shock & injury to vital organ (Brain) as a consequence of
infliction of physical violence over her head & face.
2 The
injuries to skull & face bones (Fractures) are sufficient to cause death in
ordinary course of nature.
3. The pattern of bony injuries is
suggestive of sharp cutting substance as the causative agent for the bony
injuries.
4. However the material has been taken from
the body of the deceased to exclude the poisoning if any.
5. Final report will be issued after
receiving the report from the chemical examiner to Govt: of Sindh Rohri.”
Board
opined that deceased died due to cumulative effect of hemorrhage, shock and
injury to vital organ (brain) as a
consequence of infliction of physical violence over her head and face.
14. From the medical evidence, it is established that deceased died her
unnatural death as described by Medical Officers. Now, the question arises that who had committed the
murder of the deceased, Additional P.G submits that there was no ocular
evidence in this case but evidence of Mst. Sehreen PW 1 is most important for
just decision of the case. In order to properly appreciate the evidence
available on record, evidence of Mst. Sehreen PW 1, is reproduced as under:-
“ Examination
in Chief to Mr. Sajjan Khan Uijan, DDPP for the State.
Deceased Mst. Gul Naz Arain was my
younger sister. She was working as teacher in private Shan Public School. On
21.06.2015 I, my mother Mst. Nasreen Bibi and deceased Mst. Gul Naz were
available in the house. No male member was present in the house. After some
time my mother went for cattle grazing in the fields. I also went for giving
her water. Meanwhile we heard the voice of firing it was about 9.15 a.m. We
both came inside the house and saw that she was lying in the room and she was
dead. We saw that her whole face was damaged. Pistol was lying on right side of
dead body. One night before this incident my deceased sister has told us that
the owner and principle of Shan Public School namely Imran Arain and his
partner Shahzad Arain had committed rape with her. I contacted with my brother
Shakeel Ahned Arain and my father Haji Niamat Ali Arain and told them about the
incident. My father came at 12.00 noon and my brother came at 1.30 p.m. I
narrated the facts to them. Our relatives came at 3.00/4.00 p.m and they
informed the police. Police came at our house in the evening tinme. Police took
the dead body of Mst. Gul Naz for post mortem. My father went along with dead
body to hospital and he returned the dcad body aftcr post mortem and buried the
same. Inspector Malik Qasim arrested my father Niamat Ali and brother Shakeel
Ahmed Arain. Police recorded my statement u/s 161 Cr.P.C. Police also produced
me before Civil Judge and Judicial Magistrate Dniria where my statement
recorded u/s 164 Cr.P.C. Inspector Malik Qasim issued threats to me to give
statement against my brother Shakeel Ahmed Arain and under pressure I recorded
statement before learned Judicial Magistrate Bhiria. I produce my 164 Cr.P.C at
Ex.14/A, it bears my signature. Inspector Malik Qasim called me at DIG Office
and played video cassette of rape with Mst. Gul Naz committed by accused Imran and
Shahzad. At that time my mother was also with me. In video we have also seen
that the accused persons have given her winc and cigarette. I know accused
Shakeel Arain and Niamat Ali, they are same. Note: At this stage learned DDPP
for the State declare the witness hostile and requested for cross examination.
Request is allowed.
Cross examination to
Mr. Sajjan Khan Ujjan, DDPP for the State.
It is a fact that on 14.04.2016 my
statement u/s 164 Cr.P.C was recorded beforc learned 1st Civil Judge and
Judicial Magistrate Bhiria. It is a fact that I have stated before learned
Judicial Magistrate Bhiria when my sister Mst. Gul Naz disclosed to us about
rape on which my brother Shakeel Ahmed came into GAIRAT (honour) and gave her
sharp edge side on her face, head and my sister expired at the spot. It is also
a fact that I have stated before learned Civil Judge and Judicial Magistrate
Bhiria that I kept this incident secret and after my marriage I informed to my husband
and Uncle Rasheed Ahmed. It is a fact that at the time of recording my
statement accused Shakeel and Niamat Ali were present in he court. It is a lact
that Inspector Malik Qasim was not present in the court, but two police
constables were with the arrested accused in the court. It is incorrect to
suggest that I am deposing falsely because of blood relation with the accused.
Cross Examination to Mr. Manzoor
Ali Shah Advocate for both accused.
Nil, though chance
given.
S.R.O
& A.C
SD/-22.11.2016
(Manzoor
Ahmed Qazi)
Judge
Anti-Terrorism
Court,
Naushehro
Feroze. ”
15. We have carefully perused
evidence of Mst. Sehreen, she has categorically stated that incident occurred on 21.06.2015. Deceased was working as
teacher in a private Shan Public School. On 21.06.2015, PW 1 Mst. Sehreen, her
mother Mst. Nasreen and deceased were present in the house. No male member of her
family was present in the house. After
some time, mother of deceased went out of the house for cattle grazing, in the
field. PW 1 Mst. Sehreen, star witness of the case also went out of the house
for giving water to the mother who was grazing cattle. In the meanwhile, they
heard the voice of firing, it was 9.15 a.m. Mother and sister of the deceased
came back to the house and saw that deceased was lying dead. Her face was
damaged and pistol was lying on the right side of the dead body. It appears
that during investigation 164 Cr.P.C statement of Mst. Sehreen was recorded
before Civil Judge & J.M Bhirya. As she did not support the case of
prosecution, she was declared hostile by the ADPP and she was cross examined by
him but nothing favourable to the prosecution came on record.
16. So far the evidence of other
P.Ws namely Aamir and Rasheed Ahmed is concerned, admittedly no one was eye
witness of the incident. Circumstantial evidence was no sufficient to connect
the appellant with the commission of offence. We have also noticed that trial
Court on the basis of same set of evidence, acquitted accused Niamat Ali vide
Judgment dated 09.09.2017 while observing as under :
“ 35.
Heard learned DDPP for the
State, learned counsel for the accused and perused the evidence brought on the
record. The horrible tragedy betall on a hot morning of 21st of June, 2015 when
Mst. Gul Naz Bibi was done to death as she made complaint of rape with her by
Imran Ali Arain and Shahzad Arain owner of Shan Public School where she
wąs working as a teacher. Her murder was given colour of suicide by firing
from Desi pistol which was kept besides her dead body. Accused Niamat Ali appeared
at PS Bhiria Road and lodge report under section 174 Cr.P.C. PW ASI Mohammad
Nooh visited the place of incident inspected the dead body, secured blood
stained earth and pistol from place of incident prepared memo of place of
incident, pistol and blood stained earth. Danishnama and lash chakas form of
deceased Mst. Gul Naz Bibi were prepared and dead body was sent for postmortem.
PW-11 WMO Gul Bibi conducted postmortem examination of deceased Mst. Gul Naz
and found (1) incised wound measuring 12cm x 2.5 cm. x bone exposed on right
side of face extending from check to right mandible (2) incised wound measuring
16 c.m x 3 c. m x bone exposed on mid of vault extending from right parietal to
left parietal region. (3) Multiple incised wounds on occipital region,
causıng crushing of occipital bone and loss of whole brain matter from
cranial cavity. AU injuries were caused by sharp cutting object. The death
report u/s 174 Cr.P.C regarding the suicide of deceased Mst. Gul Naz vide
Karwai No.02/2015 PS Bhiria Road was submitted before learned 3rd Civil Judge
and Judicial Magistrate Naushahro Feroze and the learned Magistrate on the
basis of postmortem report directed the SSP Naushahro Feroze for lodgment of
FlR of murder of deceased Mst. Gul Naz. It will be pertinent to note that the
exhumation of the dead body of deceased Mst. Gul Naz was conducted by the
Medical Board under the supervision of learned Civil Judge and Judicial
Magistrate Bhiria and the Medical Board also opined the same injuries on the
head and face of the deceased caused by the sharp cutting substance. During
investigation both accused were arrested and during interrogation accused
Shalkeel Ahmed accepted his guilt and produced the blood stand KAAT used in the
murder of deceased Mst. Gul Naz Bibi, from the Chhapra in his house, in
presence of mashirs. Kaat was sealed at spot and memo of recovery was prepared
which is brought on record by PW-Mashir ASI Shoaib Abbasi at Ex.21/B, who has
fully supported the recovery of Kaat produced by accused Shakeel Ahmed. I.O
produced Roznamcha departure entry No.13 at Ex.30/A and also produced positive
Chemical examination report showing that Kaat was stained with human blood at Ex.30/B.
PW-1 Mst. Sehreen in her statement recorded u/s l64 Cr.P.C by learned Civil
Judge and Judicial Magistrate Bhiria has stated that accused Shakeel Arain
committed murder of Mst. Gul Naz in Ghairat
with sharp edged Kaat and her statement was attested by PW-4 1st Civil Judge
and Judicial Magistrate Bhiria City. Learned Magistrate has deposed that she
recorded her statement voluntarily and without coercion. though she has resiled from her
statement due to blood relation with the accused. Accused Shakeel Ahmed brother
of tthe deceased Mst. Gul Naz after committing her murder in brutal manner by
sharp cutting substance viz KAAT by disappearing and concealing the evidence to
save himself from punishment he kept one country made pistol besides her to give
colour of the suicide to the murder of deceased Mst. Gul Naz, but no charring,
blackening was lound on injuries of the deceased, which has negated the plea of
the suicide. Neither accused has examined himself on oath u/s 340(2) Cr.P.C
that at the time of incident he was available at cattle Piri Hallani, nor he
has stated so in his statement u/s 342 Cr.P.C. The defence version appears to
have been managed after thought and his presence at spot at the time of
incident has been established. All the facts and circumstances accompanied with
the recovery of the bloodstained KAAT, from accused Shakeel Ahmed with positive
report of Chemical Laboratory that it was stained with human blood clearly connect
accused Shakeel Ahmed in commission of murder of his sister. From discussion of
facts and evidence brought on record, prosecution has successfully established
the case of qatl-i-amd and disappearing evidence for screening himself from the
commission of offence against accused Shakeel Ahmed Arain beyond shadow of
doubt.
36. So far the case of accused Niamat Ali Arain is concerned, he
has acted under the scenario of suicide coupled with availability of pistol
kept by accused Shakeel Ahmed Arain, prosecution has not brought any piece of
evidence to connect him in commission of qatl-i-amd of deceased Mst. Gul Naz
Arain or disappearing the evidence for screening the accused from commission of
offence. As such prosecution has failed to prove the guilt of accused Niamat
Ali Arain beyond shadow of reasonable doubt .I, therefore, decide points Nos.2
and 3 as above.”
17. Investigation
Officer failed to give evidence with regard to safe custody of the memory card
and cassette at Malkhana of Police station. The same articles were also not
sent to expert for opinion. Prosecution has failed to prove that memory card
and cassette were free from tampering or replacement.
18. In a case based on circumstantial evidence
the prosecution is obligated to show
that different pieces of evidence brought on that record are inter-linked so as
to make a single chain whose one end touches the dead person and the other
clenches the neck of the accused. Further, the evidence must be of a quality to
be incompatible with the innocence of the accused. Any missing link in the
chain would destroy the entire prosecution case. In Hashim Qasim and another v. The State (2017 SMR 986) the Apex Court
held as under:
“
In cases of circumstantial evidence,
there are chances of procuring and fabricating evidence. Therefore, Courts are
required to take extra care and caution to narrowly examine such evidence with
pure judicial approach to satisfy itself, about its intrinsic worth and
reliability, also ensuring that no dishonesty was committed during the course
of collecting such evidence by the Investigators.... circumstantial evidence
may sometimes appear to be conclusive but it must always be narrowly examined,
if only because this count of evidence may be fabricated in order to cast
suspicion on another. Therefore, it is all the more necessary before drawing
inference, if the accused's guilt from
circumstantial evidence to be sure and that there are no other
co-existing circumstances, which weaken or destroy the inference then, in that
case alone it may be relied upon otherwise, not at all."
19. In the instant case, there is
hardly any evidence to connect the Appellant with the commission of offence. It
is also noteworthy that while extending benefit of doubt the learned trial
Court has acquitted co-accused Niamatullah on the same evidence. The prosecution
has not filed any appeal against his acquittal. Since the Appellant's case is
not distinguishable from him, his conviction is also liable to be set aside. It is not disputed that accused Niyamat Ali had been
acquitted by the trial Court more or less on same set of evidence whereas
appellant Shakeel Ahmed has been convicted. The law is settled that if the eye
witnesses have been disbelieved against some accused persons attributed the
same role then the same eye witnesses cannot be believed against other accused
persons attributed similar role unless such eye witnesses have received
independent corroboration. Reference can be made to the case of Imtiaz Ali
alias Taj v. The State and others (2018 SCMR 344). In the present case, Mst.
Sehreen star witness was declared
hostile. Moreover, there was no other independent piece of evidence to connect
the appellant in the commission of offence inspite of that trial Court
convicted the appellant Shakeel Ahmed without strong evidence.
20. This
was also the case of honour killing, learned Judge Anti-Terrorism Court had no
jurisdiction to try it under the provision of Anti-Terrorism Act, 1997, as held
by Honourable Supreme Court in the case of Khuda-e-Noor v. The State (PLD 2016
Supreme Court 195). Relevant paragraph is re-produced as under.
“ The case in hand was a case of a private motive set up in the FIR and
during the trial the motive set up in the FIR was changed by the prosecution
and an element of honour killing was introduced but even that did not change
the character of the offence which was nothing but a private offence committed
in the privacy of a home with no design or purpose contemplated by section
6(1)(b) or (c) of the Anti-Terrorism Act, 1997. We have thus, entertained no
manner of doubt that the allegations leveled against the appellant and his
co-accused in the present criminal case did not attract the jurisdiction of an
Anti-Terrorism Court, the learned Sessions Judge, Mastung was not justified in
transferring the case to an Anti-Terrorism Court and the High Court was also
not legally correct in dismissing the appellant's revision petition. This
appeal is, therefore, allowed, the impugned orders passed by the learned Sessions
Judge, Mastung as well as the High Court of Balochistan, Quetta are set aside
and it is declared that the appellant's case is to be tried by a court of
ordinary jurisdiction.”
21. It is a well settled principle of criminal
law that it is for the prosecution to prove its case against the accused beyond
a shadow of a doubt and if there is any doubt in the prosecution’s case the
benefit of such doubt, as set out in the case of Tariq Pervez v. The State
(1995 SCMR 1345) must go to the appellant as of right as opposed to concession.
However in considering this aspect of the case we are also guided by the case
of Faheem Ahmed Farooqui v. State (2008 SCMR 1572) where it was held as
under at P.1576 at Para D:
"
It needs no reiteration that for the
purpose of giving benefit of doubt to an accused person, more than one
infirmity is not required, a single
infirmity creating reasonable doubt in the mind of a reasonable and prudent
mind regarding the truth of the charge makes the whole case doubtful.
Merely because the burden is on the accused to prove his innocence it does not
absolve the prosecution from its duty to prove its case against the accused
beyond any shadow of doubt."(bold added)
21. In
the recent Supreme Court case of Hashim Qasim v. State (Criminal Appeals
No.115 and 116 of 2013) dated 12th April 2017 the Hon'ble Supreme Court in
respect of the benefit of doubt held as under at Para 20:
" Even a
single doubt, if found reasonable, would entitle the accused person to
acquittal and not a combination of several doubts is bedrock principle of
justice. Reference may be made to the case of Riaz Masih alias Mithoo v. The
State (1995 SCMR 1730)."
22. For
the above stated reasons, we have come
to the conclusion that prosecutions has failed to prove its case against the
Appellant. Therefore, Criminal Appeal No.D-131 of 2017 filed by appellant
Shakeel Ahmed is allowed by extending benefit of doubt. Conviction and
sentenced recorded by the trial Court vide judgment dated 09.09.2017 are set
side. Appellant Shakeel Ahmed be released forthwith if he is not required in
some other case.
These are the reasons of our
short order dated 12.09.2019.
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J U D G E
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J U D G E
Irfan/PA