Judgment Sheet
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Criminal Jail Appeal
No. D- 102 of 2018
Confirmation case No. D- 04
of 2018
Criminal Acq. Appeal No.D-
140 of 2018
Criminal Acq. Appeal
No.D- 141 of 2018
Present.
Mr. Justice
Naimatullah Phulpoto &
Mr.
Justice Abdul Mubeen Lakho.
Date
of hearing: 24.09.2019
Date of announcement:
03.10.2019
Mr. Abdul Ahad Buriro,
Advocate for appellants in Cr. Jail Appeal No. D-102 of 2018.
Mr. Naeemuddi n Z.
Kasmi, Advocate for complainant in Cr. Jail Appeal No.D-102 of 2018 and for
appellant / complainant in Cr. Acquittal Appeal Nos.D-140 of 2018 and D-141 of
2018.
Mr. Zulifqar Ali
Jatoi, Additional P.G.
J U D G M E N T
NAIMATULLAH
PHULPOTO, J. Muhammad
Wajid and Kashif Ali appellants along with Muhammad Waqar (since acquitted) were tried by learned Judge
Anti-Terrorism Court-I Sukkur for offences under sections 364, 302, 201, 336-B,
34 PPC and under section 7 Anti-Terrorism Act, 1997. After regular trial vide Judgment
dated 06.09.2018 accused Muhammad Waqar was acquitted. However, appellants
Muhammad Wajid and Kashif Ali were convicted under section 302 (b) / 34 PPC as
Tazir and sentenced to death. They were ordered to pay compensation of Rs.
500,000/- (Five lacs) each in terms of section 544-A Cr.P.C to be paid to the
legal heirs of deceased Farukh. Both the appellants were also convicted under
section 7(1) (a) of Anti-Terrorism Act, 1997 and sentenced to death and to pay
fine of Rs.100,000/- (one lac) each. Both accused were also convicted under
section 364 PPC and sentenced to imprisonment for life and to pay fine of Rs.
100,000/- each. Appellants were also convicted for offence under section 201
PPC and sentenced to seven years RI and to pay fine of Rs. 50,000/- each. All
the sentences were ordered to run concurrently. Appellants were extended
benefit of section 382-B Cr.P.C. Trial Court made reference to this Court for
confirmation of death sentence in terms of section 374 Cr.P.C. Appellants
preferred this Jail Appeal against impugned Judgment whereas complainant filed
acquittal Appeal Nos. D-140 and D-141 of 2018 against respondents / accused
Shahrukh and Muhammad Waqar.
2. Brief facts of the prosecution case as reflected
from the Judgment of the trial Court are as under:
“Facts forming the
basis of above case concisely are that on 16.04.2017, complainant Mohammad
Zahid reported at PS 'C' Section, Sukkur that on 14.04.2017, at about 8.00 pm, his son Farrukh
went to play Daboo game, he with his brother Mohammad Hanif was standing
outside his house, when at about 8.30 pm, accused Mohammad Wajid and Kashif Ali
came there on a motorcycle and they accompanied
Farrukh and went away, till late night Farrukh did not return, whereupon he went to the houses of
Mohammad! Wajid and Kashif Ali who
were not there. Complainant remained in search of his son but due to odd hours
of the night could not get information and in the morning again started
searching his son and came at Shahlimar, where PWs Qadeer Ahmed and Hamid Ali
came across, to whom he
acquainted about missing his son from last night, whereupon they asked him that
in the last night they were present at Bari Chow Rohri when they noticed
Mohammad Wajid and Kashif Ali riding on a motorcycle and between them Farrukh
was sitting and on second
motorcycle Mohammad Shahrukh and Mohammad Waqar were riding, to whom they stopped
and enquired as to where they were going, whereupon they disclosed that they
are going to drink tea at Piyala Hotel. Getting information from above PWs, the complainant
started to search his son and they reached at Rohri, where got information that
at hills near Arts College, Rohri, a burnt dead body was lying. Complainant
informed PS 'C' Section, Sukkur
and with HC Moula Bux and other police officials came at the pointed place and
at about 11.00 pm, in the light of mobile vehicle and battery torch, found a
burnt dead body, intestines whereof were lying outs.de of abdomen, besides the
neck was cut. Complainant and witnesses
identified the dead body to be of Farrukh. The police referred the dead-body
for postmortem examination at Civil Hospital, Sukkur, thereafter handed over to
the complainant for autopsy. Complainant claimed that accused Mohammad Wajid,
kashif Ali, Mohammad Shahrukh and Mohammad Waqar with their common intention
for unknown enmity abducted his son Farrukh and caused his murder and to cause
disappearance of the evidence of offence, they sat the dead body on ablaze”.
After usual investigation, challan
was submitted against accused under sections 364, 302, 201,336-B, 34 PPC.
3. Learned Judge Anti-Terrorism Court
Sukkur bifurcated the case of Juvenile offender namely Shahrukh and a separate
trial was held as required under the Juvenile Justice System Ordinance.
4. Trial Court framed charge against
appellants Muhammad Wajid, Kashif Ali as well as accused Muhammad Waqar (since acquitted).
Appellants contested the indictment.
5. In order to substantiate the charge,
prosecution has examined (08) P.Ws. Thereafter, prosecution side was closed.
6. Trial Court recorded statements of
appellants U/S 342 Cr.P.C at Exh. 18 and 20. Both appellants denied the
prosecution allegations and claimed false implication in this case. Appellants
declined to give statement on oath in disproof of prosecution allegations.
Appellant Muhammad Kashif did not examine any witness in his defense while
appellant Kashif Ali had examined his father Haji Taufeeq Ahmed and brother
Majid Saleem in his defense.
7. Learned trial Court after hearing
learned counsel for the parties and assessment of the entire evidence,
convicted and sentenced the appellants to death as stated above, however,
recorded acquittal in favour of a Juvenile offender Muhammad Shahrukh and
Muhammad Waqar. By this single judgment,
we intend to decide the aforesaid criminal Jail Appeal filed by appellants and
appeals against acquittal filed by complainant Muhammad Zahid and confirmation Reference
made by the trial Court.
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.
8. Mr. Abdul Ahad Buriro, learned advocate
for appellants after arguing the appeal at some length stated that appellants
do not intend to challenge their conviction on merits and only pray for
reduction of the quantum of sentence on the ground that it is not the
case of capital punishment and there are some mitigating circumstances, which
necessarily call for reducing the sentence of death into imprisonment for life.
Learned advocate for appellants further argued that trial Court had rightly
acquitted Juvenile offender Muhammad Shahrukh for want of cogent evidence
against him. As regards to the mitigating circumstances, it is argued that
prosecution has failed to prove the motive at trial. In support of the
contentions, reliance is placed upon
the cases of Ghulam Mohy-ud-Din alias Haji
Babu and others v. The State and Haji Muhammad
Sadiq v. Liaquat Ali and others reported as 2014 SCMR 1034,
Ijaz Ahmad v. The State reported as 2017 SCMR 1941
and Muhammad Akram alias Akrai v. The State reported as 2019
SCMR 610.
9. Mr. Zulifqar Ali Jatoi,
Additional P.G very rightly and frankly submitted that motive remained shrouded
in mystery, this is a mitigating circumstance in this case and recorded no
objection in case death sentence is converted to the imprisonment for life.
Mr. Jatoi, Additional P.G supported the judgment of the trial Court, so
far appeal against acquittal is concerned and argued that trial Court for the
valid reasons for want of evidence had recorded acquittal in favour of Juvenile
Offender Muhammad Shahrukh. Mr. Naeemuddin Z. Kasimi Advocate for complainant
contended that prosecution has proved it’s case against the appellants and
prayed for dismissal of appeal. As regards to appeals for acquittal he argued
that judgment of trial Court is perverse, the same may be converted to
conviction.
10. We have
carefully heard leaned counsel for the parties and perused evidence available
on record.
11. As regards to
the unnatural death of deceased Farukh son of Zahid Ali is concerned,
prosecution has examined Dr. Shahid Iqbal (PW-02), he has deposed that that
on 16.04.2017, he was posted as senior medical officer at GMC Hospital Sukkur.
On that date, at about 1240 a.m he received the dead body of Farukh son of
Zahid Ali Ansari through PC Abdul Razzak of PS C-Section Sukkur for conducting postmortem
examination and report. The dead body was identified by Naseer Ahmed son of
Ghulam Rasool and Salamat Ali son of Rehmat Ali. Medical Officer started the
postmortem examination at about 1245 a.m and completed the same at 1.45 p.m on
the same date. The dead body was of a child of about 11 to 12 years, burnt from
head to bottom, clothes were totally burnt. On external examination of dead
body Medical Officer found following injuries.
Injury No.1.
One incised wound measuring 10 cm x 3 cm x cavity deep present at the right
side of upper and middle part of abdomen with loops of bowels comes out from
the site.
Injury No.2. An
incised wound present in front of neck damaging the under lying structure
such as muscles, trachea, esophagus and the vessels, measuring 12 cm x 2
1/2 cm c encircling the anterior of the neck.
Injury No.3. An
incised wound present at the right side of the upper part of the chest
near the shoulder measuring 15 cm x 5 cm x cavity deep.
Injury No.4. Full
thickness burns covering the whole body (90 0/0) from head to
bottom.
Medical Officer on internal examination
of the dead body found that Thorax walls ruptured on the right side.
Pleurae ruptured on the right Larynx and trachea damaged. Right lung
perforated. Abdomen walls ruptured
on right side. Peritoneum ruptured on high
and esophagus damaged. Small intestine ruptured. Large intestine ruptured. On examination of anus burns, two anal swabs were taken for the chemical analysis and report.
Medical Officer was of the opinion that death of deceased Farukh son of
Zahid Ali occurred due to hemorrhage and
shock as a result of injuries on vital organs. The injuries were ante-mortem in
nature and were caused by sharp cutting object. The probable time elapsed between
injuries and death instantaneously and between death and postmortem was about
36 hours. Thereafter, he issued postmortems report, which he produced at
Ex.06/B. He also produced attested Photostat copy of letter under which he sent
the swabs to chemical Laboratory Rohri at Ex.06/C. On 16.4.2017, at about 11.30
pm Medical Officer examined two accused persons namely Kashif Ali son of
Asadullah @ Maseetullah Ansari and Muhammad Wajid son of Toufeeq Ahmed Ansari referred
by SHO PS C-Section Sukkur to determine whether they were capable to perform
sexual act ? M.O found them capable for such act. On 25.5.2017, M.O received
chemical examiner’s report, which he produced at Ex.06/G. The human semen was not detected in the anal swabs. He
produced his opinion at Ex.06/H. Unnatural death of deceased has not been disputed by
defense counsel, even integrity and efficiency of the doctor were not
questioned before the trial Court. We have no hesitation to hold that deceased
died due to injuries as described by Medical Officer.
12. Now, the
question arises that who had committed murder of the deceased ? In order to
prove it, prosecution has mainly relied upon the evidence of following witnesses.
Complainant Muhammad Zahid has deposed
that on 14.04.2017, his son Farukh had gone to play ‘Daboo’ game at about 8.00
p.m. Complainant along with his brother
Muhammad Haneef were sitting infront of their house in muhalla. At 8.30 pm accused
Muhammad Wajid and Kashif came over there and accompanied, Farukh, son of
complainant with them. Thereafter, complainant’s son did not return to home. Hence,
at about 12.00 mid night, complainant
along with his brother Muhammad Hanif went to the house of accused, to enquire
about his son but they were informed by the inmates of the house that both
accused were not available in their house. It is further stated by the
complainant that they searched Farukh but did not find him during whole night. On
next day morning, he went in search of his son again, but on the way at
Shalimar road, his relatives Qadeer Ahmed and Hamid met him and on enquiry,
they disclosed that on 14.04.2017 they were returning from Rohri at 9.00 pm
they had seen at Bari Chowk Rohri, a motorcycle, driven by Kashif, Wajid was
sitting in the middle while Farukh ( son of complainant ) was sitting on back side
of motorcycle. The said witnesses enquired from accused Wajid that where they were
taking Farukh ? to which he replied that they were going to “Piyala Hotel”
for taking tea. Thereafter, complainant, Muhammad Haneef P.Ws Qadir and Hamid
again went in search of his son Farukh to ‘Piyala Hotel’. On 15.04.2017 they heard that a dead body was
lying near hilly area . Thereafter, complainant party and Police proceeded to
hilly area near Art college Rohri and found a burnt dead body. Complainant
identified dead body of his son. Thereafter, police prepared such mashirnama
and brought the dead body to Civil Hospital Sukkur for conducting the post
mortem and after post mortem dead body, was handed over to complainant. After
funeral ceremony, FIR against accused at PS ‘C’ Section Sukkur was lodged.
Complainant was cross examined at length and denied the suggestion that he had
deposed falsely against the accused.
Hamid Ali (PW-4) has deposed
that on 14.4.2017, at about 8.30 pm time, he along with Qadeer was standing at Bari Chowk Rohri.
They saw deceased on motorcycle of
accused persons. On enquiry accused replied that they were going to Piyala
Hotel for taking tea. On the next day morning viz: 15.4.2017, he along with Qadeer was going to duties when
reached at Shalimar road at about 8.30 am time complainant Zahid and Muhammad
Hanif met them after enquiry, they told the complainant that they had seen his
son Farukh with accused at Bari chowk on motorcycle .
Qadeer
Ahmed (PW-6) has also deposed that on 14.04.2017 at about 8.45 or 9.00 pm at
Rohri chowk he was returning from work. P.W Hamid was with him. Accused along
with son of complainant appeared on motorcycle, on enquiry of P.Ws, accused
replied that they were going to Piyala Hotel for taking tea.
Investigation Officer SIP Muhammad Laiq was
examined at Exh.14 before trial Court . He has deposed in his evidence and
stated that on 16.04.2017 ASI Ghulam Nabi entrusted FIR No.131 of 2017 along
with other documents for investigation. He examined witnesses under section 161
Cr.P.C . He along with staff, complainant Zahid and witnesses left PS to visit
place of abduction of Farukh and at 11.00 a.m when reached there, complainant
pointed out the place of abduction. Complainant Zahid had produced two photographs
of his son and one photograph of a burnt dead body which I.O took in his
custody. Then at 12.00 noon they went to the place wherefrom burnt dead body of
Farukh was recovered. Investigation Officer further deposed that they were on
the way to PS ‘C’ Section Sukkur when reached near Shalimar complainant Zahid pointed
out to Manzil Gah where two accused Muhammad Wajid and Kashif were present,
then they proceeded there, where they noticed two persons and on the pointation
of complainant arrested both accused, on their personal search nothing was
recovered, such memo of arrest was prepared in presence of mashirs Qadeer Ahmed
and Muhammad Haneef. On 21.04.2017 at 11.00 a.m complainant informed the
Investigation Officer that accused Muhammad Shahrukh and Muhammad Waqar are
present at Gadani Phatak, witnesses Qadeer Ahmed and Hanif were with
complainant when reached at Gadani Phatak where they saw both accused were
standing near a motorcycle. On his enquiry accused Muhammad Waqar disclosed
that motorcycle belongs to him. I.O arrested both accused persons and secured
motorcycle. He brought arrested accused at Police Station. On 21.04.2017 I.O
interrogated accused persons who prepared to produce knife and bottle of petrol
used by them in the commission of offence, thereafter, on the pointation of
accused went to Arts College Rohri where accused Waqar voluntarily produced
knife from the stones. He took the knife in his custody it was blood stained.
Thereafter on the pointation of accused Shahukh he secured a small bottle of
driniking water wherein small quantity of petrol was lying. He seized bottle in
presence of above mashirs in his custody . During interrogation, accused Kashif
Ali confessed that motorcycle used by them in abduction of Farukh was present
at his house, which I.O seized from the house of accused situated in Nusrat
Colony Sukkur. Thereafter, investigation of the case was transferred to
Inspector Khalid Ahmed Memon then he handed over papers to him
13. No doubt,
there is no direct evidence, as the deceased alone witnessed the calamity that
befell upon him at the age of 11/12 years. However, direct evidence is not the
only methodology to prove an indictment. It can be accomplished through
indirect or circumstantial evidence as well as discussed above. With extra care
and once the chain of circumstances is constituted in such a way that no
reasonable inference except for the guilt is drawn to the exclusion of every
hypothesis of innocence, Conviction on capital charge may be recorded without
demur. Reliance is placed upon the case of Jaffer Ali v. The State (1998 SCMR
2669). Relevant portion is re-produced as under:
….. “ The consistent view of this Court has been that last seen evidence is
not sufficient for establishing the crime where it requires making conjectures
to connect the accused person with the crime or where there are reasonable
possibilities that someone else has committed the offence, but if the chain of
the fact is such that no reasonable inference can be drawn except that the
accused has committed the offence after the victim has been last seen in his
company, then in the absence of a reasonable explanation from the accused, this
evidence can be relied upon for convicting him for the offence. In the case of
Rahmat v. The State (PLD 1977 SC 515) on which the learned counsel has relied,
the principle is laid down as under:
"On
a balance of the decided cases it appears that the circumstances of the
deceased having been last seen in the company of the accused is not by itself
sufficient to sustain the charge of murder. Further evidence is required to link
the accused with the murder of his companion. Such as incriminating recoveries
at the instance of the accused, a strong motive or the approximately of the
time when they were last seen together and the time when the deceased was
killed. Only then will the accused be called upon to give an explanation of the
demise of the person who was last seen alive in his company."
14. Prosecution witnesses furnished straight forward.
Consistent and Confidence inspiring evidence. P.Ws had no enmity to falsely
implicate the appellants in this case.
15. The law is settled by now that if prosecution
asserts the motive but fails to prove the same then such failure on the part of
the prosecution may react against a sentence of death passed by the trial Court
and reference in this respect may be made to the Judgment of Hon’ble Supreme
Court in the case of Mst. Nazia Anwar v. The state (2018 SCMR 911). Relevant
para is reproduced as under:-
“4. I have particularly attended to
the sentence of death passed against the appellant and have noticed in that
context that the motive set up by the prosecution had remained far from being
establish ed. According to the FIR as well as the statement of the complainant
the motive was based upon borrowing of a sum of Rs. 5,000/- by the appellant
from the deceased and on the issue of repayment of that loan a heated exchange
had taken place between the appellant and the deceased. Mst. Sadiqa Bibi
complainant (PW2) was the only witness produced by the prosecution regarding
the alleged motive but in her deposition made before the trial court the
complainant had admitted that the appellant and the deceased were on very good and
friendly terms, no date or time of borrowing of the relevant amount by the
appellant from the deceased had been specified by the complainant, the
complainant was not present when the money had been borrowed by the appellant
from the deceased, no date, time or place of the altercation taking place
between the appellant and the deceased over repayment of the borrowed amount
had been specified by the complainant and admittedly the complainant was not
present when the said altercation had taken place. In these circumstances it is
quite obvious to me that the motive asserted by the prosecution had remained
utterly unproved. The law is settled by now that if the prosecution asserts a
motive but fails to prove the same then such failure on the part of the prosecution
may react against a sentence of death passed against a convict on the charge of
murder and a reference in this respect may be made to the cases of Ahmad Nawaz
v. The State (2011 SCMR 593), Iftikhar Mehmood and another v. Qaiser Iftikhar
and others (2011 SCMR 1165), Muhammad Mumtaz v. The State and another (2012
SCMR 267), Muhammad Imran alias Asif v. The State (2013 SCMR 782), Sabir
Hussain alias Sabri v. The State (2013 SCMR 1554), Zeeshan Afzal alias Shani
and another v. The State and another (2013 SCMR 1602), Naveed alias Needu and
others v. The State and others (2014 SCMR 1464), Muhammad Nadeem Waqas and
another v. The State (2014 SCMR 1658), Muhammad Asif v. Muhammad Akhtar and
others (2016 SCMR 2035) and Qaddan and others v. The State (2017 SCMR 148).
After going through the entire record of the case from cover to cover and after
attending to different aspects of this case I have found that although it is
proved beyond doubt that the appellant was responsible for the murder of the
deceased yet the story of the prosecution has many inherent obscurities
ingrained therein. It is intriguing as to why the appellant would bring her
four months old baby-boy to the spot and put the baby-boy on the floor and then
start belabouring the deceased with a dagger in order to kill her. I have,
thus, entertained no manner of doubt that the real cause of occurrence was
something different which had been completely suppressed by both the parties to
the case and that real cause of occurrence had remained shrouded in mystery.
Such circumstances of this case have put me to caution in the matter of the
appellant's sentence and in the peculiar circumstances of the case I have
decided to withhold the sentence of death passed against the appellant.”
16. As
regards to the conviction under section 7 (1) (a) of Anti-Terrorism Act, 1997
is concerned, a boy of 12 years has been murdered by the accused persons .
Prosecution could not prove motive at trial. Element of terror is missing in
the prosecution evidence. Additional Prosecutor General conceded that
conviction and sentence of the accused recorded by the trial Court under
section 7 (1) (a) of Anti-Terrorism Act, 1997 could not be sustained. While relying
upon the case of Ahsan Shahzad and another v. The State and others ( 2019 SCMR
1165), we hold that while considering overall circumstances of the case, the
provisions of Anti-Terrorism Act, 1997 are not attracted in the case.
Accordingly, conviction and sentence of the accused under section 7 (1) (a) of
Anti-Terrorism Act, 1997 are set aside and accused / appellants are acquitted
of the said charge. However, as regards to conviction under section 201, PPC is
concerned, it may be stated that it is a well-settled proposition of law that
an accused charged with main offence i.e. murder cannot be convicted for
disappearance of the evidence of offence to screen or save himself. Reference
is made to the case of Nasar Khan versus The State
(2000 SCMR 130). In the case of AHMED versus The STATE
(2015 SCMR 993) it is also held that conviction for an offence under
section 201, PPC cannot simultaneously be recorded with a conviction for
an offence under section 302, PPC. Relevant portion is reproduced as
follows:-
“……This Court has already clarified that the
conviction for an offence under section 201, PPC cannot
simultaneously be recorded with a conviction for an offence under section
302, PPC and a reference in this respect may be made to the case
of Nasar Khan v. The State (2000 SCMR 130).
In this view of the matter the appellant’s conviction and sentence for the
offence under section 201, PPC are set aside. The appeal is disposed
of in these terms.”
In
the view of above, appellants’ conviction and sentence under section 201 PPC
are set aside.
17. For what has been discussed above, this appeal is dismissed
to the extent of appellants’ conviction for offence under section 302 (b) PPC
but the same is partly allowed to the extent of their death sentence which is
reduced to the imprisonment for life. The benefit under section 382-B Cr.P.C
shall be extended to the appellants. Reference made by the trial Court for
confirmation of death sentence is answered in negative .
18. As regards to the appeals
against acquittal of accused Muhammad Shahrukh and Muhammad Waqar are concerned
learned trial Court vide Judgment dated 06.09.2018 by assigning the sound
reasons has come to conclusion that prosecution failed to prove its case against
accused / respondent Muhammad Shahrukh. The trial Court vide Judgment dated
06.09.2018 for the sound reasons has also distinguished the case of respondent
/accused Muhammad Waqar and acquitted him and sentenced to death to co-accused Muhammad
Wajid and Kashif Ali. It is well settled law that ordinary scope of acquittal
appeal is narrow and limited and obvious approach for dealing with the appeal
against the conviction would be different and should be distinguished from the
appeal against acquittal because presumption of double innocence of accused is
attached to the order of acquittal as held in the case of The State and others
v. Abdul Khalique and others (PLD 2011 Supreme Court 554). Acquittal orders
passed by the trial Court in favour of respondents / accused Muhammad Shahrukh
and Muhammad Waqar are neither perverse nor passed in gross violation of law. As
such, we are not inclined to interfere with such acquittal of the respondents /
accused Muhammad Shahrukh and Muhammad Waqar.
19. The criminal Jail Appeal No. 102 of 2018 and
confirmation Reference No. D-04 of 2018 are disposed of in the above terms.
Consequently criminal acquittal Appeals Nos. 140 and 141 of 2018 filed by
complainant are found without material and the same are dismissed.
__________________
J U D G E
__________________
J U D G E
Irfan/PA
As regards to the appeals against acquittal are
concerned, acquittal of the respondents Muhammad Shahrukh and Muhammad Waqar by
the trial Court was neither perverse nor arbitrary. Therefore, acquittal order
recorded in favour of respondents cannot be interfered by us. Even otherwise
the scope of acquittal appeal is quite narrow and limited as held in the case
of The State and others v. Abdul
Khaliq and others (PLD 2011 Supreme
Court 554).