IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

CriminalAppeal No. S-16 of 2014

Appellant                       Hyder Ali Siyal,

Through Mr. Asif Ali Abdul Razak Soomro, advocate.

The State:                       Through Mr. Muhammad Noonari,

D.P.G for the State.

Date of hearing:             19-02-2021

Date of short order:        19-02-2021

Date of reasons:             28-02-2021

J U D G M E N T

Zulfiqar Ali Sangi, J.              Through instant criminal appeal, the appellantHyder Ali Siyalhas assailed the Judgment dated 13.03.2014, passed by the learned II-Additional Sessions Judge, Jacobabad in Sessions Case No.68/2013, re: State V/S Hyder Ali, being outcome of Crime No.73/2012 of P.S. Civil Lines, Jacobabad, U/S 302,201 P.P.C, whereby the trial court has convicted the appellant for the offence U/S 302(b) P.P.C and sentenced him to suffer imprisonment for life as Ta'azirbesides a fine of Rs.200,000/- was imposed upon the present appellant which shall be payable to the legal heirs of the deceased Mst. Parveen as compensation, if recovered, in case of default of payment, the present appellant was directed to suffer S.I for six months more, the appellant further convicted U/S 201 P.P.C and sentenced to suffer R.I for three years and fine of Rs.50,000/-was imposed upon him, which was directed to be paid to legal heirs of the deceased as compensation, if recovered, in case of default, he was directed to suffer further S.I for one month more. The sentences of imprisonment were directed to run concurrently. However, the appellant/accused was extended the benefit of Section 382-B Cr.P.C.

2.                Brief facts of the prosecution case as per FIRlodged by complainant S.I.P/S.H.O Mumtaz Ali Sarki on behalf of State are that on 08.10.2012, he along with P.C Lal Dino and P.C Allah Bux left Police Station in police mobile driven by P.C Hifazat Ali, vide entry No.20 at 1700 hours for patrolling. During patrolling at different places, when they reached at Government Girls College Chowk at about 1800 hours, complainant party received spy information that Hyder Ali Siyal has committed the murder of his wife Mst. Parveen by firing from his T.T pistol and her dead body had been disappeared due to property which is in the name of his wife Mst. Parveen, as the father and mother of deceased Mst. Parveen had already been dead and she got two minor sons, namely, Aamer Ali and Zain Ali and two minor daughters, namely, Mahak and Laraib and there was no other legal heirs of deceased Mst. Parveen. After receipt of such spy information, the complainant party went the pointed place, where they saw that house was locked from outside, then the complainant party went to Police Station and lodged the F.I.R against the present accused.

3.                Complainant/S.I.P Mumtaz Ali Sarki arrested the appellant on 10.10.2012 along with T.T. pistol. After completion of investigation, the appellant/accused was challaned before the court to face the trial. Necessary papers were supplied to the accused. Formal charge was framed against the appellant/accused, to which he pleaded not guilty and claimed to be tried.

4.                Theprosecution in order to prove the its case, examined PW-01, Tapedar Kamil at Ex. 04, who produced the sketch of the place of vardat at Ex.4-A, Complainant, PW-02, SIP/SHO Mumtaz Ali Sarki was examined at Ex. 06, who produced the copy of FIR of the present case at Ex. 06-A, copy departure and arrival entry Nos. 20 & 28 as Ex No. 6-B, departure entry No. 10 at EX.6-C, memo of arrest and recovery of TT Pistol at Ex. 06-D, memo of seeing of grave at Ex. 06-E, departure and arrival entry No. 18 at Ex. 06-F, memo of place of incident at EX. 06-G, arrival entry No. 24 at Ex. 06-H. Letter No. Cr. 73/2012 dated 11.10.2012 at EX. 06-1, memo of search for empties at Ex. 06-J, departure and arrival entry Nos. 05 and 08 at Ex. 06-K, the copy of Office Order of Police Surgeon CMC Hospital Larkana No. CMCHHL (Exhumation)/34 12/21 dated 11.12.2012 at Ex. 06-L, memo of exhumation of dead body of Mst. Parveen and post mortem at Ex. 06-M, Forensic Science Laboratory report dated 19.11.2012 at Ex. 06-N, arrival entry No. 16 at Ex. 06-0, P.W-03, mashir P.C. Allah Bux was examined at Ex. 07, P.W-04, Mr. Rasheed Ahmed, who is Assistant Professor Forensic Medicines CMC Hospital Larkana at Ex. 08. He produced letter of Director General Health Services Sindh Hyderabad at Ex. 08-A. letter No. CMCH(Exhumation)/3169/72 dated 12.11.2012 at Ex.08-B, receipt of S.H.O/S.I.P Mumtaz Ali Sarki, dated 12.01.2013 at Ex.8-C, exhumation report No.CMCHL-PS (Exhumation)/412/15, dated 11.02.2013 at Ex.8-D, P.W-5, Mr. Mian Aijaz, learned Civil Judge and Judicial Magistrate was examined at Ex.9. Thereafter learned D.D.P.P for the State closed the side of the prosecution vide statement at Ex.10.

5.                Trial Court recorded statement of accused under section 342 Cr.P.C, wherein hestated that the case is false one and he had only showed the grave of his wife but had not admitted his guilt before the police and the pistol had been foisted against him, as the complainant party is interested, hence he is innocent, neither he examined himself on oath as required under section 340(2)Cr.P.C nor led any evidence in his defence.

6.                After assessment of the evidence, learned trial court has passed the above impugned judgment and convicted the appellant/accused as stated above. Being aggrieved by the said judgment, the appellant above named has preferred the instant criminal appeal.

7.                Learned counsel for the appellant has contended that the appellant is innocent and falselyimplicated in this case; that the case is based on circumstantial evidence and there is no recovery of empty, blood stained earth and blood stained clothes. He has further contended that all the P.Ws including complainant are police officials and there are major contradictions in the evidence of the complainant and P.Ws. He further contended that M.O and the Magistrate hadgiven contradictory version in their evidence in respect of reaching at the graveyard. He has further contended that only entry wound was present and no exit wound was present and no bullet recovered from the body; that persons who showed the grave of deceased were not examined nor made witnesses in the case. He further contended that there is delay in F.I.R, there is no private complainant or witness; relatives of the deceased were not examined; this is unseen incident and there is no eye witness of the incident. Lastly, he prayed that case is full of doubts and the appellant may be acquitted by extending the benefit of the doubt.

8.                Learned Deputy Prosecutor General has supported the impugned judgment andsubmitted that name of the present appellant/accused is mentioned in the F.I.R with specific role of murder of his wife Mst. Parveen and he had also disappeared the dead body of his wife; that the complainant and P.Ws have fully supported the prosecution case against the present accused; there is recovery of crime weapon from the possession of accused and the accused voluntarily led the police party to the grave of the deceased; the prosecution established its case against the present accused, hence he prayed for dismissal of the instant criminal appeal.

9.                I have heard the learned counsel for the appellant, learned D.P.G. and have gone through the material available on the record with their able assistance.

10.              On reassessment of the entire evidence produced by the prosecution it is established that the prosecution has not proved the case against the appellant beyond a reasonable doubt.

11.              Admittedly, there is no eye-witness of the incident and the FIR was registered by police on spy information. The complainant on receipt of such information went at the place of incident which was stated to be the house of appellant, but complainant not entered in the house to verify the information received by him nor he inquired from the adjacent houses but as per version of the complainant he went at the information place (the house of the appellant), it was locked and he came back to police station where he registered the FIR on behalf of the state. The conduct of the complainant, who is a police officer seems to be doubtful in the given circumstances.

12.              The empties and the blood from the house where incident stated to have taken place were not recovered,even it is not established from the evidence of the witnesses that where and in what manner the incident took place.

13.              As per FIR, the complainant received information that on 6-10-2012 at 2.00 am in the night the incident took place, after the FIR was registered no independent witnesses were examined including the close relatives of the deceased, who knew that the deceased died and was buried in the graveyard and they also knew that where the graveyard is located. PW- 4 Rasheed Ahmed, the Assistant Professor Forensic Medicine, CMC, Larkana, in his examination-in-chief deposed that grave was identified by Anwar Ali Siyal, Cousin of the deceased, and Nasir Abbas Buriro, neighbourer of the deceased, but they were also not examined nor were produced before the trial court, which creates very serious doubt in the prosecution case.

14.              The complainant also admitted during the cross-examination that the relatives of the deceased also came at the time of exhumation of the dead body but, he failed to record their statements. 

15.              Complainant during cross-examination stated that on 12-01-2013 the date was fixed for exhumation of grave of deceased Mst Parveen and he left for graveyard at 1140 hours alongwith his staff ASI Khalil Ahmed, PC Laldino and PC Allah Bux and reached there at 12-00 noon, where he saw the members of the Medical Team and the Civil Judge were already present at the grave of Mst. Parveen and were digging the grave. PW-4 Dr. Rasheed Ahmed during his cross examination stated that first they came to civil court then proceeded towards graveyard with civil judge and the police was also with them. The civil Judge during cross examination stated that he alongwith SHO proceeded towards the grave yard and when they reached, team of the doctors was already available there.

16.              The entire case of the prosecutionis based on the medical evidence,circumstantial evidence and the confession of the appellant made before the complainant, who was also the investigation officer.

17.              Scope and purpose of post-mortem examination was to ascertain the cause of death, number and locale of injuries, kind of weapon used in the crime and duration between injuries and death as well as death and post mortem, however, the medical evidence by itself did not raise finger towards any specific culprit. The opinion of the medical team, which conducted the postmortem after the exhumation of dead body of the deceased Mst. Parveen was that the death of deceased was due to haemmorrhage leading to shock due to rupture of carotid arteries caused by fire arm injury. Keeping in view of the opinion of the medical team it is established beyond doubt that the deceased was done to death by unnatural means.

18.              As regards to the confession made by the appellant before the complainant and the witnesses (all police officials) after his arrest that he committed the murder of deceased, is inadmissible in evidence under  Articles 38 and 39 of the Qanun-e-Shahadat, Order, 1984. There is no corroboration to the said confession, place of murder was not established, empties not recovered, blood of deceased not recovered, no eye-witness of the incident, no independent person was examined, motive not proved.Reliance is place on the case of Sajjan Solangi V. The State (2019 SCMR 872).

19.              To believe or rely on circumstantial evidence, the well settled and deeply entrenched principle is, that it is imperative for the prosecution to provide all links in chain an unbroken one, where one end of the same touches the dead body and the other the neck of the accused. The present case is of such a nature, where many links are missing in the chain.

20.              To carry conviction on a capital charge it is essential that courts have to deeply scrutinize the circumstantial evidence because fabricating of such evidence is not uncommon, very minute and narrow examination of the same is necessary to secure the ends of justice and that the prosecution has to establish the case beyond all reasonable doubts, resting on circumstantial evidence. "Reasonable Doubt" does not mean any doubt, but it must be accompanied by such reasons, sufficient to persuade a judicial mind for placing reliance on it. If it is short of such standard, it is better to discard the same so that an innocent person might not be sent to gallows, To draw an inference of guilt from such evidence, the court has to apply its judicial mind with deep thought and with extra care and caution and whenever there are one or some indications, showing the design of the prosecution of manufacturing and preparation of a case, the courts have to show reluctance to believe it unless it is judicially satisfied about the guilt of accused person and the required chain is made out without any missing link, otherwise at random reliance on such evidence would result in failure of justice.It may also be kept in mind that sometimes the investigating agency collects circumstantial evidence seems apparently believable however, if the strict standards of scrutiny are applied there would appear many cracks and doubts in the same which are always inherent therein and in that case Courts have to discard and disbelieve the same.

21.              The motive in the present case was stated to be the property belonging to the deceased, which appellant wanted to embezzle, deceased was the wife of appellant having two sons and two daughters, no evidence in respect of any ill-willbetween deceased and the appellant was brought by the prosecution on record, no particulars of the said property were collected nor any revenue record was produced during the trial to show and prove that the deceased was the owner of any property. No evidence was also produced by the prosecution to establish that the appellant was demanding any property from the deceased.

22.              The recovery of the crime weapon viz pistol at the time of arrest of the appellant is also no helpful to the prosecution as no empty from the place of vardat was recovered, which would connect the appellant with the commission of the offence, and the recovery was allegedly effected after 05 days of the incident, nor there was any eye witness’s evidence that appellant fired from the pistol upon the deceased resulting her death.

23.              The entire evidence produced by the prosecution was reassessed but I could not find any piece of corroboratory evidence to lend support to the weak circumstantial evidence. Therefore, I am of the view that the prosecution case is full of improbabilities, legal and factual infirmities of fatal nature and is pregnant with bristling doubts of grave nature. Thus, the prosecution has miserably failed to connect the neck of the appellant with the crime in any manner whatsoever. Resultantly, this appeal is allowed. The appellant is acquitted of all the charges leveled against him. The appellant was already ordered to be releasedforthwith if not required to be detained in any other case vide short order dated: 19-02-2021.

24.              These are the reasons of my short order dated: 19-02-2021, announced in open court.

J U D G E