IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Jail Appeal No.S-50 of 2021
Cr. Appeal No.S-79 of 2021
Appellants : Ghous Bux Lashari & another, through
Mr. Ghayoor Abbas Shahani, Advocte.
Respondent : The State, through Mr. Ali Anwar Kandhro, Additional
Prosecutor General.
Date of hearing : 19-09-2022.
Date of Judgment : 19-09-2022.
J U D G M E N T.
NAIMATULLAH PHULPOTO, J.- Appellants Ghous Bux and Mukhtiar Ali were tried by learned Sessions Judge, Kashmore at Kandhkot, for offences under Sections 302, 311, 34, PPC in Sessions Case No.51/2021 re-The State v. Ghous Bux & another and found them guilty and vide judgment dated 21.10.2021 convicted them under Section 302(b), PPC r/w section 34, PPC and sentenced to life imprisonment and to pay fine of Rs.5,00,000/- (Rupees Five Lac) each, payable to the legal heirs of deceased Mst. Musrat Khatoon; in case of default in payment of fine amount each appellant/accused to suffer S.I. for 06 months more. Benefit of Section 382-B, Cr.P.C was extended to them. By these appeals, appellants have challenged their conviction and sentence.
2. The prosecution story as given in the judgment of the learned trial Court reads as under:-
“Prosecution case in nut-shell as depicted in FIR, lodged by complainant ASI Muhammad Ayoub Bullo at PS B. Section Kandhkot, is that on 02.01.2021, he along with his staff left PS, vide entry No.23 at 1800 hours for patrolling, when they reached near CP Shakh, where complainant received spy information that accused Ghous Bux and Mukhtiar Ali at 2330 hours, have committed murder of Mst. Musrat Khatoon d/o Manzoor Ahmed w/o Ghous Bux, by strangulating her with piece of rope, after declaring Mst. Musrat Khatoon as kari with one Mir Ahmed Golo. After receiving such information, complainant party proceeded to village Illahi Bux and on 03.01.2021 at 0015 hours (night) they reached in house of accused Ghous Bux and saw on head light of vehicle accused Ghous Bux and Mukhtiar Ali who came out from their house and ran away towards Eastern side and succeeded to run away. It is further alleged that at 0030 hours came back to place of vardat and found that dead body of Mst. Musrat Khatoon w/o Ghous Bux aged 20 years was lying in eastern room on a cot and one piece of rope of blue colour was wrapped around her neck, which was took off. Thereafter, complainant appointed P.Cs Ali Muhammad and Lehaq Khan as mashirs and through a lady he inspected dead body of deceased and found ligature marks around neck of deceased. He then prepared such memo of inspection of dead body and inquest report. After completing legal formalities, complainant referred the dead body of deceased to W.M.O Taluka Hospital Kandhkot for postmortem examination. Complainant searched for accused, but could not get any clue, as such he returned back to PS and no any relative of deceased came at PS for registration of FIR, thereafter, ASI Muhammad Ayoub lodged FIR on behalf of the State, on 03.01.2021 at 0700 hours.”
3. After usual investigation challan was submitted against the accused.
4. At the trial, prosecution examined 05 witnesses. Trial Court recorded statements of accused/appellants u/s 342, Cr.P.C. The appellants claimed false implication in this case, denied the prosecution allegations. However, they did not make statement on oath u/s 340(2), Cr.P.C in disproof of prosecution allegations. They, however, examined Mst. Laila Khatoon and Nabi Bux as defence witnesses.
5. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the judgment passed by the trial Court. Therefore, same may not be reproduced here so as to avoid duplication and unnecessary repetition.
6. Learned trial Court after hearing the learned Counsel for the parties and assessment of evidence, vide judgment dated 21.10.2021 convicted and sentenced the appellants, as stated above.
7. Unnatural death of Mst. Musrat Khatoon is not disputed by defence. Hence, finding of trial Court in this regard requires no interference by this Court. Now I will re-examine and re-assess the prosecution evidence about involvement of appellants in this case, as held by trial Court.
8. The case of prosecution hinges upon the evidence of the police officials. ASI Mohammad Ayoub and his subordinate staff deposed that during patrolling, they received spy information that appellant Ghous Bux has committed murder of his wife along with co-accused Mukhtiar Ali, who is his uncle, on the pretext of Kari with one Mir Ahmed Golo. Police reached at the house of appellant Ghous Bux and found Mst.Musrat Khatoon lying dead. Police collected a rope around the neck of deceased Mst. Musrat Khatoon. Mohammad Hayat PW-4, tapedar, had prepared sketch and deposed that dead body was lying in the house of the appellant Ghous Bux. Investigation officer conducted formal investigation of the case.
9. Learned Counsel for the appellants contended that it was an unseen incident and prosecution case is based upon circumstantial evidence; that the evidence of the police officials is not reliable because police was interested; that learned trial Court has based it’s finding on mere presumption that dead body was found in the house of appellant Ghous Bux; that evidence of the last seen was also lacking probity; that nothing was recovered from the possession of the appellants during investigation; that there are glaring contradictions and inconsistencies in the evidence of the prosecution witnesses, which were not noticed by the trial Court, resulting into a serious miscarriage of the justice; that the prosecution had failed to prove it’s case against the appellants beyond shadow of doubt and it is prayed that the appellants are entitled for acquittal. Learned advocate for the appellants relied upon the case of Muhammad Jamil v. Muhammad Akram & others (2009 SCMR 120).
10. On the other hand, while opposing this appeal, learned Addl. Prosecutor General contended that police officials had no enmity with appellants to falsely implicate them in this case; that there was last seen evidence against the appellants coupled with medical evidence; that prosecution had proved it’s case against the appellants beyond any shadow of doubt. Lastly, it is submitted that deceased was wife of appellant Ghous Bux and dead body was found in the house of appellant No.1 Ghous Bux, for which he failed to furnish explanation and prayed for dismissal of appeals.
11. I have heard the arguments advanced from both the sides and re-assessed and re-examined the evidence available on the record. I have noted that no direct evidence was available with the prosecution to prove it’s case against the appellants, case mainly hinges upon the circumstantial evidence. It is settled by now that in such like case, prosecution is bound to link each circumstance to the other in a manner that it should form such a continuous chain of the circumstances firmly connecting the accused with the alleged offence. Reliance is placed upon the cases reported as Ibrahim & others v. The State (2009 SCMR 407) and Muhammad Hussain v. The State (2011 SCMR 1127). In this unfortunate incident, prosecution has brought on record the evidence of the police officials who were on patrol duty. ASI Mohammad Ayoub received spy information on 02.1.2021 at 2330 hours, that appellant No.1 Ghous Bux has committed murder of his wife Mst. Musrat Khatoon along with his uncle Mukhtiar Ali. Police proceeded to the house of the appellant No.1 and found the dead body of deceased Mst. Musrat Khatoon lying in the house. ASI Mohammad Ayoub called a woman from village and prepared inquest report. It was a case of spy information, ASI Mohammad Ayoub did not associate with him private persons of the vicinity. A woman associated by ASI Mohammad Ayoub for inspection of the dead body had also not been examined by the prosecution at the trial. Even otherwise, evidence of police officials appears to be unnatural and unbelievable. Trial Court failed to appreciate the evidence according to the settled principles of the law. It is unbelievable that police party was armed with official arms and ammunitions and both the appellants while seeing the police party ran away and police could not arrest them. After arrest of the accused, nothing incriminating was recovered to connect the accused/appellants in the commission of the offence. Learned Addl. P.G. has argued that deceased was wife of appellant Ghous Bux and her dead body was found in the house of appellant Ghous Bux and that circumstance has not been explained by him. Trial Court has heavily relied upon this piece of evidence. Law is quite settled by now that if prosecution fails to prove it’s case, then accused person is to be acquitted even he had taken a plea and had thereby admitted killing the deceased. Reliance is placed on the case reported as Azhar Iqbal v. The State (2013 SCMR 383).
12. From the re-appraisal of the evidence, I have come to the conclusion that trial Court failed to appreciate the evidence according to the settled principles of the law, for the reasons that prosecution case was based upon the testimony of police officials alone. It is necessary for this Court to find out if there was any possibility of securing independent person at that time. It was a case of spy information, ASI had prior information, inspite of that he failed to associate private persons to witness the incident. No doubt, evidence of the police officials cannot be discarded simply because they belong to the police force, but where the fate of an accused hinges upon the testimony of the police officials alone, particularly in the case of capital punishment, it is necessary to find out if there was any possibility of securing independent persons at that time. Judicial approach has to be cautious in dealing with such evidence, as held in the case reported as Saifullah v. The State (1992 MLD Karachi 984). Relevant portion is reproduced as under:-
“8. The evidence of police officials cannot be discarded simply because they belong to police force. In Qasim and others v. The State, reported in PLD 1967 Kar. 233, it was held:-
“A police officer is as good a witness as any other person. The standard of judging his evidence is the same on which the evidence of any other witness is judged.”
However, in a case of this nature where the fate of an accused person hinges upon the testimony of police officials alone, it is necessary to find out if there was any possibility of securing independent persons at that time. Judicial approach has to be cautious in dealing with such evidence.”
13. As regards to the contention of the Addl. P.G. for the State that appellant No.1 had committed murder of his wife in his house; thus, some part of the onus had shifted to the appellant No.1 to explain the circumstances in which the deceased had died an unnatural death in the house of appellant Ghous Bux on the fateful day, which part of the onus had not been discharged by the appellants. I have attended to this aspect of the case with care and have found that when evidence of police officials relied upon by the prosecution has been found to be utterly unreliable then the appellants could not be convicted for the alleged murder simply on the basis of dead body in the house of appellant No.1. In the case of Asad Khan v. The State (PLD 2017 SC 681) the principle has been enunciated that the shifting of some part of the onus to the accused may not be relevant in a case where the entire case of the prosecution itself is not reliable and where the prosecution fails to produce any believable evidence. It is trite that in all such cases the initial onus of proof always lies upon the prosecution and if the prosecution fails to adduce reliable evidence in support of its own case then the accused person cannot be convicted merely on the basis of lack of discharge of some part of the onus on him. Reliance is placed on the case of Wajahat v. Gul Daras & others (2019 SCMR 1451). Relevant portion is reproduced as under:-
“Appellant’s belated plea of the suicide even if rejected outrightly by itself would not absolve the prosecution to drive home the charge, on its own strength and same goes for appellant’s absconsion; people avoid to face process of law or their adversaries for a variety of reasons, not necessarily inclusive of their guilt; Appellant’s reticence to satisfactorily explain as to what befell upon his better half under the same roof, though somewhat intriguing, however, cannot be equated to qualify as evidentiary certainty, essentially required in order to saddle him with formidable corporal consequences; his failure would not give rise to an adverse presumption within the contemplation of Article 121 of the Qanun-e-Shahadat Order, 1984 and thus it would be grievously unsafe to maintain the conviction, without potential risk of error as well as diametrical departure from adversarial nature of criminal trial.”
14. For the purpose of conviction and sentence in a case of capital punishment the evidence must come through unimpeachable source and trial Court has to see intrinsic value of such evidence with strong corroboration, which is lacking in the present case.
15. Admittedly, it is a case of circumstantial evidence, therefore, as rule of prudence, it is required that each piece of circumstantial evidence shall be supported by independent corroboration, which shall, by itself, be sufficient to establish the guilt. However, each circumstance shall be so connected with each other that it shall make one complete chain, without there any broken link. As it has been discussed hereinabove, there are completely broken links of chain to connect the appellants with the commission of murder of deceased, therefore, they would be entitled to benefit of doubt.
16. It is settled law that it is not necessary that while giving the benefit of doubt to an accused it was not necessary that there should be many circumstances creating doubt in the prosecution case. If there is single circumstance creating reasonable doubt in a prudent mind about the guilt of the accused, then accused would be entitled for benefit of such doubt, not as a matter of grace and concession, but as a matter of right. In this regard, reliance is placed on the case reported as Muhammad Mansha v. The State (2018 SCMR 772).
17. For the above-stated reasons, I have no hesitation to hold that trial Court failed to appreciate the evidence on sound judicial principles. At the conclusion of the arguments, by short order dated 19.9.2022 for the reasons to be recorded later, appeals were allowed and appellants were directed to be released forthwith unless required to be detained in any other case. These are the reasons for allowing the appeals and directing the acquittal of appellants.
JUDGE
Qazi Tahir PA/*