IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Jail Appeal No.S-112 of 2017
Appellants: 1). Inam Ali s/o Mukhtiar Ali Jagirani
2). Hassan s/o Abdul Raheem Jagirani,
Through Mr.Safdar Ali Ghouri, Advocate
Complainant: Ayaz Ali s/o Hazoor Bux Jagirani
Through Mr. Ahmed Bux Abro, Advocate
The State: Through Mr.Ali Anwar Kandhro, Addl.P.G.
Date of hearing: 27-01-2023
Date of decision: 27-02-2023
JUDGMENT
ZULFIQAR ALI SANGI, J:- The listed criminal jail appeal impugns the judgment dated 06.12.2017, delivered by learned 5th Additional Sessions Judge, Larkana, in Sessions Case No.921/2014 (Re. St. Vs. Inam Ali and another), emanating from FIR bearing Crime No.34/2014, for offence punishable Under Section 302, 34 PPC registered with Police Station, Mahota, whereby the appellants have been convicted for an offence punishable U/S.302(b) r/w Section 34 PPC and sentenced to suffer rigorous imprisonment for life as Tazir with fine of Rs.200,000/- each to be paid to legal heirs of the deceased and in default whereof, to suffer simple imprisonment for six months, with benefit of Section 382-B Cr.PC.
2. Concise facts of the prosecution case as unfolded in the FIR lodged by complainant Ayaz Ali Jagirani on 20.07.2014, at 2000 hours are to the effect that his niece Mst.Karishma aged about 15/16 years was wedded with Inam Ali Jagirani who resided at Village Motayo Jagirani. On the fateful day, his niece told him that her husband and other family inmates maltreated her on petty matters, as her father’s cell phone is off, so come quickly, on which the complainant alongwith his brothers Farooq Ali and Abid Ali went to village Motayo Jagirani. When at about 03.00 P.M, they reached at house of Inam Jagirani, they saw accused Inam Ali s/o Mukhtiar Ali Jagirani, 2). Hassan s/o Abdul Raheem, 3).Mukhtiar s/o Abdul Raheem, 4). Manzoor s/o Abdul Raheem, all by caste Jagirani, r/o village Motayo Jagirani, Taluka Larkana, were strangulating throat of her niece Mst.Karishma with rope and when they raised hakals, accused Mukhtiar Ali while taking out pistol from the house and pointing at them asked to remain silent but the complainant’s niece died within their sight. Thereafter, accused after putting off rope from neck of her niece attempted to hang her body with scarf in the girder of their roof but on their cries, accused fled away outside of the house. They shifted the dead body of deceased to Causality of CMC Hospital where the doctors certified her to be dead. Leaving witnesses over dead body of the deceased, the complainant came at police station and lodged the FIR against the accused.
3. On completion of usual investigation, the police submitted final report Under Section 173 Cr.PC against the accused. The formal charge was framed against the present appellants/accused to which they pleaded not guilty and claimed trial.
4. To establish the accusation against appellants/accused, the prosecution examined in all nine witnesses i.e PW-01 Complainant Ayaz Ali Jagirani, PW-02 Eye-witness Farooq Ali Jagirani, PW-03 Corpse bearer/PC Faiz Muhammad, PW-04 Eye-witness Abid Hussain Jagirani, PW-05 Mashir Sadoro Jagirani, PW-06 Tapedar Maqsood Ellahi, PW-07 Author of FIR/SIP Ajeeb Ali Khakhrani, PW-08 Medical Officer Dr.Fozia and PW-09 SIO/ASI Liaquat Ali Junejo, who all produced certain relevant documents in support of their statements. Thereafter, the learned State Counsel closed its side.
5. The appellants/accused in their statements recorded in terms of Section 342 Cr.P.C, denied the allegations leveled against them by pleading their innocence. However, they neither examined themselves on oath in disproof of the charge nor led any evidence in their defence.
6. The learned trial Court on evaluation of the material brought on record and hearing counsel for the parties convicted and sentenced the present appellants/accused vide impugned judgment, as discussed above.
7. Per learned defence counsel, there are material contradictions in the evidence of prosecution witnesses which have shattered the veracity of their evidence; that the complainant and PWs being related inter-se are interested witnesses and their evidence having no credibility, cannot be relied upon without independent corroboration; that there is conflict in between the ocular and medical account; that the prosecution has failed to prove motive; that there is no recovery of any sort from the possession of appellants/accused which may justify their involvement with commission of the alleged offence. Summing up his contentions, the learned defence counsel submitted that the present appellants/accused have been arraigned in this case on account of matrimonial dispute which is discernible from narration given in the FIR itself. He lastly concluded that the case of prosecution is doubtful and the appellants/accused are entitled to their acquittal in the circumstances of the case. In support of his contentions, he relied upon cases of Mehmood Ahmad and 3 others v. The State and another (1995 SCMR-127), Usman alias Kaloo v. The State (2017 SCMR-622), Mst.Rukhsana Begum and others v. Sajjad and others (2017 SCMR-596), Hashim Qasim and another Vs. The State (2017 SCMR-986), Nasrullah alias Nasro v. The State (2017 SCMR-724), Arshad Khan v. The State (2017 SCMR-564), Nazar Muhammad and another v. The State (2018 YLR-1455).
8. Conversely, learned counsel for the complainant and learned Addl.P.G for the State submit that all the witnesses have fully supported the case of prosecution and no any major contradiction has been pointed out in their evidence; that an innocent lady has been throttled to death at the hands of appellants/accused over family dispute; that the ocular evidence is consistent with medical as well circumstantial account; that postmortem report justified the death of deceased by way of strangulation which has fully supported the case of prosecution, in that situation, the learned trial Court finding the appellants/accused guilty of the offence has rightly convicted and sentenced them by way of impugned judgment which does not call for any interference by this Court, hence, the appeal filed by them being meritless is liable to its dismissal. In support of contentions, learned counsel for the complainant relied upon cases of Abdul Waheed v. The State (2012 MLD-510), Abdul Ghafoor v. The State (2000 SCMR-919), Nazir Ahmed v. The State (2009 SCMR-523) and Mehboob Ali v. The State (2000 SCMR-152).
9. I have given due consideration to the arguments advanced by learned counsel for the parties and have minutely gone through the material made available on the record with their able assistance.
10. The prosecution examined three eye-witnesses, complainant Ayaz Ali, PWs Farooque Ali and Abid Hussain, all three are brothers inter-se and uncles of deceased Mst.Karishma, their evidence when is scanned, is found unreliable and untrustworthy. They all gave contradictory evidence on each point. Admittedly, the complainant and other eye-witnesses are not resident of place where the incident took place but all three witnesses admitted in their evidence that they came at the place of incident after receiving telephonic call made by the deceased. They also admitted that they took one and half an hour in reaching at the place of incident after telephonic call and the distance of their residence from the place of incident is of same time while using the motorbike. Complainant Ayaz Ali and PW Farooque Ali are not supporting each other on such telephonic call, complainant Ayaz Ali stated that deceased called him from her own cell phone which was supplied to her by him, however, PW Farooque Ali stated that Mst.Karishma telephoned Ayaz Ali from the phone of accused Mukhtiar and on another question made to him he stated that Mst.Karishma telephoned him from her own cell phone which was supplied to her by him. Looking to their evidence, it is clear that both these witnesses are telling lie. The receipt of said information on telephone was also not investigated by the investigation officer who had failed to collect the data of mobile phone to verify the factum of such version of the complainant and collection of such piece of evidence was very necessary in the present case when all the witnesses were not resident of same locality where the alleged incident took place and they on receiving telephonic call from the deceased reached there and witnessed the incident of murder. The failure of prosecution in collecting such piece of evidence makes the presence of witnesses at the relevant time as doubtful.
11. In the FIR, the complainant stated that when he alongwith other PWs reached at the place of vardat they saw that the accused persons were strangulating the deceased with rope and on seeing them coming, accused Mukhtiar took pistol from his house, straight upon them to keep silent and then accused tried to put off rope, tied a scarf on her neck and tried to hang her in girder of roof of their house to make it a color of suicide. The complainant when appeared in witness box did not depose even a single word in respect of hanging of deceased by the accused persons and bringing out the pistol by accused Mukhtiar from his house. The complainant in his examination-in-chief deposed that they on reaching saw accused namely Inam Ali, Hassan, Mukhtiar and Manzoor Ali strangulating throat of deceased Mst.Karishma with rope and during cross-examination he stated that the rope with which Mst.Karishma’s throat was strangulated, was with accused Inam and he was being helped by rest of the accused in strangulation. PW-02 Farooque Ali in his cross-examination deposed that he do not remember the point/place where accused Inam was standing when Mst.Karishma was being strangulated which suggests that he had not seen accused Inam while strangulating the deceased. PW-04 Abid Hussain in his cross-examination deposed that accused Manzoor, Hassan and Mukhtiar had caught hold of his niece Mst.Karishma while accused Inam Ali having one rope was strangulating her throat. If the evidence in respect of role against each accused as stated by all three witnesses is believed to be true then the evidence in respect of role assigned to accused Mukhtiar with regard to take pistol from his house and to straight it at them is an improvement.
12. The above witnesses are also not supporting to each other on the rope which was used for strangulation of deceased as the complainant during cross-examination deposed that the color of said rope was red, however, PW Abid Hussain deposed that it was of black color. They are also not in one line in respect of rooms of the house where the incident took place, as the complainant in his cross-examination deposed that the house is consisting upon two rooms while PW Farooque Ali deposed that it is consisting upon three rooms which too suggests non-availability of one of them, who had seen the house where the alleged incident took place. The complainant had not deposed even a single word either in the FIR or in his evidence that accused Mukhtiar had made fires from his pistol; however, PW Abid Hussain who claimed himself to be eye-witness of the incident in his examination-in-chief deposed that when they raised crises, accused Mukhtiar made aerial firing, again during cross-examination he stated that he cannot recall the number of fire-shots made by accused Mukhtiar but he made fires outside the room but inside the compound wall of the house. The complainant deposed in his FIR that when they reached and saw accused strangulating the deceased made cries, on which accused Mukhtiar took out pistol from his house, however, PW Abid Hussain stated during cross-examination that accused Mukhtiar was holding pistol when they reached at house of accused Inam Ali which too reflects that one of them had not witnessed the incident or both of them are cooked-up witnesses. None of the witnesses stated even a single word during investigation nor in their examination-in-chief as to the procedure adopted by accused for hanging the deceased while using scarf in girder of roof of their house, however, PW Abid Hussain during his cross-examination stated that accused Inam Ali tied piece of cloth in girder then he tried to hang Mst.Karishma’s dead body. Height of roof would be about 10/11 feet and accused would have used one stool for tying the cloth in girder. This aspect of the case suggests that the prosecution witnesses tried to prove the case by making dishonest improvements. The Honourable Supreme Court of Pakistan in case of Muhammad Mansha v. The State (2018 SCMR-772), has held as under:-
“Once the Court comes to the conclusion that the eye-witnesses had made dishonest improvements in their statements then it is not safe to place reliance on their statements. It is also settled by this Court that whenever a witness made dishonest improvement in his version in order to bring his case in line with the medical evidence or in order to strengthen the prosecution case then his testimony is not worthy of credence. The witnesses in this case have also made dishonest improvement in order to bring the case in line with the medical evidence (as observed by the learned High Court), in that eventuality conviction was not sustainable on the testimony of the said witnesses. Reliance, in this behalf can be made upon the cases of Sardar Bibi and another v. Munir Ahmad and others (2017 SCMR 344), Amir Zaman v. Mahboob and others (1985 SCMR 685), Akhtar Ali and others v. The State (2008 SCMR 6), Khalid Javed and another v. The State (2003 SCMR 1419), Mohammad Shafique Ahmad v. The State (PLD 1981 SC 472), Syed Saeed Mohammad Shah and another v. The State (1993 SCMR 550) and Mohammad Saleem v. Mohammad Azam (2011 SCMR 474).”
The Honourable Supreme Court of Pakistan in case of Muhammad Mansha (supra) also held as under:-
“In that eventuality, the conviction upon the statements of the witnesses who, in the assessment of the High Court, made dishonest improvements and their divergent stances in the FIR and the private complaint made them doubtful then there was no legal justification to convict the appellant Muhammad Mansha on the same set of evidence without independent corroboration conspicuously lacking in the instant case, as held by this Court in the cases of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11), Sarfraz alias Sappi v. The State (2000 SCMR 1758), Iftikhar Hussain and others v.The State (2004 SCMR 1185), Akhtar Ali and others v.The State (2008 SCMR 6), Muhammad Ali v.The State (2015 SCMR 137), Mst. Sughra Begum and another v. Qaiser Pervez and others (2015 SCMR 1142) and Shahbaz v. The State (2016 SCMR 1763). The above principle has been appreciated by the High Court in the instant case, but erroneously convicted the petitioner against the said settled principle.”
13. The medical evidence is in nature of supporting, confirmatory or explanatory of the direct or circumstantial evidence, and is not “corroborative evidence” in the sense the term is used in legal parlance for a piece of evidence that itself also has some probative force to connect the accused person with the commission of offence. Medical evidence by itself does not throw any light on the identity of the offender. Such evidence may confirm the available substantive evidence with regard to certain facts including seat of the injury, nature of the injury, cause of the death, kind of the weapon used in the occurrence, duration between the injuries and the death, and presence of an injured witness or the injured accused at the place of occurrence, but it does not connect the accused with the commission of the offence. It cannot constitute corroboration for proving involvement of accused person in commission of the offence, as it does not establish identity of the accused person. Reliance can be placed on the cases of Yaqoob Shah v. State (PLD 1976 SC 53); Machia v. State (PLD 1976 SC 695); Muhammad Iqbal v. Abid Hussain (1994 SCMR 1928); Mehmood Ahmad v. State (1995 SCMR 127); Muhammad Sharif v. State (1997 SCMR 866); Dildar Hussain v. Muhammad Afzaal (PLD 2004 SC 663); Iftikhar Hussain v. State (2004 SCMR 1185); Sikandar v. State (2006 SCMR 1786); Ghulam Murtaza v. Muhammad Akram (2007 SCMR 1549); Altaf Hussain v. Fakhar Hussain (2008 SCMR 1103) and Hashim Qasim v. State (2017 SCMR 986). In the case in hand, from the oral evidence produced by the prosecution witnesses it established that they made dishonest improvements and gave contradictory evidence on each point, as discussed above, therefore, the medical evidence alone is not sufficient to maintain the conviction keeping in view that every case is to be decided on its own facts and the circumstance.
14. It is observed that the evidence in respect of recovery of rope and other items from place of incident and the medical evidence produced by the doctor during trial in shape of his oral as well documentary evidence consisting upon the postmortem and other items was not put to the appellants while recording their statements under section 342, Cr.PC, enabling them to explain the circumstances, therefore, the same cannot be used against them and on that basis the conviction cannot be sustained as has been held by Honourable Supreme Court of Pakistan in cases Imtiaz alias Taj v. The State (2018 SCMR 344), Qadan and others v. The State (2017 SCMR 148), Mst. Anwar Begum v. Akhtar Hussain alias Kaka and 2 others (2017 SCMR 1710) and Muhammad Shah v. The State (2010 SCMR 1009).
15. It is further observed that the Court(s) must never be influenced with severity of the offence while appreciating evidence for finding guilt or innocence because severity of an offence could only reflect upon quantum of punishment. Therefore, even such like tragic cases, the Courts are always required to follow the legally established position that it is intrinsic worth and probative value of evidence which plays a decisive role in determining the guilt or innocence and not heinousness or severity of offence. Reliance can be placed on the case of Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274). The rule of benefit of the doubt is essentially a rule of prudence which cannot be ignored while dispensing justice following the law. The conviction must be based on unimpeachable evidence and certainty of guilt and doubt arising in the prosecution case must be resolved in favour of the accused. The said rule is based on the maxim. "It is better that ten guilty persons be acquitted rather than one innocent be convicted" which occupied a pivotal place in the Islamic Law and is enforced strictly because of the saying of the Holy Prophet (PBUH) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent". It is well settled by now that the prosecution is bound to prove its case against the accused beyond any shadow of reasonable doubt, but no such duty is casted upon the accused to prove his innocence. It has also been held by the Honourable Superior Courts that the conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. In case of Wazir Mohammad v. The State (1992 SCMR 1134), it was held by Honourable Supreme Court that "In the criminal trial it is the duty of prosecution to prove its case against the accused to the hilt, but no such duty is casted upon the accused, he has only to create doubt in the case of prosecution. "Honourable Supreme Court in another case of Shamoon alias Shamma v. The State (1995 SCMR 1377), held that "The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against accused, entitles him/them to an acquittal. The prosecution cannot fall back on the plea of an accused to prove its case. Before, the case is established against the accused by prosecution, the question of burden of proof on the accused to establish his plea in defence does not arise. "Reliance is also placed on case of Naveed Asghar and 2 others v. The State (PLD 2021 SC 600).
16. The over-all discussion arrived at conclusion that the prosecution has miserably failed to prove the guilt against present appellants beyond shadow of any reasonable doubt and it is a well-settled principle of law that for creating the shadow of a doubt, there should not be many circumstances. If a single circumstance creates reasonable doubt in the prudent mind, then its benefit is always extended in favour of the accused not as a matter of grace or concession, but as a matter of right. In this respect reliance is placed on the case of Muhammad Masha v. The State (2018 SCMR-772), wherein the Hon’ble Supreme Court of Pakistan has held that:-
“4. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then accused would be entitled to the benefit of such doubt, not as a matter of grace and concession but as a matter of right. It is based on the maxim, “it is better that ten guilty persons be acquitted rather than one innocent person be convicted”. Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v.The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749)”.
17. Resulting upon above discussion, I am of the judicious view that the learned trial Court has not evaluated the evidence in its true perspectives and thus arrived at an erroneous conclusion by holding present appellants as guilty of the offence. Thus, the conviction and sentence recorded to them by way of impugned judgment could not be sustained, it is set aside. The appellants are acquitted of the charged offence. Office is directed to issue release writ, directing the concerned jail authority to release them forthwith in the present case, if they are not required in any custody case.
18. The instant criminal jail appeal is disposed of accordingly.
JUDGE
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