IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Cr. Jail Appeal No.S-03 of 2021
Appellant Hazoor Bux s/o Meenhal Magsi,
Through Mr. Habibullah G. Ghouri, advocate
Complainant: Nazir Ahmed
Through Mr. Imtiaz Ali Mugheri, Advocate
The State: Through Mr. Aitbar Ali Bullo, D.P.G for the State
Date of hearing: 10-04-2023.
Date of Judgment: 31-05-2023.
J U D G M E N T
Zulfiqar Ali Sangi, J.Through instant criminal jail appeal, appellant Hazoor Bux s/o MeenhalMagsi has assailed the Judgment dated 02.01.2021, passed by the learned Additional Sessions Judge-I(MCTC), Shahdadkot in Sessions Case No. 313/2017, (re: State V/S Hazoor Bux Magsi), being outcome of Crime No.29/2017 of P.S. Qubo Saeed Khan, for the offence U/S 302,201,34 P.P.C, whereby the learned trial court has convicted the appellant for the offence U/S 302 P.P.C and sentenced to suffer life imprisonment. He was also directed to pay compensation of Rs.500,000/- to the legal heirs of deceased Wazir Ali, in case of failure he shall undergo six months more. He was also convicted for an offence punishable under section 201 PPC and sentenced to undergo R.I for three years and to pay fine of Rs.100,000/- (rupees one lac only) in case of failure in payment of fine amount he shall also suffer one month more S.I . The benefit of section 382-B Cr.P.C was extended to the accused.
2. The facts of the prosecution case are that the complainant lodged the F.I.R at P.S. Qubo Saeed Khan on 06.05.2017 stating therein that on 23.03.2017, he alongwith his father namely Wazir Ali, maternal cousin Jan Muhammad and paternal cousin Jalal (being guest) were available at his house situated at Kala Makan Mohalla Shahdadkot. They on knocking of main gate of their house at 6:00 am went outside of the house and saw one Hazoor Bux Magsi son of Meenhal Magsi was standing together with his motorcycle. It has further been alleged that he (accused Hazoor Bux) had asked Wazir Ali to have accompanied him for accomplishment a piece of work then both of them went away by motorcycle. On the same day at 1:00pm, he (accused Hazoor Bux Magsi) had informed the complainant on his mobile phone that his father had received many injuries due to fallen from motorcycle and he (accused Hazoor Bux Magsi) had been shifting him to hospital at Kamber. On receipt of such information, the complainant alongwith above named witnesses went to Kamber hospital where the dead body of deceased Wazir Ali (father of the complainant) was lying who had sustained injuries on his forehead, back side of head and there was swelling around his neck. The complainant had asked the accused Hazoor Bux Magsi about the incident who had replied him that they should first shift the dead body then he would apprise them about the incident, he by saying so left hospital. Thereafter complainant party shifted the dead body to their village and buried him. The complainant party went to accused Hazoor Bux but who did not met with them. Later on, the complainant party came to know that on 23.03.2017 along the road leading from Dost Ali Chowki towards Kamber bypass adjacent to SimShakh situated in Deh Hameer Taluka Shahdadkot, accused Hazoor Bux Magsi alongwith two unknown persons had committed the murder of the deceased Wazir Ali by causing him injuries with hard blunt substance and the accused in order to vanish the evidence of murder had falsely informed the complainant party that deceased Wazir Ali had been expired due to fallen from the motorcycle. Thereafter complainant had approached the Sessions Court Kamber-Shahdadkot for registration of FIR against accused Hazoor Bux and the said FIR had been registered on 06.05.2017.
3. After usual investigation, the accused was challaned before the court. Necessary papers were supplied to him. Formal charge was framed against the accused, to which he pleaded not guilty and claimed to be tried.
4. It is relevant to mention here that the investigating officer filed an application before the trial court for constituting Medical Board for conducting exhumation of the dead body of the deceased Wazir Ali under supervision of Judicial Magistrate. The said application was allowed vide order dated 10.05.2017 and exhumation of the dead body was conducted.
5. In order to substantiate the charge the prosecution has examined as many as ten witnesses, who produced certain items and documents in support of their statements. Thereafter the side of prosecution was closed.
6. Trial Court recorded statement of accused under section 342 Cr.P.C, wherein the appellant/accused denied the prosecution allegations and claimed his false implication in this case. He has further stated that the police and complainant had got managed false postmortem certificate. He has further stated that the prosecution witnesses being interested witnesses have falsely deposed against him. However, he did not opt to record his statement on oath. He also did not opt to lead defence evidence. He has claimed himself to be innocent and further stated that on the day of alleged incident he along with his friend deceased Wazeer Ali were going towards Kamber by motorcycle and they reached at Behram where his motorcycle had been slipped due to which both of them became injured. He has further stated that he had brought him (deceased) at Kamber Hospital where he had been died. He has further stated that such incident had been published in Daily Kawish dated 24-03-2017. He has produced original newspaper. He has prayed for justice.
7. After assessment of evidence and hearing the parties, learned trial court passed the above impugned judgment and awarded the sentence to the present appellant/accused as mentioned above. Being aggrieved by and dissatisfied with the said judgment, the appellant/accused above named has preferred this criminal jail appeal.
8. Learnedcounsel for the appellant has contended that appellant is innocent and no direct evidence is available against him;that the death of deceased was a result of an road accident and no eyewitness of the incident has been cited by the prosecution to believe that the appellant is involved in this case; that the case is of last seen only which is weaker type of evidence; that the complainant is not an eye witness of the incident;that how it is possible that the appellant committed the murder of deceased and taken it on bike to hospital; that the prosecution has failed to establish its case against the appellant; that the instant case is full of discrepancies in the story of prosecution and where a single doubt arises, it is sufficient to acquit the accused by adopting the golden principle that many accused may be acquitted on the benefit of doubt but no single innocent person should be convicted and sentenced. He further submits that the offence taken place on 23.03.2017, while the FIR was got lodged based on the Court Orders on 06.05.2017 after the delay of about one and half month for which no explanation had been offered. He has further contended that the accused and the deceased being friends were going towards Kamber by motorcycle which was slipped at Behram due to such accident both of them became injured and the accused had shifted the deceased to Civil Hospital Kamber but he could not survive,his death was caused due to road accident and the accused did not commit his murder as alleged and news item regarding an accident was also published in daily ‘KAWISH’ dated 24.03.2017 but neither the investigating officer enquired from the vicinity and even from the doctors of civil hospital Kamber nor the special medical board had summoned the medical record of the deceased from that hospital, therefore the prosecution case became doubtful.He lastly prayed that the trial Court has erroneously convicted and sentenced the appellant without proper appraisal of evidence through impugned judgment which is liable to be set aside and the appellant may be acquitted of the charge.
9. Learned D.P.G assisted by the learned counsel for the complainant has argued that the name of accused is mentioned in the F.I.R; that the appellantnot only committed Qatl-i-Amd of his friend, namely deceased Wazir Ali but also concealed such evidence by giving false information to the complainant; that the prosecution has fully succeeded in establishing the murder charges against him by producing sufficient evidence;that the prosecution witnesses including investigating officer, mashir and members of the special medical board have unanimously supported the prosecution case by corroborating each other; that the prosecution has also brought on record relevant documents including exhumation report showing the death of deceased with strangulation;They both prayed that the appeal of the appellant may be dismissed.
10. I have heard learned counsel for the appellant, learned counsel for the complainant and learned Deputy Prosecutor General and have gone through the material available on the record with their able assistance.
11. It is well settled principle of law that conviction can be recorded even in case carrying death sentence on the basis of circumstantial evidence if it excludes all hypothesis of innocence of accused, however, it should be accepted with great caution and be scrutinized minutely for reaching conclusion that no plausible conclusion be drawn except guilt of the accused.The prosecution is duty bound to prove every circumstance independently as is so connected with other circumstances which constitutes an unbroken chain that leads to no other inference but to the guilt of accused. Reliance can be placed on the case of Mohammad Basharat v. Saqib Shah (2013 P.Cr.L.J 619), wherein it was held as under:-
"8. The superior Courts while appreciating the circumstantial evidence which is always considered to be a weak type of evidence, have held that there is no rule of law or practice to prevent a Court from sentencing an accused person to death merely on the circumstantial evidence provided that in a case resting on a circumstantial evidence, no link in the chain should be missing and all the circumstances must lead to the guilt of the accused. The circumstantial evidence can only form basis for conviction when it is incompatible with the innocence of accused or the guilt of any other person and in no manner be incapable of explaining upon any reasonable hypotheses except that of the guilt of accused. Every link in circumstantial evidence should be proved by cogent evidence and if not then no conviction could be maintained or awarded to an accused."
The Supreme Court of Pakistan in another case of Munawar Hussain v. Imran Waseem (2013 SCMR 374), has observed as under:-
"Even, death penalty can also be awarded on circumstantial evidence but it should be beyond any shadow of doubt. The chain of facts be such that reasonable inference can be drawn that accused has committed the offence. All the facts established should be consistent only with the hypotheses of guilt of the accused. If any link is missing that will destroy the whole links of such evidence and all the links of the circumstances must lead to the guilt of the accused. It is not a such type of evidence, but it is sufficiency and quality which matters. The circumstantial evidence should be so interconnected that it forms such a continuous chain that its one end touches the dead body and the other the neck of accused thereby excluding all hypothesis of his innocence."
12. The case in hand is based upon the circumstantial evidence/last seen and the medical evidence. The prosecution examined two witnesses PW-4 Nazir Ahmed and PW-5 Muhammad Janin respect of taking the deceased Wazir Ali by the accused from his house in their presence on motorbike. The PW-4 Nazir Ahmed thereafter received telephonic call from the accused that he and the deceased fallen from the motorcycle and his father received injuries therefore he (accused) is taking to him (deceased) to the hospital they (complainant party) would reach at hospital. Complainant and the witnesses when reached at the hospital where theysaw his father Wazir Ali asdead to whom accused informed that due to an accident his father received injuries and died after saying so accused fled away from the hospital. Complainant party has suspected that deceased might be murdered but having no clue they after taking photographs of the dead body buried the same. The prosecution witnesses further deposed that time and again they approached the accused for getting information in respect of the accident but he was avoiding for meeting with them. Complainant party came to know that it was not an accident but the deceased was murdered by the accused himself but to save himself from the clutches of law he narrated them a false story of accident. The accused had not denied that he had not taken the deceased from his house or he was not with the deceased at the time of an accident or he was not with the deceased at hospital. From the house of deceased till his death there is no space for which the accused was separated from him (deceased).The complainant during the cross-examination on the suggestion made on behalf of the accused stated that “It is correct to say that there was no any issue existed between my deceased father and accused Hazoor Bux but were friends and they were the security guards/gunmen of one Mir Nadir Ali Khan Magsi. It is incorrect to say that my father had been died due to accident at Behram while he was travelling/riding along with accused on his motorcycle”.The version of complainant party is further strengthen from the cross-examination conducted on behalf of the accused wherein it is admitted that the deceased was taken by the accused on his motorcycle and thereafter received injuries and was died. From the house of deceased till arrival of the complainant party at hospital only the accused was with the deceased and no one else nor it was brought on record by the accused that at any place he was separated from the deceased or at the time of accident he (accused) was not with the deceased.The third witness Jalal Magsi was not examined as he at that time had gone to Saudi therefore the complainant filed such statement before the court.
13. After the FIR was registered, the medical board was constituted to ascertain the cause of death of the deceased. Investigating officer approached the Session Judge for appointing the Magistrate for exhumation proceeding of the dead boy of the deceased which was allowed.The exhumation proceeding were conducted by the team of doctors in the presence of Magistrate. The prosecution examined three members of the medical board as PW-1 Dr. Rasheed Ahmed, PW-2 Dr. Muhammad Saleem and PW-3Dr.Habib-ur-Rehman. The members of the board on the examination dead body found as:-
THE EXAMINATION OF SKULL
01. Shows all the sutures were completely ossified. Brain was completely liquefied.
02. A linear fracture measuring 8 cm running from post parietal region towards frontal side seen. A linear fracture measuring 4 cm running from posterior parietal part of forward Just below to upper fracture also seen
03. The squamous part of the temporal bones of both sides seen separated from their respective parietal parts (Diastatic fracture).
04. A linear fracture measuring 03 cm at left bone just in front of left coronal suture was seen
05. An inverted V shaped zigzag shape fracture measuring 03 cm at the root of the nose was seen.
06. The chip of superciliary arch measuring 2 cm of left orbit was removed.
THE EXAMINATION OF HYOID BONE
01. Shows fracture and separation at lateral 1/3 of the body of hyoid bone on left side.
02. All the other bones of the body were intact.
14. All the three members of the medical board were of the unanimous opinion that death was caused due to (i)Intra cranial hemorrhage of brain leading to shock and death caused by hard impact blunt impact.(ii) Due to Asphyxia & vagal inhibition due to compression of carotid sinus & body in neck leading to cardiac arrest & death caused by manual strangulation. (iii) Due to combined effect of above both factors.The members of the medical board were cross-examined and the PW-1 during cross-examination stated thatall the three opinions are inter dependent therefore they all the members of the board are affirmed that the death of the deceased was caused due to strangulation.It is observed that the manual strangulation involves compression of the neck by using either one or both hands or by exercising pressure with another part of the body such as the forearm or knee. This can trigger different pathomechanisms: Prolonged compression of the larynx impairs the exchange of gases and causes asphyxia and theimmediate death from hanging or strangulation can progress from one of four mechanismsthat are (1). cardiac arrhythmia may be provoked by pressure on the carotid artery nerve ganglion (carotid body reflex) causing cardiac arrest.(2). pressure obstruction of the carotid arteries prevents blood flow to the brain.(3). pressure on the jugular veins prevents venous blood return from the brain, gradually backing up blood in the brain resulting in unconsciousness, depressed respiration, and asphyxia and (4). pressure obstruction of the larynx cuts off air flow to the lungs, producing asphyxia.
15. The medical evidence produced by the prosecution is supporting the version of prosecution that the deceased was died due to strangulation and not supporting the version advanced by the accused that the deceased died due to fallen from motorcycle.Having considering the last seen evidence, corroborated by the other pieces of evidence, keeping in view the location and place of occurrence, I reached at the conclusion that all the circumstances are interlinked which clearly connect the appellant with crime. The appellant got recorded his statement under section 340(2), Cr.P.C. This Provision enables an accused to explain his position especially where no direct evidence is available and accused had the exclusive knowledge about the occurrence. The appellant in statement recorded under section 340(2), Cr.P.C. simply denied his guilt and failed to rebut his company with deceased at the relevant time and in view of Article 21 of Qanun-e-Shahadat Order, 1984, also failed to furnish any explanation that when he separated from the deceased or on which point and where deceased was separated from him on the contrary he admits that he took the deceased from his house on the motorcycle and after receiving injuries he himself brought the deceased at hospital where deceased died.Reliance can be placed upon the case M. Amin v. State (2012 YLR 1360), wherein it has been held that:-
"It would also be relevant to mention here that appellant Nasrullah failed to furnish a plausible explanation that on which point and where the deceased was separated from him and, thus, he could not discharge the onus of burden lies on him in view of the provisions as contained in Article 21 of the Qanun-e-Shahadat Order,1984.
Further the Supreme Court of Pakistan in the case of Khurshid v. The State(PLD 1996 SC 305),has held as under:--
"I may observe that while appraising the circumstantial evidence the court is to keep in mind the location of the incident. If the place of incident is a place where no witness was available and the accused had the exclusive knowledge about the incident, the simpliciter denial on the part of the accused will not be sufficient to nullify the circumstantial evidence of the nature which directly connects him with the commission of the offence charged with. But he should raise a plea of the nature which on being tested on the touch-stone of probabilities warrants a reasonable hypothesis of the accused's innocence."
16. Learned counsel for the appellant had pointed out some minor contradictions in the evidence which in my view are not sufficient to discard evidence of the witnesses so produced by the prosecution. Their evidence is further supported by the medical evidence and the circumstantial evidence which includes the recovery of crime weapon from the appellant which he used at the time of offence. It is settled principle of law that where in the evidence, the prosecution established its case beyond reasonable doubt then if there arise some minor contradictions which always are available in each and every case as no one can give evidence like a pen-picture, hence the same are to be ignored. The reliance is placed on case of Zakir Khan V. The State (1995 SCMR 1793), wherein the Supreme Court of Pakistan has held as under:-
“13. The evidence recorded in the case further indicates that all the prosecution witnesses have fully supported each other on all material points. However, emphasis has been laid by Mr. Motiani upon the improvements which can be found by him in their respective statements made before the Court and some minor contradictions in their evidence were also pointed out. A contradiction, unlike an omission, is an inconsistency between the earlier version of a witness and his subsequent version before the Court. The rule is now well established that only material contradictions are to be taken into consideration by the Court while minor discrepancies found in the evidence of witnesses, which generally occur, are to be overlooked. There is also a tendency on the part of witnesses in this country to overstate a fact or to make improvements in their depositions before the Court. But a mere omission by witness to disclose a certain fact to the Investigating Officer would not render his testimony unreliable unless the improvement made by the witness while giving evidence before the Court has sufficient probative force to bring home the guilt to the accused.”
17. For what has been discussed above, I have arrived at the judicious conclusion that the learned trial Court on being finding the present appellant/accused as guilty of murder of the deceased, has rightly convicted and sentenced him and thus has committed no illegality or irregularity while passing the impugned judgment which even otherwise is based on sound reasoning, therefore, it does not call for any interference by this Court. Resultantly, instant criminal appeal being devoid of merits ishereby dismissed.
JUDGE