HIGH COURT OF SINDH AT KARACHI

Criminal Appeals No. 260 & 278 of 2014

Criminal Jail Appeal No. 280 of 2014

Confirmation Case No.13 of 2014

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Mohammad Karim Khan Agha

Appellants : Saifullah through Syed Suleman Badshah Advocate

Amjad Ali through Mr. Ahmed Jawaid Advocate

Mst. Aneesa through Mr. Mehmood-ul-Hassan Advocate

Complainant : Aziz Khan through Mr. Amanullah Khan Advocate

The State : The State through Mr. Mohammad Iqbal Awan DPG.

Date of Hearing : 23.04.2019

Date of judgment : 03.05.2019

JUDGMENT

NAIMATULLAH PHULPOTO, J- Amjad Ali, Saifullah and Mst. Aneesa appellants were tried by Ms. Sadaf Asif Ist Additional Sessions Judge, Malir Karachi for offences under sections 302/365/34 PPC. On the conclusion of the trial, vide judgment dated 26.09.2014, appellants Saifullah and Amjad Ali were convicted under section 302(b) PPC and sentenced to death. Appellant Mst. Aneesa was convicted under section 302(c) PPC and sentenced to imprisonment for life. All the appellants were ordered to pay compensation of Rs.100,000/- each to the legal heirs of deceased Juma Khan. In case of non-payment, appellants were ordered to suffer S.I for 06 months. Appellants were also convicted under section 365-B PPC and sentenced to imprisonment for life and to pay fine of Rs.50,000/- each and in case of non-payment, appellants were ordered to suffer S.I for 03 months. All the sentences were ordered to run concurrently. Appellants were extended benefit of Section 382-B Cr.P.C.

2. Brief facts of the prosecution case as reflected in the evidence of complainant Aziz Khan are that deceased Juma Khan was his elder brother and he was working at Saudi Arabia. He used to visit Karachi. It is alleged that on 21.10.2010, Juma Khan was at Karachi. He informed the complainant for purchase of car. At that time, his other brothers namely Umer Khan and Alam Khan were present. It is further stated that on 21.10.2010 at 9:00 AM, deceased Juma Khan was sitting with his brothers at hotel situated at Saddar, where it is alleged that accused Mst. Aneesa along with three unknown persons appeared and asked Juma Khan to accompany her to the showroom of cars. At that time, according to the complainant, Juma Khan had cash of Rs.12 lacs. Juma Khan went with Mst. Aneesa and three unknown persons in a car. At about 10:00 am, complainant Aziz Khan telephoned to his brother Juma Khan but his mobile phone was switched off. Complainant and his brothers made all possible efforts to contact Juma Khan but without any success. Thereafter, complainant went to the PS Sohrab Goth and lodged FIR against Mst. Aneesa and three unknown persons. It was recorded vide Crime No.948/2010 under sections 365/34 PPC.

3. Dr. Dileep Khatri (P.W-07) conducted autopsy on 14.11.2010. Medical officer noted that dead body of deceased Juma Khan was in pieces. Time between injuries and death was about 10 minutes and time between postmortem was 10 to 12 days approximately. In the opinion of the doctor, death occurred due to cardio respiratory failure due to decapitation of neck and multiple sharp edged injuries. Medical Officer handed over samples of deceased to the I.O for DNA test but DNA test has not been produced at trial.

4. Case was partly investigated by P.W-05 SIP Haji Imtiaz Ali of P.S Sohrab Goth. He inspected place of wardat and prepared mashirnama, recorded statements of P.Ws u/s 161 Cr. P.C and case was transferred to AVCC. Further investigation has been carried out by P.W-08 Inspector Sher Muhammad of AVCC. He arrested all the four accused from Flat No.3, Sultan Manzil on the pointation of complainant. I.O at the time of arrest from flat recovered churri, Toka, two mobile phones, one wrist watch, one gold ring, 500 Riyal and shirt. Such mashirnama was prepared in presence of mashirs. During interrogation, according to the I.O, Juma Khan was brought by Mst. Aneesa in the house of accused Waqas where Mandix tablet was given to him he went out of senses and accused committed his murder and his body was cut to the pieces. Accused led police to Qayumabad bridge on 14.10.2010 and produced the pieces of the dead body of deceased wrapped in bags. Such mashirnama was also prepared in presence of mashirs. Accused during investigation were prepared to give judicial confessions and they were produced before Magistrate by the I.O on 26.11.2010, where judicial confessions of accused except accused Waqas was recorded by Mr. Naveed Asghar Sheikh Civil Judge & Judicial Magistrate. On the conclusion of the investigation, challan was submitted against accused for offence under sections 302/365/34 PPC.

5. Motive set up by the prosecution was that appellants committed murder of deceased Juma Khan for money.

6. Trial Court framed charge against accused under sections 302/365/34 PPC. All the accused pleaded not guilty and claimed to be tried.

7. At trial, accused Waqas absconded away and he was declared proclaimed offender.

8. In order to prove its’ case, prosecution examined Aziz Khan (P.W-01) at Ex.3, who produced FIR at Ex.3/A, memo of place of incident at Ex.3/B, memo of arrest and recovery at Ex.3/C, memo of pointation of dead body of deceased at Ex.3/D, memo of inspection of dead body at Ex.3/E, inquest report at Ex.3/F, Umar Khan (P.W-02) at Ex.4, SIP Hussain Bux (P.W-03) at Ex.5, Doulat Khan (P.W-04) at Ex.6, SIP Haji Imtiaz Ali (P.W-05) at Ex.7, Mr. Naveed Asghar Sheikh Judicial Magistrate (P.W-06) at Ex.8, who produced application at Ex.8/A, confessional statements of accused at Ex.8/B, Ex.8/C, Ex.8/D and Ex.8/E respectively, Senior MLO JPMC Dr. Dileep Khatri (P.W-07) at Ex.9, who produced postmortem report of deceased at Ex.9/A, death certificate at Ex.9/B, SI Sher Muhammad (P.W-08) at Ex.10, who produced entry at Ex.10/A, Roznamcha entry at Ex.10/C, photographs at Ex.10/C to Ex. 10/K respectively. He has also produced 12 photographs of parts of dead body Ex.10/L to Ex.10/W. He further produced chemical examiner’s report at Ex.10/Y and Ex.10/Z. Thereafter, prosecution side was closed vide statement at Ex.11.

9. Statements of accused were recorded u/s 342 Cr.P.C at Ex.12, Ex.13 and Ex.14, in which accused claimed false implication in this case and denied the prosecution allegations. Accused Mst. Aneesa raised plea that she was arrested from Siraj Hotel Saddar Karachi on 10.11.2010 in presence of Hubdar and Muhammad Ameen. She had denied all prosecution allegations. All the accused declined to give statement on oath in disproof of prosecution allegations. However, Mst. Aneesa examined in her defence D.W-01 Hubdar Ali. Remaining accused though gave names of defence witnesses but failed to examine them.

10. Trial Court, after hearing learned counsel for the parties and assessment of the evidence vide judgment dated 26.09.2014 convicted and sentenced the appellants as stated above. Trial Court made reference to this Court for confirmation of death sentence u/s 374 Cr.P.C.

11. Appellants being aggrieved and dissatisfied have filed the aforesaid appeals. Bearing a common thread, these appeals and confirmation reference are being decided through this single judgment.

12. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 26.09.2014 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

13. Learned counsel for the appellants mainly contended that there is no credible direct evidence, the fate of prosecution case is hinged upon various pieces of circumstantial evidence. It is further argued that evidence of last seen furnished by the brothers of the deceased was not reliable, identification parade of accused was not held; there was delay of 17 days in lodging the FIR for which no plausible explanation has been furnished, confessional statements of accused were retracted and were contradictory on so many material particulars of the case; that confessions were recorded by the Judicial Magistrate without observing the required precautions; second warning was not issued to appellants/accused and they were handcuffed under fear. It is contended that it was the case of the joint pointation of the dead body by all the accused persons, it was already in the knowledge of police and joint recovery of the belongings of deceased from the flat, which are not admissible in evidence. In support of the contentions, reliance has been placed upon the cases reported as Mehmood Ahmad and 3 others vs. The State and another (1995 SCMR 127), Azeem Khan and other vs. Mujahid Khan and others (2016 SCMR 274), Muhammad Mushtaq vs. Mustansar Hussain and others (2016 SCMR 2123), Muhammad Mansha v. The State (2018 SCMR 772) and Muhammad Abid vs. The State and another (PLD 2018 S.C 813).

14. Mr. Muhammad Iqbal Awan DPG assisted by learned counsel for the complainant argued that on 21.10.2010 deceased was sitting with his brothers at hotel, accused Mst. Aneesa and other accused took him to the flat, snatched Saudi Riyals from him and committed his murder. Learned DPG further argued that belongings of the deceased were recovered by the I.O from the room of flat which was in the possession of the accused persons. He further argued that accused made judicial confessions and admitted the commission of the murder of the deceased. Learned DPG further argued that accused pointed out the place where they had thrown the dead body of the deceased cut into pieces and dead body was identified by P.W Aziz. Learned DPG lastly, argued that trial Court has rightly appreciated the evidence and prayed for dismissal of the appeals. He relied upon the cases reported as Mst. Sadaf and another vs. The State (2002 SCMR 611), Amal Sherin and another vs. The State through A.G, NWFP (PLD 2004 S.C 371), Manjeet Singh vs. The State (PLD 2006 S.C 30) & Ajab alias Rajab and another vs. The State (2004 MLD 180).

15. From the close scrutiny of the evidence it transpires that there is no direct evidence in this case and the fate of prosecution is hinged on various pieces of circumstantial evidence, the evidence of last seen has been furnished by Umer Khan (P.W-02). He has deposed that on 21.10.2010, he along with deceased Juma Khan and another brother were sitting in hotel at 9:00 am for drinking tea, whereas, accused Mst. Aneesa who was already known to deceased Juma Khan appeared along with three unknown persons and took Juma Khan from hotel for purchasing the car. Juma Khan went with accused Mst. Aneesa and three unknown persons. Complainant Aziz Khan, brother of the deceased contacted deceased at 10:00 am on the same day, but his mobile was found switched off. FIR of the incident was lodged by complainant Aziz Khan after 17 days on 12.11.2010 against accused Mst. Aneesa and three unknown persons. Delay in lodging of the FIR has not been fully explained. Moreover, last seen evidence was weak type of evidence. The foundation of the "last seen together" theory is based on principles of probability and cause and connection and requires 1. Cogent reasons that the deceased in normal and ordinary course was supposed to accompany the accused. 2. Proximity of the crime scene. 3. Small time gap between the sighting and crime 4. No possibility of third person interference 5. Motive. 6. Time of death of victim. The circumstance of last seen together does not by itself necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Last seen evidence as circumstantial evidence must be incompatible with the innocence of the accused and should be accepted with great caution and it must be scrutinized minutely so that no plausible conclusion should be drawn therefrom except guilt of the accused. In the case in hand, on 21.10.2010 deceased Juma Khan was sitting with his brothers at the hotel, where according to prosecution case, accused Mst. Aneesa came along with three unknown persons and Juma Khan went with them. P.W Umer Khan brother of the deceased did not disclose that as to why he or his another brother did not accompany deceased Juma Khan, who had come from Saudi Arabia for purchase of car. Last seen evidence and its constituents i.e. probability, cause and connection seem to be missing in this case and prosecution has failed to prove the same through reliable evidence. I.O has also failed to collect CDR of deceased Juma Khan, last location and CDR of accused persons. Reference in this regard is placed on the case of Muhammad Abid vs. The State and another (PLD 2018 S.C 813).

16. According to medical evidence dead body was decomposed and it was cut into pieces and it was not identifiable. Aziz Khan (PW-01) has falsely deposed that he identified dead body of his brother. Evidence shows that dead body was decomposed and was not identifiable. Therefore, we are of the considered view that identification of the dead body which was in the pieces as being that of deceased has not been proved by the prosecution at trial. Medical officer gave sample to the I.O for DNA test but DNA test has also not been conducted in this case.

17. As regards the recoveries from flat are concerned. On 13.11.2010 all the accused were arrested from a flat situated at Sultan Manzil at the time of their arrest, 1500 Saudi Riyals, wrist watch, mobile phones, ring, shirt of deceased were recovered. There is no evidence that belongings of deceased such as watch and ring were identified by his brothers. Prosecution has also failed to prove exclusive possession of room against any accused. Moreover, I.O failed to interrogate the owner of the flat. Not a single person residing in other flats of Sultan Manzil has been examined by the I.O or associated as mashir of arrest and recovery. We have perused the evidence of I.O and found that recovery of the dead body in the pieces in two bags from a Nala was result of joint pointation of all the accused and recovery of dead body on pointation of several accused is inadmissible in evidence as held by the Honourable Supreme Court in the case of Muhammad Mushtaq vs. Mustansar Hussain and others (2016 SCMR 2123).

18. Now we discuss the confessional statements of accused. According to the case of prosecution, accused were arrested on 13.11.2010, but judicial confessions of accused Amjad Ali, Saifullah and Mst. Aneesa were recorded on 26.11.2010. During said period they were produced before the Magistrate for police custody remand, but they did not volunteer to make confessions, as such delay of 13 days in recording confessional statements of accused after their arrest is fatal to the prosecution case. We have examined the evidence of Mr. Naveed Asghar Sheikh Judicial Magistrate. He had failed to provide assurance the accused that in case of refusal to give judicial confession, they would not be remanded to the same police. It is clear that Judicial Magistrate recorded confession without taking required precautions and ignored settled principle of law. In the case of Azeem Khan and another vs. Mujahid Khan and others (2016 SCMR 274), it is held as under:

15.       Keeping in view the High Court Rules, laying down a binding procedure for taking required precautions and observing the requirements of the provision of section 364 read with section 164, Cr.P.C. by now it has become a trite law that before recording confession and that too in crimes entailing capital punishment, the Recording Magistrate has to essentially observe all these mandatory precautions. The fundamental logic behind the same is that, all signs of fear inculcated by the Investigating Agency in the mind of the accused are to be shedded out and he is to be provided full assurance that in case he is not guilty or is not making a confession voluntarily then in that case, he would not be handed over back to the police. Thereafter, sufficient time for reflection is to be given after the first warning is administered. At the expiry of that time, Recording Magistrate has to administer the second warning and the accused shall be assured that now he was in the safe hands. All police officials whether in uniform or otherwise, including Naib Court attached to the Court must be kept outside the Court and beyond the view of the accused. After observing all these legal requirements if the accused person is willing to confess, then all required questions formulated by the High Court Rules should be put to him and the answers given, be recorded in the words spoken by him. The statement of accused be recorded by the Magistrate with his own hand and in case there is a genuine compelling reason then, a special note is to be given that the same was dictated to a responsible official of the Court like Stenographer or Reader and oath shall also be administered to such official that he would correctly type or write the true and correct version, the accused stated and dictated by the Magistrate. In case, the accused is illiterate, the confession he makes, if recorded in another language i.e. Urdu or English then, after its completion, the same be read-over and explained to him in the language, the accused fully understand and thereafter a certificate, as required under section 364, Cr.P.C. with regard to these proceedings be given by the Magistrate under his seal and signatures and the accused shall be sent to jail on judicial remand and during this process at no occasion he shall be handed over to any police official/officer whether he is Naib Court wearing police uniform, or any other police official/officer, because such careless dispensation would considerably diminish the voluntary nature of the confession, made by the accused.

In our considered view, confessions of appellants are of no legal worth, to be relied upon and are excluded from consideration, more so, when these were retracted at trial. No assurance was provided to accused that in case they refuse to make confessions, they would not be handed over back to the same police. Perusal of evidence of Magistrate shows that sufficient time for reflection was not given. Second warning was also not administered. Judicial Magistrate failed to put the required questions to the accused formulated by the High Court Rules. It is also not clear that handcuffs of accused were removed at the time of recording their confessional statements. Some questions have been put but answers given by the accused persons have not been recorded in the words spoken by them. There is nothing on record to satisfy the Court that all the assurances were given to the accused that they were in the safe hands. If they are willing to confess, they can. Choice is with accused. We have perused the confessions recorded by the Judicial Magistrate, it appears that confessions have been recorded by the Magistrate in English language but accused were unable to understand English. There is nothing on record that after completion, the same was read over and explained to them in the language the accused fully understood. In the instant case, Judicial Magistrate did not observe precautions required under the law. He recorded confessions of the accused persons in violation of law and the same therefore, has rendered confessions inadmissible, which cannot be safely relied upon keeping in view the principles of safe administration of justice. Thus, we have serious doubt as to voluntariness and truthfulness of the confessions of the accused.

19. As discussed above, entire case of prosecution is based on circumstantial evidence and the fundamental principle of universal application in the cases which are dependent on circumstantial evidence, is that in order to justify the inference of guilt, the incriminating fact must be incompatible with the innocence of the accused or the guilt of any other person and incapable of explanation upon any other reasonable hypothesis than that of his guilt. Such principle is reiterated in the case reported in the case of Muhammad and another vs. The State (2005 SCMR 277). However, the Honourable Supreme Court constantly laid down principle of law that different pieces of such evidence have to make one chain, an unbroken one where one end of it touches the dead body and the other the neck of the accused. In case of any missing link in the chain, the whole chain is broken and no conviction can be recorded in crimes entailing capital punishment. This principle is fully attracted to the facts and circumstances of the present case. No doubt dead body was cut into pieces mere heinous or gruesome nature of crime shall not detract the Court of law in any manner from the due course to judge and make the appraisal of evidence in a laid down manner and to extend the benefit of reasonable doubt to accused persons. In the instant case, learned trial Judge in the impugned judgment has not observed nor has taken care of the settled position of law and relied upon highly cryptic, infirm and incredible evidence.

20. 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 the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as 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), Muhammad Zaman v. The State (2014 SCMR 749) and Muhammad Mansha v. The State (2018 SCMR 772).

21. For the above stated reasons, we have come to the conclusion that prosecution has miserably failed to bring home the guilt of appellants/accused. Resultantly, conviction recorded by the learned Trial Court vide judgment dated 26.09.2014 is not sustainable under the law and is also liable to be set aside.

22. In the above stated circumstances and reasons, Appeals are allowed. Impugned judgment of conviction is set aside. Appellants Saifullah son of Faqeer Muhammad, Amjad Ali son of Basheer Ahmed and Mst. Aneesa wife of Muhammad Ismail are acquitted of the charges. They be released forthwith if not required in any other custody case. Confirmation Reference is answered in the negative.

JUDGE

JUDGE