ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

 

 

       Present:

                             Mr. Justice Shahid Anwar Bajwa 

                             Mr. Justice Muhammad Ali Mazhar

 

 

Cr. Jail Appeal No. D-71 of 2010

Cr. Appeal No. D- 72 of 2010.

Cr. Appeal No. D- 73 of 2010.

Confirmation Case No.02 of 2010.

 

For the Appellant Tanveer:               Mr. Maqbool Ahmed Awan Advocate in Cr. Jail Appeal No. D-71/2010 & Cr. Appeal No. 73/2010.  

For the Appellant Dildar:                 Mr. Zulfiqar Ali Sangi Advocate in Cr. Appeal No. D-72/2010.   

 

For the Complainant:                       Mr. Ghulam Shabeer Shar Advocate.

 

For the State:                                   Mr.Zulfiqar Ali Jatoi, Deputy Prosecutor General.

 

Date of hearing:                               11th January, 2012.

       

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Muhammad Ali Mazhar J., This Jail Appeal along with two other Criminal appeals have been brought to  challenge the judgment dated 04.05.2010, passed by IInd learned Additional Sessions Judge, Sukkur in Sessions Case No.113 of 2005, whereby both the appellants were convicted for the offence under Section 302 (b) PPC and sentenced to death, as Tazir. They were also convicted for offence under Section 201 PPC and sentenced to suffer R.I. for three years. On 7.5.2010, the learned trial court also sent a reference to this court for confirmation of death sentence of the appellants.

 

2. Concisely, the facts of the case are that the complainant Allah Dino lodged the FIR No. 55 of 2005, at Police Station Kandhra, against the appellants under Sections 302, 201 & 34 PPC in which he narrated that:

 

“The complainant has a shop at Arore near his house. On 9.9.2005 at about 2:30 p.m. complainant and his grandson Sajjad Ali aged about 14/15 years were in the shop. Meanwhile, the accused Tanveer and Dildar came there and asked Sajjad Ali to accompany them to Nara canal for swimming. Sajjad Ali joined them but did not return back to home up to 5:00 p.m. The complainant started searching him and during search, Manzoor Ahmed met the complainant and he was informed accordingly. Both of them came to accused Tanvir alias Rabail and asked him about Sajjad Ali, who replied that he, Sajjad Ali and accused Dildar alias Mando took a bath together, however, before their leaving Nara canal, Sajjad Ali left for his house and he knew nothing more than that. The complainant informed Sher Muhammad and they all were searching Sajjad Ali. On 13.9.2005, information was received by them that a dead body having marks of torture is lying in Sheroo jo Pattan of Nara canal. The complainant along with PWs Manzoor Ahmed and Sher Muhammad went there. The dead body was taken out and identified to be Sajjad Ali. The dead body was swollen. Four front teeth of deceased were broken. The body was taken to RHC Kandhra and after due formalities, it was buried. The complainant went on making inquiries as to the cause of death of deceased. On 15.9.2005, PW. Jan Muhammad came to the complainant and informed him that he is laborer at Arore and on 9.9.2005 at about 2:30 p.m., while he was passing by the entry of Nara canal, near village Arore, he found that accused Tanvir and Dildar were maltreating deceased Sajjad Ali. There were two unknown persons standing there. He restrained them not to maltreat deceased Sajjad Ali, thereafter he went away to his village Razi Dero taluka Gambat. He read in newspaper about the murder of the deceased, therefore, came to the complainant and informed him the incident. The complainant apprehended that after committing zina-bil-jabr, or attempt to commit zina-bil-jabr which might have been resisted, the accused committed Qatl-i-amd of deceased Sajjad Ali and caused his dead body to disappear in Nara canal.

 

3. After registration of FIR, postmortem was carried out. Memo and Danishnama was prepared. The place of offence was inspected. The accused were arrested and on their pointation, the chappals and blood stained clothes of deceased and two stones were recovered and sealed by the police. The statements of PWs were recorded under Sections 161 & 164 Cr.P.C. An identification parade in respect of accused Zameer was held before the Magistrate and on completion of usual investigation, charge was framed on 29.09.2007 against accused Dildar, Tanveer and Zameer under Section 302, 201, 34, PPC. All the accused persons pleaded not guilty.

 

4. To substantiate its case, the prosecution examined PW. complainant Allah Dino, who produced the FIR, PW. Manzoor Ahmed, produced his statement recorded under Section 164 Cr.P.C. P.W, SIP Muhammad Moosa,  produced memo of inspection of place of incident, arrest of accused, recovery of blood stained clothes and chappals of deceased and blood stained two stones on the pointation of accused and Roznamcha entry. P.W. Sher Muhammad, produced his statement recorded under Section 164 Cr.P.C., P.W/mashir Zaheer Ahmed,  produced memo of inspection of dead body of deceased and Danishnama. P.W. Dr. Mir Ghulam Asghar,  produced the postmortem report, P.W. Suhail Ahmed Jatoi, Judicial Magistrate, produced statement of P.W. Jan Muhammad recorded under Section 164 Cr.P.C. and identification parade test memo in respect of accused Zameer,  P.W. Jan Muhammad and P.W/mashir Abdul Ghaffar.

 

5. The PW-1 Allah Dino deposed the same facts as he narrated in the FIR. He further stated that on 15.09.2005, one Jan Muhammad came to him and told that on 09.09.2005 he saw two persons quarrelling with a boy whereas two persons were sitting on his side. When Jan Muhammad asked them why they are fighting they told him that they are co-villagers and they are playing jokes. Nothing is mentioned in the FIR that Jan Muhammad told the complainant that boys told him (Jan Muhammad) that they are playing jokes. The complainant was cross examined in which he stated that the distance between his Shop and the place of incident would be more than 100 feet. He further admitted that the distance between the place from where the dead body of deceased was recovered and his village would be 10 KMs.

 

6. The PW-2 Manzoor Ahmed stated that the complainant is his brother-in-law and another PW Sher Muhammad is also his relative. He almost deposed the same fact as stated by the complainant regarding the missing of Sajjad. He further stated that on 17.09.2005 his statement was recorded by the police. In his cross-examination he stated that the distance between village Sangrar and village Arore would be 20 KMs. He further stated that the distance between Sheroo Jo Pattan and village Arore would be 10/11 KMs.

 

7. The PW-3 Muhammad Moosa SIO Police Station, New Pind, Sukkur deposed that on 15.09.2005 he was posted at Police Station, Kandhra as In charge Investigation Team. He visited the place of incident in presence of mashir Jan Muhammad and Zaheer Ahmed. Blood stained earth was collected. On 17.09.2005, he recorded the statements of PWs and on 11.10.2005, he arrested accused Dildar, Tanveer and Zameer in presence of mashirs. On 13.10.2005 during interrogation, the accused persons volunteered to produce the crime weapon viz. stones, blood stained cloths and chapal of deceased. On the same day he took accused and two mashirs Abdul Ghaffar and Ghulam Asgher to effect the recovery. The accused persons led him to water Pump of Janab Ali Shah and from the bushes near to the Pump they produced stones, cloths and chappal of deceased. Same were sealed separately at the spot and the memo was prepared in presence of private mashirs. On 18.10.2005, witnesses appeared before the Magistrate and statements under Section 164, Cr.P.C were recorded and also identification parade of accused Zameer was conducted.

 

8. The PW-4, Sher Muhammad stated that complainant Allah Dino and witness Manzoor Ahmed both are his relatives and deceased Sajjad was his nephew. He produced his statement recorded under Section 164, Cr.P.C. Though in the examination-in-chief he stated that the complainant Allah Dino and witness Manzoor Ahmed both are his relatives but in cross examination he stated that complainant is not related to him but he is caste fellow.

 

9. The PW-5, Zaheer Ahmed deposed that he was mashir of recovery and the arrest of accused Dildar, Tanveer and Zameer. In his cross examination, he denied the suggestion that accused Tanveer was not arrested in his presence for that his signature was obtained by police at Police Station. He further denied the suggestion that police has shown him accused Dildar at Police Station where he signed memo.

 

10. The PW-6 was Mir Ghulam Asghar Senior Medical Officer, RHC, Kandhra, who deposed that on 13.09.2005 at 5.00 P.M, he received dead body of Sajjad Ali. Postmortem was conducted from 5-pm to 6-pm. The Medical Officer on external examination found the following injuries on the person of deceased:-

 

“1.Lacerated wound measuring 3 x 1 cm on upper lip with abrased gums and dislocation of upper incisor teeth posterior.

 

                2.Contusion 4 x 4 cm on top of scalp.

               

3.Multiple abrasions on the anal region.

               

4.Contusion 4 x 4 cm on left buttock”.

 

        And on internal examination he opined as under:-

“There was ecchymosed of subcutaneous tissue of neck and front of chest with presence of clotted blood and bruising at the base of tongue. The visras in the chest and abdomen and the blood vessels were found congested and 4 upper incisor teeth dislocated posterior. Remaining organs of the dead body were found healthy”.

 

 

11. On external and internal examination of the body, he tendered his opinion that death caused due to asphyxia and throttling. During course of his cross examination, medical officer admitted that he has not mentioned the weight, color and size of liver and kidney and he himself carried out postmortem. To a specific question “ whether there were marks of naught at the neck of the dead body of deceased”. He answered that postmortem of the dead body of the deceased was carried out after four days of his recovery from water, therefore, it was not possible at all to remain alive any such mark over the neck of thumb or fingers.

 

12. The PW-7 was the learned Civil Judge and Judicial Magistrate, K.N. Shah,  District Dadu, who recorded the statements of Jan Muhammad, Manzoor Ahmed and Sher Muhammad under Section 164, Cr.P.C and conducted the identification parade of suspect accused Zameer. In the cross examination, the learned Magistrate stated that accused pointed out him that he was seen in the lockup and in the court by the PWs.

 

13. Now the star witness Jan Muhammad PW 8 comes in the witness box, who deposed in his examination-in-chief that for last five years he used to work as labor at Arore. On 09.09.2005, he took bath and came out from the entrance of Nara canal. It was 2.30 pm when he saw that accused Tanveer and Dildar were fighting with the deceased Sajjad. He asked why they were fighting with Sajjad upon which they replied that they are neighbors and chit chatting with each other. He found two other persons standing at the distance of 10 feet. However, he could not identify them with their names. On 14.09.2005 he read in the daily newspaper Kawish that dead body of deceased Sajjad was recovered from Sheroo Jo Pattan and on 15.09.2005, he went to Allah Dino at Arore to offer fateha and he informed Allah Dino regarding the fighting of aforesaid accused with deceased Sajjad. On 18.10.2005 he was called in court for the purpose of identification and he identified accused by caste Baloch, who was standing at the distance of about 10 feet at the time when accused Tanveer and Dildar were fighting with deceased Sajjad in his presence. In his cross examination, he admitted that at the time when the accused Dildar and Tanveer were fighting with deceased Sajjad, he had not made any complaint to him that the accused are fighting with him.  He further admitted that when he saw accused Tanveer and Dilda fighting with Sajjad, he did not inform such fact to his elders. He further stated that the complainant and accused party are known to him for last ten years. He further admitted that the distance between the place of fighting of accused with deceased and his village would be 200 KMs. At the time of fighting no body was there except him and two persons standing at the distance of about 100 feet. He admitted that accused Tanveer and complainant party are resident of the same village. During cross examination conducted by counsel for Zameer he admitted that he did not mention features of the person in his statement under Section 161 Cr.P.C, who was standing at the distance of about 10 feet.

 

14.   The last PW was Abdul Ghaffar, deposed that on 13.10.2005 in his presence and in presence of co-mashir Ghulam Asgher on the pointation of accused blood stained cloths and two stones were recovered from the bubble tree. During the cross examination he stated that distance between the place of recovery and village Arore would be 1-KM. He further stated that complainant is his maternal uncle. All the aforesaid articles were in the plastic bag.

 

15. The prosecution closed its side and thereafter the statements of accused Dildar, Tanveer and Zameer were recorded under Section 342, CR.P.C. They denied to have committed any offence and stated that they are innocent and have been falsely implicated in the case due to enmity with the complainant party over the street in the village. Neither they examined themselves on oath nor led any evidence in their defence. The learned trial court convicted Tanveer and Dildar. However, accused Zameer was acquitted by extending him the benefit of doubt.

 

16.   Mr.Maqbool Ahmed Awan, the learned counsel appearing for appellant Tanveer argued that all the prosecution witnesses except the learned Magistrate, I.O and Medical Officer are related inter se and the trial court has wrongly relied upon their evidence. The learned trial court erred in believing that PW Jan Muhammad saw the accused and deceased fighting with each other. It was further averred that the learned trial court failed to consider the contradictions of prosecution witnesses brought on record. He further argued that the trial court also failed to consider the replies of question of the accused/appellants in the statement recorded under  Section 342, Cr.P.C. He further argued that the evidence of medical officer has not been properly considered in which he stated that the time between death and postmortem was about four days which shows that the dead body was lying in the water for about 4 days. It was further argued by the learned counsel that the appellants were involved due to enmity and grudge. He further argued that the capital punishment can not be awarded on last seen evidence without independent corroboration. Learned counsel led much emphasis that this was the case of only chance witness and last seen evidence, in which the award of capital punishment is totally unjustified and even the learned trial court failed to consider that at the time of the alleged offence the appellant was also minor. PW Jan Muhammad was not a natural witness. The complainant made improvements in his evidence. He further argued that recovery is also doubtful as the cloths were found in a plastic bag while the same could have been thrown in the canal. No finger prints were taken from the plastic bag. The medical officer stated that the postmortem was carried out after four days of the death which makes the whole prosecution case doubtful as to when the death of Sajjad occurred. The FIR was lodged with the delay of six days. The recovery of alleged incriminating material was made after one month and four days after the incident and two days after the arrest. Cloths and Chappal were not shown to the complainant for identification and no mashirnama was made for recovery of the dead body. In support of his arguments, the learned counsel relied upon the following case law:-

 

1. Imran Ashraf v The State (2001 SCMR 424). The basic principle of reappraisal of evidence in a criminal case is that if the witness trustworthy and reliable then conviction can safely be based on his evidence. In case such witness is unreliable his evidence can not be utilized for passing of conviction against the accused. However, if the witness has given partially reliable and partially unreliable evidence then applying the device of sifting the grain from chaff and seeking independent corroboration from other reliable evidence on material particulars, conviction can be based on it.

 

2. Muhammad Shah v The State (2010 S C M R 1009). Appreciation of evidence. Principle. When two interpretation of evidence are possible, one favoring the accused and the other favoring the prosecution, then one favorable to the accused is required to be taken into consideration. All incriminating pieces of evidence available on record in examination in chief, cross examination or re-examination of witnesses are required to be put to the accused if the same are against him while recording his statement under Section 342, Cr.P.C.

 

3. Syed Saeed Muhammad Shah v The State (1993    SCMR 550). In absence of satisfactory nature of explanation normally the rule is that statements recorded by police after delay and without explanation are to be ruled out from consideration.

 

4. Liaquat Ali v The State (2007 SCMR 1307). In this case allegation against accused was that he had taken deceased from his house and when deceased did not return then during the search his dead body was found in a deserted house. Trial court convicted and sentenced accused to life imprisonment whereas two accused were acquitted. High Court upheld the findings of the trial Court. It was held by the honorable Supreme Court that no direct or ocular evidence was available against accused and entire case against him rested on circumstantial evidence, circumstances though at the most corroborated version of complainant qua the murder of deceased but the same did not connect the accused with the crime. Circumstantial evidence i.e. last seen evidence and weak motive suffered from many infirmities and it was not worth credence. Evidence showed that some articles belonging to a lady were found in the house where dead body of the deceased was lying and according to medical evidence some scratches of nail was found on the body under one of the injuries, which led to fact that the murder has taken place in mysterious manner, High Court instead of drawing inference in favour of accused on principle that the accused was entitled to any doubt arising from prosecution case had drawn inference in favour of prosecution and against accused which was against principle of administration of criminal justice. Two accused were acquitted by the trial court on the evidence almost of the same standard as against accused. Prosecution in circumstance had failed to prove case against accused beyond reasonable doubt. Appeal was allowed.

 

5. Naeem Akhter v The State (1993 P.Cr.L.J 769). In this case it was held that the evidence of last seen was found to have been concocted at very late stage and was useless. Evidence of recovery was not only inadmissible but also unreliable. Medical evidence did not connect the accused with the commission of offence accused was acquitted on the benefit of doubt in the circumstances. It was further held that evidence of joint recovery is not admissible.

 

6. Abdul Kaleem v The State (1992 P.Cr.L.J 1314). In this case honorable Shariat Appellate Bench in the case of Zina held that even if accompanying of deceased with the accused be assumed no evidence was available to show that deceased had remained in company of accused up to the moment of occurrence. Accused had jointly disclosed knowledge regarding the presence of dead body and jointly had lead to the recovery and evidence in respect thereof being inadmissible could not be used against him. No evidence was available on record to link accused with the offence of sodomy having been committed with the deceased. Accused were acquitted on benefit of doubt in circumstances.

 

7.Ibrahim v The State (2009 SCMR 407). In this case trial court convicted the accused on the basis of circumstantial evidence in shape of last seen witness, identification parade and recovery of identity card and Bank Pass Book of deceased on the pointation of accused from Hotel. Conviction and sentence awarded by trial court was maintained by the High Court. Circumstantial evidence should be like a well knit chain whose one end should point to accused and other to deceased. Evidence of last seen furnished by prosecution witness and evidence of identification test were not trustworthy of any credence. Prosecution failed to prove its case against the accused. Conviction and sentence awarded to accused were set aside and accused was acquitted.

 

8.Nadeem alias Nema v State (2010 SCMR 949). In this judgment, the honorable Supreme Court by majority view held that complainant and other eye witnesses were chance witnesses as they can not normally present at the place of occurrence it was difficult to rely on the statement of such witnesses being chance and interested witnesses in order to convict accused for murder. Court must be satisfied first that a murder was committed then it must be satisfied that accused had committed murder. Question of sentence demanded utmost care on the part of court leaving with life and liberty of the accused persons, prosecution withheld evidence of any eye witness and real son of deceased did not make any statement. Any genuine doubt arising out of circumstance of the case should be extended to accused as a right and not as a concession. The conviction was set aside and accused was acquitted of the charge.

 

9. Ali Asgher v The State (2004 P.Cr.L.J 1308).        Eyewitness was a chance witness whose presence at the place of occurrence was not natural and same was not even explained by him. Statement of the said witness recorded by the police after the recovery of dead body and arrest of the accused and delay was not explained by the prosecution. Statements recorded by police after delay and without explanation normally are to be ruled out for consideration.

 

 

17. The learned counsel for the appellant Dilawar adopted the arguments of Mr.Awan. However, he added that the entire prosecution case is based on last seen evidence of Jan Muhammad who witnessed only alleged fighting between the appellants and deceased Sajjad and he himself stated that when he asked them why they are fighting they simply stated that they are playing jokes and he also admitted that neither Sajjad complained him for any fighting between them nor at that time he informed the complainant of any such incident. He further argued that the last seen evidence is a weak type of evidence on the basis of which the award of capital punishment is not justified specially in the circumstances where various contradictions are available on record in the evidence. It was further averred by him that on the same piece of evidence, co-accused Zameer was acquitted by extending him benefit of doubt, hence the present appellants are also deserving the same treatment.

 

18. On the contrary, the learned DPG argued that though it is an unseen incident but the medical evidence is consistent with other circumstantial evidence. He further argued that the place of incident was only 100 feet away, therefore, the time is immaterial. He further argued that recovery of cloths, chappal and stones after two days of arrest of accused was logical. He further argued that there are some minor contradictions which can not affect the essentials of prosecution evidence, which was recorded after four years. The blood stained earth was recovered from the place of fighting and cloths from 10 paces away and dead body from 10 KMs. However, he admits that whole prosecution case is based on chance witness/last seen evidence and no direct evidence is available on record. The learned DPG submits that appellant Tanveer at the time of incident, was minor, therefore, the death penalty could not be awarded to him and only life imprisonment was justified. The relationship of prosecution witnesses with the complainant is not a valid ground to discard the evidence if it is inspiring confidence. In support of his arguments he relied upon the following case law:-

 

1. Mubashir Ahmed v The State (2009 SCMR 1133). Reappraisal of evidence. Last seen evidence. Extra judicial confession. Both the accused  along with two unknown persons were seen boarding Taxi of deceased from Taxi stand. Later on dead body of deceased was found on the pointation of accused and on extra judicial confession, death sentence awarded to both the accused was maintained by the High Court. Presence of prosecution witnesses at Taxi stand where he had seen the deceased last time was established in cross examination as he used to work as Auto Electrician and used to repair Taxis. Prosecution witness was independent witness bearing no relationship at all with the complainant or deceased who had given truthful and confidence inspiring narration of the incident i.e. boarding of deceased’s Car by two accused as well as two other unknown persons and their departure.

 

2. Dilawar Hussain v State (PLD 2008 SC 123). Where parties as well as the witnesses are closely related inter se and also have good relations then in absence of any enmity or ill-will mere relationship is not a valid ground to discard the evidence of a witness and similarly a witness, non-resident of locality is not an unnatural witness and his evidence can not be excluded from consideration.

 

3. Azizullah v The State (2004 P.Cr.L.J 1710). It is a settled principle of law that the procedure depicts irregularity and some time even illegalities committed during the course of investigation shall not demolish prosecution case nor vitiate the trial.

 

4. Muhammad Azim v The State (1998 P.Cr.L.J 175). Appreciation of evidence. Eye witness who had no ill-will or motive against accused plausibly explained their presence at the spot and had corroborated their version  given in their statements before the Police. The ocular testimony was not in conflict with medical evidence. Prosecution had thus proved its case against the accused beyond doubt. Conviction and sentence of death awarded to accused by trial court was confirmed in circumstances. Occurrence having taken place on a thorough fair, passerby a natural witness provided they are able to explain their presence at the spot.

 

 

19. The learned counsel for the complainant argued that PW Jan Muhammad fully supported the complainant and no mala fide intention on his part was established. The defence also failed to establish any dispute or previous enmity. The incriminating articles were recovered on the pointation of the appellants. The medical evidence confirms the rape/sodomy. The juvenility should have been pleaded in the trial court. The circumstantial/last seen evidence was inspiring confidence and trustworthy therefore the trial court rightly awarded the capital punishment to both the appellants. In support of his argument, he relied upon the following case law:-

 

1. Gulzar Ahmed v. The State (2002 S C M R 596). In this case it was held that prosecution had collected trustworthy and reliable evidence, and all its witnesses had fully supported the case. Evidence of prosecution witness (taxi driver, whose taxi had been hired by the accused) was of unimpeachable character, who had given all necessary details showing the manner of occurrence and taking of deceased in his taxi. No previous enmity or ill-will existed between prosecution witnesses and accused to falsely implicate him in this case. Accused had subjected male child to sodomy before murder. Evidence of prosecution witnesses, recovery of dead bodies at pointation of accused and his extra-Judicial confession coupled with medical evidence had established his guilt. High Court had dismissed appeal of accused with sound and cogent reasons. Accused had committed brutal and cruel murders of two innocent minor children, he did not deserve any leniency. Capital punishment had rightly been awarded by Trial Court and confirmed by High Court. Convictions and sentences of accused were upheld in circumstances”.

 

2. Muhammad Akram v. The State (2011 SCMR 145). In this case the honorable Supreme Court held that presence of complainant and other eye-witnesses at the scene of crime was natural. Ocular version was corroborated by medical evidence. Blood-stained  “chhuri” recovered at the instance of the accused was found to be stained with human blood. Recovery evidence was independent and impartial. Ocular testimony was consistent having no material contradiction. No previous enmity existed between the parties except the present cause of occurrence. Accused acting in a brutal way had given several “churri” blows to three deceased, who succumbed to the same. Impugned judgment did not call for any interference.

 

3. Muhammad Latif v. The State (PLD 2008 Supreme Court 503), In this case the honourable Supreme Court held that plea raised by accused was that upon circumstantial evidence one could not be convicted and awarded penalty of death. Validity. Such plea was misconceived because there was no bar or hindrance to pass sentence upon a killer of three human beings when chain of guilt was found unbroken and irresistible conclusion of guilt was surfacing from evidence which was connecting accused with commission of offence without any doubt or suspicion. If circumstantial evidence brought on record was of such nature then conclusion would be in shape of conviction and no other conclusion would be drawn by any stretch of imagination in such a case. For guilt of accused, penalty of death or life imprisonment would a normal event. Evidence of prosecution witnesses in the present case was found consistent and accused had not been able to shake their credence, therefore, extra-judicial confession made before prosecution witnesses, whom accused considered to be respectable persons for his assistance, could not be disbelieved when they deposed it on oath before trial Court. Disclosure of offence from mouth of accused had led to other corroborative and cogent evidence proving commission of offence by accused. Evidence available on file proved that it was act of accused, who had committed heinous crime of murder of innocent baby and two ladies. Such was tyrannous and callous actions of accused who had not only cut the throats of two ladies but also a four months baby. Events and circumstantial evidence proved that accused was the person who had committed cold-blooded offence of murder. Supreme Court declined to interfere with the conviction and sentence of death awarded to accused. Appeal was dismissed.

 

4. Faisal Aleem v. The State (PLD 2010 Supreme Court 1080). The honorable Supreme Court held that certificate as furnished on behalf of accused could not be considered as admittedly accused was more than 20 years of age and no objection regarding factum of age was raised before police, trial court as well as High Court. Even no such point was incorporated in memorandum of appeal preferred before High Court and such plea was an after-thought, which could not be substantiate and raised to frustrate judgments of trial court and High Court, as the judgments were well based and did not warrant interference. Certificate issued by Director General of Registration, Ministry of Interior was of no use to accused wherein a futile attempt had been made to show the date of birth of accused as 6.5.1977, to make him a “child” for taking benefit as provided in S. 2 (b) of Juvenile Justice System Ordinance, 2000. Contents of the certificates showed that date of birth of accused had been shown 6.5.1977, while his brother was born on 4.1.1978 and another brother on 2.11.1978, which did not appeal to reason and logic and appeared to be incorrect. No benefit could be extended in favour of accused for tender age which did not constitute mitigating circumstances. Deceased was killed in brutal and callous manner and hence question of any leniency did not arise. Trial court had examined entire evidence with diligent application of mind, determination whereof had been kept intact by High Court, which was well based and did not warrant interference. Appeal was dismissed.

 

5. Muhammad Ajmal v. The State through Advocate General, Punjab (PLD 2003 Supreme Court 1). The honourable Supreme Court held that trial court as well as Appellate Court while discarding the School Leaving Certificate produced by the accused had rightly concluded that he was not below the age of 18 years on the day of incident. Accused had neither agitated the point of his minority during investigation nor produced any documentary evidence, but took such plea for the first time in the trial which appeared to be an afterthought. Ocular account furnished by the eye-witnesses including the injured witness was fully corroborated by medical evidence, motive, recovery of weapon of offence at the instance of accused and positive Serologist’s Report. Accused had committed the cold-blooded murders of his mother-in-law and her mother in a brutal and atrocious manner and he did not deserve any leniency in the matter of sentence. Impugned judgment did not call for any interference.

                                                    

20. After hearing the arguments of learned counsel and perusing the entire evidence available on record, the cumulative effect of entire evidence deducible and deciphered from the record is as under:-

 

(i) In the FIR the complainant stated that the incident of missing of his grandson Sajjad Ali occurred on 9.9.2005 who allegedly went to Nara canal with the appellants and when he did not return back till 5 pm, the complainant endeavored to search him. No such incident was reported by him to police till 13.09.2005. The appellants took Sajjad from shop to Nara Canal, the complainant stated that the place where Jan Muhammad saw the appellants with Sajjad was 100 fts away but no witness was produced who saw the appellant or sajjad going to Nara Canal from the shop of complainant.

 

(ii) On 13.09.2005, complainant received a information regarding one dead body lying in the Nara canal near Sheroo jo Pattan. Neither in the FIR the name of any such informant was mentioned nor any such person was produced in evidence by the prosecution.

 

(iii) In the FIR the complainant stated that he along with witnesses Manzoor Ali and Sher Muhammad brought the dead body to Government Hospital, Kandhra and through  Kandhra police got conducted the lawful proceedings while in the evidence he stated that he along with Manzoor, Sher Muhammad and other co-villagers went to the pointed place and took the dead body to police station Kandhra. No name of any close co-villager or independent witness is mentioned in the evidence who allegedly went with the complainant at the pointed place.

 

(iv) No mashirnama for the recovery of dead body was prepared on the spot.

 

(v) In the evidence, the complainant stated that at about 2.30 pm accused Tanveer and Dildar came at the shop of complainant and asked Sajjad to accompany them for swimming at Nara canal. In his cross examination he admitted that distance between his shop and place of incident where fight took place would be more than 100 feet.

 

(vi) The star witness Jan Muhammad in his evidence stated that he took bath and came out from the entrance of Nara canal and it was 2.30 pm he saw accused Tanveer and Dildar who were fighting with deceased Sajjad. It was not possible that appellants took Sajjad at 2.30 pm from his grandfather’s shop and after moving more than 100 feet distance Jan Muhammad saw them fighting at same time at the place of incident.

 

(vii)    The body was recovered on 13.09.2005 but the FIR was lodged on 15.09.2005. Sajjad was missing since 9th September 2005 but no FIR was lodged till 15.9.2005. 

 

(viii)   Jan Muhammad stated in his cross examination that at the time when accused Dildar and Tanveer were fighting with the deceased he had not made complaint to him that accused were fighting with him. He further admitted that when he saw accused Tanveer and Dildar fighting with deceased Sajjad he did not inform this fact to his elders. He admitted that he did not mention in his statement recorded under Section 161 Cr.P.C that he took bath from Nara canal. The distance between the place of fighting and his village would be 200 KMs. He also stated in his  examination-in-chief that he asked the accused why they are fighting with Sajjad upon which they replied that they are neighbors and chit chatting with each other. He found two other persons also standing at the distance of about 10 feet and their faces were opened. His statement was recorded under Section 164 Cr.P.C on 18.10.2005 in which he stated that on 11.09.2005 he read news of murder of Sajjad in Newspaper. In his evidence he stated that he came to know about the death of Sajjad through Newspaper daily Kawaish on 14.09.2005.

 

(ix) Nothing was mentioned in the FIR that Jan Muhammad told the complainant that he saw the appellants fighting with Sajjad and they told him that they are co-villagers and chitchatting/playing jokes.

 

(x) Jan Muhammad admitted that the distance between his village and place of fighting is 200 KM., he stated in his evidence that about five years back he used to work at Arore hills. In his statement recorded under Section 164 Cr.p.c, he said nothing that he used to work at Arore hills. He admitted that he did not mention in his statement recorded under Section 161 Cr.P.C that he took bath from Nara canal. No details of his employment were given by him including his duty hours. He came from a distance of 200 KM to his place of work and was returning back to his village after ending his work at 2.30 p.m which is not a normal timings of close of work of a labour and except him, the appellant and Sajjad nobody was present at the entrance of Nara Canal which is quite unusual and create doubts with regard to his presence.

 

(xi) PW Manzoor Ahmed in his evidence stated that the complainant is his brother in law and other PW Sher Muhammad is also his relative. He stated in his 164 Cr.P.C statement that Jan Muhammad informed that he saw Tanveer and Dildar fighting with deceased Sajjad and two persons were there and their faces were muffled and they standing at the distance of about 70/80 feet. While star witness Jan Muhammad in his deposition stated that he found two other persons standing at the distance of about 10 feet and their faces were opened,

 

(xii) PW Sher Muhammad in his examination in chief stated that complainant Allah Dino and witness Manzoor Ahmed both are his relatives and deceased Sajjad was his nephew. He narrated almost same fact as deposed by the complainant. However, in his cross examination he stated that the dead body was taken to Police Station, Kandhra and thereafter dead body was taken to RHC Kandhra. He further admitted that in his statement recorded under Section 164, Cr.P.C he stated that the dead body was taken to house. The complainant in his evidence stated that the dead body was brought at Government Hospital, Kandhra while in his examination in chief he stated that he brought dead body to Police Station, Kandhra and obtained letter for postmortem and after inspection of body, he took dead body to Government Hospital, Kandhra. All the statements in this regard are contradictory.

 

(xiii)   Though Sher Muhammad in his examination in chief stated that complainant, witness Manzoor Ahmed both are his relatives and deceased Sajjad was his nephew but in his cross examination, he stated that complainant is not related to him, however, they are caste fellows.

 

(xiv)   PW Muhammad Moosa IO stated that he visited the place of incident in presence of mashir Jan Muhammad and Zaheer Ahmed. He stated that blood stained earth was also collected from the place of incident but through out the prosecution evidence, no chemical report was produced which may show that any blood stained earth was collected and human blood was found. He further stated that on 11.10.2005 he arrested accused Dildar, Tanveer and Zameer and during interrogation the accused volunteered to produce the crime weapons  stone, blood stained cloths and Chappal of the deceased and according to him, he brought accused persons to a water pump of Janab Ali Shah and from near the pump under bushes accused produced stones, cloths and chappal of the deceased. Nothing is available on record to show that the blood stained cloths and chappal were identified by the complainant nor any chemical,  serologist and or blood group matching report was produced in connection with the blood stained stones.

 

(xv)    In the mashirnama of recovery of cloths chappal and blood stained stones prepared  on 13.10.2005, it is stated that during the interrogation accused confessed the guilt of offence and disclosed that on 9.9.2005 they committed Zina with Sajjad Ali and his cloths were forcibly got removed and at his resistance they hit stone blows throttled him and dead body was thrown in a Nara canal. No charge was framed for the allegation of rape/sodomy. It is further stated that the cloths of deceased and the stones used in the crime, were hidden near the water machine of Ali Shah under the standing bubble trees. It is totally inconceivable that the accused persons could easily thrown the body of Sajjad after his murder in Nara canal but to create trouble for them, they saved incriminating material wrapped in a plastic bag and hide the same near water machine of Ali Shah to create evidence against them specially in the circumstances when they were already seen by Jan Muhammad at 2.30 pm, who deposed in his evidence that he knows the complainant and accused party for the last ten years.

 

(xvi) No efforts were made by the prosecution to take out the finger prints from plastic bag in which the incriminating material was found including the blood stained stones.

 

(xvii)  It is an admitted fact that PWs Manzoor Ahmed,   Sher Muhammad, Zaheer Ahmed and Abdul Ghaffar all are relatives of the complainant Allah Dino. So possibility of their being interested can not be ruled out especially in the circumstance when there is no eyewitness of murder except last seen evidence of Jan Muhammad.

 

(xviii) PW Zaheer Ahmed in his examination in chief besides mentioning other injuries on the body he also stated that the right leg and right arm of the deceased were also broken. However in his cross examination he pleads ignorance that he does not know that the broken arm and leg of the dead body is not mentioned in the memo of examination of the body.  He stated that police collected blood stained earth from the place of incident and sealed in his presence but he was not sure about the number of co-villagers present at the place of recovery of dead body besides him and the complainant. He further stated that he being relative did not ask any other person from the said co-villagers to act as mashir.

 

(xix)   The mashirnama of examination of dead body was prepared on 13.09.2005 and mashirnama singed by Jan Muhammad and Zaheer Ahmed shows that the dead body was lying on a cot in front of RHC Hospital, Kandhra. The dead body wrapped in a white cloth and was opened and the mashir saw that plastic was wrapped  on the body, the plastic was opened in which one human dead body of a body in naked condition was lying on cot. Complainant Allah Dino disclosed that it is a same dead body of his grandson. The mashirnama shows that the dead body was wrapped in a plastic while no such fact was mentioned in the FIR or in the evidence of complainant that the dead body was found wrapped in a plastic which he himself brought to the hospital after identifying to be the dead body of his grandson.

 

(xx) Through out evidence Jan Muhammad stated that he saw that both the appellants were fighting with Sajjad and two others were standing at the distance of 10 feet. Out of said two persons only Zameer was arrested  and another person was neither arrested through out the investigation nor identified. The mystery who was the second person remained unresolved and a question crop up in our mind as to why no investigation was made out against that person by the police and why they failed to arrest him when out of four accused three were arrested.

 

(xxi) Though recovery was effected on the pointation of the appellants but it is also a fact that the mashirs of recovery were not independent persons. The mashir Abdul Ghaffar admitted in his cross examination that the complainant is his maternal uncle while another mashir of recovery Ghulam Akbar was never produced in court.

 

(xxii) No efforts were made to associate any independent witness of recovery and in the peculiar circumstances of the case where the whole case is based on last seen evidence, the evidence of the mashir of recovery is also doubtful and seems to be interested.

 

(xxiii) On the evidence almost of the same standard co-accused Zameer was acquitted only for the reason that he was not found fighting with the deceased. If this is a valid cause of acquittal of Zameer then the fact remains that Jan Muhammad admitted that Sajjad not made any complaint to him, rather than Jan Muhammad stated that they were playing jokes. If Zameer could be acquitted on the given evidence then the present appellants could also be acquitted and deserved same treatment and same benefit of doubt could be extended to them.  

 

(xxiv) No acquittal appeals was filed challenging the acquittal of Zameer either by the complainant or the prosecution.

 

(xxv) Even if accompanying of deceased with the appellants be assumed to be true, no evidence is  available to show that deceased had remained in company of accused up to the moment of occurrence.

 

(xxvi) Medical Officer stated that postmortem of the dead body of the deceased was carried out after four days of his recovery from water. According the prosecution case, the incident took place on 9.9.2005 and body was recovered on 13.9.2005. The postmortem was conducted on 13.9.2005 between 5.p.m to 6.p.m. the probable time between death and postmortem is said to be four days which does not match or correspond with the date of death pleaded by the complainant/prosecution which creates doubts.

 

(xxvii) We have our all sympathies with the bereaved family, but at the same time we have reached to an irresistible conclusion that prosecution has failed to substantiate the charge and committed various lapses while investigating the case. Jan Muhammad may be the witness who lastly seen the deceased with the appellants but he is not the witness of murder. There is a vast difference between merely seeing a person lastly with the deceased and seeing a murder being a eyewitness. Court must be satisfied first that a murder was committed then it must be satisfied that accused had committed the murder.

 

 

21. The embodiment of the case law relied upon by the learned counsel for the appellant supra gives us clear picture that the reappraisal of evidence in a criminal case is that if the witness trustworthy and reliable then conviction can safely be based on his evidence. It was also held supra that accused had jointly lead to the recovery and evidence in respect thereof being inadmissible could not be used against him. When two interpretation of evidence are possible, one favoring the accused and the other favoring the prosecution, then one favorable to the accused is required to be taken into consideration. All incriminating pieces of evidence available on record in examination in chief, cross examination or re-examination of witnesses are required to be put to the accused if the same are against him while recording his statement under Section 342 Cr.P.C. Circumstantial evidence i.e. last seen evidence suffered from many infirmities has no worth credence. It was further held supra that two accused were acquitted by the trial court on the evidence almost of the same standard as against accused. Prosecution in circumstance had failed to prove case against accused beyond reasonable doubt. The honourable Shariat Appellate Bench in the case of Zina held that even if accompanying of deceased with the accused be assumed no evidence was available to show that deceased had remained in company of accused up to the moment of occurrence. Court must be satisfied first that a murder was committed then it must be satisfied that accused had committed murder. Question of sentence demanded utmost care on the part of court leaving with life and liberty of the accused persons. Any genuine doubt arising out of circumstance of the case should be extended to accused as a right and not as a concession.

 

22. The learned DPG relied upon the case law which are distinguishable to the facts and circumstances of the case. In the case of Mubashir Ahmed, conviction was maintained on last seen evidence coupled with extra judicial confession, the dead body was found on the pointation of accused and prosecution witness had no relationship at all with the complainant. The case of Dilawar Hussain is not relevant to the conviction on last seen evidence. The case of Azizullah refers to a settled principle that the procedure depicts irregularity and some time even illegalities committed during the course of investigation shall not demolish prosecution case nor vitiate the trial. However to our understanding it varies case to case. The case of Muhammad Azim pertains to case of eyewitness in which it was held that occurrence having taken place on a thorough fair, passerby a natural witness provided they are able to explain their presence at the spot.

 

 

23. So far as the case law referred to by the learned counsel for the complainant is concerned, we have minutely gone through the same. In the case of Gulzar Ahmed prosecution had collected trustworthy and reliable evidence and dead bodies were recovered on the pointation of accused and his extra-Judicial confession coupled with medical evidence had established his guilt, hence conviction was maintained. In the case of Muhammad Akram it was held that presence of complainant and other eye-witnesses at the scene of crime was natural. Recovery evidence was independent and impartial. This case is also distinguishable. In the case of Muhammad Latif, it was held that there was no bar or hindrance to pass sentence upon a killer of three human beings when chain of guilt was found unbroken, extra-judicial confession made before prosecution witnesses, whom accused considered to be respectable persons for his assistance, could not be disbelieved. The facts of the case supra is quite distinguishable to the facts and circumstances of the present case. So far as  the case of Faisal Aleem  and Muhammad Ajmal are concerned, both the case germane to a question of juvenility. In this regard, the learned DPG already argued that appellant Tanveer at the time of incident, was minor, therefore, the death penalty could not be awarded to him.  

 

24. There is no cavil to the proposition that death  sentence can be awarded to accused on circumstantial evidence, provided the circumstances constitute a continuous chain without missing any link, combined effect of which establishes the guilt of accused beyond any shadow of doubt. It is settled principle of law that last seen evidence is a weakest type of evidence unless corroborated with some other piece of evidence. Needless to emphasis that all the pieces of evidence should be so linked that it should give picture of complete chain, one corner of which should touch the neck of the deceased and other corner of the neck of the accused. Failure of one link will destroy the entire chain. It is the duty and obligation of prosecution to prove the case against the accused beyond any shadow of doubt even if accused failed to furnish explanation for disappearance of deceased who had been seen along with the accused before his death. Evidence is one of the recognized mode having origin from Islam to find out the guilt or innocence of accused. Such evidence if appeals to logic a reason then it would be sufficient piece of evidence to connect the accused with the commission of offence and capital punishment can be awarded on its basis. The rule of  benefit of doubt, which described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, it is better that ten guilty persons be acquitted rather that one innocent person be convicted. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and that is enforced rigorously in view 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. Reference can be made to 2009 SCMR 135, 2008 SCMR 1103, 2007 SCMR 486, 2007 SCMR 778, PLD 1973 SC 418 and 2011 SCMR 664.

 

25. It has been held time and again that the grain should be sifted from the chaff so as to arrive the truth of the occurrence, therefore, it would be necessary to appraise the evidence in entirety to sift grain from the chaff. It is a known principle of appreciation of evidence that the benefit of all favorable instances in the prosecution evidence must go to the accused regardless of whether he has taken any such plea or not. The evidence of the prosecution witnesses is neither trustworthy nor confidence inspiring nor consistent to establish accusation against the appellant therefore the possibility of accused being falsely implicated cannot be ruled out. Both the expressions viz. “proof beyond a reasonable doubt” and “presumption of innocence” are to be read together as a unit. Single infirmity if creating reasonable doubt in the mind of a reasonable and prudent person regarding the truth of charge, makes the whole case doubtful. It was also laid down in the judgment reported in 2008 SCMR 1086 that accused is the most favorite child of law and every benefit of doubt goes to him regardless of fact whether he has taken any such plea or not. We have no hesitation to hold that the prosecution has failed to prove the case against the appellants beyond reasonable doubt. Reference can be made to the judgments authored by one of us (Muhammad Ali Mazhar-j) reported in SBLR 2011 Sindh 1653 & SBLR 2012 Sindh 208.

 

26. As a result of above discussion, the appeals are allowed. Conviction of the appellants is set aside. They should be set at liberty forthwith if not required to be detained in any other case. The reference for confirmation of death sentence is answered in negative.

       

                                       

Sukkur                                                            Judge

Dated.09.5.2012                    Judge