IN THE HIGH COURT OF SINDH AT KARACHI
MR. JUSTICE SALAHUDDIN PANHWAR
Cr. Appeal No.137/2009
Appellant : Muhammad
Bux,
Through: Mr.
Abdul Razzak, advocate.
Respondent : The State,
Through:
Mr. Ali Haider Saleem, APG.
Mr.
M. Ilyas Khan advocate for Complainant.
Cr. Jail Appeal No.179/2009
Appellant : Muhammad
Bux,
Through: Mr.
Abdul Razzak, advocate.
Respondent : The State,
Through:
Mr. Ali Haider Saleem, APG.
Cr. Acquittal Appeal No.163/2009
Appellant : The
State,
Through:
Mr. Ali Haider Saleem, APG.
Mr.
M. Ilyas Khan advocate for Complainant.
Respondent : Farooq Mengal,
Through:
Mr. Farooq Rasheed, advocate.
Confirmation
Case No.2/2009
(Reference Made by 3rd
Addl. Sessions Judge,
Karachi-South)
Date
of hearing : 29th, 30th
& 31st October, 19th November
4th &
5th December, 2013.
………..
JUDGMENT:
SALAHUDDIN
PANHWAR, J:- Through his judgment we intend to
dispose of reference u/s 374 C.RPC; forwarded by trial court and two appeal
(s), one having been filed by convict/appellant Muhammad Bux challenging his
conviction awarded by learned Additional Sessions Judge, Karachi South, while
other appeal has been filed by complainant Dr. Mirza Ikhtiar Baig against same
judgment to the extent of acquittal of accused / respondent Farooque Mengal.
2. The learned 3rd
Additional Sessions Judge, Karachi South, while passing impugned judgment dated
22nd June, 2009 in Sessions Case No. 710 of 2004 (Re-Farooque Mengal
& others), has awarded death sentence to the appellant / convict Muhammad
Bux u/s 302 (b) PPC; with compensation Rs.100,000/-
(One hundred thousand rupees only), payable to the legal-heirs of deceased ,
in-default, to undergo simple imprisonment of six months. He was also convicted
u/s 392 PPC and sentenced to undergo R.I for a period of seven years with fine
of Rs.10, 000/- and in default thereof to undergo simple imprisonment of six
months. Both sentences were ordered to run concurrently. By same judgment the
co-accused Farooque Mengal was acquitted.
3. Succinctly, relevant facts
of the prosecution case are that on 14.10.2004 at 1800 hours complainant Dr.
Mirza Ikhtiar Baig lodged the FIR with police station Clifton; contending
therein that his sister Afreen w/o Farooq Mengal alongwith her child and
husband was living at bungalow No.23/1, street No.35 Phase Extension-5. At
about 12:00 O’ clock Noman Ahmed son of Rashid Ahmed intimated him that “as per
routine he was coming towards that bungalow, meanwhile he received a call by Farooque
Mengal from Lahore that no one is picking up his telephone call so he (Noman) must
go and see. When he reached at the bungalow, its door was closed and no one
even responded on the pressing of bell, thus he alongwith an employee namely
Imdad entered inside the house by breaking the kitchen door and searched all
rooms but could not find anything. Thereafter, at about 1.30 noon,
they entered into the bath room of the upper floor room and saw Afreen was
lying in the bath tub and the tub was filled with water; with the help of
accompanying person he took her out, she was found dead. There were marks on
her wrists and ankles; thereafter he immediately brought her to Mid East
Hospital. Further he informed that driver Muhammad Bux and his wife Zahida
working in the said house were not available and the complainant reached at
hospital”. On arrival to the hospital he (complainant) took information about
incident, circumstance and saw the dead body of his sister and hurriedly proceeded
at the bungalow, observed the situation and found that some one in water tub
throttled his sister to death. He had a strong suspicion that her house servant
Muhammad Bux with assistance of his wife Zahida murdered her for some unknown
reasons.
4. During the course of the
investigation, investigating officer arrested the appellant / accused Muhammad
Bux and his wife Zahida from Sukho-ki-Mandi, District Hafizabad; recovered
robbed cash amount, gold locket, chain and rings Nokia mobile, and wrist watch
etc. belonging to deceased. He also recovered the incriminating piece of rope
and Ativan tablets. He also got arrested accused Farooque Mengal on 21.10.2004;
confessional statement of accused Muhammad Bux was got recorded before the
Magistrate. On completion of investigation the appellant Muhammad Bux, accused
Zahida and Farooque Mengal were sent up to face their trial.
5. On compliance of provision
of Section 265(c ) Cr.PC, the charge against all three accused persons was
framed to which they pleaded not guilty and claimed their trial vide their pleas,
recorded separately.
6. To substantiate its case,
prosecution examined following witnesses:-
PW-1: Anwar-ul-Hassan
Siddiqui, the Civil Judge & JM Bhiria as Ex.14 who produced application
moved by I.O dated 21.10.2004 before the
District & Sessions Judge Karachi (South) as Ex.14-A and order thereon as
Ex.14-B; confessional statement of accused Muhammad Bux as Ex.14-C, copy of
Jail warrant as Ex.14-D, envelop and letter dated 26.11.2004 at Ex.14-E &
14-F respectively;
PW-2: Dr. Mirza Ikhtiar
Baig as Ex.15 who produced memo of dead body as Ex.16/1, inquest report as
Ex.16/2, statement under section 154 Cr.PC as Ex.16/3, receipt of dead body as
Ex.16/4, FIR as Ex.16/5;
PW-3: Noman Ahmed as
Ex.17.
PW-4: Rano Khan Solangi
as Ex.19. He produced memo of inspection of place of occurrence and recovery
dated 14.10.2004 as Ex.19-A, memo of arrest of accused Muhammad Bux and Mst.
Zahida and recovery dated 16.10.2004 as Ex.19-B, memo of pointation of place of
occurrence and recovery/ seizure dated 19.10.2004 as Exh.19-C, memo of recovery
of crime article dated 19.10.2004 as Ex.19-D, memo of identification of
deceased’s belongings dated 19.10.2004 as Exh.19-E. He also produced empty
bottle of imperial Wine and Glass (articles A & B), seized under memo
Exh.19-A. He produced mobile phone, purse containing Rs.11,450/- and watch as
articles C & F, cash of Rs.150,000/- as article-G, a ladies watch, two
golden rings , one pair of Balies (ear rings) one chain having locket marked
with ‘Allah’ as articles H/1 to H/6, seized under memo of recovery and arrest
(Ex.19-B). He also produced incriminating articles i.e. three pieces of ropes
as article I/1 to I/3, Ativan tablets as article I/3, ATM card
No.40258300310070287 as article J/1, Cheque book in the name of Mumtaz bearing account
No.0031-0100956 of Bank Al-Falah as article ‘K’ a cheque dated 114.10.2004
amounting to Rs.200,000/- bearing signature of one
Mumtaz as article ‘L’, seized under memo of pointation (Ex.19-C and 19-D). He
also produced two suit cases (article M and N) one trouser, shirt, under
garments, night suit, two pairs of sandals as article
O/1 to O/7 under memo of identification of articles (Exh.19-E).
PW-5: Muhammad Arif as
Exh.21.
PW-6: Farhia, the bank
officer of Al-Falah Bank as Ex.22. She produced the photocopy of NIC of accused
Muhammad Bux as Exh.22-A, Cheque No.CD-0366780 dated 14.10.2004 of amounting to
Rs.280,000/- as Exh.22-A, Account opening form dated
23.9.2003 as Exh.22-C, Specimen signature card as Exh.22-D and 22-E, statement
of account dated 01.01.2004 to 30.10.2004 as Exh.22-F, application for ATN card
as Exh.22-G a photo copy of NIC of deceased as Exh.22-H.
PW-7: Dr. Kousar Parveen
as Ex.23. She produced Post mortem report No.592/04 of deceased as Exh.23-A,
death certificate as Exh.23-B, the letter dated 14.10.2004 addressed to MLO
JPMC as Exh.23-C, supplementary Post Mortem report and final cause of death
dated 04.3.2005 as Exh.23-D, request letter to the Chemical Examiner dt:
03.02.2005 for 5 of alcohol in article No.4 in the blood sample of Post Mortem
report No. 592/04 dt: 14.10.2004 as Ex.23-E and Medico legal report of accused
Zahida dated 19.10.2004 as Exh.23-F
PW-9 (mistakenly PW-8 was
numbered as PW-9) SIP Muhammad Afzal Baig as Ex.27. He produced the memo of
arrest of accused Farooque Mengal dated 21.10.2004 as Exh.27-A.
PW-10: HC Zafar Iqbal as
Exh.29.
PW-11: Inspector Bashir
Muhammad Khan as Ex.30. He produced a letter for inspection place of occurrence
as Ex.30/1, covering letter dated 25.10.2004 alongwith the finger prints of
accused Muhammad Bux and Mst. Zahida as Ex.30/2, comparative chart as Ex.30/3
and opinion report as Ex.30/4;
PW-12: Qudisa Begum as
Ex.32.
PW-13: Mst. Shireen
Saleem as Exh.34.
PW-14: Abdul Rashid as
Exh.35.
PW-15: ASI Muhammad Sabir
as Ex.36.
PW-16: SIO Muhammad
Fayyaz as Exh.37. He produced photocopy of application dated 24.12.2004,
addressed to the court of Vth ADJ ()south) , letter to obtain opinion Exh.37/2
and opinion of PDSP as Exh.37/3 and order of DIG for further investigation as
Ex.37/4 and letter issued by TIO as Exh.37/5;
PW-17: SIP Mehboob Ellahi as Ex.39.
7. The statement of accused
person (s) namely Muhammad Bux (appellant / convict) and Farooque Mengal (respondent
in acquittal appeal) were recorded under section 342 Cr.P.C respectively,
wherein they professed their innocence and claimed prosecution case to be false.
However, none of the accused persons came forward to examine himself on Oath or
to lead evidence in his defence, as provided under section 340(2)
Cr.P.C.
8. Learned counsel for the appellant
/ convict has, inter-alia, argued
that incident is un-seen; there is no direct evidence against the appellant/
convict; there are material contradictions which make the prosecution case doubtful
and while arguing so he referred as:
i) PW-3 Noman stated that door of bath
room was locked and entry was made after breaking it but no such thing was
disclosed by I.O;
ii) Deceased was lying inside the tub;
iii) Per medical evidence she was raped
but clothes were not torn;
ii) As per PW-5 Sabir he
came in hospital but examination of dead body reflects that she was dry,
inquest report does not disclose. Thus the prosecution brought conflicting
statement regarding time of arrival of dead body in hospital and even
prosecution produced no roznamcha entry.
He also pleaded that the
confessional statement is not in conformity with post mortem report regarding
manner of offence and its timing because as per confessional statement deceased
was given wine and Ativan tablet but no such thing was found in her post mortem,
therefore, such confessional statement cannot be considered to be volunteer
one. He next contended that after confessional statement the convict Muhammad
Bux was handed over to same police which is also sufficient to bring clouds
over such confessional statement. He lastly argued that convict was not put a
question regarding his presence at place of incident hence learned trial court
judge was not legally justified to draw an inference against the appellant /
convict Muhammad Bux from any such evidence. In support of his contentions he
placed reliance on the case laws reported as 1995 SCMR 127 (Mehmood Ahmed and
others vs. the State another), 2011 MLD 811 (Naveed Abbas vs. the
State), 1999 SCMR 1220 (Muhammad Khan vs. the State), 2001 SCMR 624 (Muhammad
Iqbal vs. the State), 1993 SCMR 1602 (Muhammad Ilyas vs. the State), 2011 SCMR
1127 (Muhammad Hussain vs. the State), 2010 P.Cr.LJ 157 (Wahab Ali vs. the
State), 2005 SCMR 277 (Wazir Muhammad vs. the State), 2011 SCMR 629 (Sabir Ali
vs. the State), 2012 P.Cr.LJ 1438 (Muhammad Ayoob vs. the State), 2008 SCMR 329
(Muhammad Shafi vs. Muhammad Raza), 2007 SCMR 670 (Muhammad Pervez and others
vs. the State), 2008 SCMR 580, 2008 SCMR 1103 (Altaf Hussain vs. Fakhar
Hussain), PLD 2013 Sindh 223 and 2012 SCMR 419 (Muhammad Ashraf vs. the State).
9. On the other hand, learned
counsel for the complainant argued that confession is volunteer because the
convict did not examine himself on Oath nor specifically denied it; recovery of
gold ornaments, cash, mobile phone, leading by convict to place of occurrence,
availability of finger print marks on glass, couple with encashment of cheque
by convict are sufficient to make an unbroken chain of corroborative pieces of
evidence against convict, therefore, the learned trial court judge has rightly
convicted the appellant/ convict. He placed reliance on the case laws, reported
as MEHMOOD AHMAD versus STATE (1995 SCMR 127) and 1995 SCMR 1220.
10. Learned AGP adopted the
arguments, as advanced by learned counsel for the complainant while adding the
reference to article 43 of Qanun-e-Shahadat.
11. In acquittal appeal, the
learned counsel for the appellant / complainant, inter-alia, while referring to Article 43 of Qanun-e-Shahadat
Order, 1984, argued that circumstantial evidence can, be used against abettor;
Per PW-3 Noman respondent / accused Farooque Mengal phoned him while inquiring
about Afreen Baig, such attitude itself was quite natural; further he (Farooque
Mengal) insisted that deceased Afreen Baig shall go back to her home;
prosecution also brought material on record which proved hatching of conspiracy
by respondent / accused Farooque Mengal which prima facie proved that he
(Farooque Mengal) was guilty of conspiracy hence was liable to be awarded
conviction as such. He placed reliance on the case law, reported as PLD 2003 SC
704 (Sh. Muhammad Amjad vs. the State), 2003 P.Cr.LJ 1264 (Sain Gul Wali Khan
vs. the State) and 2011 P.Cr.LJ 1062 (Muhammad Bilal vs. the State).
12. Learned counsel for the
accused / respondent Farooque Mengal has argued that presumption of innocence
has been stamped by trial court; no name of respondent was mentioned in FIR;
evidence of alleged conspiracy is un-natural and introduced at belated stage of
investigation; confession of co-accused cannot be used against the respondent /
accused when the same stood retracted. He concluded that acquittal of the
accused / respondent Farooque Mengal is not open to any exception. He has
relied upon the case laws PLD 2009 SC 53 (Muhammad Tasaweer vs. Hafiz Zulkarnain),
2012 SCMR 1768 (State of Rajasthan vs. Shera Ram alias Vishnu Dutta), SBLR 2011
SC 73, 2003 P.Cr.LJ 107 (Akbar Khan vs. the State), 2008 SCMR 1221 (Ghulam
Qadir vs. the State), 1993 SCMR 1822 (State vs. Muhammad Naseer), 2007 SCMR 670
(Muhammad Pervez vs. the State) and 2003 SCMR 1419 (Khalid Javed vs. the State).
13. Heard the counsel and perused
the record as well as case law cited at Bar.
14. Before discussing the matter
in hand, it would be significant to mention here that at no material times it
has been claimed either by the convict Muhammad Bux or respondent / accused
Farooque Mengal that death of the deceased Afreen Baig was natural one thus the
claim of the prosecution that it was a murder (un-natural death) is not
disputed which also finds support from medical evidence. Further, what remains
to be examined is that whether the prosecution has brought sufficient material
on record against convict Muhammad Bux and accused /respondent Farooque Mengal
or that learned trial court judge committed any illegality in appreciating such
material.
15. First we would like to
examine the impugned judgment regarding the conviction awarded to appellant /
convict Muhammad Bux.
16. Scanning of the record makes
it clear that incident was an unseen incident as such the prosecution case
rests upon the circumstantial evidence. The record reveals that it was the specific
claim of the prosecution that the appellant / convict Muhammad Bux was the
servant with deceased Afreen and his (Muhammad Bux) wife namely Mst. Zahida (absconding accused) was maid servant and both used
to reside with Mst. Afreen Baig. Therefore, let's see what the convict /
Muhammad Bux stated in this respect in his statement, recorded under section
342 Cr.PC. The convict Muhammad Bux responded to question No.2 as under:-
Q.No.2: That while you working as driver your wife was working as the house
maid Aya. You are Baloch by caste and so Farooque Mengal. What have you to say?
Ans: Yes
sir. I was driver of Mst. Afreen Bag and my wife Mst. Zahida deputed to look
after a special child namely Fahaum…
The above position makes it an
undisputed fact that not only the prosecution but also as per convict Muhammad
Bux, he was driver / servant and his wife (absconding accused Mst. Zahida) was
deputed for care of a special child, therefore, this leads to an undisputed
fact that both appellant/convict Muhammad Bux and his wife Mst. Zahida should
have been present in the house / place of incident at the time of incident,
particularly in absence of male member of the family i.e accused/ respondent
Farooque Mengal. The position, being so, also becomes clear from reply of
convict Muhammad Bux, which he gave with reference to question NO.4, put to him
during his statement u/s 342 Cr.PC. Same is reproduced hereunder:-
"It is correct to this fact
only that on 12.10.2004 I alongwith Mst. Afreen dropped Farooque at Karachi
Airport for departure to Lahore…...
17. We can safely add here that
since circumstantial evidence is based upon the facts relating to occasion, cause or effect, motive,
preparation and previous or subsequent conduct which always lead to certain
logical consequences / presumption and legal presumption whereof could
be inferred under the Article 21 &129 of the Qanun-e-Shahadat Order, 1984. If,
once the prosecution succeeds in establishing a circumstance, the court
will be legally justified to presume existence of consequential logical effect against
accused unless the same is disproved. . In other words
according to the common course of human affairs, the degree of probability that
the occurrence of the facts proved is so high that the contrary cannot
reasonably be supposed.
18. In such an eventuality the
convict Muhammad Bux was under an obligation to have explained his absence but
the perusal of the statement of the convict Muhammad Bux and cross-examination,
conducted by defence, makes it clear that convict Muhammad Bux never denied
this fact nor came with any plea that he and his wife were not present in the
bungalow (place of incident). Thus all the above circumstances make a complete
picture to the extent that:
i)
Only
four persons (i.e deceased Afreen Baig, her special child, convict Muhammad Bux
and his wife Mst. Zahida) were present in the bungalow/place of incident at
time of occurrence;
ii)
Only
Muhammad Bux and his wife Mst. Zahida, being servants and present in the house,
could logically and presumably have excess to room of the deceased Mst. Afreen
Baig;
iii)
Only Muhammad Bux and his wife Mst. Zahida could have come out of
the room having pushed the button of lock;
19. The
post mortem report of the deceased suggests injuries on person of the deceased
as follows:
1. Contioug (contusion) Bluish colour 2
c.m. In which around right wrist;
2. Constusion (contusion) bluish colour 2 c.m in which
around left wrist;
3. Contusion 2 c.m in which Bluish colour in circling the
right ankle;
4. Contusion Bluish colour 2 c.m in which around left
ankle;
5. Laceration 1.5 c.m into one c.m on inner serface of
lower lip alongwith bruising of gum of lower jao (jaw);
6. Laceration 1 c.m x 1 c.m on inner surface on left
angle of mouth.
The above injuries on
person of the deceased have never remained disputed nor has the other side come
with the plea of those being self-suffered. Nature and placing of the injuries
make it clear that victim Afreen was murdered; hence, this circumstance
leads to a legal presumption against the convict Muhammad Bux and his wife Mst.
Zahida for having done so.
20. Further, the discussed
circumstances of the instant case leads to a logical consequence that
the convict Muhammad Bux and his wife Mst. Zahida who :
i)
were
the only persons except deceased present at time of incident;
ii)
were
having excess to bed-room of deceased;
iii)
had
tied deceased so also subsequent event(s) leading to death of deceased;
iv)
had
left the place of incident / house though it should have been they to have
noticed incident and reported it to police, complainant party or anybody else ;
Particularly, for the reasons that they
neither attempted to disprove and even least attempted to deny that:
i)
they
( convict Muhammad Bux and his wife) were present at place of incident on
fateful day;
ii)
they
never claimed that somebody else had come and remained there;
iii)
they
never denied un-natural death of deceased;
iv)
they
never challenged the injuries on person of the deceased to have happened;
21. Though, the image appears to
be complete, however, since we are conscious of the legal position that before
relying on circumstantial evidence to hold a conviction great care and caution
is required to be taken , therefore, we would like to examine
meticulously other pieces of evidence so as to see whether the above picture
finds any further corroboration or otherwise. Here we would like to make
another aspect clear which requires clarification and a little explanation. In
the instant case, as per evidence of the Investigating Officer and Medical
Officer, it is surfaced that deceased was also found to have been subjected to
rape. Here re-production of relevant portion of evidence of I.O and that of
conclusion of the medical officer will make things further clear:-
PW Mehboob
Ellahi (Exh.39):
“It is correct that after post mortem report received it was transpired
that Zina was committed with deceased Afreen Baig. On this
point. I have made no investigation or on this point during whole
proceeding not the complainant party pressed for doing so nor I have applied
any proper section of law”( p 290)
PW Dr. Kouer
Parveen Exh.23:
“On the basis of findings found during post mortem examination and
chemical examination findings. I am of opinion that death has occurred due to
cardio respiratory failure. She has been subjected for the act of smothering
leading to cardio respiratory failure. She has been subjected for the act of
rape”
The above evidence couple
with production of Post Mortem report, it is also surfaced that the victim was
also subjected to rape however; the prosecution did not pursued with the same
from beginning till conclusion of the case. We are mindful of the legal position
that prosecution is not legally justified to stick with some part of the
incident or to part with other because it is the demand of the safe
administration of justice and fair trial that each should come with truth,
least apparent one. However, since it is an un-seen incident therefore,
prosecution was never expected to have brought direct evidence in respect of
the manner of offence but the surrounding circumstance (s) only. In case(s)
revolving around circumstantial evidence the prosecution cannot be expected to
give complete picture of manner of incident because guilt is based on
surrounding circumstances leading to an undeniable theory of guilt. Since
the version of the Dr. Kousar Parveen regarding rape upon deceased was never challenged by
defence therefore, the learned trial court judge could have legally presumed
against convict Muhammad Bux, but since accused were not inducted, in such
section thus learned trial court judge has rightly not awarded any conviction
on this count hence no Pre-Judice could be claimed or insisted. We would also attend to defence plea that per post mortem
report there were found no symptoms of use of alcohol and Ativan tablets hence
prosecution story was doubtful. For this, it would suffice to say that in
matter (s) of un-seen incident the theory of manner of incident is presumed
from surrounding circumstances. As already said that in case(s) circling round
the circumstantial evidence the prosecution is not strictly expected to prove
the manner of incident but to prove surrounding circumstances which build an un-broken
chain of links, excluding all probabilities, that it can be none other but the
accused who committed the offence. Thus failure of any part of such theory
shall cause no effect if, otherwise, circumstantial evidence is proved to be
complete.
22. The prosecution brought the
recovery from possession of the convict Muhammad Bux and his wife Mst. Zahida
at the time of their arrest and on pointation of convict Muhammad Bux with a
clear stand that these were the belongings of the deceased Afreen Baig which
the convict Muhammad Bux and his wife Mst. Zahida took away after committing
the murder. Here we would like to refer the relevant portions of PW (mashir)
Rano Khan Solangi which are:-
"The accused Muhammad Bux and
Zahida were recovered from the house. Police recovered from the possession of
accused Muhammad Bux Rs.11,450/- from his pocket, one
wrist watch, one mobile phone from the personal search of accused. Mst. Zahida,
one Ring of deceased Afreen Baig and one locket with mark Allah, Rings of
golden and silver colours"
"I produce the Mobile Phone and
purse containing Rs.11,450./-, one watch which I produce as Article C.D. AND F
respectively"
"I produce the articles
recovered from the accused Mst. Zahida which is a ladies watch, two golden
rings, one pair of ballies and one Chain having
locket, the name marked Allah as Article H/1 to H/6. The articles recovered
from the possession of accused Msst. Zahida belonging to deceased Afreen
Baig"
(Underlining and bold letters have been
supplied for emphasis)
The above evidence makes it clear
that these articles were not only claimed to have been recovered from
possession of the convict Muhammad Bux and his wife Mst. Zahida but also with
the claim that these belonged to deceased Afreen Baig. Now we would like to
examine what the defence stated in cross-examination of this witness relating
to such stand, which is as follows:-
Cross by counsel
for accused Farooque Mengal:
"It is incorrect to suggest
that Article mentioned in Exx.19/E were not recovered from the possession of
accused at Suka ki-Chowki at the time of their arrest and these articles were
foisted upon the accused. It is correct that it is mentioned in Exh.19/E that
the articles mentioned therein were identified by complainant Akhtiar Baig and
I and P.W Ishtiaque Baig the brother of deceased were the mashir of Exh.19/E.
It is incorrect to guest that neither the articles were recovered from the
accused persons nor complainant identified the articles".
Cross by counsel
for accused Muhammad Bux & Zahida:
"The articles recovered from
the custody of the accused persons at Soka ki Mandi were identified by her
brother here at Karachi on 19.10.2004"
Such specific claim of the
prosecution has never been denied specifically by the convict Muhammad Bux and
Mst. Zahida from whom such recovery was claimed, therefore, legal presumption
can well be drawn within principle of law that what is not denied is to be
taken as correct. However, what the defence never denied even by a single
suggestion is that these articles did not belong to the deceased Afreen Baig.
This also appears to be quite illogical that the complainant party went on to
implicate an innocent (Muhammad Bux) by delivering the valuable articles of
deceased at the cost of real culprits particularly when the convict Muhammad
Bux and his wife have, undisputedly, been the old servants of the family of the
complainant party and
no serious enmity or consideration for such false implication has been pleaded
by convict Muhammad Bux. We
are conscious that in our society exaggeration (s) are made by widening the net
yet the substitution of culprits by blood-relation is not believable.
Reference can be made to the case of Khizar Hayat V. The State reported in SBLR
2011 SCMR 183. The convict Muhammad Bux during his statement, recorded
under section 342 Cr.PC, came with a specific plea while responding to question
No.16 that:
"It is incorrect…….. to Punjab. I was arrested from Karachi on 14.10.2004
alongwith my wife from the house of maternal uncle of my wife…."
However, he did not
examine such maternal uncle or any of the people of the area to give a little
shoulder to such stand when he had opportunity within meaning of 265-F (4) to
(7) of the Code.
23. We are conscious of the
position that Investigating Officer did not observe the procedure strictly
while making arrest of convict Muhammad Bux and his wife from Soka-ki-Mandi.
For this it would suffice to say that any irregularity on part of investigating
officer should not result in prejudicing the complainant’s case, especially in heinous
cases. This is so for the simple reason that it is not the complainant but the
Investigating Officer who is supposed to be aware with requirement of law and
procedure therefore; if he fails to follow then it should not result in
penalizing the victim party. Thus we are of the considered view that the
prosecution established the recovery of the articles of the deceased Afreen
Baig from possession of the convict Muhammad Bux and his wife Mst. Zabida which, provides a further link towards connection of the
convict Muhammad Bux towards commission of the offence.
24. There is also recovery at the
pointation of the convict Muhammad Bux. For which the prosecution claimed
through Investigating Officer PW-17 Mahboob Elahi and PW-Rano Khan Solangi
(Ex.19) that convict Muhammad Bux volunteered to produce the rope, used in
commission of the offence and also led police to pointed place. Such discovery
can well be proved within meaning of the Article 40 of the Qanun-e-Shahdat
Order for which the prosecution is required to establish two ingredients i.e (i)
there must be statement / information by accused and (ii) which should lead to
discovery / recovery. Reference , if any can be made
to the case of Mst Askar Jan and others
V. Muhammad Daud reported in 2010 SCMR 1604 For this prosecution claims the
custody of the convict Muhammad Bux from 16.10.2004 at 1545 hours with further
claim that on 19.10.2004 the convict Muhammad Bux volunteered to produce crime
weapon which the convict Muhammad Bux did produce by leading the police party.
The recovery of rope on pointation of the convict Muhammad Bux was discovery of
the material at his own pointation / information and since there were visible
marks of roping the deceased therefore, it was
rightly believed by learned trial court judge as one of corroborative link.
25. There is also evidence in
shape of finger-print of the convict Muhammad Bux on the glass, recovered from
the place of incident as PW Bashir Muhammad Khan stated that
:
"Later on, I compared the finger
print of accused Muhammad Bux with the impression on the glass I produce the
comparative chart as Ex.30/3 and I the finger prints of accused Muhammad Bux
tally with the finger prints on the glass."
This also prima facie proves a
corroborative piece of evidence against the presence of the convict Muhammad
Bux at place of incident. The convict Muhammad Bux never claimed this to be a fabricated evidence, however, he came with suggestion
while cross-examining this witness that "It is correct that normally
in common house the dependant living there in the house touch the articles
lying in the room." This otherwise goes to confirm that convict
Muhammad Bux confirms his presence at the place of incident at the relevant
time.
26. Now we would come to another
piece of evidence which is the retracted confessional statement of the convict
Muhammad Bux. It would be germane to mention here that mere retraction from confession by an accused cannot by itself be
made a ground for its rejection, the only requirement
in this respect is to ensure that it was voluntary, true and fits in the
prosecution story. Hence,
the duty falls upon the prosecution to prove that when it (confession) was
made it was voluntary, true and conscious of its maker. In the instant case
the convict Muhammad Bux has retracted from his confession therefore, let's
examine legality and applicability thereof. The defence has claimed that it was
managed because it was not recorded by the Magistrate concern. For this it
would be relevant to refer to Exh.14/A wherein the Investigating Officer
requested to learned Sessions Judge, Karachi Sought for nominating Judicial Magistrate
to record confessional statement on the ground that "As the case
pertains to Qisas and Diyat / Hudood Ordinance" and since as per
evidence of the Investigating Officer "It is correct that the accused
Muhammad Bux was not produced before Illaqa Magistrate Rajesh Kumar for
recording statement under section 164 Cr.P.C, therefore, he had approached
to Sessions Judge for appointing another Magistrate for such purpose. This shows that considering the offence to be one of
Qisas & Diyat/ Hudood Ordinance he did not produce the accused before
concern Magistrate (Rasjesh Kumar). Let it be as it may, it is not a
disputed position that confession of the convict Muhammad Bux was recorded by PW
Mr. Anwarul Hassan Siddiqui whose
status as Civil Judge & J.M is not disputed and since Under
Section 164 of the Code the words "Any Magistrate of the first class
and any Magistrate of the second class specially empowered in this behalf have
been used therefore, this irregularity cannot be taken as a sole ground to
disbelieve the confession.
27. Further, the confession
statement of the convict Muhammad Bux appears to be in line with circumstantial
evidence coupled with recovery. The
confession statement of the convict Muhammad Bux so also evidence of the PW
Anwarul Hassan Siddiqui would show that the convict did not complain about any
maltreatment, pressure or coercion at the time of his confessional statement, the
convict Muhammad Bux undisputedly committed to judicial custody on the date of
his confession yet he did not make any application / complaint on his reaching
to judicial custody and even not complained about such fact when he was being
produced before court of law. However, as per answer of the convict Muhammad
Bux to question No.5 (342 Cr.PC statement) stated that on 06.12.2004 he made an
application for retracting from confession. Since every
caution should be taken while examining the voluntariness of a confession
therefore, at this juncture it would be
pertinent to examine the document Ex. 23/D, produced by lady doctor, which
reveals that on 19.10. 2004, accused Zhida wife of accused Muhammad Bux was
medically examined and such certificate was issued and after examination detail
is surfaced as under:
“General condition-conscious
(1) Contusion 6cm x 5cm on post surface of right gluteal region
– bluish green in colour. Moments are normal.
(2) Abrasion 2cm x 1cm, scab formation on posterin part of
right knee joint. Moments are normal.
(3) C/o pain in head 0/6. No mark of injury visible.
(4) C/o Backache and lower abdominal pain. H/O 10 days
overdue O/E P/V bleeding seen. OS closed.
(1) 337 L (ii) OTHER HURTS
(2) JURH GHAYR JAIF DAMIYA.”
(3) INJURY NO.3 NULL AND VOID.
(4) INJURY NO.4 RESERVED FOR ULTRA-SOUND REPORT.”
Thus it is well
established that accused Zahida wife of accused Muhammad Bux was in injured
condition during custody and on 3rd day i.
e 21/10/2004, the confessional statement of appellant was recorded. Although,
such plea of pressure and maltreatment, and forcible confessional statement is
not agitated by appellant side at this stage nor at the time of recording
statement u/s 342 Cr.P.C statement but on the
contrary appellant has taken different stance that such confessional statement
is managed by the police with the help of Magistrate. He even, claimed that he has
not signed upon such confessional statement. It would be relevant to reproduce
the question & answer
No(s).5 and 19 of appellant in 342 CrPC statement, same are as
under:-
“Q.No.5 That on 21.10.2004 you made a judicial confession before
Judicial Magistrate PW 1 Ansarul Hassan Siddiqui where in you voluntarily
confessed killing of Afreen Baig with the help of your wife Mst. Zahida @
Googi. What you have to say ?
Ans. The above said Judicial confession dated
21.10.2004 was fabricated one. I never recorded above said statement u/s 164
Cr.P.C. I never stated that I killed Afreen with help of my wife Mst. Zahida.
My application for restrecture of statement from so called confessional
statement along with my affidavit which is attested by Superintendent Central
Prison Karachi & application for medical check up of my self dated 6-12-2004
is already on file of this case at page No.167, 169, 173 and 175 (original seen
on file).”
“Q.No.19: That you were arrested on
21.10.2004 while in police custody on your pointing bungalow No.23 St. No.10
Phase V DHA Karachi Farooq Mangal was arrested. What you have to say?
It is false & fabricated allegation
against me. I have no knowledge of the arrest of Farooq Mangal. I never
accompanied to police of such arrest Police badly torture me I lost my senses
and when I was put in judicial prison of Central Prison I was under treatment
of Jail Doctor and fro about 25 days then above fact was brought in my
knowledge that Farooq Mangal also arrested in the case and one so called
confessional statement was prepared by police with assistance of complainant
and Magistrate namely Anwarul Hassan Siddiqui.”
Further,
in cross- of Magistrate it is suggested that “it is not correct that when accused was produced in my chamber Mr. Raza
Hashmi Advocate DSP Zahid H. Shah and complainant Ikhtiar Baig was sitting with
me. It is not a fact that the draft of confession statement was produced by Mr.
Raza Hahmi Advocate which I had copied in this confessional form.”
Though, appellant has not taken such stance in 342 Cr.P.C
statement regarding injuries caused to his wife accused Zahida and that
confessional statement was result of such coercion but judicial propriety
demands that under these circumstance such aspect i.e injuries caused to the
accused Zahida (wife of appellant) and his custody with police before and at
time of such confessional statement, cannot be ignored hence it would not be
safe to rely on such retracted confessional statement. However, exclusion of
confessional statement does not cause any effect upon the chain of unbroken
links of surrounding circumstances / relevant facts which, otherwise, have
proved the guilt of convict Muhammad Bux.
28. The defence has pointed out
number of irregularities in investigation; contradiction regarding arrival of
dead body at hospital; manner of arrival of witnesses at hospital, complainant
at place of incident; timing difference of medical store and even attacked upon
encashment of cheque by convict Muhammad Bux from Bank but these things have
not been of any help for the defence to shatter following material facts &
circumstances:-
i)
the convict Muhammad Bux and his wife Mst. Zahida were the
only persons available at place of incident;
ii)
they had excess to room of the deceased;
iii)
they were found missing from the house after incident though
they should have been present under normal circumstances;
iv)
there has been recovery of robbed / theft articles of
deceased from their possession;
v)
death was un-natural one;
vi)
deceased was tied as there were such marks on her person;
vii)
rope was recovered on pointation of convict Muhammad Bux;
These
make an unbroken chain of circumstances which prima facie establish the guilt
of the convict Muhammad Bux hence we are of the view that the learned trial
court judge committed no illegality while holding the convict Muhammad Bux as
guilty.
29. As regard the case of Naveed
Abbass Vs State (2011 MLD 811) relied by learned counsel for the convict
Muhammad Bux it would suffice to say that circumstances of this case are
entirely different from the case in hand because in that case accused were not
named in FIR, there was extra judicial confession, however the ratio of this
case is based on the dicta of honourable Supreme Court in case of Sarfraz Khan
V. The Stae reported in 1996 SCMR 188, which supports the conviction against
Muhammad Bux; obiter is as under:-
"….. it is well-settled that
circumstantial evidence should be so inter- connected that it forms such continuous
chain that its one end touches the dead body and other neck of the accused
there by excluding all the hypothesis of his innocence...”
30. Now
we would revert to the acquittal appeal filed against acquittal of the accused
/ respondent Farooque Mengal. However, before discussing the merits of the case
we would like to refer the principle (s) for interference in judgment of
acquittal by appellate court. For same we refer to the case of ' State of
Rajasthan Vs Shera Ram @ Vishnu Dutta (2012 SCMR 1768) wherein it was held
that:
"12. As is evident from the
above recorded findings, the judgment of conviction was converted to a
judgment of acquittal by the High Court. Thus, the first and foremost question
that we need to consider is, in what circumstances
this Court should interfere with the judgment of acquittal. Against an order
of acquittal, an appeal by the State is maintainable to this Court only with
the leave of the Court. On the contrary, if the judgment of acquittal passed by
the trial court is set aside by the High Court, and the accused is sentenced to
death, or life imprisonment or imprisonment for more than 10 years, then the
right of appeal of the accused is treated as an absolute right subject to the
provisions of Articles 134(1)(a) and 134(1)(b) of the
Constitution of India and section 379 of the Code of Criminal Procedure, 1973.
In light of this, it is obvious that an appeal against acquittal is considered
on slightly different parameters compared to an ordinary appeal preferred to
this Court.”
In case of Muhammad Tasaweer vs. Hafiz Zulkarnain (PLD 2009 SC 53), it is held that:-
“11. Needless to emphasize that when
an accused person is acquitted from the charge by a Court of competent
jurisdiction then, double presumption of innocence is attached to its order,
with which the superior courts do not interfere unless the impugned order is
arbitrary, capricious, fanciful and against the record. It was observed by this
Court in Muhammad Mansha Kausar versus Muhammad Asghar and others, (2003 SCMR
477). "that the law relating to reappraisal of
evidence in appeals against acquittal is stringent in that the presumption of
innocence is doubled and multiplied after a finding of not guilty recorded by a
competent court of law. Such findings cannot be reversed, upset and disturbed
except when the judgment is found to be perverse, shocking, alarming,
artificial and suffering from error of jurisdiction or misreading non-reading
of evidence.... law requires that a judgment of acquittal shall not be
disturbed even though second opinion may be reasonably possible".
31. The scanning of material makes
it quite clear that there is no direct evidence against the respondent Farooque
Mengal except that of retracted confession of convict
Muhammad Bux and belatedly introduced witnesses to extent of alleged words of
conspiracy.
32. However,
what is not disputed is that respondent Farooque Mengal had left Karachi before
date of incident and even was not in Karachi when alleged incident took place. As
regard legality of the retracted confession statement of convict / co-accused
Muhammad Bux against the respondent Farooque Mengal, it would suffice to say
that such retracted confession statement will stand clear from the following
case laws:
In the dictum of Nasreen Akhtar v. State reported in 2000 SCMR 1634,
it is observed that:-
" Mere fact
that co-accused had retracted the extra judicial confession would not by itself
lessen its evidentiary value when the retracted extra judicial confession has
been fully corroborated in material particulars by recovery evidence of crime
weapons, medical evidence and opinion of Handwriting Expert".
In the case of Naseem Akhtar v. State reported 1999 SCMR 1744, it is observed as
under:-
“The
High Court has referred to a judgment of this Court in the case of Muhammad
Yaqoob v. State (1992 SCMR 1983) which has been relied upon by learned counsel
for the complainant. One of the principles reiterated in the said judgment is
that any lapse on the administrative side on the part of a Magistrate recording
a confession may not be fatal as to the evidentiary value of such confession
provided the Court is satisfied that the lapse on his part has not, in any way,
adversely affected the voluntariness or truthfulness of the confession.
We do
not find any significant or material lapse on the par' of in recording the
confessions of the two appellants. One or two minor omissions cannot be termed
as lapses to affect the evidentiary value of the said confessions.
Though confession
of co-accused might not, by itself, be sufficient to corroborate the retracted
confession of another accused, but in the presence of other evidence the
confession of co-accused could be used as further corroboration"
In the case of The
State v. Asfandyyar Wali reported in 1982 SCMR 321, it is held
that:-
Confession of co accused, held,
not evidence against another accused, more so when retracted and
uncorroborated".
The above
case laws leave nothing ambiguous that a sole retracted confession of
co-accused cannot be made basis for convicting the accused, however, this could
at the best be used a corroborative piece of evidence.
33. As per the confession of
co-accused/convict Muhammad Bux the respondent Farooque Mengal has been alleged
to have conspired the offence and to prove the conspiracy the prosecution
examined the PW- Qudsia Begum, PW-Shireen Saleem, and PW Abdul Rasheed.
PW- Qudsia Begum's
evidence could at the most prove that accused / respondent Farooque Mengal had
repeatedly called deceased Afreen Baig to return to her house. Without
prejudice to the fact that no such phone record has been produced by the
prosecution to prove this allegation, it can be said that accused / respondent
Farooque Mengal wanted her wife (deceased Afreen Baig) to remain at house in
his absence as it were accused/respondent Farooque Mengal and deceased were
residing in such house.
PW-Shireen Saleem
happened to be real sister of the deceased Afreen Baig, who claimed to have
heard accused / respondent Farooque Mengal demanded Rs.2 Carore from deceased
with further threat that if she fails accused/ respondent Farooque Mengal will
kill both deceased and her child. However, it is a matter of record that PW
Shireen Saleem did not disclose any such thing to anybody which is quite
unbelievable.
However, it is a matter of record that complainant party never claimed to have
given such amount to deceased then there appears no reason / motive for
respondent/ accused to go to such an extent.
33. It was the PW Abdul Rasheed
who had brought on record that he had heard the accused / respondent Farooque
Mengal to have hatched conspiracy with convict Muhammad Bux for murder of the
deceased but his presence at such time was never plausibly established by
prosecution.
Here it would be
material to refer to the evidence of PW Muhammad Fayyaz (second I.O Ex-37)
wherein he admitted that:-
"From 29.12.2004 I recorded
the statement u/s 161 Cr.PC of Mst. Shireen Saleem, Nizamuddin, Abdul Rasheed
and Mst. Sonia.”
In his cross examination he admitted
that:
"My investigation was only to
extent of four PWs which I have recorded their statement under section 161
Cr.PC and rest of the investigation in respect of death of Mst. Afreen
Baig."
"I have recorded the
statement / conducted further investigation of this case after 2 1/2 months of
occurrence. PWs namely Mst. Shireen Saleem , Abdul
Rasheed, Nizamuddin and Msg. Sonia were produced by the complainant of this case
namely Mirza Ikhtiar Baig at his own house and I was called by him at his house
where I recorded their statement".
The above
admission of the said P.W is sufficient that introduction of such evidence was
not only belated but even manner of introduction of same is not natural and
confidence inspiring hence the same was rightly not believed by the learned
trial Court Judge.
34. Regarding
the quantum of sentence, it is settled proposition of law that if
circumstantial evidence is linking all the aspects leading to the incident, and
connecting the accused beyond any reasonable shadow of doubt, under such
circumstances, normal sentence provided u/s 302(b), which is death or life, anyone can be awarded by assigning the
reasons/justification. On this proposition, we have scanned impugned judgment,
and have reached on the conclusion that it is well reasoned and in accordance
with law and does not warrants any interference. Besides, it is settled proposition
of law that on the basis of circumstantial evidence, if case is proved death
sentence can be awarded, reference can be made to the case of Hamid Mehmood v.
The State reported in 2013 SCMR 131, wherein, while referring to the case of
Muhammad Latif honourable apex court has held that:-
18. An
attempt has also been made by the learned counsel to contend that the sentence
of death could not be awarded only on circumstantial evidence. In the case of Sh. Muhammad Amjad v. The State (PLD 2003 SC
704), it was held that:--
In
the case, reported as Muhammad Latif
v. The State PLD 2008 SC 503), it was held by this Court, as follows:--
"11.
As far the contention of the learned counsel that upon circumstantial evidence,
one cannot be convicted and awarded the penalty of death, this plea is also
misconceived because there is no bar or hindrance to pass the sentence upon a
killer of three human beings when the chain of guilt is found not to be broken
and irresistible conclusion of the guilt is surfacing from the evidence, which
is connecting the accused with the commission of that offence without any doubt
or suspicion. If the circumstantial evidence brought on the record is of such
nature then the conclusion would be in the shape of conviction and no other
conclusion shall be drawn by any stretch of imagination in such a case, for the
guilt of the accused, penalty of death or life imprisonment shall be a normal
event. The following judgments can be cited with benefits for this
proposition:--
In case of Jaffar Ali v.
The State, reported in 1998 SCMR 2669, honorable apex court has held that:-
After
careful examination of the record, we are satisfied that overwhelming
circumstantial evidence has been brought against the appellant. The contention
of the learned counsel for the appellant that without direct evidence the
appellant cannot be sentenced to death, is without
force. If the circumstantial evidence connects the accused with the offence
without any reasonable doubt, the same can form basis of the capital
punishment. This position is accepted by the Islamic jurisprudence aiso.
Al-Majallah which has been the code of Islamic Laws,
promulgated by the Ottoman Caliphate and has remained in force for centuries in
different parts of the Islamic world; has recognized the circumstantial
evidence even in the case of murder.
In the case of, SH. Muhammad Amjad V. The State reported in PLD 2003 SC 704, it is held that:-
“The case of the prosecution rests upon the
circumstantial evidence recoveries of incriminating articles, admissions and
the appellant's written statement in his own handwriting. Now it is a settled
proposition of law that death sentence can be awarded on circumstantial
evidence, provided all circumstances constituted a chain and its no link is
missing and their combined effect is that the guilt of the accused is established
beyond any shadow of doubt”
35. In
view of above discussion, we of the clear view that the impugned judgment of
the learned trial court is well reasoned and all material pieces of evidence have
properly been appreciated by the learned trial court
and same is accordingly maintained. Consequently, the appeal of the convict
Muhammad Bux is dismissed, reference is answered as affirmative, while appeal
filed against acquittal of Farooque Mengal is dismissed.
J
U D G E