HIGH COURT OF SINDH AT KARACHI

Criminal Acquittal Appeal No.D-212 of 2010

Present:

Mr. Justice Khadim Hussain M. Shaikh

Mr. Justice Amjad Ali Sahito

Appellant : Jalal Hussain s/o Javed Hassan through Mr.Muhammad Farooq Advocate.

Respondents : (1). Ameer Hamza,

(2). Muhammad Saad,

both sons of Haji Muhammad Farooq Awan, Through Mr.Azam Khan Awan, Advocate

State: Through Mr.Ali Haider Saleem, D.P.G

Date of hearing : 13.03.2018

Date of decision : 13.03.2018

J U D G M E N T

AMJAD ALI SAHITO, J.– Respondents namely Ameer Hamza and Muhammad Saad Awan were tried and acquitted through judgment dated 17.03.2010, by the learned 3^rd Additional Sessions Judge, Karachi South, in Sessions Case No.560 of 2008, vide Crime No.215 of 2008, for offence punishable under sections 302, 34 PPC, registered at Police Station, Clifton Karachi.

2. Concise facts leading to disposal of instant appeal are that on 30.08.2008, at about 1845 hours, complainant Jalal Hussain son of Javed Hussain lodged FIR with P.S Clifton Karachi, in which he mentioned that his elder brother namely Aamir Hussain being fashion designer resided at Flat No.C/22 Lane No.3, Zamzama Street, Phase No.05, Defense Housing Authority Karachi. On the eventful day, one Tariq servant of his brother informed the complainant on telephone at about 11.00 or 11.15 a.m, that someone had committed the murder of his brother in said flat after tying his hands and feet. Thereafter, the complainant after getting ticket of PIA from Multan to Karachi directly reached at Jinnah Hospital, where found the dead body of his brother lying at Mortuary. After completing the formalities, the police handed over the dead body of deceased to him. His claim was that his brother was done to death by unknown person by way of firearm while putting the cloth in his mouth besides tying his hands.

3. During course of investigation, servant Muhammad Tariq gave statement before the police stating therein that at about 06.00 A.M, he woke up for offering Fajar prayer and saw one person with long hairs sitting in the Car and another was about to sit in it, he then went for offering Fajar prayer and later-on at about 10.00 A.M, when he went to awake Aamir Hussain by knocking his door but the said door was not opening and subsequently he opened the door through force and found the dead body of deceased Aamir Hussain lying on the floor. Thereafter, the present respondents/accused were involved in this case on the basis of last seen and last call record. The police after completion of all the legal formalities submitted the report under Section 173 Cr.PC against the respondents/accused before the competent Court of law.

4. The learned Trial Court framed the Charge against the respondents/accused at Ex.02, to which they pleaded not guilty and claimed to be tried.

5. The prosecution in order to prove its case led its and evidence and examined PW-01 Muhammad Ali Saleem at Ex.08. PW-02 Waqas Sabir at Ex.09, he produced notice issued by police to him for recording his 164 Cr.PC statement at Exh.09/A as well as his 164 Cr.PC statement at EXh.09/B. PW-03 Dr.Ajay Kumar at Ex.10, he produced his 164 Cr.PC statement at Exh.10/A. PW-o4 S.I Chaudhry Tariq Mehmood at Ex.11, he produced departure roznamcha entry at Ex.11/A, memo of arrest Ameer Hamza and recovery at Ex.11/B. PW-05 HC Khalid Nazir at Ex.12, he produced memo of site inspection at Ex.12/A, memo of seizure at Exh.12/B. PW-06 Driver Muhammad Tariq at Ex.13, he produced memo of site inspection and seizer at Ex.13/A, his 164 Cr.PC statement at Ex.13/B. PW-07 S.I Muhammad Aslam at Ex.15, he produced memo of inspection of dead body at Ex.15/A, inquest report at Ex.15/B, letter to MLO at Ex.15/C, the letter to Eidhi at Ex.15/D, FIR of the present case at Ex.15/E and memo of superdginama of dead body at Ex.15/F. PW-08 SIO Aurangzeb Khan at Ex.16. PW-09 Faisal Kachilo at Exh.17. PW-10 Dr. Abdul Jabbar Memon at Ex.19, he produced postmortem report of deceased at Ex.19/A and medical certificate at Ex.19/B. PW-11 Inspector Mazhar Iqbal at Ex.20, he produced photographs of deceased at Ex.20/A to 20/E, police letter at Ex.20/F, letter to SSP at Ex.20/G, letter showing to mobile phone record at Ex.20/H, roznamcha entries at Ex.20/I to 20/J, letter to SSP for FSL report at Ex.20/M, letter to incharge FSL at Ex.20/N, letter to ASP for chemical report of clothes at Ex.20/O, letter to incharge chemical examiner at Ex.20/P, letter to incharge CRO fingerprints at Ex.20/Q, letter of fingerprint report at Ex.20/R, letter to Additional Police Surgeon at Ex.20/S, letter to DDO for inspection of place of incident at Ex.20/T, letter to incharge FSL Karachi at Ex.20/U, letter to incharge investigation from incharge fingerprints bureau at Ex.20/V, examination report form dated 12.09.2008 at Ex.20/W, examination report form dated 17.09.2008, chemical examiner’s report at Ex.20/X, order dated 08.09.2008 at Ex.20/Y respectively. PW-12 Complainant Jalal Hassan at Exh.22. Thereafter, learned DDPP closed the side of prosecution by filing such statement at Ex.23.

6. Statements of the respondents/accused Ameer Hamza and Muhammad Saad Farooq were recorded under Section 342 Cr.PC at Exh.24 and 25 respectively, wherein they denied the prosecution allegations leveled against them and further stated that they are innocent. However, they neither examined themselves on Oath nor produced any witness in their defense.

7. The learned Trial Court after hearing the parties counsel and assessment of the evidence acquitted the respondents/accused as stated above, which has been impugned by the appellant/complainant by filing instant appeal against their acquittal.

8. Mr. Muhammad Farooq Advocate learned counsel for the appellant argued that the last call was made by respondent Ameer Hamza from his mobile No.03332235142, which connected him with the commission of offence alongwith his brother and at the Fajar prayer, PW Muhammad Tariq who was driver of the deceased had lastly seen the respondents/accused while sitting in the Car; that on 03.09.2008, both the respondents/accused were arrested after the murder of deceased from Zamzama Park by the police; that though the names of the respondents/accused do not find place in the FIR yet strong circumstantial evidence is available to connect both of them in murder of deceased Aamir Hussain; that on the pointation of respondents/accused, the recovery of crime weapon viz. gun with cartridges as well as Green Color Suzuki Khyber, were used in commission of offence. Lastly, he prayed that this appeal may be allowed and the respondents/accused may kindly be convicted in accordance with law.

9. Mr. Azam Khan Awan, learned counsel for the respondents/accused on the other hand contended that the respondents are innocent and have falsely been implicated in this case as no motive of murder has been proved by the prosecution to involve the present respondents/accused with the commission of offence; that the last call was made from the mobile number which belonged to one Ajay Kumar yet he was not nominated as accused in this case. Thus, the prosecution has not provided any proof that the said number was in the use of respondent/accused Ameer Hamza; that PW Muhammad Tariq had not seen the respondents/accused while entering or coming out from the flat belonged to the deceased Aamir Hussain, to believe that he had lastly seen to them; that the entire case of prosecution is based on circumstantial evidence, that the police has failed to recover the mobile from the possession of respondent/accused Ameer Hamza to substantiate that the last call was made by him from his mobile number; that there were material contradictions in the evidence of prosecution witnesses which has shattered the veracity of their evidence and thus the prosecution had failed to prove the guilt against the respondents/accused beyond the shadow of reasonable doubt, in that situation, the learned trial Court had rightly recorded the acquittal of the respondents/accused by extending them benefit of such doubt. In last he prayed for dismissal of the instant appeal.

10. Mr.Ali Haider Saleem, D.P.G supported the impugned judgment passed by learned trial Court.

11. We have heard the learned counsels for the parties and have gone through the evidence with their assistance as well as the impugned judgment.

12. Learned counsel for the appellant as well as respondents so also learned D.P.G are agreed that criteria of interference in the judgment against the acquittal, is not the same as against the cases involving a conviction. Scope of interference in appeal against acquittal is narrow and limited for the reasons that in an acquittal, the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence that an accused shall be presumed to be innocent until proved guilty. In other words, presumption of innocence is doubled.

13. We are fully satisfied with appraisal of evidence done by the learned trial Court and we are of the view that while evaluating the evidence, the difference is to be maintained in appeal from conviction and acquittal appeal and in the latter case interference is to be made only when there is gross misreading of evidence resulting in miscarriage of justice.

14. The case of prosecution rests upon the circumstantial evidence, recoveries of incriminating articles so also medical evidence. In the instant case, the prosecution has heavily relied upon last seen evidence, mobile data record and recovery of the crime weapon, which though generally is regarded as weak type of evidence, yet, capital punishment can be awarded if an unbroken chain of circumstances from the stage of last seen evidence till death of the deceased is established by conclusive evidence. Now it is settled proposition of law that capital punishment can be awarded on circumstantial evidence, provided all circumstances, constitute a chain and it’s no link is missing and their combine effect is that the guilt of the accused is established beyond any shadow of doubt. The present case was involving the capital punishment and the entire evidence is based upon circumstantial evidence and the same is required to be considered with utmost caution and care. In this case, the investigation officer reached to the present respondents/accused by scrutinizing the data record of deceased Aamir Hussain through his mobile No.03218256961 and found that there were so many calls from mobile No.03332235142 and last call was made from said number at about 04.44 A.M. After checking the record, the investigation officer found that the said number was in the name of one Ajay Kumar who was interrogated by police wherein he disclosed that he exchanged Sim with respondent/accused Ameer Hamza Awan, who is brother of his friend namely Umer Farooq and on such information the police started investigation against respondent/accused Ameer Hamza and arrested both the respondents/accused on 03.09.2010 and subsequently said Ajay Kumar was made as witness in this case by the investigation officer whose statement was recorded by learned trial Court. In his cross examination, he admitted that he did not disclose regarding exchange of Sim while recording his statement under section 164 Cr.PC before learned Magistrate. He further admitted that he could not produce any document or record with regard to transfer of Sim with respondent/accused Ameer Hamza.

15. Most important witness Muhammad Tariq(PW-06) driver of deceased Aamir Hussain in his evidence disclosed that at 06.00 A.M, he went to offer Fajar Prayer and came outside the building and saw one Khyber Car perhaps of green Color, wherein he found one person already boarded while other was about to board therein, but in his examination-in-chief he admitted that he knew respondent/accused Ameer Hamza who used to come at the place of incident with deceased Aamir Hussain prior to the incident, but he did not disclose his name before the investigation officer that he had seen the respondents/accused at 06.00 A.M outside the building and simply disclosed about the features of the culprits, The version of said witness was not supported by the Chowkidar of the building or any other person to believe that at about 06.00 A.M, the present respondents/accused were seen outside the building, when as per PW-06 Muhammad Tariq, it was Fajar Time, when most of the people wake up for offering Fajar prayer but the investigation officer has failed to record the statement of any inhabitant of the said area to substantiate the version of PW-06 Tariq that the said Car was found present around 06.00 A.M outside the building, hence the first link is missing from the chain.

16. The perusal of mashirnama of place of incident(Exh.13-A) reveals that the police had secured seven Sikka(Churra) from the place of incident, but PW-08 Aurangzeb Khan in his evidence deposed that he secured two empties of pistol and five other empties from the place of incident while he did not know their bore, which reflects that the deceased was murdered by way of gunshot, pistol shot and other means, yet not a single person attracted to believe that the murder of the deceased was committed by the respondents/accused who were boarding in the Car, when the place of incident is said to be surrounded by number of flates. Furthermore, PW Muhammad Tariq(PW-06) in his evidence deposed that the respondents/accused were found outside the building, hence it cannot be said that the respondents/accused were seen lastly with the deceased. Moreover, Dr.Abdul Jabbar Memon(PW-10) in his evidence admitted that the duration between death and postmortem was 10 to 14 hours, and same could be converted into timing as 0100 to 0500 hours. Further, he admitted that perhaps the incident would have taken place at 0100 hours. Per investigation report, the last call was received by the deceased at about 04.44 A.M, which reveals that the incident had taken place between 04.44 to 05.30 or 06.00 A.M, when PW-06 Muhammad Tariq was sleeping at roof top. Moreover, said witness had not disclosed that he had seen the respondents/accused while entering or coming out from the flat of the deceased. If the incident had taken place at 0100 to 0500 or 0600 hours, then the respondents/accused remained available at the place of incident for many hours. In such circumstances, the evidence of PW-06 Tariq is not inspiring confidence for recording capital of punishment of the respondents/accused. Hence, another link is missing in the chain.

17. The respondents/accused were arrested on 03.09.2008 and on 05.09.2008 and they led the police party to their house and produced the crime weapon viz. DBBL gun with three live cartridges from the bedroom but PW-08 Aurangzeb Khan in his evidence stated that he had secured two empties of pistol and five other empties from the place of incident. As per Exh.20/W, the seven pellets were dispatched to the laboratory and as per its opinion they are the contents of shotgun cartridges. Furthermore, as per FSL report, DBBL gun along three 12 bore live cartridges so also ten 12 bore live cartridges were received by the laboratory and the report reveals that the said gun was found in working condition but it does not say that any empty secured from the place of incident was fired from the said gun, as such the recovery of gun carries no weight in the present case, hence the another link is also missing from the chain. According to the standard proof required to convict a person on circumstantial evidence, the circumstances relied upon in support of the conviction must be fully established and the chain of evidence furnished by the circumstances must be so complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused. The circumstances from which the conclusion of the guilt is to be drawn have not only to be fully established but also that all the circumstances to establish should be of conclusive nature and consistent only with hypothesis of the guilt of the accused and should not be capable of being explained by any other hypothesis is except the guilt of the accused and when all the circumstances cumulatively taken together should lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime, wherein the prosecution has to provide all links in chain an unbroken one where it’s one end touches the dead body while the other neck of the accused. In the present case, so many links are missing in the chain and the evidence of prosecution witnesses is not found inspiring confidence and trustworthy for recording conviction against the respondents. In the case of Muhammad Zafar and another v. Rustam and others (2017 SCMR 1639), the Hon’ble Supreme Court of Pakistan has held that:-

“We have examined the record and the reasons recorded by the learned appellate court for acquittal of respondent No.2 and for not interfering with the acquittal of respondents Nos.3 to 5 are borne out from the record. No misreading of evidence could be pointed out by the learned counsel for the complainant/ appellant and learned Additional Prosecutor General for the State, which would have resulted into grave miscarriage of justice. The learned courts below have given valid and convincing reasons for the acquittal of respondents Nos.2 to 5 which reasons have not been found by us to be arbitrary, capricious or fanciful warranting interference by this Court. Even otherwise this Court is always slow in interfering in the acquittal of accused because it is well settled law that in criminal trial every person is innocent unless proven guilty and upon acquittal by a court of competent jurisdiction such presumption doubles. As a sequel of the above discussion, this appeal is without any merit and the same is hereby dismissed.”

18. The sequel of the above discussion is that we are satisfied with the appreciation of evidence evaluated by the learned trial Court while recording acquittal of the respondents/accused by extending them benefit of doubt, which does not call for any interference by this Court. Consequently, the instant appeal merits no consideration and is dismissed accordingly.

19. These are the detailed reasons of the short order announced by us vide order dated 13.03.2018.

J U D G E