IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Appeal No.S-32 of 2018

 

                   

Appellants                    :    (1) Sajjad Ali son of Arbab Ali Joyo

                                           (2) Tarique Ali son of Arbab Ali Joyo

                                           (3) Mst.Hameedan @ Aqsa w/o Javed Ali Hakro            

     Through Mr.Habibullah Ghouri, Advocate

 

Complainant                 :    Ali Gul son of Haji Hakro 

                                           Though Mr.Sobhraj, L.P, Advocate

 

State                              :    Mr.Raja Imtiaz Ali Solangi, A.P.G 

 

Date of hearing             :     13.07.2018             

Date of decision            :     16.07.2018                       

 

J U D G M E N T

 

IRSHAD ALI SHAH, J. The appellants by way of instant Appeal have impugned judgment dated 18.04.2018, of learned 1st Additional Sessions Judge, Qamber, whereby he has convicted and sentenced them as under;

“convict accused  Sajjad Ali, Tarique Ali both by caste Joyo and Mst.Hameedan @ Aqsa under section 265-H(ii) Cr.PC for an offence punishable under section 302 (b) PPC and sentence them to suffer for life imprisonment (R.I) as a Tazir each. All the accused are also directed to pay Rs.5,00,000/-(Five Lac Rupees) each as compensation as provided by section 544-A Cr.PC. If the aforesaid compensation amount is recovered from the accused, same shall be paid to the legal heirs of the deceased Javed Ali Hakro in equal shares. In case, in default, in payment of compensation amount, accused shall suffer three months S.I more, each. But such period of imprisonment of three months shall run in excess/addition of the substantive sentence i.e (life imprisonment), as provided by section 64 (proviso-2) PPC. However, the benefit of section 382-B Cr.PC stands extended to accused persons for the period”.

 

2.                The FIR of the incident was lodged by complainant Ali Gul Hakro with P.S Qamber on 04.05.2012, which reads as under;

“Complaint is that on 03.05.2012, me, my relative Manzoor Ahmed son of Nooruddin Hakro, 2). Riaz Hussain son of Nizamuddin Hakro, both r/o Ali Khan Muhalla Qamber, while on way to Qamber town at about 03.00 p.m, met with Javed Ali son of Muhammad Din Hakro, r/o Ali Khan Muhalla Qamber, aged about 45 years, adjacent to his house. He was on his motorcycle. On enquiry, he told us that he is going towards City area with his work. At sunset time, his wife on telephone intimated Asghar Ali brother of Javed Ali that Javed Ali has gone out of his house after leaving the token of his salary with her and has not yet returned till whole of the night. On 04.05.2012, at about 06.00 a.m, we went at Police Station, Qamber, to intimate the police about missing of Javed Ali, there we were intimated through a telephone call on P.T.C.L number that a dead body is lying at Juneja Sim Shakh on Qamber-Waggan Road. On such intimation, me and my above named witnesses went at Juneja Sim Shakh on Qamber-Waggan Road. There at about 07.00 a.m time, we on western side of Juneja Sim Shakh on its northern side inspection path, found lying a dead body, it was identified by us to be of Javed Ali. He was found sustaining cut type injuries on his head on front and right side. His both eyes were found swollen. We presumed that Javed Ali has been done to death by causing him “danda” blows. We then took the dead body of Javed Ali to house. On the way we came to know that house of Javed Ali is closed. We then took the dead body of Javed Ali to our house. After two hours, wife of Javed Ali came over the dead body of Javed Ali. After “Janaza Nimaz” wife of Javed Ali went to her house. Then Asghar Ali the brother of Javed Ali came from Islamabad at about 09.00 p.m. We then held consultation. Now I have come at Police Station to lodge report that my cousin Javed Ali was a primary teacher. Some time back, from his house was committed theft of Rs.5,90,000/- for such theft, he was suspecting Sajjad Ali and Tarique Ali, both sons of Arbab Ali Joyo, r/o Ali Khan Muhalla Qamber. He also made such application against them. They also threatened his brother Asghar Ali. We are confirmed in our suspicious that Sajjad Ali and Tarique Ali have arranged for death of Javed Ali on account of above said money dispute. I am complainant. Action be taken”.                 

3.                After investigation, the appellants were challaned by the police before the Court of law. They did not plead guilty to the charge before learned trial Court. The prosecution in order to prove the charge against the appellants, examined PW-01 complainant Ali Gul Hakro, produced through him FIR of the present case, PW-02 Manzoor Ahmed, PW-03 Riaz Hussain, PW-04 mashir Wajid Ali, produced through him mashirnama of examination of dead body, inquest report, mashirnama of place of incident and mashirnama of recovery of hatchet from accused Sajjad Ali, PW-05 Tapedar Farman Ali, produced through him sketch of vardat, PW-06 Medical Officer Dr.Guru Dino, produced through postmortem report on the dead body of deceased, PW-07 SIO/SIP Mumtaz Ali, produced through him mashirnama of arrest of accused Sajjad Ali and Tarique Ali, Mst.Hameedan @ Aqsa, “roznamcha” entries relating to his departure and arrival at P.S Qamber, report of chemical examiner, PW-08 SIO/ASI Muhammad Khalid, PW-09 Corpse Beaer PC Zulfiqar Ali, PW-10 Mashir/LHC Munawar Khatoon, and then prosecution closed the side.

4.                The appellants in their statements recorded u/s.342 Cr.PC denied the prosecution allegation by pleading innocence; they did not examine themselves on oath or any one in their defense. However, appellant/accused Sajjad Ali produced certified copy of judgment in case outcome of FIR Crime No.147/2013, u/s.506/2, 504, 34 PPC of P.S Qamber, which was also initiated against him and others at the instance of complainant Ali Gul Hakro.

5.                On arrest from appellant Sajjad Ali as per prosecution was secured hatchet allegedly used in commission of incident but no such question was put to him by learned trial Court during course of his examination under section 342 Cr.PC to have his explanation on above said recovery. It is settled by now that the circumstance appearing in evidence not put to the accused could not be used against him for recording conviction against him. The reference in that respect, if required, may usefully be placed upon the case of Muhammad Ashraf vs. the State (2014 PCr.LJ-1531), wherein it is observed by Hon’ble Court that;

“S. 342---Failure to put to accused any incriminating piece of evidence in his statement under S.342 Cr.PC.---Effect---If any incriminating piece of evidence, was not put to accused in his statement under S.342 Cr.PC. for his explanation, then same could not be used against him for his conviction”.

 

6.                On evaluation of evidence so produced by the prosecution, the learned trial Court convicted and sentenced the appellants by way of impugned judgment, as stated above.

7.                It is contended by learned counsel of the appellants that the appellants being innocent have been involved in this case falsely by the complainant party only to satisfy their grudge against them, the incident is unseen one, the FIR has been lodged with unexplained delay of two days, 161 Cr.PC statements of the PWs have been recorded with further delay of six days to FIR, the property has been sent to the chemical examiner with delay of about five months to the incident, the evidence so produced by the prosecution was not transpiring confidence yet it was believed by learned trial Court without any lawful justification. By contending so, he sought for acquittal of the appellants.  

8.                It is contended by learned counsel for the complainant that it was the planned murder of the deceased which the appellants committed in furtherance of their common intention, there was strong evidence in shape of extra-judicial confession of Mst.Hameedan @ Aqsa, which she made before the complainant party, there is recovery of hatchet from appellant/accused Sajjad Ali.    By contending so, he sought for dismissal of the instant appeal. In support of his contention, he relied upon case of Muhammad Arif vs. the State (PLD 1962 W.P Lahore-498).      

9.                Learned A.P.G has supported the impugned judgment.

10.              I have considered the above arguments and perused the record.

11.              The unnatural death of deceased Javed Ali is proved of evidence of medical officer Dr.Guru Dino. There is no dispute with the appellants even that deceased Javed Ali has not died of unnatural death. Only point which requires consideration is liability of the appellants towards the alleged incident. The FIR of the incident has been lodged with delay of about two days. It was inter-alia stated by SIO/ASI Muhammad Khalid that he did not record FIR of the incident soon after arrival of the complainant at police station but directly proceeded to the place of incident. Why he proceeded to the place of incident directly without recording of FIR? No plausible explanation to it is offered by the prosecution. In case of Imran Ashraf and others vs. the State (2001 SCMR-424), it was observed by Hon’ble Court that;

“Section 154, Cr.P.C. lays down procedure for registration of an information in cognizable cases and it also indeed gives mandatory direction for registration of the case as per the procedure. Therefore, police enjoys no jurisdiction to cause delay in registration of the case and under the law is bound to act accordingly enabling the machinery of law to come into play as soon as it is possible and if first information report is registered without any delay it can help the investigating agency in completing the process of investigation expeditiously”.

 

12.              It was stated by complainant Ali Gul Hakro that the FIR of the incident was lodged by him with due consultation. The FIR which is lodged with unexplained delay and with due consultation loses its credibility. In case of Mehmood Ahmed & others vs. the State & another (1995 SCMR-127), it was observed by the Hon’ble Court that;

“Delay of two hours in lodging the FIR
in the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate”.

 

13.              As per FIR, the incident was un-witnessed. As per  complainant Ali Gul Hakro and PWs Manzoor and Riaz, it was Mst.Hameedan @ Aqsa, who disclosed before them and others that; she and rest of the culprits have committed death of Javed Ali by causing him “danda” injuries. As per SIO/SIP Mumtaz Ali, 161 Cr.PC statements of the prosecution witnesses were recorded by him on 10.05.2012. It was on 6th day of lodgment of the FIR. Why with such delay? No explanation to it is offered by the prosecution. In that situation, no much reliance could be placed upon evidence of prosecution witnesses, as it lost credibility. In case of Abdul Khaliq vs. the State (1996 SCMR 1553), it was observed by Hon’ble Court that;

“----S.161---Late recording of statements of the prosecution witnesses under section 161 Cr.P.C. Reduces its value to nil unless delay is plausibly explained.”

                  

14.              If for the sake of arguments, it is believed that Mst.Hameedan @ Aqsa made extra-judicial confession of the incident before the complainant and/or his witnesses even then such assertion on the part of complainant could hardly be believed as they are interested persons. If they would not have been any interest then they would have disclosed such fact before the police at the time when they lodged FIR of the incident. It was not done by them, for no obvious reason. In that situation, no much reliance could be placed upon their assertion that Mst.Hameedan @ Aqsa made extra-judicial confession of the incident before them. In case of Tahir Javed vs. the State (2009 SCMR-166), it was observed by Hon’ble Court that;

“---Extra-judicial confession having been made by accused in the presence of a number of other persons appeared to be quite improbable, because confession of such a heinous offence like murder was not normally made in the public”.   

 

15.               It was stated by SIO/ASI Muhammad Khalid that on information of the incident he proceeded to the place of incident, found the dead body of deceased Javed Ali lying there, prepared mashirnama of examination of dead body, dispatched the dead body to hospital for postmortem examination, then collected blood stained earth there-from, prepared such mashirnama, then prepared mashirnama of place of incident and then went back at P.S Qamber. During course of cross examination, it was stated by him that all the mashirnamas were prepared by WHC of P.S Qamber at his dictation. If it was so, then WHC of P.S Qamber being author of the above said mashirnamas was to have been examined by the prosecution. His non examination could not be lost sight of. Be that as it may, PW/Mashir Wajid Ali came with different version by stating that the contents of mashirnamas were not read over to him and hatchet so recovered was not sealed at the spot. If it was so, then no much reliance could be placed upon above said mashirnamas. The hatchet allegedly recovered if was not sealed at the spot then its recovery too is appearing to be doubtful. It was stated by SIO/SIP Mumtaz Ali that he sent the blood stained earth and hatchet to the chemical examiner on 05.10.2012. It was with delay of about five months to its recovery. In whose custody the above said articles were lying for about five months? No explanation to it is offered by the prosecution. In that situation, it could be concluded safely that the prosecution has not been able to prove the safe custody and dispatch of the above said articles to the chemical examiner. The benefit of such omission could legally be extended to the appellants. In case of Ghulam Shabir & ors vs. the State (2018 PCr.LJ-570), it is observed by Hon’ble Court that;       

“No explanation was offered for not dispatching the crime weapons to the Examination Unit or their recovery but with delay---Prosecution did not tender any explanation about their safe custody during the said period”.

                  

16.              The case law which is relied upon by learned counsel for the complainant is on distinguishable facts and circumstances. In that case, the extra-judicial confession was made by the accused soon after the incident and it was in presence of disinterested person. In the instant matter, the complainant and his witnesses are interested person. If for the sake of arguments, it is believed that extra-judicial confession was actually made by Mst.Hameedan @ Aqsa before the complainant and his witnesses then the disclosure whereof they would have made in their FIR, though it was lodged with delay of about two days and after due consultation. Failure on their part to make such disclosure in FIR has rendered the alleged extra-judicial confession of Mst.Hameedan @ Aqsa to be doubtful and liable to be ignored as an after-thought plea on the part of complainant and his witnesses.

17.               In view of the facts and reasons discussed above it could be concluded safely that the prosecution has not been able to prove its case against the appellants beyond shadow of doubt, as such the conviction and sentence which are recorded against them by way of impugned judgment could not be sustained, it is set aside, they are acquitted of the offence for which they were charged, tried and convicted by learned trial Court, they shall be released forthwith in the present case.

18.              The instant appeal is disposed of accordingly.

 

 

                                                                                                J U D G E