IN THE HIGH
COURT OF SINDH, BENCH AT SUKKUR
Cr. Jail Appeal No.S-70 of
2017 &
Criminal Appeal No. S-91 of
2017
Dates of hearing: : 29.11.2018
Date
of Judgment : 29.11.2018
Appellant Shah Nawaz @ Shano : through Miss Amer Iqbal,
Advocate.
Appellant
Gul Hassan Gopang : through
Mr. Abdul Ahad
Burio, Advocate.
State : through Syed Sardar Ali
Shah,
D.P.G.
Complainant
: Ghous
Bakhsh Allani in person.
---------------------------------------
Muhammad
Saleem Jessar, J.- By this single judgment I propose to dispose
of abovesaid two Cr. Appeals as in both the appeals one and same judgment
passed by the trial Court has been challenged. Besides, the facts and the law
involved in both the appeals are also the same.
Through these Criminal Appeals
appellants have challenged Judgment dated 23.05.2017 handed down by learned
Additional Sessions Judge, Gambat in Sessions Case No.642 of
2009 (Re-State Vs. Shah Nawaz @ Shano and others), being outcome of Crime
No.41/2009 registered at P.S. Agra, whereby he convicted appellant Shah Nawaz
alias Shan for an offence
punishable under section 302(c) PPC as Ta’zir and sentenced him to suffer R.I. for
life and to pay compensation of Rs.100,000/- (Rupees One Lac only) under
section 544-A Cr. P.C. to the legal heirs of deceased Mohammad Saleh and in
case of non-payment of compensation amount, to undergo R.I. for six months
more. By the same judgment, while taking a lenient view, appellant Gul Hassan
was convicted for offences punishable
under sections 302(c) and 149 PPC as Ta’zir and was sentenced to suffer
imprisonment for 15 years and to pay compensation of Rs.50,000/- (Rupees Fifty
Thousand only) under section 544-A Cr. P.C. to the legal heirs of deceased
Mohammad Saleh and in case of non-payment of compensation amount, to undergo
R.I. for five months more. However, the accused / appellants were extended
benefit of Section 382-B Cr. P.C. The
case of absconding accused Ali Mohammad was ordered to be kept on dormant file
till his arrest and production before the trial court for trial according to
law.
Precisely,
the facts of the prosecution as disclosed by the complainant Ghous Bakhsh son
of Muhammad Hassan Allani in F.I.R No.41/2009 registered at P.S. Agra under
sections 302, 201, 404 and 34 PPC, are
that complainant’s son Muhammad Saleh aged about 25/26 years used to ply
Motorcycle on hire basis. On the day of incident, complainant, his son Muhammad
Saleh, Ali Gul and Sikander Ali were present at Mehtani stop, where at about
11.00 a.m. accused Shah Nawaz @ Shano and Ali Muhammad came to Muhammad Saleh
for hiring a motorcycle and said him that they wanted to go to village Jado
Wahan, therefore, in their presence both persons i.e. Shah Nawaz @ Shano and
Ali Muhammad sat on the motorcycle with deceased Muhammad Saleh and left
towards Jado Wahan. After passage of
sufficient time when Mohammad Saleh did not return, complainant together with
P.Ws went to Jado Wahan in the search of Muhammad Saleh. When they reached
adjacent to the house of accused Shah Nawaz @ Shano Gopang where no one was
available, they saw huge blood was lying in the Courtyard of the house of Shah Nawaz @ Shano and Axe stained
with blood was also lying there, whereupon complainant party cried and opened
dug the earth. On their cries, people of vicinity came there and saw the dead
body of Muhammad Saleh. The dead body was found to have injuries with a sharp cutting weapon and deceased last worn
clothes were stained in pool of blood,
thereafter complainant leaving the P.Ws for guarding over the dead body, came at Police Station, where he lodged
F.I.R.
After
usual investigation, challan was submitted against the accused persons wherein
accused Shah Nawaz @ Shano and Gul Hassan was shown to be in custody, while
name of accused Ali Muhammad Gopang was shown as absconder who after adopting
legal formalities was declared as proclaimed offender and proceedings under
sections 87/88 Cr. P.C were also
initiated against him and his case was bifurcated from the case of present
appellants vide order dated 22.4.2010.
A
formal Charge was framed against present accused / appellants to which they
both pleaded not guilty and claimed trial; vide their plea forms at Exh.05
& Exh.06, respectively.
In
order to prove the case against the accused, prosecution examined P.W-01
Medical Officer/Dr. Shahid Sikander Junejo at Exh.06, who produced Letter/Form
No: 25-39 of deceased Muhammad Saleh as Exh.06/A and Post-mortem Certificate of
deceased as Exh.06/B. P.W-02 P.C Mehar Din Ujjan, who acted as mashir, was examined at Exh.07, who produced a receipt of receiving last worn clothes of
deceased as Exh.07/A. P.W-03 Tapedar of Deh Wada Pagia, Tapo Jado Wahan namely
Amanullah Awan was examined at Exh.08, who produced a sketch of the place of wardat as Exh.08/A, whereas P.W-04 ASI Altaf
Ahmed Jagirani, author of FIR, was examined at Exh.09, who produced FIR
No.41/2009 as Exh.09/A. P.W-05 complainant Ghous Bux Jiskani was examined at
Exh.10, who produced a receipt of delivery
of dead body of deceased as Exh.10/A and
supplementary statement of complainant
under Section 162, Cr.P.C as Exh.10/B. P.W. Muhammad Ismail Jamro filed
application Exh.11 stating therein that he does not know facts of the incident
and on such statement, learned DDPP gave up him vide statement Exh.12. P.W-06
Ayaz Ali Jiskani was examined at Exh.13, who produced his statement under
Section 164, Cr.P.C as Exh.13/A, whereas P.W-07 Investigating Officer/SIO Shafi
Muhammad Maitlo was examined at Exh.14, who produced mashirnama of place of wardat
as Exh.14/A, inquest report as Exh.14/B, mashirnama
of arrest of accused Shah Nawaz @ Shano at Exh.14/C, photostat copy of
documents/receipt of motorcycle as Exh.14/D, mashirnama
of documents of motorcycle handed over by the complainant to SIO as Exh.14/E,
carbon copy of letter sent to Tapedar for preparation of sketch as Exh.14/F,
carbon copy of letter sent to SSP, Khairpur Mir’s for permission to dispatch
the case property to Chemical Examiner as Exh.14/G, report of Chemical Examiner
as Exh.14/H, mashirnama of recovery of
motorcycle as Exh.14/I and mashirnama of
arrest of accused Gul Hassan Gopang and recovery of Nokia Mobile Phone at
Exh.14/J. P.W-08 Sikander Ali Alani Jiskani was examined at Exh.15, who
produced his statement under Section 164, Cr.P.C as Exh.15/A. Thereafter,
complainant filed an application at Exh.16, in which he stated that he does not
want to examine P.W. Hadi Bux and on such statement, learned DDPP for the State
gave up P.W Hadi Bux vide statement Exh.17. P.W-09 P.C. Gulab Khan Jatoi, who
acted as mashir, was examined at Exh.18.
Again, complainant filed an application
at Exh.19, in which he has stated that he does not want to examine P.W. Ali Gul
and on such statement learned DDPP gave
up P.W. Ali Gul vide statement Exh.20. P.W-10/mashir H.C Sikander Ali Dahiri
was examined at Exh.21. Thereafter learned DDPP for the State closed the
prosecution side, vide his statement Exh.22.
Statements
of accused under section 342, Cr. P.C, were recorded vide Exh.23 & Exh.24,
respectively, in which they denied the allegations of prosecution and claimed
to be innocent and their false implication in the case due to an ulterior motive. However, they neither opted to
appear as their own witnesses in disproof of the allegation leveled against
them as required under section 340(2), Cr.P.C,
nor did they examine any witness in their defence.
After usual
investigation challan was submitted against the accused. A formal charge was
framed against the accused to which they pleaded not guilty and claimed to be
tried.
After formulating the points for
determination, recording evidence of the prosecution witnesses and hearing
counsel for the parties, trial Court vide impugned judgment convicted and
sentenced the appellants as stated above. Against the said judgment, appellants
have preferred instant appeal(s).
I have heard
learned counsel for the appellants and learned D.P.G. appearing for the State
and perused the material available on the record.
Learned counsel for the appellants submitted
that the accused / appellants have been falsely involved in the present case.
They further contended that the trial court has passed the impugned judgment in
a hasty and mechanical manner without appreciating the relevant law as well as
the submissions made on behalf of the accused. They further contended that
there are material contradictions in the evidence of prosecution witnesses. He
further contended that the alleged recovery of Nokia mobile from the possession
of accused Gul Hassan was affected after a delay of 12 days for which no
plausible explanation has been offered by the prosecution. They further
contended that no finger prints were
obtained to connect the accused in the commission of the alleged offence. Learned counsel for appellant Gul
Hassan contended that the name of this accused has not been mentioned in the
F.I.R. According to him, accused Gul Hassan was introduced by the complainant
in his supplementary statement which is not admissible in evidence. He further
contended that accused Shah Nawaz in his statement implicated accused Gul
Hassan only to the extent that he helped him in screening the evidence of
murder by hiding the dead body and motorcycle and spending the money robbed
from the deceased, even otherwise statement of accused against co-accused also
does not have any evidentiary value. Learned counsel for both the appellants
prayed for allowing the instant appeals, setting aside impugned judgment and
for the acquittal of the appellants. In
support of his contentions, learned counsel for appellant Gul Hassan relied
upon the case-law reported in 2010 SCMR 97.
Conversely,
learned D.P.G. supported the impugned judgment. He contended that there is
direct last seen evidence against accused / appellant Shah Nawaz. According to
him, prosecution witnesses have implicated appellants in the commission of the
alleged offence and no enmity has been
established for persuading the prosecution witnesses or the police to falsely
implicate the appellants. He prayed for dismissal of the appeals and maintaining the
conviction and sentence awarded to the appellants. In support of his contentions, he relied upon the case law
reported in 2010 SCMR 385, 2009 SCMR 1133, 2010 SCMR 166 and PLD 2008 SC 694.
From the perusal of the
evidence of complainant Ghous Bux it seems that he deposed that on the date of
incident at 11.00 a.m. he along with P.Ws
Sikandar Ali and Ali Gul and deceased Mohammad Saleh were standing at Mehtani
stop of their village, where accused Shah Nawaz Shano and Ali Mohammad came
there and said to deceased Mohammad Saleh that they wanted to go to village
Jado Wahan, therefore, in their presence both persons set on the motorcycle of
deceased Mohammad Saleh and left towards village Jado Wahan. When till evening
complainant’s son did not return, the complainant tried to contact him but
failed to contact him, therefore he and P.Ws Sikandar Ali and Ali Gul went to
the house of Shah Nawaz in village Jado Wahan for search of Mohammad Saleh and
when they reached near the house of accused Shah Nawaz, they observed that none
was present while in Courtyard they saw huge blood and Axe was lying in the
Courtyard of the house of accused Shah Nawaz. They also saw that the earth was
freshly dug, whereupon they raised cries and on their cries, people of vicinity
came running and in their presence they
dug the earth and saw the dead body of Mohammad Saleh. The dead body of
deceased was seen by many persons which had received sharp cutting injuries,
whereas the last worn clothes of the deceased were stained in pool of blood and earth. Thereafter, the
complainant left PWs Ali Gul and Sikandar Ali for guarding over the dead body
and went to police station Agra land lodged FIR, thereafter he returned back
together with police who completed the legal formalities.
P.W Sikander Ali deposed
that on the date of incident i.e. 13.9.2009 he along
with complainant Ghous Bux, P.W. Ali Gul and deceased Muhammad Saleh were standing on the Mehtani Stop when at 11:00
a.m. accused Shah Nawaz and Ali Muhammad came there and said to deceased
Muhammad Saleh to accompany with them to village Jado. Deceased Muhammad Saleh
took both the accused on his motorcycle and went towards Jado Wahan. In the
evening complainant, Ghouse Bux said to him
that his son Mohammad Saleh had not returned back and requested him to accompany
him for searching the deceased. Therefore, he, Ali Gul and Ghous Bux went to
Jado Wahan on the motorcycle. He further deposed that when they reached in
front of the house of accused Shah Nawaz they
found that no person was available at their house. They went inside the house
of accused Shah Nawaz and found that blood was lying there and a hatchet was
also lying there. They also saw that earth was freshly dug and a foot of person
was clearly seen by them from the earth. They raised cries whereupon so many persons
of the village came there. He further deposed that they found one injury on the
neck of the deceased. Thereafter, he and Ali Gul guarded the dead body, whereas
complainant Ghous Bux went to police station for lodging the FIR. Thereafter,
Ghous Bux returned back and police conducted an investigation
and dead body was taken by the complainant for its disposal. He further
deposed that when he, Ali Gul and complainant Ghous Bux were sitting at their
house for funeral ceremony, P.Ws Ayaz and Hadi Bux disclosed that accused Gul
Hassan had disclosed about the confession of accused Gul Hassan of committing
murder of the deceased along with accused
Shah Nawaz and Ali Muhammad in order to usurp cash of Rs.4500/-, mobile phone
and motorcycle and that accused Gul Hassan requested them to get the matter
settled with complainant and that he was ready to give compensation.
It seems that both the
witnesses of last-seen evidence are consistent with each other on all material
aspects of the case. However, as regards the contention of learned counsel for
the appellants that there are certain contradictions in the statements of these
two witnesses, it may be observed that minor contradictions in the evidence of
eye-witnesses cannot be made basis for
acquittal of the accused. In the case reported as Zulfiqar Ahmed Vs. State
(2011 SCMR 492) Honourabloe Supreme Court
held that minor contradictions do creep
in with the passage of time and can be ignored. In another case reported as Mohammad Ilyas
Vs. State (2011 SCMR 460) Apex Court observed that contradictions which are not grave in nature can be ignored safely as
minor contradictions creep in with passage
of time and merely on the basis of such contradictions, statement of a
prosecution witness cannot be discarded if corroborated by other incriminating
material. In the instant case there
is strong circumstantial evidence which corroborates the version of the
aforesaid two witnesses of last-seen evidence. For instance, during
investigation the motorcycle of deceased Mohammad Saleh was voluntarily
produced by accused Shah Nawaz @ Shano before police, and it was confirmed by
the Investigating Officer during course of the investigation that motorcycle
produced by the accused was of deceased Mohammad Saleh, which was purchased by
him from one Mohammad Ismail son of Nisar Ahmed. Besides, the place of
incident is also situated in the house of accused Shah Nawaz at Jado Wahan. The
police also secured blood-stained earth
and hatchet from the place of wardat i.e.
house of accused Shah Nawaz in presence of mashirs
and same were sealed at the spot. The police also took over the dead body of
deceased from the house of accused Shah Nawaz. Although in his statement under
section 342 Cr. P.C. accused Shah Nawaz stated that he was residing at village
Saleh Pat, District Sukkur and not at the place from where dead body was recovered, however, he has not produced any material
and/or examined any witness in support of this assertion. On the other hand,
prosecution witnesses in their evidence have categorically deposed that the
house from where dead body of the
deceased and the crime weapon etc. were
recovered was the house of accused Shah Nawaz. Even no suggestion was put to
the witnesses that the said house was not owned by accused Shah Nawaz. In the
cross-examination of P.W. Sikandar Ali he
gave following replies to various suggestions put forward to him by the defence counsel:
“I do not remember the
distance in between house of accused
Shah Nawaz and village Jado Wahan. The house
of accused Shah Nawaz is situated towards western
side of village Jado Wahan. The distance in between the house of accused Shah Nawaz and stop of Jado Wahan is about 1 / 2 kilometers. The entrance door of the house
of accused Shah Nawaz was open. The entrance door of the house
of accused Shah Nawaz was fixed towards western side. ….. I do not remember
the number of rooms of house of accused Shah Nawaz. The utensils
of the house were available in the house but I do not know the directions of
the place of wardat…. I do not remember the time of our reaching at the house
of accused Shah Nawaz. I do not remember the time when the complainant left
the house of accused Shah Nawaz for
lodging the FIR.”
From above
questions, it is clear that even the defence side did not disown the house from
where the dead body of the deceased and the crime weapons etc. were recovered
to be the house of accused Shah Nawaz.
Despite putting so many questions, not a single suggestion was made to
the witnesses that the said house was not owned by accused Shah Nawaz. In the
circumstances, besides the depositions of the witnesses of last-seen evidence,
there are strong pieces of circumstantial evidence which corroborate the
evidence of prosecution witnesses and connect accused Shah Nawaz in the
commission of the alleged offence.
So far as
the contention of the learned counsel for the appellants that private
prosecution witnesses are near relatives of the complainant and the deceased is
concerned, suffice it to observe that now it is well settled that the evidence
of witnesses related to deceased is not to be discarded merely because of his relationship
with the deceased if otherwise the same inspires confidence and is corroborated
by circumstantial and medical evidence, more particularly when no specific
enmity has been alleged against P.Ws to falsely implicate the accused. In this
connection, reference may be made to the case of Zafar Iqbal Vs. The state reported in 2014 SCMR 1227 and the
case of Anwar Shamim Vs. State reported
in 2010 SCMR 1791.
However,
it seems that the case of accused Gul Hassan is on different footing from the case of accused Shah Nawaz. The name of
accused Gul Hassan does not find mention in the FIR and he was
introduced by the complainant for the first time in his supplementary statement. From the evidence of the complainant as well as that of P.W. Sikandar
Ali, it is clear that they had lastly
seen the deceased with only two accused namely Shah Nawaz and absconding
accused Ali Mohammad. In his further statement,
the complainant did not disclose the source of information about the
involvement of accused Gul Hassan. He has only said that after registration of
FIR against accused Shah Nawaz and absconding accused Ali Mohammad, he came to
know that three accused persons i.e. aforesaid two accused and accused Gul
Hassan had murdered his son.
Needless to emphasize that Superior
Courts have not appreciated recording of
further / supplementary statement, so also the delayed statements recorded by
the police, particularly the practice of involving a person as accused whose
name was not mentioned in the FIR, has been discouraged by the superior courts.
Such supplementary statement has no value in the eye of law. Any further
statement of the first informant recorded during investigation by police could neither be equated with F.I.R. nor
read as part of it, as held by Honourable Supreme Court in the case reported as
Falak Sher alias Sheru Vs. State (1995 SCMR 1350). In the case reported as Yasir Ali Vs. State (PLD 2017 Lahore 737)
it was held by Honourable Lahore High Court that when no reason has been given
in the supplementary statement for not straightaway nominating the accused in
the FIR, such supplementary statement recorded at belated stage has no legal
value and as such in the said case conviction and sentence recorded against the
accused was set aside. Reference in this respect can also be made to the case
of Abid Ali alias Ali Vs. State reported
in 2011 SCMR 161. In view of this legal position, supplementary statement of
the complainant wherein he disclosed the name of accused Gul Hassan with the
allegation of having participated in the commission of offence, has no sanctity in the eye of law and such statement was
liable to be discarded from consideration by the trial Court.
As regards
the evidence of P.W. Ayaz Ali, it seems that he deposed that on 14.09.2009 he along with Hadi Bux went to village Jado Wahan for
their domestic work, where accused Gul Hassan met with them and stated that deceased
Saleh Muhammad was murdered by him and accused Shah Nawaz and Ali Mohammad and
after his murder his dead body was secretly buried by them in the house of
accused Shah Nawaz being blinded by the greed of CD-70 motorcycle, Nokia Phone,
and cash by inflicting him sharp cutting
injury. He further deposed that accused Gul Hassan asked him to contact the
complainant party as he wanted to settle the matter at private level and was ready to pay compensation to complainant
party. This witness apprised the complainant of such facts, however, the complainant replied him that such
case is pending in the Court, therefore, Court will decide the matter. He
further deposed that his statement under Section 164 Cr. P.C was also recorded
by the Magistrate.
It seems that in his statement under section 164 Cr. P.C. recorded on
26.09.2009 he did not state that he had apprised the complainant of such facts
and that the complainant had replied him that such case is pending in the
Court, therefore Court will decide the matter. Even otherwise, his evidence seems to be doubtful for the simple
reason that the supplementary statement of the complainant was recorded on
14.09.2009 i.e. on the next of the incident whereas P.W. Ayaz Ali deposed in
his evidence that when he told the complainant that accused Gul Hassan had
requested him to get the matter settled and that he was ready to make payment
of compensation to the complainant party, the complainant replied that as the
case was pending in the Court, the
Court will decide the matter. Obviously,
when the supplementary statement of the complainant was recorded wherein he
also implicated accused Gul Hassan, the case was not pending in the court,
rather it was at the initial stage of a police
investigation being the second day of the incident. Even otherwise extra judicial confession of the accused has no
evidentiary value. In the case of Mohammad Aslam Vs. Sabir Hussain reported in
SCMR 2009 985 Honourable Supreme Court held that evidence of Extra-Judicial confession is always treated as
a weak type of evidence. In another case reported as Abdul Mateen Vs. Sahib
Khan (PLD 2006 538) Honourable Supreme Court held that the evidence of extra judicial confession must be proved by
evidence of a very high unimpeachable character. In the case of Tajammal
Hussain Anjum alias Phalo Vs. State reported in 2018 P. Cr. L.J. 598 [Lahore]
it was held by Honourable Lahore High Court that extra judicial confession is
not admissible in evidence and has no value in the eye of law. Extra judicial
confession is a weak piece of evidence.
So far as the alleged recovery of mobile
of the deceased from accused Gul Hassan is concerned, it may be observed that although
the I.O. of the case namely, Shafi Mohamamd
has deposed that accused Gul Hassan was arrested vide memo of arrest Ex.14/J and one Nokia Mobile phone was
recovered from the possession of accused Gul Hassan, however, no such memo Ex.14/J is available in the paper book. The
last document produced by the I.O. in his evidence available at page 177 of the paper book is mashirnama of recovery of motorcycle Ex.14/I.
Even otherwise, simplicitor recovery of even crime weapon from
the accused without any direct or substantive evidence is not sufficient to convict the accused. In this connection, reference can be made to the case
of Pervez Masih Vs. The State (2005 P. Cr. L.J. 1232) wherein a Full Bench of
Honourable Federal Shariat Court held as under:
“However, we
are afraid evidence of the recovery of crime weapon by itself being evidence of
purely corroboratory nature, in the absence of any direct or substantive
evidence alone, was not sufficient to bring home
charge against the appellant,..”
The upshot of the above discussion is that the prosecution has
succeeded in proving the case against appellant Shah Nawaz alias Shano, whereas
the charge against appellant Gul Hassan has not been proved by the prosecution
beyond a shadow of reasonable doubt.
In view of
above, by a short order dated 29.11.2018 Criminal Appeal No.S-91/2017 filed by
appellant Gul Hassan Gopang was allowed, while Cr. Jail Appeal No.S-70 of 2017
filed by appellants Shah Nawaz alias Shano and Gul Hassan was dismissed to the
extent of appellant Shahnawaz alias Shano Gopang but allowed to the extent of
appellant Gul Hassan. Consequently, the impugned judgment dated 23.05.2017
handed down by Additional Sessions Judge, Gambat in Sessions Case No.642 of
2009 (Re: State Vs. Shah Nawaz alias Shanoo and another) was maintained to the
extent of conviction and sentence awarded to appellant Shah Nawaz alias Shano
while the same was partly set aside to the extent of appellant Gul Hassan
Gopang only. Appellant Gul Hassan son of Sanjar Fakir Gopang was acquitted of
all the charges and he was ordered to be released forthwith if his custody was no more required in any other criminal
case. The case of absconding accused Ali Muhammad be kept on dormant file till
his arrest or surrender and be produced before the trial Court, as the case may
be.
Above are
the reasons for the said short order.
JUDGE