IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Criminal Appeal No.
S-183 of 2016
Appellant(s): Abdul Majeed & others.
Through
Mr. Amanullah Malik, Advocate.
Respondent(s): The State through Mr.
Afzal Hussain Talpur, A.P.G
Mr. Ghulam Shabbir
Dayo, Advocate for complainant.
Date of hearing: 27.08.2018
Date of decision: 28.09.2018
J U D G M E N T
Khadim Hussain tunio,
J-Through
present Criminal Appeal, appellants have impugned judgment dated 28.09.2016,
passed by learned Vth Additional Sessions Judge, Mirpur Mathelo in
Sessions Case # 780 of 2011 whereby the appellants were convicted and
sentenced, for offences punishable under section 148 & 149 PPC, to rigorous
imprisonment for three years and fine of Rs. 20,000/- each and in case of
default thereof to suffer S.I for six months more. Appellant Muhammad Bux was
further convicted and sentenced u/s 302(b) PPC and sentenced to imprisonment
for life. Rest of the appellants were further convicted u/s 302(b) PPC and
awarded rigorous imprisonment for 10 years and Rs. 100,000/- (each)
compensation to the legal heirs of the deceased, and in default thereof to
suffer simple imprisonment for six months more.
2. Brief
facts of the prosecution case are that there was a dispute between the
complainant party and Raees Mitho Chachar and there was annoyance between
either of the parties. On the eventful day, i.e. 19thJune 2011,
complainant’s cousin Mehrab received a phone call from one Jabbar who informed
him that the dead body of his cousin Ameer Bux was lying near Village Hussain
Chachar and he was asked to come and take the dead body. Thereafter complainant
party rushed to the pointed out place and upon reaching they were surprised by
the presence of accused persons named above and two unidentified persons, duly
armed with deadly weapons. After an exchange of harsh words from the accused,
accused Raees Mitho, Abdul Wahid and Muhammad Bux fired from their respective weapons,
which hit the Mehrab and he fell down while raising cries. Accused Waryam and
Jabbar fired from their respective weapons at P.W Ali Akbar which hit him and
he fell down. Due to the cries raised by the complainant party and the shots,
co-villagers were attracted to the site who, after giving the sake of God to
the accused, convinced them to leave. Mehrab, the complainant’s cousin was
found to have expired whereas P.W Ali Akbar was transported to Rahimyar Khan
for treatment. The dead body of deceased Mehrab was referred to Taluka Hospital
Ubauro for post mortem. After completion of formalities, complainant lodged the
F.I.R.
3. After
usual investigation, charge was framed against the appellant to which he
pleaded not guilty and claimed his trial.
4. In order to prove its case, prosecution examined in all 11
witnesses, as follows:-
1. SHO Ali Hassan – He produced copy of mashirnama of
visit of place of wardat and recovery of empty shells and blood stains,
copy of mashirnama of arrest of accused Abdul Majeed, copy of mashirnama of
recovery of 12 bore SBBL Gun and formal arrest of accused Abdul Majeed, copy of
chemical examiner’s report, copy of report of Forensic Science Laboratory. He
was examined again and he produced original chemical examiner report & original
ballistic expert report.
2. Dr. Shafqat Ali – He produced post mortem report of
deceased Mehrab.
3. Muhammad Younis – He produced report regarding death of
accused Raees Mitho, affidavit of LPC, report of SHO PS Ubauro, statements of
neighbors, copy of death certificate of deceased Mehrab.
4. Dalial Khan – He produced copy of FIR.
5. Nizamuddin
6. Meer Hassan
7. Abdul Karim – He produced copy of sketch of place of
incident.
8. Nazeer Ahmed – He produced mashirnama of inspection of
dead body & mashirnama of recovery of clothes.
9. ASI Muhammad Iqbal – He produced danishnama, referral
letter.
10. PC Munir Ahmed
11. Karim Bux – He produced receipt of handing over dead
body.
Learned ADPP filed a statement,
giving up witness Lakhmir Chachar. Thereafter prosecution side was closed.
5. Statements
of accused u/s 342 Cr.P.C were recorded wherein they denied the allegations
levelled against them by the prosecution and pleaded innocence, claiming being
falsely implicated due to enmity. However, they did not choose to be examined
on oath or produce any evidence in their defence. Accused Abdul Majeed produced
true copy of judgment dated 31.07.2013 in which he was acquitted in a case of
13(d) Arms Ordinance by the Civil Judge & J.M Daharki & true copy of
Challan/FIR No. 314 of 2011.
6. Learned
counsel for the appellants has argued that the prosecution failed to produce so-called
injured P.W Ali Akbar, who allegedly received injuries at the hands of the
appellants; that the prosecution also gave up P.W Lakhmir Chachar who is an
eye-witness of the whole incident; that the story of complainant does not find
corroboration by the medical evidence; that per prosecution story, deceased had
received three injuries whereas per medical evidence, the deceased had
allegedly received four G.S.Ws, through and through, and one injury from a hard
blunt substance; that the appellants No. 1 to 8 did not cause injury to the
deceased or to the complainant party, they did not commit any offence
whatsoever alleged by the complainant party due to previous enmity; that during
investigation, no crime weapons were recovered from the possession of any of the
appellants except from Abdul Majeed who did not cause any injury to the
deceased or prosecution witnesses; that P.W Mir Hassan is a managed witness
since, not once, has the complainant, be it in FIR or in his statement u/s 161
Cr.P.C, deposed regarding P.W Mir Hassan’s presence; that there are numerous
contradictions in the depositions of witnesses, hence he prays for the
acquittal of the appellants. In support of his contentions, he has placed case
law reported as 2010 SCMR 584, 2010 SCMR 424, 1980 SCMR 231, PLD 1967 SC
443, PLD 2004 Karachi 8, 2006 P.Cr.L.J 639, 2004 P.Cr.L.J 92, 2002 P.Cr.L.J
1240, 2001 P.Cr.L.J 845, 2000 P.Cr.L.J 1360, 2008 YLR 829, 2008 YLR 2082, 2005
YLR 1629, 2000 YLR 294 & 2001 MLD 619.
7. Learned
counsel for complainant and learned A.P.G, in one voice, while supporting the
impugned judgment have contended that the appellants have been specifically
nominated in the FIR; that an innocent man lost his life because of the actions
of the appellants therefore the present appeal is liable to be dismissed.
8. I have
heard the respective counsel for either parties along with learned A.P.G and
have perused the record available before me.
9. From the
perusal of judgment of trial court, the judgment mainly rested on (highlighted
by the trial court in the impugned judgment) ocular account, medical
evidence, motive and circumstantial evidence along with recovery. For safe
administration of justice, all these points had to be in such a manner that not
a shadow of doubt would strike the thought among a prudent mind regarding the
innocence of accused else it would never be safe to record conviction in
existence of such doubts. Having said that, I would attained to each of the
points individually.
10. Before
indulging, deeply, into discussing the merits of the case, I would like to
state that from the face of record itself and after perusal of depositions of
prosecution witnesses, there appears to be many contradictions between the
ocular and medical account. I would add that though medical evidence alone never identifies / connects the
accused but was / is helpful so as to test veracity of eye-witnesses regarding their claim of witnessing incident which
they state in a particular manner. Reference may well be made to the
case of Ghulam Qadir v. State 2008
SCMR 1221 wherein it is observed as:-
“So far as medical evidence is concerned, it is settled
law that the medical evidence may confirm the ocular evidence with regards
receipt of injuries, nature of the injuries, kind of weapons, used in the
occurrence but it would not connect the accused with the commission of the
offence.
In another case of Ghulam
Mustufa v. State 2009 SCMR 916 it is observed as:-
“10. In so far
as corroboratory pieces of evidence are concerned the medical account displays
that the deceased and injured had received wounds from a fire-arm but there is
no opinion as to what type of weapon was used in the occurrence. However, it is
settled law that the medical evidence can only establish the type of weapon used,
the seat of injury and the time elapsed between receipt of injury and the
medical examination. It can never be a primary source of evidence for the crime
itself but is only corroborative of the same.
In instant case the medical evidence never confirms
the ocular account rather brings the
claimed presence of eye-witnesses under serious doubts.
11. Coming to
the contradictions in the evidence of P.Ws and those contradicting the medical
evidence, it was stated in the FIR that the deceased Mehrab had received
a total of 3 G.S.Ws on his body; two on the back and one on the right arm however
per medical report, another G.S.W was found on the body of deceased, on the
left chest, also through and through. Medical report also showed an injury on
the skull which was caused by a hard blunt object, which too was not mentioned
by the complainant. Such a contradiction raises serious doubt about claimed
presence of the complainant at relevant time else he would have not escaped
speaking about fourth G.S.W as well injury, caused by blunt object. Further, per
the medical examiner, the shots might have been fired from a distance of
10 to 15 feet, contradicting the same, P.W Nizamuddin states that the accused
fired at the deceased at a distance of 2 feet. On the same point, P.W Mir
Hassan deposed that the shots were taken at the deceased from a distance of 3
to 4 feet however he further deposed in his cross-examination that the
accused fired at the deceased at point-blank range. The claimed eye-witnesses specifically claimed
fire-shot injuries from a short-distance but per medical
evidence there had not been any signs, so
necessarily appear if fire is caused from such distance. The position, being
so, also makes claim of these witnesses as ‘eye-witnesses’.
While deposing regarding the weapons used by the appellants, the
complainant in the FIR stated that Raees was armed with a Repeater, Shahnawaz
without any weapon, Abdul Wahid with rifle, Saifal with gun, Abdul Khalique
with pistol, Jabbar with gun, Anwar with rifle, Rasool Bux with gun, Khair
Muhammad with Repeater and two unidentified accused with weapons. Firstly, the
complainant has not disclosed the exact type of weapons used in the commission
of the offence, secondly the complainant, while deposing in evidence, merely
stated that the accused were armed with “guns”, including Shahnawaz who
was originally shown as unarmed. He further contradicted his own statement by
stating that Waryam was armed with a pistol, however on the same point he
stated that Waryam was armed with a repeater gun. When disclosing the time at
which the incident had taken place, each of the witnesses had their own
opinions, which also contradicted with that in the FIR. The time of incident
was originally shown to be 1530 hours which is 3:30pm local time, whereas
complainant, in his cross examination, stated that deceased Mehrab received a
phone call at 3:30pm and they proceeded to the place of incident 10 to 15
minutes later. P.W Mir Hassan in his cross-examination deposed that the
complainant reached at the place of incident at about 3:00pm. He also deposed
that he was arrested by the police at about 3:30pm. When questioned about the
date, time and day of incident, P.W Nizamuddin found no words. Such
contradictory statements raise serious doubt in a prudent mind and the question
rises as to what version should be believed? When questioned about the clothes
worn by the deceased at the time of incident, complainant deposed that they
were white in colour whereas trial court observed the same to be a Khaki
(Boski) shirt and loin cloth, green in colour. P.W Nizamuddin, on the
same point deposed that deceased was wearing brown shirt and loin cloth was
black. The case property present in court had a loin cloth, multi-coloured and
checkered and a Khaki shirt. All these glaring
contradictions in statement (s) of claimed eye-witnesses were always
sufficient to doubt their claim of having seen the manner of incident hence it
was never safe to have relied upon
such ocular account for awarding
conviction in a case of capital punishment. Reference may
well be made to the case of Muhammad
Akram v. State 2012 SCMR 440 wherein it is observed as:-
“Except for the oral statements of eye witnesses there is
nothing on record which could establish the presence of both the eye witnesses
at the spot and as their presence of both the eye witnesses at the spot and as
their presence at the spot appears to be doubtful; no reliance could be placed
on their testimonies to convict the appellant on a capital charge. ….”
Further, it is also a matter of record that
prosecution did not examine the injured witness
though injury on his person could
have been taken as a circumstance to
believe his presence at relevant time. The failure to examine such a material
witness also goes against the prosecution as well opens a room to draw
a presumption within meaning of Article 129(g) of Qanun-e-Shahadat Order, 1984
that had he been examined he would not have supported the prosecution case.
12. Though in
a case of claimed ocular (direct) evidence, the failure of ocular
(direct) evidence is always sufficient for acquittal. Reference may
well be made to the case of Dr.
Israr-ul-Haq v. Muhammad Fayyaz & another 2007 SCMR 1427. However,
as an abandon caution I would discuss other pieces of evidences , so brought on
record by prosecution or least discussed
by learned trial court judge, for reaching to conclusion of conviction.
13. The trial
court, while deciding the case, considered the motive behind the case and gave
it undue significance. I would like to hold that the existence of motive / enmity is neither a
substantive nor a direct evidence. It is not a corroborative piece of evidence
either. The motive/enmity is only a circumstance which may lead to the
commission of an offence. It is a starting point for committing a crime; enmity
is a double‑edged weapon. Offence may be perpetrated because of
the existence of motive/enmity and it can also be a basis to a false charge. Reference
may be made to the case of Ghulam
Mustufa supra wherein it is observed as:-
“….Admittedly , there was enmity between the parties
because one of the deceased Javed Iqbal was nominated along with other P.Ws in
the murder of Ahmed Nawaz, who was a relation of the assailant party. If enmity persuades a person to commit a
crime then it is also sufficient to falsely implicate some person from the
other side i.e the accused.
In this view of the matter it can hardly be said that motive/enmity has
any value except that of a circumstance. Thus,
it can safely be concluded that it alone can never be taken as ‘sufficient
proof to hold one guiltyso long as direct evidence is not forthcoming.
14. Since
there is no direct evidence left to consider, the prosecution case hinges upon
circumstantial evidence. It seems to me an inescapable consequence that in a criminal case
the circumstances from which the inference should be drawn must be established
beyond reasonable doubt. Circumstantial evidence can, and often does, clearly
prove the commission of a criminal offence, but two conditions
must be met. First, the primary facts from which the inference of guilt is to
be drawn must be proved beyond reasonable doubt. No greater cogency can be
attributed to an inference based upon particular facts than the cogency that
can be attributed to each of those facts. Secondly, the inference of guilt must
be the only inference which is reasonably open on all the primary facts.
15. Circumstantial evidence was
explained by Sir Charles Edward Pollock while addressing to the jury in the
case of Regina v. Exall & others (176 ER 850) 1866 as:
“It has been said that circumstantial
evidence is to be considered as a chain, and each piece of evidence as a link
in the chain, but that is not so, for then, if any one link broke, the chain
would fall. It is more like the case of a rope composed of several cords. One
strand of the cord might be insufficient to sustain the weight, but three
stranded together may be quite of sufficient strength.”
Where one circumstance is insufficient, multiple
circumstances are sufficient to hold one guilty. Howsoever, the same should be
linked to one another, because if one strand of the rope faces the North and
the other the South, the strands would not be able to sustain the weight. Same
goes for the link and chain rule as if, even, a single link is found to be
weak, the whole chain collapses. In the case of Nasir Javaid & another v. State 2016 SCMR 1144 it is
observed as:-
7. …..Deduction
about the guilt of the accused could well be drawn from the circumstances as
are well authenticated. But where the circumstances so reported are tinkered
and tampered with, or contrived and conjured up, there cannot be accepted
without careful and critical analysis. Circumstantial evidence can form
basis of conviction if it is
incompatible with the innocence of the accused and incapable of explanation
upon any other reasonable hypothesis than that of this guilt. The case
thus has to be analyzed and adjudged in this perspective.
The series of events in the present case should have
been in such a way that it could easily be judged that event A led to the
occurrence of event B and so on. However, this was not the case as material
facts of the case either stood contradicted by the medical evidence or the same
did not find any corroboration of any sort.
16. It cannot be stressed enough, the use of the phrase “beyond
reasonable doubt” when proving the case on the basis of circumstantial
evidence. When determining this question, the following aspects often rise:
• The identification of each individual fact which along
with all other individual facts is said to constitute proof of the offence beyond
reasonable doubt.
• The identification of each intermediate fact which may
be an indispensable link in the chain of reasoning.
• The identification of each individual fact which, along
with others, is said to constitute an essential intermediate fact.
• The identification of facts which require proof
beyond reasonable doubt before an inference of guilt can be drawn from
them.
Having said that, in the present case, the
circumstances that took place do not appear to be a series of events, but
rather a concocted story from a devious mind. Many important facts, i.e. the
time at which the incident took place, the alleged crime weapons used or the
G.S.Ws received on the body of the deceased, were either contradicted by the
depositions of the P.Ws or found no corroboration with the medical evidence.
Here I would like to state that in many, if not most, cases it has kept in mind that guilt should not
only be a rational inference but the only rational inference that
can be drawn from the circumstances. Clarifying the statement, the facts/circumstances
should be so clear that the only logical circumstance coming to a prudent mind
is the appellant being guilty.
17. As for
the recovery of the 12 Gauge SBBL Gun from the possession of appellant Abdul
Majeed is concerned, it is an admitted fact that the appellant Abdul Majeed was
acquitted in a case of 13(d) Arms Ordinance, for which he has also produced the
true copy. Not only this, the recovery of weapon from a single appellant does
not tie all the appellants/accused to the commission of offence even if I was
to ignore the acquittal of appellant Abdul Majeed in the 13(d) Arms Ordinance
case. Moreover, the weapon was sent to
the ballistic expert with a delay of 13 days and an explanation for the same
has remained off the record.
18. I would
like to add here that the so-calledeye-witnesses are all close
relatives of the complainant, the alleged motive behind the case has been
mentioned as enmity. Enmity is a double edged sword
which cuts both ways, it can be a ground for false implication. What is the
most concerning aspect about recording statements of witnesses is that
allegedly there were well over a 100 villagers that had gathered on the crime
scene, no matter how contradictory the number be, even if hardly 2 witnesses
showed up, I am surprised as to why police failed to record the statements of
those witnesses. The absence of independent witnesses, even when there were
allegedly numerous present, raises serious doubt in the case of the
prosecution.
19. The defence has established number of serious
doubts, which have damaged the entire prosecution case and the Hon’ble Apex
Court in case titled as Ghulam Qadir v. State 2008 SCMR 1221 has
observed that for the purpose of benefit of doubt to an accused, more than one
infirmity is not required. Single infirmity creates reasonable doubt in the
mind of reasonable and prudent person regarding the truth of charge, makes the
whole case doubtful. It is a recognized principle of appreciation of evidence
that the benefit of all favourable instances in the prosecution evidence must
go to the accused, regardless of the fact whether he has taken any such plea or
not. Further reference in this respect laid on Tariq Pervaz v. The State 1995
SCMR 1345. The same principle has been reiterated by Hon’ble Supreme Court
in the case of Muhammad Akram 2009 SCMR 230. It is an undoubted
principle of criminal administration of justice that an accused, during trial,
is the likes of a most favourite child of law. Such a statement
emphasises on the fact that benefit of doubt, in each and every aspect, is to
be given to the accused, regardless of the fact that he has taken any such plea
or not. Reference in this regard can be made to Faryad Ali’s case 2009 SCMR
1086. After all, it is a golden principle of law that ❝It is better to risk saving
a guilty man than to condemn an innocent one❞. Such statement plays a
pivotal role in the Islamic Law and is enforced strictly in view of the saying
of the Holy Prophet (P.B.U.H) that the “mistake of Qazi (Judge) in releasing
a criminal is better than his mistake in punishing an innocent”.
20. In consequence to what has been discussed above, I am of the
clear view that prosecution never established the charge against the appellants
beyond reasonable doubts hence it was never safe to record conviction on such evidences . Accordingly, the
impugned judgment of conviction is hereby set-aside and appellants are hereby
acquitted……