HIGH COURT OF SINDH AT KARACHI
Criminal Appeal No.555 of 2019
Criminal Jail Appeal No.561 of 2019
Appellant : Mushtaque Ahmed son of Muhammad
(in both appeals) Ishaque through Mr. Abdul Razzaq,
Advocate.
Respondent : The State, through Mr. Khadim
Hussain Kooharo, Additional Prosecutor General, Sindh.
Date of hearing : 03.12.2020
Date of Judgment : 14.12.2020
JUDGMENT
Abdul Maalik Gaddi, J.– By this common judgment, I intend to decide the captioned appeals as they arise out of same incident as well as crime.
2. Through these appeals, the appellant namely, Mushtaque Ahmed has challenged the legality and propriety of the judgment dated 20.08.2019 passed by the learned IIIrd Additional District & Sessions Judge Malir, Karachi, in Sessions Case No.702 of 2019 [Re: State v. Mushtaq Ahmed and another], registered at police station Malir Cantt, under Section 302/201, PPC in crime No.183/2018, whereby the learned trial Court after full dressed trial, convicted and sentenced the appellant as stated in the point No.3 of the impugned judgment, which read as under:-
“POINT NO.3
21. The upshot of the entire discussion, I am of the view that prosecution had been successful in proving charge against accused Mushtaque Ahmed son of Muhammad Ishaque beyond reasonable doubt while it had failed to prove the same against accused Mst. Nabeela wife of Mushtaque Ahmed. Accused Mst. Nabila is present on bail, her bail bond cancelled and surety stands discharged, while I convict accused Mushtaque Ahmed son of Muhammad Ishaque, under sections 265-H(ii) Cr.P.C. for offence under sections 302 & 201 PPC. Before sentencing the accused Mushtaque Ahmed I am of the view that since prosecution case rest upon circumstantial evidence and it had also failed to prove motive of the murder therefore due to mitigating circumstances and by relying case of Mst. Nazia Anwar v/s The State (2018 SCMR 911) I pronounce the sentence for accused as under;
i. Life imprisonment as Ta’azir for offence under section 302 PPC.
ii. Simple imprisonment for a term of 07 years for offence under section 201 PPC.
Accused is directed to pay Rs.10,00,000/- (Ten Lac) as a compensation to the legal heirs of deceased Muhammad Shafique under section 544-A Cr.P.C. In case of non-payment of compensation amount accused will suffer six months more simple imprisonment.
22) All sentences shall run concurrently and benefit of Section 382-B PPC shall extended to accused. He produced by jail authority and his custody shall be remanded along with conviction warrant for serving out the remaining sentence as per law……”
3. Facts necessary for the disposal of instant appeals are that on 20.11.2018 at 02:00 p.m. complainant Muhammad Rafique son of Allah Wasaya lodged FIR at police station Malir Cantt alleging therein that his younger brother Muhammad Shafiq who was serving in Ordinance Officer mess as Waiter Civilian. On 19.11.2018 at about 4.30 pm he received phone call from Karachi that Muhammad Shafiq is misplaced and his some articles are found there, thereafter, complainant along with his relative Muhammad Bilal went to Karachi, when they were on the way on 20.11.2018 they received information through phone call from Karachi that his brother Muhammad Shafique had sold out the Mini Pajero to Mushtaque Ahmed so his brother has went to hand over the said vehicle to him, but due to reason of payment, Mushtaque Ahmed inside room has fired upon his brother with firearm weapon and murdered him, when complainant reached at Karachi and inquired about incident then he came to know that dead body of his brother shifted to Jinnah Hospital Karachi. Thereafter, he came for report against accused Mushtaque Ahmed who fired upon his brother and murdered him, hence, legal action may be taken.
4. The formal charge was framed on 29.06.2019 at Ex.2, to which he pleaded not guilty and claimed to be tried vide his plea at Ex.2/A.
5. At trial, in order to establish accusation against appellant/accused, prosecution had examined following witnesses:-
i. PW-1/complainant Muhammad Rafique at Ex.3, who produced FIR, memo of arrest dated 20.11.2018, memo of arrest and recovery of unlicensed weapon, memo of site inspection of place of incident, letter to incharge Edhi Centre and memo of pointation at Ex.3/A to Ex.3/F respectively;
ii. PW-2 Dr. Sheeraz Ali at Ex.4, who produced postmortem report, death certificate and letter to MLO at Ex.4/A to Ex.4/C respectively;
iii. PW-3 Sajidullah at Ex.5;
iv. PW-4 SIP Tariq Majeed at Ex.6, who produced roznamcha entries, letter to FSL report at Ex.6/A to Ex.6/G respectively;
v. PW-5 ASI Khadim Hussain at Ex.7, who produced roznamcha entry, inquest report, memo of inspection of dead body, letter to Edhi center at Ex.7/A to Ex7/D respectively;
vi. PW-6 PC Waqas Ali at Ex.8;
vii. PW-7 ASI Malik Tahir Hussain Awan at Ex.9, who produced memo of arrest at Ex.9/A;
viii. PW-8 SIO Asadullah Ansari at Ex.10, who produced interrogation statement of accused, roznamcha entry, notice under Section 160, Cr.P.C., certified copy of statement under Section 164, Cr.P.C. at Ex.10/A to Ex.10/D respectively;
ix. PW-9 Judicial Magistrate Mr. Asif Raza Meer at Ex.11, who produced original confessional statement under Section 164, Cr.P.C. along with application and notice under Section 160, Cr.P.C. at Ex.11/A.
These witnesses were cross examined by the Counsel for appellant. Thereafter, leaned DDPP closed the prosecution side vide Statement at Ex.12.
6. Statement of appellant was recorded under Section 342, Cr.P.C. at Ex.13, in which he has denied the allegations as leveled by the prosecution by stating that he is innocent, nothing was recovered from him. He further stated that on 20.11.2018 at about 09:25 am, he went for purchasing breakfast to hotel where two police official in civil dress were sitting there, who asked about his name and further asked him to sit in police mobile and then they forcibly took him at police station and thereafter falsely implicated him in this case. However, appellant neither examined himself on Oath nor led any evidence in his defence.
7. Mr. Abdul Razzaq, learned Counsel for the appellant contended that appellant is innocent and has been falsely implicated in this case; that the allegation regarding the self-disclosure of accused Mushtque is completely based on false and concocted story but the fact that accused was never ever visited to police station himself but the police kidnapped the accused while he was going to purchasing the breakfast in the morning; that the recovery of pistol and empties allegedly recovered on the pointation of accused is false as no any single private witness was cited by the police officials from the area so also there are multiple contradictions available in the evidence regarding recovery; that there are two different places shown by the prosecution firstly the place of incident allegedly shown to the first investigating officer by accused situated at the second floor of Abbasi Hotel and then the second place again allegedly shown by the accused to second investigating officer which shows that the police tried to manage both places to implicate the accused; that SIP Tarique Majeed himself depose before the Court that the whole recovery is false, then all the case became doubtful; that learned Magistrate during course of recording confessional statement of accused did not observe legal formalities and recorded the statement in contravention of Sections 164 and 364, Cr.P.C; that co-accused Mst. Nabeela wife of present appellant on basis of same set of evidence has been acquitted by the trial Court, but convicted the present appellant without assigning any valid reasons. During the course of arguments, learned Counsel for the appellant while agitating the ground of these appeals has stated that appellant Mushtaq is innocent, therefore, he may be innocent by giving him benefit of doubt and has relied upon the following case laws:-
(i) Tahir Mehmood @ Achoo v. The State and another reported as 2018 SCMR 169;
(ii) Hayatullah v. The State reported as 2018 SCMR 2092;
(iii) Muhammad Ismail and others v. The State reported as 2017 SCMR 898;
(iv) Dadullah and another v. The State reported as 2015 SCMR 856;
(v) Wahab Ali and another v. The State reported as 2010 P.Cr.L.J 157;
(vi) Muhammad Shah v. The State reported as 2010 SCMR 1009;
(vii) Muhammad Afzal alias Abdullah and others v. The State and others reported as 2009 SCMR 436;
(viii) Muhammad Pervez and others v. The State reported as 2007 SCMR 670;
(ix) Muhammad Naveed and another v. Riaz Ahmed and 2 others reported as 2000 YLR 1477;
(x) State through Advocate-General, Sindh, Karachi v. Farman Hussain and others reported as PLD 1995 SC 1;
(xi) Bhimappa Jinnappa Naganur v. State of Karnataka reported as 1993 SCMR 2229;
8. In contra, Mr. Khadim Hussain Kooharo, learned Additional Prosecutor General, Sindh for the State has supported the impugned judgment passed by the trial Court and contended that the appellant was arrested on spot; that case is based on unseen evidence but it is well settled law by the apex Court that if the chain of circumstantial evidence is strongly connected with each other, then the conviction can be awarded to accused; that accused Mushtaque Ahmed himself went to police station and disclosed the whole story to police officials as he fall in stress after committing such huge offence of murder; that dead body was found at jurisdiction of police station Memon Goth, whereas, how it is possible that without any single information of police station Malir Cantt they went in the jurisdiction of police station Memon Goth and got recovered the dead body which could have recovered other than the self-disclosure of accused; that accused took plea that he was arrested on 09:25 a.m. by police officials after inquiring his name the question arises here that how the police official came to know about his name to be implicated in this case as the incident was never reported till 1400 hours if we exclude the self-disclosure of accused for some time; that the defence took plea that no any private witness was cited by the police at the time of recovery but the Hon’ble Apex Court held in different cases that police personal are good witnesses when recovery is made from accused on his pointation under Article 40 of Qanun-e-Shahadat Order, 1984; that all the circumstantial evidence completely linked with each other like a strong chain connection, hence, prayed for conviction of accused by relying upon case law reported as 2015 SCMR 856 [Dadullah and another v. The State].
9. I have given my anxious thoughts to the contentions raised at the bar and have also gone through the case papers so made available before me.
10. It is noted that in this matter, prosecution in order to prove his case has examined in all nine witnesses including complainant and the Judicial Magistrate (Mr. Asif Raza Meer) before whom the present appellant has admitted his guilt by making his judicial confession. Before diving, minutely in the merit of the case, it appears that instant case depends upon circumstantial evidence. It is settled proposition of law that circumstantial evidence is to be considered as a chain, and each piece of evidence is link in the chain, if any one link breaks, the claim would fail. The circumstantial evidence can only form basis for conviction, when it is incompabitable with the innocence of accused or guilt of any other person and in no manner be incapable of explaining upon any reasonable hypotheses except that of the guilt of the accused. Every link in circumstantial evidence should be proved by cogent evidence and if not then no conviction could be maintained or awarded to an accused.
11. While keeping in the mind the above said principle, I scanned the evidence available on record, I come to the conclusion that there is no inordinate delay in lodging of FIR by complainant against the accused/appellant for committing murder of deceased Muhammad Shafique. No ill will is apparent from the record against the complainant to falsely involve the appellant. It is noted that complainant in his evidence deposed that he was available at his village Harney Walla Punjab, he received telephonic from Karachi and got informed him that his brother Muhammad Shafique has been misplaced. Thereafter, he left his village to Karachi, on 20.11.2018 during travelling, he received information that his brother had sold out a Mini Pajaro to one Mushtaque Ahmed, and at the time of collection of money, accused Mushtaque Ahmed had killed his brother, when he reached at Karachi, he got information that dead body had been shifted to JPMC, after identification of dead body and legal proceedings at JPMC, he thereafter went to police station and lodged the FIR against the appellant Mushtaque Ahmed. Now, the first connection of this fact started from the deposition of PW-7 ASI Malik Tahir Hussain, who was examined at Ex.9, he deposed that on 20.11.2018 he was posted at police station Malir Cantt as duty officer, then at about 07:40 a.m., present appellant came at police station and told him that he had some burden on his heart which he want to disclose the then appellant disclosed the fact that on 19.11.2018 near about 10:00 a.m. to 11:00 a.m., he had killed his friend namely, Muhammad Shafique and thrown his body at Memon Goth near masjid on the issue of money. The ASI inquired him about his mental condition, on which he replied that he did not sleep for his problem. Accused was arrested by ASI under Section 54, Cr.P.C. then police party showed the place where he threw the dead body where the SHO of police station Memon Goth was called and ASI Khadim Hussain conducted legal proceedings there, whereas, these police officials returned back to police station where the complainant had lodged his FIR. There is no concrete evidence on record on behalf of appellant to show that appellant has not appeared at police station.
12. It is pertinent to mention here that accused himself disclosed before police that he can point out the place where he thrown the dead body, as such, ASI Malik Tahir along with other police officials went with accused and then accused himself pointed out the place viz. Qalandari Basti, Memon Goth, where he threw the dead body of the deceased. The police officials of police station Memon Goth were also called and one ASI Khadim Hussain of police station Memon Goth conducted legal proceedings and such memo was prepared which is placed on record at Ex.7/C. This version of PW ASI Malik Tahir was corroborated by ASI Khadim Hussain of police station Memon Goth so also supported with the arrival entry No.7/A, inquest report at Ex.7/B and memo of inspection of dead body at Ex.7/C. Therefore, the assertion of the appellant that police forcibly arrested him while he was going to purchase the breakfast has no weight.
13. It is also noted that after admission of appellant before police for committing the murder of deceased he was arrested in this crime and this fact is evident from Ex.3/B and during interrogation, the accused had been agreed to produce the weapon used in the instant crime, to which investigating officer PW SIP Tariq Majeed under Entry No.6/A left police station along with appellant, mashirs and other police officials and on the pointation of appellant crime weapon viz. 30 bore pistol No.A-463 along with magazine containing 3 live rounds were recovered from the dry gutter situated at Bilawal Jokhio Goth in presence of complainant Muhammad Rafique and witness Muhammad Bilal. The version of the investigating officer have fully corroborated by PW Muhammad Rafique, therefore, non-examination of PW Muhammad Bilal in the circumstances does not effect the case of prosecution.
14. On perusal of case file, it also reveals that after production of case property, the appellant then voluntarily led the police party to the place where he allegedly made firing upon deceased i.e. place of incident where he committed the murder of deceased. Investigating officer SIP Tariq Majeed on the pointation of appellant recovered one empty and sealed the same over there and prepared such memo at Ex.3/D. The recovered crime weapon and empty were sent to FSL and FSL report Ex.6/G on record showed that same empty was fired from the same pistol.
15. I have gone through the evidence of PW-3 Sajidullah son of Khan Rehmatullah being Suzuki Driver. He also supported the version of the prosecution by deposing as under:-
“On 19.11.2018, I was available at my taxi stop, where one person came there and asked me that he has a need of Suzuki on hire basis. I have done hire at the rate of Rs.800/-. He has further dislosed that he took the luggage from Bungalow No.B-12, which is situated at Malir Cantt to Memon Goth. Thereafter, he obtained my cell phone number. At about 05.00 pm to 06.00 pm. Thereafter I went to Bungalow No.B-12. I took the position of vehicle. The said person kept the luggage in the Suzuki and refused to me for help and asked me that we themselves kept the luggage in the Suzuki. After keeping the luggage one lady and same male person proceeded with me in the said Suzuki. The male person was sitting in the front seat of Suzuki while lady was sitting in the rare portion of Suzuki. Thereafter, we went to Memon Goth. When we reached at Memon Village the persons took their luggage from Suzuki. Thereafter, I returned back to my stop. On 8.3.2019 police called me at P.S where recorded my statement. I identified the male person who booked my Suzuki vehicle on hire, who is present in the court is same, but I do not know lady as she was with muffled faces.”
From the above deposition, it clearly shows that he has corroborated the version of self-disclosure of accused/appellant before the police and about movement from the Bungalow No.B-12 to Memon Goth on the same eventful day, so also the connection from the place of incident i.e. Bungalow No.B-12, Malir Cantt. It is also noted that all the prosecution witness have been cross examined at length but they did not shatter. It is also noted that there is no direct evidence against the appellant, but there is strong circumstantial evidence available on record to connect the appellant in this case. The cause of death of deceased as per medical certificate shows due to firearm injury.
16. Now I come to the evidence of Judicial Confession already recorded by appellant before concerned Magistrate. Concerned Magistrate in his evidence has supported the prosecution case and deposed that before recording the statement, he has completed all legal formalities under the law.
17. Learned Counsel for the appellant has criticized the confessional statement on the ground that there was a delay of about nine (9) days in recording the confession; that it was not voluntary and true and that only minimum time was given to appellant for reflection.
18. No doubt there is a delay of nine (9) days in recording the confession, but this by itself is not sufficient to discard the same. The Hon’ble Supreme Court of Pakistan in the case of Nabi Baksh v. State reported in 1999 SCMR 1972 held that delay in recording the confessional statement by itself is not sufficient to affect its validity. However, no hard and fast rule can certainly be laid down about the period within which the confessional statement of the accused ought to be recorded during investigation. Reliance in this respect is placed in the case of Muhammad Yaqoob v. State reported in 1992 SCMR 1983.
19. I have examined the confessional statement with the able assistance of the learned Counsel for the parties and found that the then Civil Judge after observing all legal requirements of law and giving a reasonable time recorded the same and he was of the opinion that the confession was voluntary and true. I have also gone through the case of Gul Jamal v. State reported in 1980 SCMR 654, it was held that no hard and fast rule as to how much time is to be allowed to the accused for reflection before confession is recorded. However, period of time depends on each case. In the present circumstances of the case, I find that the period given by the Civil Judge for reflection purposes to the appellant was sufficient and it has not caused any prejudice to the appellant. Learned Counsel for the appellant has pointed out some lapses while recording of confessional statement of the appellant, but in my view, the lapses pointed out having no bearing. Even otherwise, any lapse by Magistrate in recording the confession cannot always be treated as fatal to the evidentiary value of confession when the Court is satisfied that lapse on the part of the Magistrate has not in any way adversely affected the voluntariness or truthfulness of the confession. On perusal of confessional statement, I did not find any infirmity in the confessional statement which is corroborated on material particulars of the case by the strong circumstantial evidence. Even otherwise, as per law the judicial confession if ring true and is voluntary can be made the sole basis for the conviction of the maker thereof. However, if the same is retracted, even then its evidentiary value is not diminished if the same gets corroboration from other facts and circumstances of the case. In this case, learned trial Court has properly appreciated the evidence according to the settled principles of law connecting the appellant in the commission of crime. Judicial confession of the accused/appellant was voluntary, which was corroborated by medical evidence and other pieces of evidence as discussed above. No evidence has been produced by the accused/appellant in his defence to prove his version. Prosecution witnesses had no motive to falsely implicate the accused/appellant in this heinous crime. Appellant/accused has committed murder of deceased in a brutal manner. It is settled law that conviction can be awarded on circumstantial evidence, provided that circumstances constituted a chain and its no link is missing and their combine effects are that the guilt of the accused is established beyond any shadow of doubt. Here in this case, circumstantial evidence available on record connects the appellant/accused in this case.
20. As observed above, in this case, the prosecution through documents and evidence on record established the strong circumstantial evidence. During the course of arguments, I have specifically asked the question from learned Counsel for the appellant to point out any illegality in recording of confessional statement of the appellant, he has no satisfactory answer with him.
21. It has vehemently been argued by learned Counsel for the appellant that co-accused Mst. Nabeela wife of Mushtaq almost on same set of evidence has been acquitted by the trial Court through impugned judgment, whereas, the present has been convicted as stated supra. I, have, however, felt not persuaded to agree with the contention of learned Counsel for the appellant in this regard for the reasons that there is no evidence against the co-accused Mst. Nabeela, therefore, appellant could not take the advantage of the acquittal of her wife/co-accused.
22. For whatever has been discussed above, I hold that prosecution has proved its case against the appellant beyond any shadow of doubt. Trial Court has appreciated the evidence according to the settled principles of the law. Judgment of trial Court requires no interference. Resultantly, these appeals are dismissed along with listed applications, if any. However, the appellant is entitled for the benefit of Section 382-B, Cr.P.C. The case laws cited by learned Counsel for the appellant have been perused and considered by me, but do not find applicable to the facts of the present case. Even otherwise, in Criminal Administration of Justice, each case has to be decided on its own facts and circumstances and Courts are required to exercise jurisdiction independently, as held by the Hon’ble Supreme Court of Pakistan in the case of The State v. Haji Kabeer Khan reported as PLD 2005 Supreme Court 364 and Muhammad Faiz alias Bhoora v. The State and another reported as 2015 SCMR 655.
JUDGE
Faizan A. Rathore/PA*