IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

                       

Crl. Jail Appeal No.D-246 of 2019 a/w

Confirmation Case No.D-17 of 2019

Crl. Jail Appeal No.S-245/2019

 

 

                                                                        Present:-

                                                                        Mr. Justice Naimatullah Phulpoto, J.

                                                                        Mr. Justice Abdul Mobeen Lakho, J.

 

 

Appellant:                            Abdul Raheem @ Raheem Chachar through Mr. Shabir Ali Bozdar, Advocate

 

Complainant:                      Mst. Amna through Mr. Anwar Ali Lohar, Advocate

 

Respondent:                         Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General Sindh

 

Date of hearing:                    01.11.2022

Date of announcement:      22.12.2022

 

 

 

                                                J U D G M E N T

 

ABDUL MOBEEN LAKHO, J-  Appellant Abdul Raheem alias Raheem has assailed the judgment dated 29.10.2019, passed by learned Additional Sessions Judge-I (MCTC), Ghotki in S.C.No. 491 of 2016 (re: State Versus Abdul Raheem alias Raheem and others) arising out of Crime No.280 of 2016 under Sections 302, 201, 34 PPC of Police Station “A” Section, Ghotki, whereby the appellant was convicted u/s 302(b) PPC and sentenced to death as Ta’zir and to pay compensation of Rs.10,00,000/- to the legal heirs of deceased as provided u/s 544-A, Cr.P.C and in case of default, it was ordered that the same to be recovered as arrears of the land revenue; he was also convicted u/s 201 PPC and sentenced to suffer rigorous imprisonment for 07 years and to pay fine of Rs.100,000/- and in case of default, he was ordered to undergo S.I. for 06 months more with benefit of section 382-B Cr.PC. Learned trial court has also made a reference for confirmation of death sentence in compliance of Section 374, Cr.P.C.

2.         The brief facts of the prosecution case are that on 05.10.2016 at 1900 hours, complainant Mst. Amna appeared at Police Station ‘A’ Section, Ghotki and lodged the FIR stating therein that her son, Shahbaz Ahmed, aged about 21 years, was living with his father at Karachi for getting education. Her husband contracted second marriage with Mst. Nasreen, who was also residing with him at Karachi. Abdul Rahim, nephew of her husband also used to reside with him at Karachi and was doing house work there. It is stated that a few days prior to the lodgment of FIR, her son Shahbaz Ahmed returned from Karachi and informed her that he had seen Abdul Rahim with his step-mother Mst. Nasreen in objectionable condition. On 28.09.2016, she, her son Shahbaz Ahmed, her maternal grandson Ali Raza and her son-in-law Farzand, were available in her house, when at about 10:15 p.m., Rahim (present appellant) came there and took his son Shahbaz Ali with him; however, her witnesses followed them at outer gate of the house and saw two unidentified persons were available in the street, who also accompanied with them. Shahbaz did not return and on contact his cell phone was found powered off. Complainant then contacted Abdul Rahim on his cell phone, who also did not reply satisfactorily. Thereafter, Abdul Rahim called complainant and informed her that he at the instance of Mst. Nasreen and with the help of two other unknown accused, committed the murder of her son Shahbaz Ahmed and in order to cause disappearance and destruction of the evidence had thrown the dead body in sugarcane crop. On 03.10.2016, complainant along with above said witnesses went in search of her son in sugarcane crop and found dead body of her son Shahbaz lying there. She informed the police and then with the help of PWs and police brought dead body at Taluka Hospital Ghotki and after postmortem examination, the dead body was handed over to her. After completing funeral rite, she lodged F.I.R, at Police Station ‘A’ Section, Ghotki against accused persons.

3.         After registration of F.I.R. police started investigation of the case and during investigation Police arrested accused Abdul Rahim and Mst. Nasreen, whereas name of accused Shahnawaz was placed in colum No.2 of the challan.

4.         After completion of the investigation, report under Section 173 Cr.P.C. was submitted before the Trial Court. The prosecution in order to prove its case examined ten witnesses, who produced the relevant documents at trial. Thereafter, prosecution side was closed vide statement at Ex.20.

5.         Trial court had recorded the statements of accused under sections 342, Cr.P.C, wherein they have denied the prosecution allegations and pleaded innocence. However, they neither examined themselves on oath u/s 340(2) Cr.P.C nor led any evidence in their defence.

6.         After hearing the parties and assessment of the evidence brought on record, learned trial court while acquitting co-accused Mst. Nasreen, convicted and sentenced the appellant Abdul Raheem alias Raheem Chachar as detailed above.

7.         Learned Counsel for appellant contended that the appellant has been falsely implicated in the present case by the complainant party; that the witnesses being closely related to the deceased are interested witnesses hence they have falsely deposed against the appellant; that there was no eye-witness in this case; that it was case of last seen evidence; that there was unexplained delay of about 07 days in lodgment of the F.I.R for which no plausible explanation has been furnished; that pistol has been  foisted upon the appellant and that too was sent to ballistic expert after delay of 09 days without furnishing any explanation; that complainant has failed to disclose the number from which appellant Abdul Raheem allegedly informed about killing of the deceased; that even I.O had failed to collect CDR of the cell phone numbers of the appellant and the complainant; that there are material inconsistencies in the evidence of the prosecution witnesses; that Sachal, father of deceased was not examined by the prosecution; that Cellular phone with SIM seized by the police on 10.10.2016, according to CDR report, was found functional subsequently; that on the basis of same evidence co-accused Mst. Nasreen was acquitted, hence he sought for acquittal of the appellant too. In support of his contentions, learned Counsel for the appellant has relied upon the cases of Muhammad Abid v. The State another (PLD 2018 Supreme Court 813), Sajjan Solangi v. The State (2019SCMR 872), Ghous Bux v. Saleem and 3 others (2017P.Cr.LJ836), Gul Hassan alias Gulan v. The State (2022P.Cr.LJ Note 80), Abdul Jabbar and another v. The State (2019 SCMR 129) and Muhammad Bilal v. The State and  others (2021 SCMR 1039).

8.         On the other hand, learned Additional Prosecutor General assisted by counsel for complainant contended that the appellant has been nominated in the F.I.R that mere relationship between the P.Ws is no ground to discard their evidence; that all the P.Ws have fully supported the case of prosecution; that at trial prosecution successfully established last seen evidence that deceased was alive when he left with appellant, therefore, he prayed for dismissal of the instant appeal. In support of his contention he relied upon cases of Allah Ditta v. The Crown (1969 P.Cr.LJ 1108), Abdus Samad v. The State (PLD 1964 Supreme Court 167), Muhammad Amin v. The State (2000 SCMR 1784), Muhammad Naseem alias Deemi v. The State (2011 SCMR 872) and Khair Muhammad and another v. The State (2019 P.Cr.LJ 26).

9.         Heard and perused the record minutely.

10.       Present case is primarily based upon last seen evidence, it is the case of the prosecution that the deceased was lastly seen in the company of the appellant on 28.09.2016 and from the said time the deceased was missing. To prove it, prosecution examined complainant, P.Ws Ali Raza and Farzand Ali, they claimed that deceased accompanied with the appellant to go to Ghotki city, however, it is strange to note that when the deceased did not return for the whole night and his cell number was also found powered off, then as to why the complainant or the above named witnesses had not approached the police to render the information about missing of the deceased and waited till disclosure by the appellant regarding commission of the murder of the deceased. P.W Ali Raza has stated during his cross examination that after 30 minutes of leaving of the house by the deceased, he contacted him on his cell phone, who disclosed that he was with appellant and they were going to attend a function, however, nothing has been brought on record to show that P.W Ali Raza actually contacted the deceased on that night to establish that the deceased had gone with the appellant. Thus, the claim of the complainant, P.Ws Ali Raza and Farzand Ali with regard to lastly seen the deceased in the company of the appellant appears to be unbelievable.

11.       So far as identification of the dead body is concerned, Dr. Asif Hakeem in his evidence has stated that the dead body was completely decomposed, it was impossible to identify it. From perusal of record, it appears that the dead body of the deceased was identified through chappal and clothes by the complainant, however, identification of the body on the basis of shalwar and chappal cannot be safely relied upon. Moreover, no report of Serologist is brought on record to prove that the body was that of the deceased. In our considered view, identification of dead body was doubtful.

12.       Record reflects that as per prosecution case, the appellant called at the cell phone of the complainant and informed her about killing of her son and pointed out the place where the dead body was thrown, however, nothing has been brought on record to establish that the appellant contacted the complainant; the SIM allegedly recovered from the mobile of the appellant did not match with the numbers mentioned in the CDR produced at trial, even the said SIM is not in the name of the appellant.

13.       Co-accused Mst. Nasreen has been acquitted by the trial Court. Conviction of appellant on same set of evidence, without independent corroboration was unwarranted in law.

14.       We have also found material contradictions in the evidence of the complainant, PWs Ali Raza and Farzand Ali. The complainant in her evidence has stated that 2˝ months prior to the incident Shahbaz Ahmed returned from Karachi and disclosed about illicit relations between the appellant and Mst. Nasreen (his step-mother), however, evidence of P.Ws Ali Raza and Farzand Ali is totally different in this respect, P.W Ali Raza stated that 6/7 months prior to the incident deceased Shahbaz returned from Karachi and informed the complainant about the illicit relations between Rahim and his step mother, whereas, P.W Farzand Ali stated that it was about 01 month prior to the incident when Shahbaz returned from Karachi and informed the complainant about such illicit relationship. Though it was claimed by them that information of illicit relationship of the appellant with his wife Mst. Nasreen and about missing of the deceased was conveyed to Sachal, father of the deceased, but surprisingly, he was not examined by the prosecution. In our view, withholding of his evidence giving rise to a presumption in terms of Articles 129(g) of the Qanun-e-Shahadat Order, 1984 that, if he had been produced, his testimony might have been unfavourable to the prosecution.

15.       With regard to admission of the guilt by the appellant before I.O/ Inspector Aftab Hussain is concerned. Admission before police during investigation is inadmissible in evidence.

16.       So far as recovery of pistol on the pointation of the appellant and lathi is concerned, such recoveries are inconsequential for the reason that in the mashirnama of recovery of the pistol, number of pistol was not mentioned whereas during trial when case property was de-sealed it transpired that pistol had a number and company. Record further reflects that it was sent to ballistic expert on 03.11.2016 after delay of 09 days without furnishing any explanation. Even the safe custody and safe transmission of the weapon and empties have also not been proved before trial Court. Even incharge of the Malkhana has not been examined before the trial Court to prove the safe custody of the pistol and the empties. The prosecution is under legal obligation to prove the safe custody of the recovered weapon and its safe transmission to the Forensic Science Laboratory as held by the Hon’ble Supreme Court in the case of Kamal Din alias Kamala v. The State (2018 SCMR 577). Medical Officer in the postmortem report has only opined fire arm injuries and no blunt substance injury has been shown, hence the recovery of lathi is of no help to the case of the prosecution. As regards to the recovery of Pistol on the pointation of the appellant is concerned it is also not produced by the prosecution for the above stated reasons.

17.       Thus, in our view even when taking the prosecution case as a whole, and at its best, in terms of last seen evidence, extra judicial confession of the appellant before the police and production of incriminating weapons, cell phone containing SIM and other circumstantial evidence. Circumstantial evidence, in a murder case, should be like a well-knit chain, one end of which touches the dead body of the deceased and the other the neck of the accused. No link in chain of the circumstances should be broken and the circumstances should be such as cannot be explained away on any reasonable hypothesis other than guilt of accused person. Chain of such facts and circumstances has to be completed to establish guilt of the accused person beyond reasonable doubt and to make the plea of his being innocent incompatible with the weight of evidence against him. Any link missing from the chain breaks the whole chain and renders the same unreliable; in that event conviction cannot safely be recorded, especially on a capital charge. In the present case, chain is incomplete. Therefore, we are unable to rely upon such type of evidence. Reliance is placed upon the case of Naveed Asghar and 2 others v. The State (PLD 2021 Supreme Court 600).

18.       It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. Reliance is placed upon cases of Azhar Iqbal v. The State (2013 SCMR 383) and Muhammad Akram v. The State (2009 SCMR 230).

19.       For the foregoing reasons, appeals are allowed, the conviction and sentence awarded to the appellant by way of impugned judgments are set-aside, consequently, he is acquitted of the offence for which he was charged, tried and convicted by learned trial Court and he shall be released forthwith, if not required to be detained in any other custody case. The confirmation reference is answered in the negative and the appellant shall be released forthwith unless he is wanted in any other custody case.

            In the view of above, aforesaid appeals and confirmation reference are disposed of in above terms.

                                                                                                JUDGE

 

        JUDGE

 

 

 

 

 

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