THE
HIGH COURT OF SINDH AT KARACHI
Criminal Jail Appeal Nos. 716 & 857 of 2019
Present: Mr. Justice Naimatullah Phulpoto
Appellants : Syed Jehanzaib and Syed Murtaza
Jillani through M/s Iftikhar Ahmed Shah, Muhammad Nasir, Ms. Shaista Gul and
Mr. Raja Zeeshan advocates
The State/Respondent
: Mr. Muhammad Iqbal
Awan Additional Prosecutor General Sindh
Complainant : Syed Afsar Vehaj through Mr. Mehmood A. Qureshi
advocate
Date of Hearings : 03.12.2024
& 10.12.2024
Date
of judgment : 10.12.2024
JUDGMENT
NAIMATULLAH
PHULPOTO, J.- Appellants
Syed Jehanzaib and Syed Murtaza Jillani were tried by learned I-Additional
Sessions Judge Karachi East for offences punishable under sections 302/109/34
PPC. After regular trial, vide
judgment dated 16.09.2019, both appellants were convicted under Section 302(b) PPC
as Tazir for committing Qatl-amd of Badar-ul-Hassan and his wife Mst.Razia
Sultana and sentenced to imprisonment for life on two counts and were directed
to pay compensation in terms of section 544-A Cr.P.C of Rs.200,000/- each to be
paid to the legal heirs of deceased persons. In case of default, they were ordered
to undergo 06 months S.I. All sentences were ordered to run concurrently. The
appellants were however, extended the benefit of Section 382-B Cr.P.C. Appellant
Syed Murtaza Jillani was also tried for offence under section 23(1)(a) of Sindh
Arms Act 2013 and after regular trial vide judgment dated 05.09.2019, appellant
was convicted under Section 25 of Sindh Arms Act 2013 and sentenced to 07 years
R.I with fine of Rs.10,000/-. In case of default, appellant was ordered to
undergo 03 months’ S.I. However, appellant was extended benefit of section
382-B Cr.P.C.
2. The
case of the prosecution is in a narrow compass and is briefly encapsulated
hereafter. It is a case of un-witnessed murders in the house of deceased
persons between 24.11.2014 to 28.11.2014 where Badar-ul-Hassan and his wife
Mst. Razia Sultana were done to death and their dead bodies were recovered by
the police on 28.11.2014 from house and shifted by police to hospital for
postmortem examination and reports. FIR of the incident was lodged by brother
of deceased namely Syed Afsar Vehaj at PS Al-Falah Karachi on 29.11.2014. Both
accused were arrested at Hyderabad as suspects under section 54 Cr.P.C on
04.03.2015. During interrogation, accused admitted the commission of these
murders. Accused were arrested in this case and during investigation, they led
police to the house of deceased persons on 04.03.2015. During investigation,
accused Syed Murtaza prepared to produce pistol used by him in the commission
of the offence and led police party and mashirs to the railway crossing and
produced unlicensed pistol concealed by him in a ditch in presence of mashirs
on 12.03.2015. Said accused led police on 16.03.2015 and produced ornaments of
gold belonging to the deceased persons and laptop concealed in the graveyard.
I.O sealed articles in presence of mashirs and dispatched pistol to the
Ballistic Expert for report. Positive report was received by the I.O. On the
conclusion of the investigation, he submitted challan against the accused under
Sections 302/109/34 PPC and under section 23(1)(a) of Sindh Arms
Act 2013. At the trial,
accused pleaded not guilty and claimed to be tried. Trial Court recorded
evidence of 12 P.Ws. Thereafter, prosecution side was closed. Trial Court recorded
statements of accused under Section 342 Cr.P.C at Ex.32 & 33, in which they
denied the prosecution allegations. Accused declined to examine themselves on
oath u/s 340(2) Cr.P.C in disproof of the prosecution allegations and did not
lead evidence in their defence. Trial Court, after hearing learned counsel for
the parties and assessment of the evidence vide judgment dated 16.09.2019 and
05.09.2019 convicted and sentenced the appellants as stated above. Hence,
appellants filed appeals before this Court. Hence, through this common
judgment, I intend to dispose of instant appeals.
3. The
evidence produced before the Trial Court finds an elaborate mention in the
judgment dated 16.09.2019. Therefore, the same may not be reproduced here so as
to avoid duplication and unnecessary repetition.
4. Mr. Iftikhar Ahmed Shah advocate for the
appellants mainly contended that there is no direct evidence with regard to any
aspect of the matter; that prosecution has miserably failed to establish
unbroken convincing chain, which was to be proved, which would lead to the
conclusion of the guilt and culpability of the appellants and which completely
rules out the hypothesis of the innocence of the appellants. Mr. Shah has
disputed authenticity of the last seen evidence furnished by P.W-07 Muhammad
Amir and P.W-10 Azhar Hussain by the prosecution. Learned counsel for the
appellants further submits that even if testimonies of P.Ws Muhammad Amir and
Azhar Hussain relating to appellants and deceased persons being last seen
together in the house is to be accepted, there is no proximity at all between
the deceased being last seen in the company of the appellant Jahanzeb and the
discovery of the dead bodies from the house. He further points out that not
only is there no proximity of time, there is no proximity of place; that a test
identification has no legal value in this case, because PW-10 Azhar Hussain had
visited police station Model Colony on 15.03.2015 and on the said date both the
accused were already confined at the said police station, possibility could not
be ruled out that PW Azhar Hussain had seen accused at police station before
identification parade. It is further contended that PC Hizqiel son of Anwar was
made to stand in the row of dummies by the Civil Judge & Judicial
Magistrate at the time of holding of identification parade, he was also posted
at the said police station, it has been admitted by the I.O in his evidence. It
is argued that P.Ws Mst. Nasreen and Mst Parveen were present in the house of
the deceased at the time of incident and had identified dead body of Mst. Razia
Sultana as per inquest report dated 28.11.2014 at Ex. 13/B, but prosecution
gave up both these ladies and withheld material evidence, non-examination of
these material witnesses would be fatal to the prosecution. As regards to the
recovery of pistol on the pointation of accused Syed Murtaza from railway
crossing on 12.03.2015 is concerned, it is submitted that prosecution had failed
to prove safe custody and safe transmission of the pistol to Ballistic Expert. Lastly,
argued that prosecution had failed to prove its case against appellants beyond
reasonable doubt. In support of the contentions, reliance is placed upon the
cases Bahlol Khan Kasi vs. Azmatullah
Kasi and another (2020 P.Cr.L.J 1633), Mursal Kazmi alias Qamar Shah and
another vs. The state (2009 SCMR 1410) and Muhammad Asif vs. The State ( 2017
SCMR 486).
5. Mr.
Muhammad Iqbal Awan, Addl. P.G assisted by Mr.
Mehmood A. Qureshi advocate for the complainant argued that prosecution
has produced evidence of last seen, recovery of crime weapon, medical evidence
and identification of accused through P.Ws Muhammad Amir and Azhar Hussain to
connect accused in the commission of the offence. He further argued that PW Azhar
Hussain had heard gunshot report in the house of deceased persons on 23.11.2014
when he was at the Shrine of Pir Sahab and had seen appellants on motorcycle at
the door of deceased persons; that PW Muhammad Amir had seen accused Jahanzeb
in the house of deceased persons before occurrence; that P.Ws Nasreen and
Parveen were not material witnesses and non-examination of these witnesses
would not be fatal to the case of prosecution. Addl. P.G further argued that
both accused were picked up by P.Ws Muhammad Amir and Azhar Hussain in the
identification parade. Learned A.P.G. argued that accused Syed Murtaza produced
crime weapon before police during investigation, report of Ballistic Expert is
positive and articles belonging to deceased were also produced by him. Lastly,
argued that last seen evidence corroborated by other pieces of evidence is
sufficient to maintain the conviction in the case.
6. I
have heard learned counsel for the parties and re-examined the entire evidence.
7. The entire evidence of prosecution on
which conviction of appellants has been based consists of the following pieces
of evidence:
(i)
Last
seen evidence;
(ii)
Recovery
of crime weapon and articles belonging to deceased persons;
(iii)
The
medical evidence furnished by Dr. Aijaz Ahmed (PW-05) and Lady Dr. Nasreen Qamar (PW-06);
(iv)
Identification
parade of appellants/accused through P.Ws Muhammad Amir and Azhar Hussain;
(v)
Positive
report of the Fire-arm Expert.
MEDICAL EVIDENCE
8. According
to Dr. Aijaz Ahmed (PW-05) on 28.11.2014 at 11:00 p.m., he conducted postmortem
examination of Syed Badar-ul-Hassan and found one firearm injury on his person.
Cause of death was cardio respiratory failure in the result of firearm injury
on chest. Time between death and postmortem was 3 to 4 days. Dr. Nasreen Qamar
(PW-06) stated that on 28.11.2014 at 9:00 p.m., she conducted postmortem
examination of Razia Begum wife of Syed Badar-ul-Hassan and found 04 injuries on
her person. Cause of death was head and face injuries by means of firearm and
multiple wounds by means of sharp edged weapon.
According
to woman medical officer, Mst. Razia Sultana died of firearm injuries as well as
injuries caused by sharp cutting weapon; time between death and postmortem was
3 to 4 days.
LAST SEEN TOGETHER
EVIDENCE
9. As the present case has been structured
exclusively on circumstantial evidence. Therefore, the same requires careful
reappraisal of evidence to see as to whether all links in chain have been
provided by the prosecution or there are missing links in the same. How
evidence was procured at different stages and in what manner investigation was
conducted. It is the case of prosecution that both accused were arrested by
Hyderabad police under Section 54 Cr.P.C and during interrogation, they
admitted that they have committed murders of Badar and Mst. Razia Sultana in
their house at Karachi. Such case was already registered on 29.11.2014 at PS
Al-Falah under sections 302/109/34 PPC against unknown persons and dead bodies
were shifted to the Hospital on 28.11.2014. House where incident had occurred
was jointly pointed out by both the accused. Such piece of evidence was
inadmissible in evidence. Thereafter, most important circumstance which the
prosecution has relied against the appellants is the last seen evidence of the
deceased being last seen alive by P.W Muhammad Amir on 21.11.2014, in the house
of deceased persons. In this regard, prosecution has extensively relied upon
the testimony of PW-07 Muhammad Amir, tenant in a portion of the house of
Badar. According to evidence of P.W-07 Muhammad Amir, he had seen accused
Jahanzeb in the house of deceased on 22.11.2014 but according to medical evidence
both deceased were done to death in between 24.11.2014 to 28.11.2014 which
clearly shows that there was gap of two days without explanation. PW Muhammad
Amir has not specifically mentioned first or second floor of the house where he
had seen accused Jahanzeb on 22.11.2014. It has come on record that PW Muhammad
Amir was residing with his family in the said house, but prosecution has failed
to examine wife of the PW Muhammad Amir for the purpose of corroboration.
According to PW Muhammad Amir, he had got telephone number of brother of
deceased from one Basit when Badar did not attend his call but said Basit has
also not been examined by the prosecution. Prosecution has also heavily relied
upon the evidence of PW-10 Azhar Hussain. He has deposed that on 23.11.2014, he
had gone to shrine of Peer Sahab situated at Al-Falah to pray for his job. It
was morning time. Several persons were already there, he heard gunshot report
from adjacent house. After 45 minutes of firing, when he was waiting outside the
shrine, he saw that a person who was sitting on motorcycle and another person
came out of the house of the deceased, he was carrying a box in his hand. PW-10
Azhar Hussain further deposed that he went inside Shrine to meet Peer Sahab,
who advised him to come back after 5/6 days. It is stated that after 5/6 days, he
came back and came to know from the peoples who had gathered at Shrine that
husband and wife residing in the house adjacent to shrine from where he had
heard gunshot report have been killed and culprits have been arrested by the
police. After hearing this news, above named PW went to PS Model colony to see
the culprits. He narrated story to the I.O, who recorded his 161 Cr.P.C
statement on 15.03.2015. According to P.W Azhar Hussain, he appeared before the
Magistrate on 17.03.2015 and identified accused Jahanzeb and Syed Murtaza in
the identification parade.
10. In the present case testimonies of P.Ws
Muhammad Amir and Azhar Hussain on the aspect of last seen is extremely tenuous
and lacks independent corroboration. PW-07 Muhammad Amir has not mentioned the date
at which he had seen accused Jahanzeb in the house of deceased persons. He had
not specifically mentioned about ground or first floor of the house where he
had seen accused Jahanzeb standing on the relevant date. Moreover medical
evidence does not support his evidence. P.W Azhar Hussain was a chance witness,
he failed to plausibly explain his presence at Shrine on the day of incident.
PW Azhar Hussain after hearing gunshot report did not narrate incident to
anyone and remained calm for 04 months. The proximity of the crime scene played
a vital role but according to medical evidence time between death and
postmortem examination of both deceased was 3 to 4 days. I, therefore, hold that circumstantial
evidence of last seen is not corroborated by independent evidence. Conviction
cannot be maintained on such weak type of evidence in a case involving capital
punishment.
IDENTIFICATION PARADE
11. The
necessity for holding an identification parade can arise only when the accused
are not previously known to the witnesses. The whole idea of a test
identification parade is that witnesses who claim to have seen the culprits at
the time of occurrence are to identify them from the midest of other persons without
any aid or any other source. The test is done to check upon their veracity. In
other words, the main object of holding an identification parade, during the
investigation stage is to test the memory of the witnesses based upon first
impression and also to enable the prosecution to decide whether all or any of
them could be cited as eye witnesses of the crime. The identification
proceedings are in the nature of tests, therefore, there is no provision for it
in the Code of Criminal Procedure 1898 and Qanun-e-Shahadat Order 1984. It is
desirable that a test identification parade should be conducted as soon as
after the arrest of the accused. This becomes necessary to eliminate the
possibility of the accused being shown to the witnesses prior to the test of identification
parade. This is a very common plea of the accused and therefore, the
prosecution has to be cautious to ensure that there is no scope for making such
allegations. If, however, circumstances are beyond control and there is some
delay, it cannot be said to be fatal to the prosecution.
In
the present case, on 12.03.2015, I.O produced accused Jahanzeb for holding
identification parade through PW-07 Muhammad Amir in Crime No. 252/2014 u/s
302/109/34 PPC of PS Al-Falah. Identification parade was held and according to
Magistrate, accused Jahanzeb was identified by PW-07 Muhammad Amir. Magistrate
further stated that on 17.03.2015, I.O produced accused Jahanzeb and Syed
Murtaza before him for holding identification parade through PW-Azhar Hussain
in the above crime. It is stated that PW Azhar Hussain identified accused
Jahanzeb and Syed Murtaza. Learned defence counsel cross-examined Magistrate at
some length. It has come on record that accused Jahanzeb was previously known
to PW Muhammad Amir as deposed by PW Muhammad Amir in his evidence at Ex.17.
Therefore, identification parade held through PW-07 Muhammad Amir was without
any necessity. As regards to the identification parade of accused persons
through PW-10 Azhar Hussain is concerned, it has come in evidence that PW Azhar
Hussain came to know on 15.03.2015 that accused are confined at PS Model Colony
involved in the murders of the deceased persons. He went to said police station
on 15.03.2015 to see the accused. Therefore, possibility could not be ruled out
that PW Azhar Hussain had seen both the accused at police station before
holding identification parade. Hence, it is clear that holding of
identification parade through this witness had no evidentiary value. Unfortunately,
Magistrate failed to follow the guidelines, requirements and safeguards
necessary for holding identification parade.
Record
reveals that PC Hizqiel was made one of the dummies, he was posted at PS Model
Colony, where accused were already confined. This fact has been admitted by the
I.O in his evidence. It may be observed that vital factor determinative of
worth and value of test identification proceedings was effectiveness of the
precautions taken before and during course of such proceedings which were
designed to eliminate possibility of unjustified conviction, but in the present
case necessary pre-cautions were not taken by concerned Magistrate.
12. From
close scrutiny of the identification proceedings conducted by the Magistrate, I
have no hesitation to hold that Civil Judge and J.M did not observe
pre-cautions for holding identification parade as held in the case of Kanwar Anwaar Ali Special Judicial Magistrate (PLD 2019 S.C 488). Resultantly, sanctity of test
identification parade is doubtful for the reasons that accused were already
shown to witness Azhar Hussain in police station.
13. It
is in evidence that PWs Mst. Nasreen and Mst. Parveen sisters of deceased Mst.
Razia Sultana had identified dead body of Mst. Razia Sultana on 28.11.2014,
they were given up by the prosecution during trial. Mst. Nasreen and Mast.
Parveen were material prosecution witnesses. Under Article 129(g) of
Qanun-e-Shahadat Order 1984, adverse inference could be drawn to the effect
that had they been produced by the prosecution at trial, they would not have
supported the case of prosecution as held in the case of Riasat Ali and another vs. The State and another (2024 SCMR 1224).
DISCLOSURE LEADING TO RECOVERY OF CRIME
WEAPON AND ARTICLES BELONGING TO DECEASED PERSONS
14. PW-12 Inspector Muhammad Aslam Mughal I.O
deposed that appellants were arrested as suspects under Section 54 Cr.P.C, they
admitted before police that they have committed murders within the jurisdiction
of PS Al-Falah. During interrogation, both accused admitted before police that on
23.11.2014, they committed murders of Badar and his wife Mst. Razia by means of
firearm and knife. Accused Syed Murtaza prepared to produce pistol used by him
in the commission of murders of both deceased. On his admission, he led police
party and produced pistol on 12.03.2015 in presence of mashirs from Railway
crossing Malir Halt. The same accused again prepared to produce ornaments of
gold and laptop taken from the house of deceased on 16.03.2015 and produced the
same from graveyard in presence of mashirs. Investigation Officer sealed
weapons and other articles belonging to deceased persons. It appears that
admission of accused Syed Murtaza before police regarding use of weapon and
recovery of articles have been heavily relied upon by the trial Court. Under
the law, admission during interrogation before police is inadmissible in
evidence. Hence, such piece of evidence with regard to the admission of accused
before police is excluded from consideration. Now, only there remains recoveries
of pistol, ornaments of gold and laptop. It may be observed that the same were
produced by the accused from railway crossing and from graveyard. It has come
on record that these were open spaces, accessible to all. In order to prove the
case within the ambit of Article 40 of Qanun-e-Shahadat Order 1984, the
prosecution was bound to prove that a person accused of any offence, in custody
of police officer, has conveyed an information or made a statement to the
police, leading to discover of new fact concerning the offence, which is not in
the prior knowledge of the police. Such information or statement should be in
writing and in presence of witnesses but in the present case, entry/statement
was not recorded before leaving police station. Prosecution has failed to
establish recoveries on the pointation of accused. Therefore, recoveries of
pistol/articles belonging to the deceased persons on the pointation of accused
Syed Murtaza without such entries in the record, in the circumstance of the
case were unreliable. Moreover, there are material contradictions in the
evidence of I.O Inspector Muhammad Aslam Mughal and mashir Qamar Wahaj on the
point of recovery of pistol on the pointation of accused Syed Murtaza. There is
also overwriting in date of preparation of mashirnama of recovery of pistol.
After recovery of pistol it was not deposited in Malkhana of police station.
Prosecution had failed to prove safe custody and safe transmission of pistol to
Ballistic Expert before trial Court. It is the case of prosecution that accused
Syed Murtaza produced laptop belonging to the deceased persons but said lap top
was not sent to the expert for opinion. Article 164of Qanun-e-Shahdadat Order,
1984 specifically permits the use of any evidence that may have become
available because of modern devices or techniques and its Article 165 overrides
all other laws. So the recovery is inconsequential.
15. P.W Inspector Muhammad Aslam Mughal further
deposed that he dispatched the clothes of deceased Badar and Mst. Razia Sultana
on 10.12.2014 to the chemical examiner for analysis, positive report was
received which he produced in evidence at Ex.31, which reflects that clothes of
the deceased were stained with human blood.
16. An important gap in the prosecution story
has been caused by the failure of the investigative agency to obtain the blood
groups of the deceased persons. There is no evidence at all with regard to
their blood grouping or whether it matched the blood stains on the exhibits
which were sent for forensic examination. The prosecution has also not cared to
obtain the blood grouping of the deceased so as to rule out the possibility of
blood on the clothes which were allegedly recovered being their own. In this
background, the report of laboratory that human blood was found on the exhibits
without any material evidence on other important aspects loses
significance.
17. The prosecution has not proved a single
circumstance leading to the murders of Badar and Mst. Razia Sultana beyond
reasonable doubt. As discussed above, the investigating agency has not even
attempted to investigate and identify the motive for commission of offence.
18. A finding of guilt cannot be based on a
presumption. Before arriving at an inference that the appellants have committed
an offence, existence of materials therefore ought to have been found. No
motive for committing the crime was identified which, in the facts and
circumstances of the case, was relevant. How the links in the chain of the
circumstances led to only one conclusion that the appellants and the appellants
alone were guilty of commission of the offence has not been spelt out by the
learned trial Judge.
19. The prosecution has miserably failed to
prove the chain of evidence by which I could clearly and unequivocally reach to
a conclusion which points only to the guilt of the accused for commission of
the crime.
20. It is well settled law that it is not
necessary that there should be many circumstance creating doubt. If there is a
single circumstance, which creates reasonable doubt in a prudent mind about the
guilt of the accused, then the accused will be entitled to the benefit not a
matter of grace and concession but as a matter of right. Reliance in this
regard may be placed on the case reported as Tariq Pervez vs. The State (1995 SCMR 1345).
21. For what has been discussed above, I am
of the view that the prosecution has failed to prove its case beyond a
reasonable doubt and appellants are extended benefit of doubt. Consequently,
instant appeals are
allowed and conviction and sentence passed by learned trial Court are hereby
set aside. Appellants Syed Jehanzaib and Syed Murtaza Jilani are acquitted of
the charges. They shall be released forthwith, if not
required in other case.
22. These are the
reasons for the short order announced on 10.12.2024.
JUDGE