HIGH COURT OF SINDH AT KARACHI

 

Criminal Jail Appeal No. 222 of 2013

 

Present:

Mr. Justice Naimatullah Phulpoto

 

JUDGMENT

 

Date of Hearing      :             04.08.2015 and 11.08.2015                                            

 

Date of Judgment    :            31st August 2015                                                                 

 

Appellants               :            Shah Bali and Niaz Ali through Mr. Ajab Khan Khattak Advocate.

 

Respondent           :               The State through Mr. Abrar Ali Khichi, APG            

 

 

NAIMATULLAH PHULPOTO, J.-  Appellants Niaz Ali son of Shah Bali and Shah Bali son of Shahder were tried by learned Sessions Judge Karachi West in S.C.No.500/2006 arising out of FIR No. 156/2006 registered at PS Jackson, Karachi for offences under Sections 302/34 PPC. On conclusion of the trial, appellants Niaz Ali and Shah Bali were convicted under Section 302(b) PPC and sentenced to imprisonment for life as Tazir. Appellants were extended benefit of section 382-B Cr.PC. Absconding accused Naeem was acquitted in absentia for want of evidence vide judgment 6th April 2013. Proceedings against absconding accused Mst. Ramim were kept on dormant file.

 

2.         The brief facts of the prosecution case as disclosed in the FIR are that complainant Fazal Muhammad lodged his report on 12.05.2006, alleging therein that he resides with his family at Bhutta Village, Keamari, Karachi. He has stated that his brother Ameer Muhammad Khan was married to Safina daughter of Shah Bali (accused). After marriage relations between Safina and her husband became strained and she returned back to the house of parents. Complainant party went to her father’s house for settlement of matrimonial dispute but her parents were not prepared for return of their daughter to the house of her husband. Thereafter, it is alleged that on the day of incident, Shah Beli had sent message to the complainant party to reach at his home. On 11.05.2006 at 0545 hours, complainant along with his mother Bakhti Meena and father Bakht Nasar s/o Ameer Gulab (deceased) went to the house of Shah Bali situated near Qubah Masjid, Keamari. It is further alleged that at 8:15 pm, mother of the complainant informed him that during talks Shah Bali, Niaz Ali and Naeem caught hold, father of complainant, namely, Bakht Nasar and Mst. Ramim (absconding accused) caused a blow with some hard and blunt substance to the father of the complainant, who sustained serious injury. Thereafter, complainant and the persons of the Mohallah took injured father of the complainant to Ziauddin Hospital where he expired. Offence was reported to the police and FIR was lodged against accused persons at P.S Jackson on 12.05.2006 at 0230 hours under Sections 302/34 PPC.

 

3.         After registration of the FIR, 161 Cr.P.C statements of the P.Ws were recorded. Mashirnama of wardat was prepared. I.O collected postmortem report from J.P.M.C Karachi dated 12.05.2006. On conclusion of usual investigation, challan was submitted against accused Shah Beli and Niaz Ali, accused Mst. Ramim and Naeem were shown as absconders in the challan sheet. Accused Mst. Ramim and Naeem were declared as proclaimed offenders.

 

4.         Challan was framed against accused Niaz Ali and Shah Bali at Ex.6 under Sections 302/34 PPC to which both accused not pleaded guilty and claimed to be tried.

 

5.         At trial, prosecution examined the following witnesses:

(i)                 P.W-1 Sikandar at Ex.8.

(ii)              P.W-2 SIP Astam Khan at Ex.11.

(iii)            P.W-3 Shahzad at Ex.19.

(iv)            P.W-4 Ameer Muhammad at Ex.21.

(v)               P.W-5 Umer Zada at Ex.22.

(vi)            P.W-6 PI Ch. Saeed Akhtar at Ex.23.

(vii)          P.W-7 Dr. Abdul Razzak at Ex.24.

(viii)       P.W-8 Mst. Bakht Meena at Ex.27.

(ix)             P.W-9 SIP Ch. Waris Ali at Ex.29.

 

6.         Complainant Fazal Muhammad and Ameer Zaman were not examined as both expired before evidence. P.Ws-Imran Khan and Khan Muhammad alias Khan were also not examined as PW Imran Khan due to his liver disease became blind and was unable to appear before the trial Court and PW Khan Muhammad shifted from his last known address to unknown place. Statement of process server was recorded at Ex-28. Thereafter, the prosecution side was closed at Ex.37.

 

7.         Statements of appellants/accused were recorded under Section 342 Cr.PC at Ex-38 to Ex-39. Both the accused have claimed their false implication in this case and denied the prosecution allegations and stated that PWs have deposed against them falsely. Both the accused declined to give statement in disproof of prosecution allegations and did not adduce evidence in defence.

 

8.         Learned Trial Court after hearing learned counsel for the parties, convicted and sentenced the appellants/accused as stated above.

 

9.         I have carefully heard Mr. Ajab Khan Khattak learned counsel for the appellants, Mr. Abrar Ali learned APG and perused the entire evidence.

 

10.       The points of determination are (i) whether deceased died unnatural death (ii) whether both the appellants had caught hold deceased at the time of incident and absconding accused Mst. Ramim caused fatal blow to deceased by means of hard and blunt substance.

 

11.       Mr. Ajab Khan Khattak learned counsel for the appellants mainly contended that evidence of prosecution witnesses is contradictory to each other on material points and their evidence is full of contradictions and improvements. He has referred to the evidence of prosecution witnesses in order to show that dishonest improvements have been made by the prosecution witnesses at trial. Learned counsel for the appellants argued that deceased was infirm and aged about 70 years. Appellants had no reason need to catch hold the deceased to provide an opportunity to the absconding lady accused to cause hard and blunt substance blow to the deceased. He has submitted that admittedly there was matrimonial dispute between the parties. It is further argued that appellants have been falsely implicated in this case by the complainant party. In support of the contentions, reliance has been placed upon the case reported as Muhammad Irshad and another vs. The State (1999 SCMR 1030) & Mushtaq Ali and 2 others vs. The State (1999 MLD 506) [Karachi].  

 

12.       Mr. Abrar Ali learned APG argued that role of catching hold of deceased has been assigned to the appellants in the commission of the offence. There are no material contradictions in the prosecution case. He has argued that prosecution has proved its case against appellants and he supported the impugned judgment.

 

13.       As regards the unnatural death of the deceased, postmortem of the deceased was conducted by Dr. Abdul Razzak. He has stated that on 12th May 2006 he was posted as MLO at JPMC, Karachi. He received a dead body of deceased Bakhat Nasar son of Ameer Gulab brought by SI Austam Khan from PS Jackson at 12:15 am. He started postmortem examination at 01:40 am and finished at 02:30 am. On external examination, he found lacerated wound 3 cm x 1 cm mid of occipital region. Injury was anti-mortem and rigor mortis had started developing. On internal examination of dead body, he found the following injuries:

Head

Skull bone fractured at occipital region, blood and clots present at the side of the injury. Meninges teared and brain mater normal.

 

 

Neck

Normal

 

Thorax

Normal

Abdomen

All visceras are normal, stomach empty.

Time between injury and death 15 minutes to one hour.

Time between death and post mortem 5 to 7 hours.

 

Cause of death & Opinion

Cause of death of deceased is cardio respiratory failure due to acute head injury resulting from hard and blunt substance.

 

14.       The medical evidence clearly proves that deceased died unnatural death and such piece of evidence remained unshaken and unchallenged.

 

15.       As regards to point No.2 is concerned, prosecution examined P.W-8 Bakht Mina, eye witness of the incident. She has deposed that her son Ameer Muhammad Khan was married with Mst. Safina daughter of Shah Bali. On the day of incident at 5/6 pm her husband went to house of accused and then she and her son Shahzad also went there. There was exchange of hot words. Both accused present in Court caught hold of her husband and        co-accused Mst. Ramim caused a below with hard and blunt substance at the head of her husband who became unconscious. Thereafter, her son Shahzad shifted injured to Ziauddin Hospital, where he died.   

16.       P.W Shahzad has deposed that deceased was his real father. The incident occurred on 11.5.2006 at 6:00 pm. After reaching at home, he was informed that his brother Ameer Mohammad Khan had gone to house of accused Shah Bali for bringing his wife, who was told by accused Shah Bali to send his parents. Thereafter, his brother returned back and sent their mother and father to house of accused Shah Bali. He came to know about the incident through telephone call whereafter he and his brother Sikandar went to the house of accused Shah Bali and shifted their father to Ziauddin Hospital and then Jinnah Hospital but his father expired. He further deposed that his brother Fazal Mohammad lodged FIR against accused. Police also recorded his statement under section 161 Cr.P.C.

 

17.       SIP Chaudhry Waris Ali has been examined as process server and he has stated that complainant of the case has been murdered and PW Amir Zaman has expired. Such statement has been recorded at Ex-20. Investigation of the case has been carried out by SIP Chaudhry Waris Ali. He recorded 161 Cr.PC statements of the PWs, visited the place of wardat, situated in the house of the accused, prepared sketch of the wardat. He has arrested accused Niaz Ali on 21.09.2009 and prepared such mashirnama in presence of the mashirs. In cross-examination he has admitted that he has not secured any blood stained earth or hard blunt substance from the spot as the incident was old one.

 

18.       After hearing the learned counsel for the parties I have scanned the entire evidence. It is a known principle of appreciation of evidence that the benefit of all favaourable circumstances in the prosecution evidence must go to the accused regardless of whether he has taken any such plea or not. With this principle of mind, I have gone through the evidence of the prosecution. As regards to the role assigned to the present appellants Shah Bali and Niaz Ali is concerned, admittedly they had not caused any injury to the deceased. Only role assigned to them is that they allegedly caught hold of the deceased while absconding accused caused fatal blow to the deceased with hard blunt substance. There is no evidence that at the time of actual occurrence appellants/accused had exchanged hot words with deceased. There is also no evidence that appellants shared common intention with main accused. Absolutely, there is no evidence that action of the appellants was               pre-concerted. According to the postmortem report, deceased was aged about 68-70 years. It is unbelievable that appellants caught hold such old person then, main accused caused deceased fatal blow.

 

19.       Moreover, there are material contradictions in the evidence of PW Bakht Meena and PW Shahzad. PW Bakht Meena had deposed that, “One day before the incident my son Fazal Muhammad went to the house of the accused to bring Mst. Safina back but accused refused to allow her. About one week prior to the incident my 2 daughter had also gone to the house of accused to bring Mst. Safina back and accused replied to come again after 2/3 days alongwith myself and my husband to take Mst. Safina. Thereafter accused Shah Bali and his wife absconding accused Ramima had gone to the house of my elder daughter Nasreen and asked her to send her parents to their house on Monday or Tuesday to take back Mst. Safina. On the day of incident at about 5/6 p.m. my husband went to the house of accused and then myself and my son Shahzad also went at the house of the accused. Accused persons are residing at Alfalaha, Keamari. My husband had done at 6:00 p.m and after 20/25 minutes we also reached at the house of accused. At that tiem accused Niaz Ali, Shah Bali and Mst. Ramima and their ladies were present in the house. The ladies of the accused persons had exchanged hot words, therefore, my husband who was present inside the room came out and advised them to keep silent. Whereupon both accused present in court caught hold my husband and co-accused Mst. Ramima caused hard and blunt substance at the head of my husband. My husband was unconscious at the spot, therefore, my son Shahzad shifted him to Ziauddin hospital where doctor declared him to be died about one hour back.” PW Shahzad had deposed that, “The incident occurred on 11.5.2006 at about 06:00 p.m. When I reached at my home, after my work, I was informed that my brother Ameer Muhammad Khan had gone to the house of accused Shah Bali to bring his wife but accused Shah Bali asked him to send our parents to his house. My brother Ameer Muhammad Khan was married with the daughter of accused Shah Bali namely Mst. Safina who had gone to her father’s house namely accused Shah Bali and my brother Ameer Khan went to there to bring her back. Thereafter my brother returned back to our home and sent our mother and father to the house of accused Shah Bali. Accused Shah Bali, Naeem and Niaz Ali were shouting upon my parents. Thereafter my brother Ameer Muhammad Khan again went to the house of accused Shah Bali and advised them not to shout upon them. Thereafter accused Shah Bali scuffled with my father and also caused and blow on head of my father who sustained injury. Thereafter a telephone call was received on my home about the incident. Whereupon I and my brother Sikandar went to the house of Shah Bali and shifted out father to Ziauddin Hospital and then to Jinnah Hospital. My father expired.” There are material contradictions in the evidence of PW Bakht Meena and PW Shahzad on so many material points. PW Sikandar has also given different version.

 

20.       Section 34 PPC declares a rule of criminal liability and does not itself create a distinct offence. In order to determine the common intention regard must be had not only to a particular act but all the acts that were done. To comprehensible understand the scope of section 34, PPC the provisions of section 33, 35, 36 and 38 PPC are to be kept in mind. Section 33 speaks about “act”. Section 35 deals with an act, which is criminal only by reason of its being done with a criminal knowledge or intention. Section 36 speaks about effect caused partly by act and partly by omission. Section 37 relates to cooperation by doing one of several acts constituting an offence and section 38 mentions about persons concerned in criminal act may be guilty of different offences. Looking to the circumstances of this case, I am of the view that section 34 PPC is not attracted to this case.     

 

21.       Keeping in view the peculiar circumstances, of the case, I am unable to rely upon such type of evidence. It is a settled principle of law that evidence in case of capital charge must come from an unimpeachable source or be supported by strong circumstances that might remove inherent doubt attaching to the evidence of the interested and partisan witnesses. In the instant case all the PWs are related to the deceased and they have given contradictory statements on material points. Appellants have not caused any injury to the deceased. Only it was alleged that they had caught hold the deceased, who was aged about 68-70 years. From the evidence it appears that eye witnesses did not try to save deceased when appellants caught hold of deceased. Conduct of PWs was unnatural. Allegation of catching hold of deceased is very easy to level but very difficult to prove. In the case of Mushtaq Ali and 2 others versus The State (1999 MLD 506), Division Bench of this Court has held as under:

 

“As regards appellant Muhammad Arshad, it is noted that he, admittedly, had not caused any injury to the deceased. Only role assigned to him is that he allegedly caught hold the deceased, while the scuffle was on. This could be with intention to keep the parties aloof from launching attack upon each other. Admittedly, no words were exchanged between him and others appellants at the moment of attack, as such, there was no premeditation nor his action was         pre-concerted nor he inflicted any injury to the deceased.”

 

22.       In the case of MUHAMMAD IRSHAD and another versus THE STATE (1999 SCMR 1030) Honourable Supreme Court has observed as under: 

“10. As already stated above, the learned High Court had disbelieved the motive set up by the prosecution that Aqil deceased was killed when he put up resistance to the attempt of abduction of Mst. Zahoor Mai. It is a settled proposition of law that evidence on the capital charge must come from an unimpeachable source or be supported by strong circumstances that might remove inherent doubt attaching to the evidence of the interested and partisan witnesses. In the instant case Muhammad Riaz P. W. was disbelieved by the Courts below in respect of his own injuries resulting in the acquittal of Imam. Bakhsh. In this view of the matter it would be highly unsafe to accept his .testimony against Muhammad Irshad and Muhammad Aslam appellants on a capital charge. They were disbelieved on the point of motive by the learned High Court and in the circumstances narrated above we consider it unsafe to act upon their uncorroborated testimony qua the appellants.

 Accordingly, giving Muhammad Irshad and Muhammad Aslam appellants the benefit of doubt we accept their appeal and acquit them of the charges. They shall be released forthwith provided they are not required in any other case.”

 

23.       In view of the above circumstances while relying upon the above cited authorities, I have no hesitation to hold that prosecution has failed to prove that appellants had shared common intention with principal absconding accused Mst. Ramim in the commission of offence. False implication of appellants in the background of matrimonial dispute cannot be ruled out. Benefit of doubt must be given to appellants as held in the case of AKBAR ALI  versus THE STATE (2007 SCMR 486). Trial Court has failed to appreciate the evidence according to the settled principles of law. Consequently, appeal is allowed. Conviction and sentence recorded against the appellants by judgment dated 06.04.2013 are set aside. Appellants Niaz Ali and Shah Bali are acquitted, they shall be released forthwith if they are not required in any other criminal case.   

 

                                                                                                J U D G E

Gulsher/PA