PLJ 2013 Cr.C. (Karachi) 549 (DB)
[Bench at Sukkur]
[Bench at Sukkur]
Present: Shahid
Anwar Bajwa & Muhammad Ali Mazhar, JJ.
TANVEER alias
RABAIL & others--Appellants
versus
STATE--Respondent
Crl. Jail Appeal
No. D-71 and Crl. A. No. D-72, D-73 of 2010 & Confirmation Case No. 2 of
2010, decided on 9.5.2012.
Evidence--
----Conviction--Witness--If
the witness trustworthy and reliable then conviction can safely be based on his
evidence. [P. 569] A
Illegalities of
case--
----Principle--The
procedure depicts irregularity and some time even illegalities committed during
the course of investigation shall not demolish prosecution case nor vitiate the
trial. [P. 570] B
Trustworthy of
witness--
----There was no
bar or hindrance to pass sentence upon a killer of three human beings when
chain of guilt was found unbroken, extra-judicial confession made before
prosecution witnesses, whom accused considered to be respectable persons for
his assistance, could not be disbelieved. [P.
570] C
Evidence--
----Principle--Last
seen evidence is a weakest type of evidence unless corroborated with some other
piece of evidence. [P. 571] D
Duty of
Prosecution--
----Obligation--It
is the duty and obligation of prosecution to prove the case against the accused
beyond any shadow of doubt even if accused failed to furnish explanation for
disappearance of deceased who had been seen along with the accused before his
death. [P. 571] E
Evidence--
----Evidence is
one of the recognized mode, having origin from Islam to find out the guilt or
innocence of accused. Such evidence if appeals to logic a reason then it would
be sufficient piece of evidence to connect the accused with the commission of
offence and capital punishment can be awarded on its basis. [P. 571] F
Benefit of
doubt--
----Golden
Rule--Rule of benefit of doubt, which described as the golden rule, is
essentially a rule of prudence which cannot be ignored while dispensing justice
in accordance with law. It is based on the maxim, it is better that ten guilty
persons be acquitted rather that one innocent person be convicted. It will not
be out of place to mention here that this rule occupies a pivotal place in the
Islamic Law and that is enforced rigorously in view of the saying of the Holy
Prophet (PBUH) that the mistake of Qazi (Judge) in releasing a criminal is
better than his mistake in punishing an innocent. [P. 571] G
2009 SCMR 135,
2008 SCMR 1103, 2007 SCMR 486, 2007 SCMR 778, PLD 1973 SC 418 and 2011 SCMR
664, ref.
Benefit of
doubt--
----Principle--Appreciation
of evidence--It is a known principle of appreciation of evidence that the
benefit of all favorable instances in the prosecution evidence must go to the
accused regardless of whether he has taken any such plea or not. The evidence
of the prosecution witnesses is neither trustworthy nor confidence inspiring
nor consistent to establish accusation against the appellant therefore the
possibility of accused being falsely implicated cannot be ruled out. Both the
expressions viz. "proof beyond a reasonable doubt" and
"presumption of innocence" are to be read together as a unit. Single
infirmity if creating reasonable doubt in the mind of a reasonable and prudent
person regarding the truth of charge, makes the whole case doubtful. [P. 571] H
2008 SCMR 1086,
ref.
Benefit of
doubt--
----Favourite
child of law--Accused is the most favorite child of law and every benefit of
doubt goes to him regardless of fact whether he has taken any such plea or not. [P. 571] I
SBLR 2011 Sindh
1653 & SBLR 2012 Sindh 208, ref.
Mr. Maqbool
Ahmed Awan, Advocate for Appellant (in Cr. Jail Appeal No. D-71/2010 & Crl.
Appeal No. D-73/2010).
Mr. Zulfiqar Ali
Sangi, Advocate for Appellant (in Crl. Appeal No. D-72/2010).
Mr. Ghulam
Shabeer Shar, Advocate for Complainant.
Mr. Zulfiqar Ali
Jatoi, D.P.G. for State.
Date of hearing:
11.1.2012.
Order
Muhammad Ali
Mazhar J.--This Jail Appeal along with two other Criminal appeals have been
brought to challenge the judgment dated 04.05.2010, passed by IInd learned
Additional Sessions Judge, Sukkur in Sessions Case No. 113 of 2005, whereby
both the appellants were convicted for the offence under Section 302 (b), PPC
and sentenced to death, as Tazir. They were also convicted for offence under
Section 201, PPC and sentenced to suffer R.I. for three years. On 7.5.2010, the
learned trial Court also sent a reference to this Court for confirmation of
death sentence of the appellants.
2. Concisely, the facts of the case are that the
complainant Allah Dino lodged the FIR No. 55 of 2005, at Police Station
Kandhra, against the appellants under Sections 302, 201 & 34, PPC in which
he narrated that:
"The
complainant has a shop at Arore near his house. On 9.9.2005 at about 2:30 p.m.
complainant and his grandson Sajjad Ali aged about 14/15 years were in the
shop. Meanwhile, the accused Tanveer and Dildar came there and asked Sajjad Ali
to accompany them to Nara
canal for swimming. Sajjad Ali joined them but did not return back to home up
to 5:00 p.m. The complainant started searching him and during search, Manzoor
Ahmed met the complainant and he was informed accordingly. Both of them came to
accused Tanvir alias Rabail and asked him about Sajjad Ali, who replied that
he, Sajjad Ali and accused Dildar alias Mando took a bath together, however,
before their leaving Nara
canal, Sajjad Ali left for his house and he knew nothing more than that. The
complainant informed Sher Muhammad and they all were searching Sajjad Ali. On
13.9.2005, information was received by them that a dead body having marks of
torture is lying in Sheroo to Pattan of Nara canal. The complainant along with
PWs Manzoor Ahmed and Sher Muhammad went there. The dead body was taken out and
identified to be Sajjad Ali. The dead body was swollen. Four front teeth of
deceased were broken. The body was taken to RHC Kandhra and after due
formalities, it was buried. The complainant went on making inquiries as to the
cause of death of deceased. On 15.9.2005, PW. Jan Muhammad came to the
complainant and informed him that he is laborer at Arore and on 9.9.2005 at
about 2:30 p.m., while he was passing by the entry of Nara canal, near village Arore, he found that
accused Tanvir and Dildar were maltreating deceased Sajjad Ali. There were two
unknown persons standing there. He restrained them not to maltreat deceased
Sajjad Ali, thereafter he went away to his village Razi Dero taluka Gambat. He
read in newspaper about the murder of the deceased, therefore, came to the
complainant and informed him the incident. The complainant apprehended that
after committing zina-bil-jabr, or attempt to commit zina-bil-jabr which might
have been resisted, the accused committed Qatl-i-amd of deceased Sajjad Ali and
caused his dead body to disappear in Nara
canal.
3. After registration of FIR, post-mortem was
carried out. Memo and Danishnama was prepared. The place of offence was
inspected. The accused were arrested and on their pointation, the chappals and
blood stained clothes of deceased and two stones were recovered and sealed by
the police. The statements of PWs were recorded under Sections 161 & 164,
Cr.P.C. An identification parade in respect of accused Zameer was held before
the Magistrate and on completion of usual investigation, charge was framed on
29.09.2007 against accused Dildar, Tanveer and Zameer under Section 302, 201,
34, PPC. All the accused persons pleaded not guilty.
4. To substantiate its case, the prosecution
examined PW. complainant Allah Dino, who produced the FIR, PW. Manzoor Ahmed,
produced his statement recorded under Section 164, Cr.P.C. P.W, SIP Muhammad
Moosa, produced memo. of inspection of place of incident, arrest of accused,
recovery of blood stained clothes and chappals of deceased and blood stained
two stones on the pointation of accused and Roznamcha entry. P.W. Sher
Muhammad, produced his statement recorded under Section 164, Cr.P.C, P.W/mashir
Zaheer Ahmed, produced memo. of inspection of dead body of deceased and
Danishnama. P.W. Dr. Mir Ghulam Asghar, produced the post-mortem report, P.W.
Suhail Ahmed Jatoi, Judicial Magistrate, produced statement of P.W. Jan
Muhammad recorded under Section 164, Cr.P.C. and identification parade test
memo. in respect of accused Zameer, P.W. Jan Muhammad and P.W/mashir Abdul Ghaffar.
5. The PW-1 Allah Dino deposed the same facts as
he narrated in the FIR. He further stated that on 15.09.2005, one Jan Muhammad
came to him and told that on 09.09.2005 he saw two persons quarrelling with a
boy whereas two persons were sitting on his side. When Jan Muhammad asked them
why they are fighting they told him that they are co-villagers and they are
playing jokes. Nothing is mentioned in the' FIR that Jan Muhammad told the
complainant that boys told him (Jan Muhammad) that they are playing jokes. The
complainant was cross-examined in which he stated that the distance between his
Shop and the place of incident would be more than 100 feet. He further admitted
that the distance between the place from where the dead body of deceased was
recovered and his village would be 10 KMs.
6. The PW-2 Manzoor Ahmed stated that the
complainant is his brother-in-law and another PW Sher Muhammad is also his
relative. He almost deposed the same fact as stated by the complainant
regarding the missing of Sajjad. He further stated that on 17.09.2005 his
statement was recorded by the police. In his cross-examination he stated that
the distance between village Sangrar and village Arore would be 20 KMs. He
further stated that the distance between Sheroo Jo Pattan and village Arore
would be 10/11 KMs.
7. The PW-3 Muhammad Moosa SIO Police Station,
New Pind, Sukkur deposed that on 15.09.2005 he was posted at Police Station,
Kandhra as In charge Investigation Team. He visited the place of incident in
presence of mashir Jan Muhammad and Zaheer Ahmed. Blood stained earth was
collected. On 17.09.2005, he recorded the statements of PWs and on 11.10.2005,
he arrested accused Dildar, Tanveer and Zameer in presence of mashirs. On
13.10.2005 during interrogation, the accused persons volunteered to produce the
crime weapon viz. stones, blood stained cloths and chapal of deceased. On the
same day he took accused and two mashirs Abdul Ghaffar and Ghulam Asgher to
effect the recovery. The accused persons led him to water Pump of Janab Ali
Shah and from the bushes near to the Pump they produced stones, cloths and
chappal of deceased. Same were sealed separately at the spot and the memo. was
prepared in presence of private mashirs. On 18.10.2005, witnesses appeared
before the Magistrate and statements under Section 164, Cr.P.C were recorded
and also identification parade of accused Zameer was conducted.
8. The PW-4, Sher Muhammad stated that
complainant Allah Dino and witness Manzoor Ahmed both are his relatives and
deceased Sajjad was his nephew. He produced his statement recorded under
Section 164, Cr.P.C. Though in the examination-in-chief he stated that the
complainant Allah Dino and witness Manzoor Ahmed both are his relatives but in
cross-examination he stated that complainant is not related to him but he is
caste fellow.
9. The PW-5, Zaheer Ahmed deposed that he was
mashir of recovery and the arrest of accused Dildar, Tanveer and Zameer. In his
cross-examination, he denied the suggestion that accused Tanveer was not
arrested in his presence for that his signature was obtained by police at
Police Station. He further denied the suggestion that police has shown him
accused Dildar at Police Station where he signed memo.
10. The PW-6 was Mir Ghulam Asghar Senior Medical
Officer, RHC, Kandhra, who deposed that on 13.09.2005 at 5.00 P.M, he received
dead body of Sajjad Ali. Post-mortem was conducted from 5-pm to 6-pm. The
Medical Officer on external examination found the following injuries on the
person of deceased:--
"1. Lacerated wound measuring 3x1 cm on
upper lip with abrased gums and dislocation of upper incisor teeth posterior,
2. Contusion 4x4 cm on top of scalp.
3. Multiple abrasions on the anal region.
4. Contusion 4x4 cm on left buttock".
And on internal
examination he opined as under:--
"There was
ecchymosed of subcutaneous tissue of neck and front of chest with presence of
clotted blood and bruising at the base of tongue. The visras in the chest and
abdomen and the blood vessels were found congested and 4 upper incisor teeth
dislocated posterior. Remaining organs of the dead body were found
healthy".
11. On external and internal examination of the
body, he tendered his opinion that death caused due to asphyxia and throttling.
During course of his cross-examination, medical officer admitted that he has
not mentioned the weight, color and size of liver and kidney and he himself
carried out post-mortem. To a specific question "whether there were marks
of naught at the neck of the dead body of deceased". He answered that post-mortem
of the dead body of the deceased was carried out after four days of his
recovery from water, therefore, it was not possible at all to remain alive any
such mark over the neck of thumb or fingers.
12. The PW-7 was the learned Civil Judge and
Judicial Magistrate, K.N. Shah, District Dadu, who recorded the statements of
Jan Muhammad, Manzoor Ahmed and Sher Muhammad under Section 164, Cr.P.C. and
conducted the identification parade of suspect accused Zameer. In the
cross-examination, the learned Magistrate stated that accused pointed out him
that he was seen in the lockup and in the Court by the PWs.
13. Now the star witness Jan Muhammad PW 8 comes
in the witness box, who deposed in his examination-in-chief that for last five
years he used to work as labor at Arore. On 09.09.2005, he took bath and came
out from the entrance of Nara
canal. It was 2.30 pm when he saw that accused Tanveer and Dildar were fighting
with the deceased Sajjad. He asked why they were fighting with Sajjad upon
which they replied that they are neighbors and chit chatting with each other.
He found two other persons standing at the distance of 10 feet. However, he
could not identify them with their names. On 14.09.2005 he read in the daily
newspaper Kawish that dead body of deceased Sajjad was recovered from Sheroo Jo
Pattan and on 15.09.2005, he went to Allah Dino at Arore to offer fateha and he
informed Allah Dino regarding the fighting of aforesaid accused with deceased
Sajjad. On 18.10.2005 he was called in Court for the purpose of identification
and he identified accused by caste Baloch, who was standing at the distance of
about 10 feet at the time when accused Tanveer and Dildar were fighting with
deceased Sajjad in his presence. In his cross-examination, he admitted that at
the time when the accused Dildar and Tanveer were fighting with deceased
Sajjad, he had not made any complaint to him that the accused are fighting with
him. He further admitted that when he saw accused Tanveer and Dildar fighting
with Sajjad, he did not inform such fact to his elders. He further stated that
the complainant and accused party are known to him for last ten years. He
further admitted that the distance between the place of fighting of accused
with deceased and his village would be 200 KMs. At the time of fighting no body
was there except him and two persons standing at the distance of about 100
feet. He admitted that accused Tanveer and complainant party are resident of
the same village. During cross-examination conducted by counsel for Zameer he
admitted that he did not mention features of the person in his statement under
Section 161, Cr.P.C., who was standing at the distance of about 10 feet.
14. The last PW was Abdul Ghaffar, deposed that
on 13.10.2005 in his presence and in presence of co-mashir Ghulam Asgher on the
pointation of accused blood stained cloths and two stones were recovered from
the bubble tree. During the cross-examination he stated that distance between
the place of recovery and village Arore would be 1-KM. He further stated that
complainant is his maternal uncle. All the aforesaid articles were in the
plastic bag.
15. The prosecution closed its side and
thereafter the statements of accused Dildar, Tanveer and Zameer were recorded
under Section 342, Cr.P.C. They denied to have committed any offence and stated
that they are innocent and have been falsely implicated in the case due to
enmity with the complainant party over the street in the village. Neither they
examined themselves on oath nor led any evidence in their defence. The learned trial
Court convicted Tanveer and Dildar. However, accused Zameer was acquitted by
extending him the benefit of doubt.
16. Mr.Maqbool Ahmed Awan, the learned counsel
appearing for appellant Tanveer argued that all the prosecution witnesses
except the learned Magistrate, I.O. and Medical Officer are related inter se
and the trial Court has wrongly relied upon their evidence. The learned trial
Court erred in believing that PW Jan Muhammad saw the accused and deceased
fighting with each other. It was further averred that the learned trial Court
failed to consider the contradictions of prosecution witnesses brought on
record. He further argued that the trial Court also failed to consider the
replies of question of the accused/appellants in the statement recorded under
Section 342, Cr.P.C. He further argued that the evidence of medical officer has
not been properly considered in which he stated that the time between death and
post-mortem was about four days which shows that the dead body was lying in the
water for about 4 days. It was further argued by the learned counsel that the
appellants were involved due to enmity and grudge. He further argued that the
capital punishment can not be awarded on last seen evidence without independent
corroboration. Learned counsel led much emphasis that this was the case of only
chance witness and last seen evidence, in which the award of capital punishment
is totally unjustified and even the learned trial Court failed to consider that
at the time of the alleged offence the appellant was also minor. PW Jan
Muhammad was not a natural witness. The complainant made improvements in his
evidence. He further argued that recovery is also doubtful as the cloths were
found in a plastic bag while the same could have been thrown in the canal. No
finger prints were taken from the plastic bag. The medical officer stated that
the post-mortem was carried out after four days of the death which makes the
whole prosecution case doubtful as to when the death of Sajjad occurred. The
FIR was lodged with the delay of six days. The recovery of alleged
incriminating material was made after one month and four days after the
incident and two days after the arrest. Cloths and Chappal were not shown to
the complainant for identification and no mashirnama was made for recovery of
the dead body. In support of his arguments, the learned counsel relied upon the
following case law:--
1. Imran Ashraf v. The State (2001 SCMR
424). The basic principle of reappraisal of evidence in a criminal case is that
if the witness trustworthy and reliable then conviction can safely be based on
his evidence. In case such witness is unreliable his evidence can not be
utilized for passing of conviction against the accused. However, if the witness
has given partially reliable and partially unreliable evidence then applying
the device of sifting the grain from chaff and seeking independent
corroboration from other reliable evidence on material particulars, conviction
can be based on it.
2. Muhammad Shah v. The State (2010 SCMR
1009). Appreciation of evidence. Principle. When two interpretation of evidence
are possible, one favoring the accused and the other favoring the prosecution,
then one favorable to the accused is required to be taken into consideration.
All incriminating pieces of evidence available on record in examination in
chief, cross-examination or re-examination of witnesses are required to be put
to the accused if the same are against him while recording his statement under
Section 342, Cr.P.C.
3. Syed Saeed Muhammad Shah v. The State
(1993 SCMR 550). In absence of satisfactory nature of explanation normally the
rule is that statements recorded by police after delay and without explanation
are to be ruled out from consideration.
4. Liaquat Ali v. The State (2007 SCMR
1307). In this case allegation against accused was that he had taken deceased
from his house and when deceased did not return then during the search his dead
body was found in a deserted house. trial Court convicted and sentenced accused
to life imprisonment whereas two accused were acquitted. High Court upheld the
findings of the trial Court. It was held by the honorable Supreme Court that no
direct or ocular evidence was available against accused and entire case against
him rested on circumstantial evidence, circumstances though at the most
corroborated version of complainant qua the murder of deceased but the same did
not connect the accused with the crime. Circumstantial evidence i.e. last seen
evidence and weak motive suffered from many infirmities and it was not worth
credence. Evidence showed that some articles belonging to a lady were found in
the house where dead body of the deceased was lying and according to medical
evidence some scratches of nail was found on the body under one of the
injuries, which led to fact that the murder has taken place in mysterious
manner, High Court instead of drawing inference in favour of accused on
principle that the accused was entitled to any doubt arising from prosecution
case had drawn inference in favour of prosecution and against accused which was
against principle of administration of criminal justice. Two accused were
acquitted by the trial Court on the evidence almost of the same standard as
against accused. Prosecution in circumstance had failed to prove case against accused
beyond reasonable doubt. Appeal was allowed.
5. Naeem Akhter v. The State (1993
P.Cr.L.J 769). In this case it was held that the evidence of last seen was
found to have been concocted at very late stage and was useless. Evidence of
recovery was not only inadmissible but also unreliable. Medical evidence did
not connect the accused with the commission of offence accused was acquitted on
the benefit of doubt in the circumstances. It was further held that evidence of
joint recovery is not admissible.
6. Abdul Kaleem v. The State (1992
P.Cr.L.J 1314). In this case honorable Shariat Appellate Bench in the case of
Zina held that even if accompanying of deceased with the accused be assumed no
evidence was available to show that deceased had remained in company of accused
up to the moment of occurrence. Accused had jointly disclosed knowledge
regarding the presence of dead body and jointly had lead to the recovery and
evidence in respect thereof being inadmissible could not be used against him.
No evidence was available on record to link accused with the offence of sodomy
having been committed with the deceased. Accused were acquitted on benefit of
doubt in circumstances.
7. Ibrahim v. The State (2009 SCMR 407).
In this case trial Court convicted the accused on the basis of circumstantial
evidence in shape of last seen witness, identification parade and recovery of
identity card and Bank Pass Book of deceased on the pointation of accused from
Hotel. Conviction and sentence awarded by trial Court was maintained by the
High Court. Circumstantial evidence should be like a well knit chain whose one
end should point to accused and other to deceased. Evidence of last seen
furnished by prosecution witness and evidence of identification test were not
trustworthy of any credence. Prosecution failed to prove its case against the
accused. Conviction and sentence awarded to accused were set aside and accused
was acquitted.
8. Nadeem alias Nema v. State (2010 SCMR
949). In this judgment, the honorable Supreme Court by majority view held that
complainant and other eye-witnesses were chance witnesses as they can not
normally present at the place of occurrence it was difficult to rely on the
statement of such witnesses being chance and interested witnesses in order to
convict accused for murder. Court must be satisfied first that a murder was
committed then it must be satisfied that accused had committed murder. Question
of sentence demanded utmost care on the part of Court leaving with life and
liberty of the accused persons, prosecution withheld evidence of any
eye-witness and real son of deceased did not make any statement. Any genuine
doubt arising out of circumstance of the case should be extended to accused as
a right and not as a concession. The conviction was set aside and accused was
acquitted of the charge.
9. Ali Asgher v. The State (2004 P.Cr.L.J
1308). Eye-witness was a chance witness whose presence at the place of
occurrence was not natural and same was not even explained by him. Statement of
the said witness recorded by the police after the recovery of dead body and
arrest of the accused and delay was not explained by the prosecution.
Statements recorded by police after delay and without explanation normally are
to be ruled out for consideration.
17. The learned counsel for the appellant Dilawar
adopted the arguments of Mr.Awan. However, he added that the entire prosecution
case is based on last seen evidence of Jan Muhammad who witnessed only alleged
fighting between the appellants and deceased Sajjad and he himself stated that
when he asked them why they are fighting they simply stated that they are
playing jokes and he also admitted that neither Sajjad complained him for any
fighting between them nor at that time he informed the complainant of any such
incident. He further argued that the last seen evidence is a weak type of
evidence on the basis of which the award of capital punishment is not justified
specially in the circumstances where various contradictions are available on
record in the evidence. It was further averred by him that on the same piece of
evidence, co-accused Zameer was acquitted by extending him benefit of doubt,
hence the present appellants are also deserving the same treatment.
18. On the contrary, the learned DPG argued that
though it is an unseen incident but the medical evidence is consistent with
other circumstantial evidence. He further argued that the place of incident was
only 100 feet away, therefore, the time is immaterial. He further argued that
recovery of cloths, chappal and stones after two days of arrest of accused was
logical. He further argued that there are some minor contradictions which can
not affect the essentials of prosecution evidence, which was recorded after
four years. The blood stained earth was recovered from the place of fighting
and cloths from 10 paces away and dead body from 10 KMs. However, he admits
that whole prosecution case is based on chance witness/last seen evidence and
no direct evidence is available on record. The learned DPG submits that
appellant Tanveer at the time of incident, was minor, therefore, the death
penalty could not be awarded to him and only life imprisonment was justified.
The relationship of prosecution witnesses with the complainant is not a valid
ground to discard the evidence if it is inspiring confidence. In support of his
arguments he relied upon the following case law:-
1. Mubashir Ahmed v. The State (2009 SCMR
1133). Reappraisal of evidence. Last seen evidence. Extra judicial confession.
Both the accused along with two unknown persons were seen boarding Taxi of
deceased from Taxi stand. Later on dead body of deceased was found on the
pointation of accused and on extra judicial confession, death sentence awarded
to both the accused was maintained by the High Court. Presence of prosecution
witnesses at Taxi stand where he had seen the deceased last time was
established in cross-examination as he used to work as Auto Electrician and
used to repair Taxis. Prosecution witness was independent witness bearing no
relationship at all with the complainant or deceased who had given truthful and
confidence inspiring narration of the incident i.e. boarding of deceased's Car
by two accused as well as two other unknown persons and their departure.
2. Dilawar Hussain v. State (PLD 2008 SC
123). Where parties as well as the witnesses are closely related inter se and
also have good relations then in absence of any enmity or ill-will mere
relationship is not a valid ground to discard the evidence of a witness and
similarly a witness, non-resident of locality is not an unnatural witness and
his evidence can not be excluded from consideration
3. Azizullah v. The State (2004 P.Cr.L.J
1710). It is a settled principle of law that the procedure depicts irregularity
and some time even illegalities committed during the course of investigation
shall not demolish prosecution case nor vitiate the trial.
4. Muhammad Azim v. The State (1998
P.Cr.L.J 175). Appreciation of evidence. Eye-witness who had no ill-will or
motive against accused plausibly explained their presence at the spot and had
corroborated their version given in their statements before the Police. The
ocular testimony was not in conflict with medical evidence. Prosecution had
thus proved its case against the accused beyond doubt. Conviction and sentence
of death awarded to accused by trial Court was confirmed in circumstances.
Occurrence having taken place on a thorough fair, passerby a natural witness
provided they are able to explain their presence at the spot.
19. The learned counsel for the complainant argued
that PW Jan Muhammad fully supported the complainant and no mala fide intention
on his part was established. The defence also failed to establish any dispute
or previous enmity. The incriminating articles were recovered on the pointation
of the appellants. The medical evidence confirms the rape/sodomy. The
juvenility should have been pleaded in the trial Court. The circumstantial/last
seen evidence was inspiring confidence and trustworthy therefore the trial
Court rightly awarded the capital punishment to both the appellants. In support
of his argument, he relied upon the following case law:--
1. Gulzar Ahmed v. The State (2002 SCMR
596). In this case it was held that prosecution had collected trustworthy and
reliable evidence, and all its witnesses had fully supported the case. Evidence
of prosecution witness (taxi driver, whose taxi had been hired by the accused)
was of unimpeachable character, who had given all necessary details showing the
manner of occurrence and taking of deceased in his taxi. No previous enmity or
ill-will existed between prosecution witnesses and accused to falsely implicate
him in this case. Accused had subjected male child to sodomy before murder.
Evidence of prosecution witnesses, recovery of dead bodies at pointation of
accused and his extra-Judicial confession coupled with medical evidence had
established his guilt. High Court had dismissed appeal of accused with sound
and cogent reasons. Accused had committed brutal and cruel murders of two
innocent minor children, he did not deserve any leniency. Capital punishment
had rightly been awarded by trial Court and confirmed by High Court.
Convictions and sentences of accused were upheld in circumstances".
2. Muhammad Akram v. The State (2011 SCMR
145). In this case the honorable Supreme Court held that presence of
complainant and other eye-witnesses at the scene of crime was natural. Ocular
version was corroborated by medical evidence. Blood-stained "chhuri"
recovered at the instance of the accused was found to be stained with human
blood. Recovery evidence was independent and impartial. Ocular testimony was
consistent having no material contradiction. No previous enmity existed between
the parties except the present cause of occurrence. Accused acting in a brutal
way had given several "churri" blows to three deceased, who succumbed
to the same. Impugned judgment did not call for any interference.
3. Muhammad Latif v. The State (PLD 2008
Supreme Court 503), In this case the honourable Supreme Court held that plea
raised by accused was that upon circumstantial evidence one could not be
convicted and awarded penalty of death. Validity. Such plea was misconceived
because there was no bar or hindrance to pass sentence upon a killer of three
human beings when chain of guilt was found unbroken and irresistible conclusion
of guilt was surfacing from evidence which was connecting accused with
commission of offence without any doubt or suspicion. If circumstantial
evidence brought on record was of such nature then conclusion would be in shape
of conviction and no other conclusion would be drawn by any stretch of
imagination in such a case. For guilt of accused, penalty of death or life
imprisonment would a normal event. Evidence of prosecution witnesses in the
present case was found consistent and accused had not been able to shake their
credence, therefore, extra-judicial confession made before prosecution
witnesses, whom accused considered to be respectable persons for his
assistance, could not be disbelieved when they deposed it on oath before trial
Court. Disclosure of offence from mouth of accused had led to other
corroborative and cogent evidence proving commission of offence by accused.
Evidence available on file proved that it was act of accused, who had committed
heinous crime of murder of innocent baby and two ladies. Such was tyrannous and
callous actions of accused who had not only cut the throats of two ladies but
also a four months baby. Events and circumstantial evidence proved that accused
was the person who had committed cold blooded offence of murder. Supreme Court
declined to interfere with the conviction and sentence of death awarded to
accused. Appeal was dismissed.
4. Faisal Aleem v. The State (PLD 2010
Supreme Court 1080). The honorable Supreme Court held that certificate as furnished
on behalf of accused could not be considered as admittedly accused was more
than 20 years of age and no objection regarding factum of age was raised before
police, trial Court as well as High Court. Even no such point was incorporated
in memorandum of appeal preferred before High Court and such plea was an
after-thought, which could not be substantiate and raised to frustrate
judgments of trial Court and High Court, as the judgments were well based and
did not warrant interference. Certificate issued by Director General of
Registration, Ministry of Interior was of no use to accused wherein a futile
attempt had been made to show the date of birth of accused as 6.5.1977, to make
him a "child" for taking benefit as provided in S. 2 (b) of Juvenile
Justice System Ordinance, 2000. Contents of the certificates showed that date
of birth of accused had been shown 6.5.1977, while his brother was born on
4.1.1978 and another brother on 2.11.1978, which did not appeal to reason and
logic and appeared to be incorrect. No benefit could be extended in favour of
accused for tender age which did not constitute mitigating circumstances.
Deceased was killed in brutal and callous manner and hence question of any
leniency did not arise. trial Court had examined entire evidence with diligent
application of mind, determination whereof had been kept intact by High Court,
which was well based and did not warrant interference. Appeal was dismissed.
5. Muhammad Ajmal v. The State through
Advocate General, Punjab (PLD 2003 Supreme
Court 1). The honourable Supreme Court held that trial Court as well as
Appellate Court while discarding the School Leaving Certificate produced by the
accused had rightly concluded that he was not below the age of 18 years on the
day of incident. Accused had neither agitated the point of his minority during
investigation nor produced any documentary evidence, but took such plea for the
first time in the trial which appeared to be an afterthought. Ocular account
furnished by the eye-witnesses including the injured witness was fully
corroborated by medical evidence, motive, recovery of weapon of offence at the
instance of accused and positive Serologist's Report. Accused had committed the
cold blooded murders of his mother-in-law and her mother in a brutal and
atrocious manner and he did not deserve any leniency in the matter of sentence.
Impugned judgment did not call for any interference.
20. After hearing the arguments of learned
counsel and perusing the entire evidence available on record, the cumulative
effect of entire evidence deducible and deciphered from the record is as
under:--
(i) In the FIR the complainant stated that
the incident of missing of his grandson Sajjad Ali occurred on 9.9.2005 who
allegedly went to Nara
canal with the appellants and when he did not return back till 5 pm, the
complainant endeavored to search him. No such incident was reported by him to
police till 13.09.2005. The appellants took Sajjad from shop to Nara Canal,
the complainant stated that the place where Jan Muhammad saw the appellants
with Sajjad was 100 fts away but no witness was produced who saw the appellant
or sajjad going to Nara
Canal from the shop of
complainant.
(ii) On 13.09.2005, complainant received a
information regarding one dead body lying in the Nara canal near Sheroo Jo Pattan. Neither in
the FIR the name of any such informant was mentioned nor any such person was
produced in evidence by the prosecution.
(iii) In the FIR the complainant stated that he
along with witnesses Manzoor Ali and Sher Muhammad brought the dead body to
Government Hospital, Kandhra and through Kandhra police got conducted the
lawful proceedings while in the evidence he stated that he along with Manzoor,
Sher Muhammad and other co-villagers went to the pointed place and took the dead
body to police station Kandhra. No name of any close co-villager or independent
witness is mentioned in the evidence who allegedly went with the complainant at
the pointed place.
(iv) No mashirnama for the recovery of dead
body was prepared on the spot.
(v) In the evidence, the complainant stated
that at about 2.30 pm accused Tanveer and Dildar came at the shop of
complainant and asked Sajjad to accompany them for swimming at Nara canal. In his cross-examination he
admitted that distance between his shop and place of incident where fight took
place would be more than 100 feet.
(vi) The star witness Jan Muhammad in his
evidence stated that he took bath and came out from the entrance of Nara canal
and it was 2.30, pm he saw accused Tanveer and Dildar who were fighting with
deceased Sajjad. It was not possible that appellants took Sajjad at 2.30 pm
from his grandfather's shop and after moving more than 100 feet distance Jan
Muhammad saw them fighting at same time at the place of incident.
(vii) The body was recovered on 13.09.2005 but
the FIR was lodged on 15.09.2005. Sajjad was missing since 9th September 2005
but no FIR was lodged till 15.9.2005.
(viii) Jan Muhammad stated in his
cross-examination that at the time when accused Dildar and Tanveer were
fighting with the deceased he had not made complaint to him that accused were
fighting with him. He further admitted that when he saw accused Tanveer and
Dildar fighting with deceased Sajjad he did not inform this fact to his elders.
He admitted that he did not mention in his statement recorded under Section
161, Cr.P.C that he took bath from Nara
canal. The distance between the place of fighting and his village would be 200
KMs. He also stated in his examination-in-chief that he asked the accused why
they are fighting with Sajjad upon which they replied that they are neighbors
and chit chatting with each other. He found two other persons also standing at
the distance of about 10 feet and their faces were opened. His statement was
recorded under Section 164, Cr.P.C on 18.10.2005 in which he stated that on
11.09.2005 he read news of murder of Sajjad in Newspaper. In his evidence he
stated that he came to know about the death of Sajjad through Newspaper daily
Kawaish on 14.09.2005.
(ix) Nothing was mentioned in the FIR that Jan
Muhammad told the complainant that he saw the appellants fighting with Sajjad
and they told him that they are co-villagers and chitchatting/playing jokes.
(x) Jan Muhammad admitted that the distance
between his village and place of fighting is 200 KM., he stated in his evidence
that about five years back he used to work at Arore hills. In his statement
recorded under Section 164, Cr.P.C., he said nothing that he used to work at
Arore hills. He admitted that he did not mention in his statement recorded
under Section 161, Cr.P.C. that he took bath from Nara canal: No details of his employment were
given by him including his duty hours. He came from a distance of 200 KM to his
place of work and was returning back to his village after ending his work at
2.30 p.m which is not a normal timings of close of work of a labour and except
him, the appellant and Sajjad nobody was present at the entrance of Nara Canal
which is quite unusual and create doubts with regard to his presence.
(xi) PW Manzoor Ahmed in his evidence stated
that the complainant is his brother in law and other PW Sher Muhammad is also
his relative. He stated in his 164, Cr.P.C. statement that Jan Muhammad
informed that he saw Tanveer and Dildar fighting with deceased Sajjad and two
persons were there and their faces were muffled and they standing at the
distance of about 70/80 feet. While star witness Jan Muhammad in his deposition
stated that he found two other persons standing at the distance of about 10
feet and their faces were opened.
(xii) PW Sher Muhammad in his
examination-in-chief stated that complainant Allah Dino and witness Manzoor
Ahmed both are his relatives and deceased Sajjad was his nephew. He narrated
almost same fact as deposed by the complainant. However, in his cross-examination
he stated that the dead body was taken to Police Station, Kandhra and
thereafter dead body was taken to RHC Kandhra. He further admitted that in his
statement recorded under Section 164, Cr.P.C. he stated that the dead body was
taken to house. The complainant in his evidence stated that the dead body was
brought at Government Hospital, Kandhra while in his examination-in-chief
he stated that he brought dead body to Police Station, Kandhra and obtained
letter for post-mortem and after inspection of body, he took dead body to Government Hospital, Kandhra. All the statements in
this regard are contradictory.
(xiii) Though Sher Muhammad in his
examination-in-chief stated that complainant, witness Manzoor Ahmed both are
his relatives and deceased Sajjad was his nephew but in his cross-examination,
he stated that complainant is not related to him, however, they are caste
fellows.
(xiv) PW Muhammad Moosa IO stated that he visited
the place of incident in presence of mashir Jan Muhammad and Zaheer Ahmed. He
stated that blood stained earth was also collected from the place of incident
but through out the prosecution evidence, no chemical report was produced which
may show that any blood stained earth was collected and human blood was found.
He further stated that on 11.10.2005 he arrested accused Dildar, Tanveer and
Zameer and during interrogation the accused volunteered to produce the crime
weapons stone, blood stained cloths and Chappal of the deceased and according
to him, he brought accused persons to a water pump of Janab Ali Shah and from
near the pump under bushes accused produced stones, cloths and chappal of the
deceased. Nothing is available on record to show that the blood stained cloths
and chappal were identified by the complainant nor any chemical, serologist and
or blood group matching report was produced in connection with the blood
stained stones.
(xv) In the mashirnama of recovery of cloths
chappal and blood stained stones prepared on 13.10.2005, it is stated that
during the interrogation accused confessed the guilt of offence and disclosed
that on 9.9.2005 they committed Zina with Sajjad Ali and his cloths were
forcibly got removed and at his resistance they hit stone blows throttled him
and dead body was thrown in a Nara canal. No charge was framed for the
allegation of rape/sodomy. It is further stated that the cloths of deceased and
the stones used in the crime, were hidden near the water machine of Ali Shah
under the standing bubble trees. It is totally inconceivable that the accused
persons could easily thrown the body of Sajjad after his murder in Nara canal
but to create trouble for them, they saved incriminating material wrapped in a
plastic bag and hide the same near water machine of Ali Shah to create evidence
against them specially in the circumstances when they were already seen by Jan
Muhammad at 2.30 pm, who deposed in his evidence that he knows the complainant
and accused party for the last ten years.
(xvi) No efforts were made by the prosecution to
take out the finger prints from plastic bag in which the incriminating material
was found including the blood stained stones.
(xvii) It is an admitted fact that PWs Manzoor
Ahmed, Sher Muhammad, Zaheer Ahmed and Abdul Ghaffar all are relatives of the
complainant Allah Dino. So possibility of their being interested can not be
ruled out especially in the circumstance when there is no eye-witness of murder
except last seen evidence of Jan `Muhammad.
(xviii) PW Zaheer Ahmed in his examination-in-chief
besides mentioning other injuries on the body he also stated that the right leg
and right arm of the deceased were also broken. However in his
cross-examination he pleads ignorance that he does not know that the broken arm
and leg of the dead body is not mentioned in the memo. of examination of the body.
He stated that police collected blood stained earth from the place of incident
and sealed in his presence but he was not sure about the number of co-villagers
present at the place of recovery of dead body besides him and the complainant.
He further stated that he being relative did not ask any other person from the
said co-villagers to act as mashir.
(xix) The mashirnama of examination of dead body
was prepared on 13.09.2005 and mashirnama singed by Jan Muhammad and Zaheer
Ahmed shows that the dead body was lying on a cot in front of RHC Hospital,
Kandhra. The dead body wrapped in a white cloth and was opened and the mashir
saw that plastic was wrapped on the body, the plastic was opened in which one
human dead body of a body in naked condition was lying on cot. Complainant
Allah Dino disclosed that it is a same dead body of his grandson. The
mashirnama shows that the dead body was wrapped in a plastic while no such fact
was mentioned in the FIR or in the evidence of complainant that the dead body
was found wrapped in a plastic which he himself brought to the hospital after
identifying to be the dead body of his grandson.
(xx) Through out evidence Jan Muhammad stated
that he saw that both the appellants were fighting with Sajjad and two others
were standing at the distance of 10 feet. Out of said two persons only Zameer
was arrested and another person was neither arrested through out the
investigation nor identified. The mystery who was the second person remained
unresolved and a question crop up in our mind as to why no investigation was
made out against that person by the police and why they failed to arrest him
when out of four accused three were arrested.
(xxi) Though recovery was effected on the
pointation of the appellants but it is also a fact that the mashirs of recovery
were not independent persons. The mashir Abdul Ghaffar admitted in his
cross-examination that the complainant is his maternal uncle while another
mashir of recovery Ghulam Akbar was never produced in Court.
(xxii) No efforts were made to associate any
independent witness of recovery and in the peculiar circumstances of the case
where the whole case is based on last seen evidence, the evidence of the mashir
of recovery is also doubtful and seems to be interested.
(xxiii) On the evidence almost of the same standard
co-accused Zameer was acquitted only for the reason that he was not found
fighting with the deceased. If this is a valid cause of acquittal of Zameer
then the fact remains that Jan Muhammad admitted that Sajjad not made any complaint
to him, rather than Jan Muhammad stated that they were playing jokes. If Zameer
could be acquitted on the given evidence then the present appellants could also
be acquitted and deserved same treatment and same benefit of doubt could be
extended to them.
(xxiv) No acquittal appeals was filed challenging
the acquittal of Zameer either by the complainant or the prosecution.
(xxv) Even if accompanying of deceased with the
appellants be assumed to be true no evidence is available to show that deceased
had remained in company of accused up to the moment of occurrence.
(xxvi) Medical Officer stated that post-mortem of
the dead body of the deceased was carried out after four days of his recovery
from water. According the prosecution case, the incident took place on 9.9.2005
and body was recovered on 13.9.2005. The post-mortem was conducted on 13.9.2005
between 5.p.m to 6.p.m. the probable time between death and post-mortem is said
to be four days which does not match or correspond with the date of death pleaded
by the complainant/prosecution which creates doubts.
(xxvii) We have our all sympathies with the bereaved
family, but at the same time we have reached to an irresistible conclusion that
prosecution has failed to substantiate the charge and committed various lapses
while investigating the case. Jan Muhammad may be the witness who lastly seen
the deceased with the appellants but he is not the witness of murder. There is
a vast difference between merely seeing a person lastly with the deceased and
seeing a murder being a eye-witness. Court must be satisfied first that a
murder was committed then it must be satisfied that accused had committed the
murder.
21. The embodiment of the case law relied upon by
the learned counsel for the appellant supra gives us clear picture that the
reappraisal of evidence in a criminal case is that if the witness trustworthy
and reliable then conviction can safely be based on his evidenced. It was also
held supra that accused had jointly lead to the recovery and evidence in respect
thereof being inadmissible could not be used against him. When two
interpretation of evidence are possible, one favoring the accused and the other
favoring the prosecution, then one favorable to the accused is required to be
taken into consideration. All incriminating pieces of evidence available on
record in examination-in-chief, cross-examination or re-examination of
witnesses are required to be put to the accused if the same are against him
while recording his statement under Section 342, Cr.P.C. Circumstantial
evidence i.e. last seen evidence suffered from many infirmities has no worth
credence. It was further held supra that two accused were acquitted by the
trial Court on the evidence almost of the same standard as against accused.
Prosecution in circumstance had failed to prove case against accused beyond
reasonable doubt. The honourable Shariat Appellate Bench in the case of Zina
held that even if accompanying of
deceased with the accused be assumed no evidence was available to show that
deceased had remained in company of accused up to the moment of occurrence.
Court must be satisfied first that a murder was committed then it must be
satisfied that accused had committed murder. Question of sentence demanded
utmost care on the part of Court leaving with life and liberty of the accused
persons. Any genuine doubt arising out of circumstance of the case should be
extended to accused as a right and not as a concession.
22. The learned DPG relied upon the case law
which are distinguishable to the facts and circumstances of the case. In the
case of Mubashir Ahmed, conviction was maintained on last seen evidence coupled
with extra judicial confession, the dead body was found on the pointation of
accused and prosecution witness had no relationship at all with the
complainant. The case of Dilawar Hussain is not relevant to the conviction on
last seen evidence. The case of Azizullah refers to a settled principle that
the procedure depicts irregularity and some time even illegalities committed
during the course of investigation shall not demolish prosecution case nor
vitiate the trial. However to our understanding it varies case to case. The
case of Muhammad Azim pertains to case of eye-witness in which it was held that
occurrence having taken place on a thorough fair, passerby a natural witness
provided they are able to explain their presence at the spot.
23. So far as the case law referred to by the
learned counsel for the complainant is concerned, we have minutely gone through
the same. In the case of Gulzar Ahmed prosecution had collected trustworthy and
reliable evidence and dead bodies were recovered on the pointation of accused
and his extra-Judicial confession coupled with medical evidence had established
his guilt, hence conviction was maintained. In the case of Muhammad Akram it
was held that presence of complainant and other eye-witnesses at the scene of
crime was natural. Recovery evidence was independent and impartial. This case
is also distinguishable. In the case of Muhammad Latif, it was held that there
was no bar or hindrance to pass sentence upon a killer of three human beings
when chain of guilt was found unbroken, extra-judicial confession made before
prosecution witnesses, whom accused considered to be respectable persons for
his assistance, could not be disbelieved. The facts of the case supra is quite
distinguishable to the facts and circumstances of the present case. So far as
the case of Faisal Aleem and Muhammad Ajmal are concerned, both the case
germane to a question of juvenility. In this regard, the learned DPG already
argued that appellant Tanveer at the time of incident, was minor, therefore,
the death penalty could not be awarded to him.
24. There is no cavil to the proposition that
death sentence can be awarded to accused on circumstantial evidence, provided
the circumstances constitute a continuous chain without missing any link,
combined effect of
which establishes the
guilt of accused beyond any shadow of doubt. It is
settled principle of law that last seen evidence is a weakest type of evidence
unless corroborated with some other piece of evidence. Needless to emphasis
that all the pieces of evidence should be so linked that it should give picture
of complete chain, one corner of which should touch the neck of the deceased
and other corner of the neck of the accused. Failure of one link will destroy
the entire chain. It is the duty and obligation of prosecution to prove the
case against the accused beyond any shadow of doubt even if accused failed to
furnish explanation for disappearance of deceased who had been seen along with
the accused before his death. Evidence is one of the recognized mode, having
origin from Islam to find out the guilt or innocence of accused. Such evidence
if appeals to logic a reason then it would be sufficient piece of evidence to
connect the accused with the commission of offence and capital punishment can
be awarded on its basis. The rule of benefit of doubt, which described as the
golden rule, is essentially a rule of prudence which cannot be ignored while
dispensing justice in accordance with law. It is based on the maxim, it is
better that ten guilty persons be acquitted rather that one innocent person be
convicted. It will not be out of place to mention here that this rule occupies
a pivotal place in the Islamic Law and that is enforced rigorously in view of
the saying of the Holy Prophet (PBUH) that the mistake of Qazi (Judge) in
releasing a criminal is better than his mistake in punishing an innocent.
Reference can be made to 2009 SCMR 135, 2008 SCMR 1103, 2007 SCMR 486, 2007
SCMR 778, PLD 1973 SC 418 and 2011 SCMR 664.
25. It has been held time and again that the
grain should be sifted from the chaff so as to arrive the truth of the
occurrence, therefore, it would be necessary to appraise the evidence in
entirety to sift grain from the chaff. It is a known principle of appreciation
of evidence that the benefit of all favorable instances in the prosecution
evidence must go to the accused regardless of whether he has taken any such
plea or not. The evidence of the prosecution witnesses is neither trustworthy
nor confidence inspiring nor consistent to establish accusation against the
appellant therefore the possibility of accused being falsely implicated cannot
be ruled out. Both the expressions viz. "proof beyond a reasonable
doubt" and "presumption of innocence" are to be read together as
a unit. Single infirmity if creating reasonable doubt in the mind of a
reasonable and prudent person regarding the truth of charge, makes the whole
case doubtful. It was also laid down in the judgment reported 2008 SCMR 1086
that accused is the most favorite child of law and every benefit of doubt goes
to him regardless of fact whether he has taken any such plea or not. We have no
hesitation to hold that the prosecution has failed to prove the case against
the appellants beyond reasonable doubt. Reference can be made to the judgments
authored by one of us (Muhammad Ali Mazhar-J) reported in SBLR 2011 Sindh 1653
& SBLR 2012 Sindh 208.
26. As a result of above discussion, the appeals
are allowed. Conviction of the appellants is set aside. They should be set at
liberty forthwith if not required to be detained in any other case. The
reference for confirmation of death sentence is answered in negative.
(A.S.) Appeals allowed
