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Petitioner: Muhammad Noman VS Respondent: The State
Court Name: Sindh High Court Judge(s): Salahuddin Panhwar Title: Muhammad Noman vs The State Case No.: (1) CR. APPEAL NO.93/2018 (2) CR. JAIL APPEAL NO.157/2018 Date of Judgment:2019-05-23 Reported As: 2019 SHC 172 Result: N/A
Judgment SALAHUDDIN PANHW AR, J. Appellants, through their respective appeals, have impugned the judgment dated 30.01.2018 passed by Additional District and Sessions Judge concerned in S.C. No.378/2006, arising out of FIR No.213/2006, u/s 302, 396, 34 PPC, P.S. Darakshan, Karachi, whereby both above named accused were convicted and sentenced u/s 302(b) PPC for imprisonment for life as Ta?zir and further sentenced to rigorous imprisonment for 3 years u/s 404 PPC, with order that both sentenced to run concurrently and with benefit of section 382-B Cr .P.C. 2. Brief facts of prosecution' s case are that on 09.05.2006 complainant Muhamm ad Yousif registered FIR stating that his elder brother Muhammad Ismail who dealt in real estate left home on 08.05 .2006 at about 1745 hours while informing that he would come back within an hour but did not return until 2100/220 0 hours hence they got worried and dialed his mobile number 0333-2159747 but his phone was stitched off. On next day viz. 09.05.2006 at 1045 hours, he reported missing of his brother at PS PIB Colony . Same day at about 2100 hours, police of PS Darkshan called him at Jinnah Hospital. When complainant with his relatives reached at the hospital, found dead body of his brother Muhammad Ismail. Police informed the complainant that they had recovered dead body of his brother from area of DHA, Phase-VIII therefore he lodged the FIR against unknown of fenders. 3. During investigation, Investigation Officer Inspector Tahir Aziz Abbasi visited place of incident viz. Lane No.3, Zulfiqar Street, Khayaban-e-Shaheen on 09.05.2006 in presence of complainant Muhammad Yousuf and ASI Pervaiz and collected blood stained earth; on 10.05.2006 Vigo vehicle of deceased Muhammad Ismail was recovered by police of PS Gizri and the I/O seized it, he obtained sealed parcel containing four empties of pistol bullets recovered from vehicle by duty officer; on 18.05.2006 I/O arrested suspects Waseem Warsi and Zaheer-ul- Haq on pointation of complainant and also arrested suspect Malik Imran on complainant's pointation and obtained police custody remand of suspects but did not find any incriminating material against them hence released them u/s 497(2) of Cr.P.C; on 23.05.2006 complainant informed the I/O that one Muhammad Ali had killed his brother , on
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such information I/O arrested accused Muhammad Ali as suspect. During interrogation, accused Muhammad Ali confessed to have killed Muhammad Ismail in his Vigo vehicle alongwith accused Noman and Muhammad Urs and abandoning the dead body and vehicle; he further disclosed that pistol used in crime was kept at the residence of his father-in-law. Investigating officer formally arrested accused Muhammad Ali on 25.05.2006 at 0300 hours and on same day at about 1035 hours, he recovered one 9 mm pistol bearing No.534118 having four live bullets along with its license from the house of father-in-law of Muhammad Ali. I/O arrested co- accused Noman and recovered mobile phone of deceased Muhammad Ismail from his possession. Investigating officer then recorded police statements of witnesses and forwarded blood stained earth for chemical examination. Meanwhile, on 25.05.2006 investigation was transferred from said I/O to SIP Ghulam Hussain of PS Aziz Bhatti who obtained remand of both arrested accused and interrogated them during which accused volunteered to point out place where they had thrown away dead body of Muhammad Ismail and his vehicle and later he on same day prepared two different memos of wardat. On 29.05.2006, accused Muhammad Noman volunteered to record his confession hence investigating officer produced him before learned 12t Judicial Magistrate, Karachi South, where confession of accused was recorded on the same day. Investigating officer forwarded recovered pistol and crime empties to Forensic Laboratory and also wrote a letter for getting CDR of mobile numbers under the use of deceased and also collected CRO of accused. On same day accused Muhammad Ali volunteered to produce robbed money, blood stained clothes of all accused and shoes of deceased hence on same day, he recovered pair of shoes of deceased Ismail and cash of Rs.200,000/- so also blood stained clothes from the house of accused Muhammad Ali on his pointation. On 31.05.2006 investigating officer arrested accused Urs on pointation of co-accused Muhammad Ali, from his house in Thatta and recovered M-90 Nokia mobile phone of black and silver colour of deceased Muhammad Ismail and cash of Rs.50,000/- being part of stolen money of deceased from possession of accused Urs. On 02.06.2006 accused Urs pointed out place of wardat. Investigating officer submitted interim report before the Court and after collecting reports of Forensic laboratory and Chemical Examiner submitted charge sheet. 4. Formal charge was framed upon all three accused persons (exhibit-6) who pleaded not guilty vide their respective pleas (exhibits 6/A to 6/C). Accused Muhammad Ali then was called absent and warrant of arrest issued against him returned with the report that he was no more alive; hence proceeding of the case against him was abated. 5. Prosecution examined (1) PW-1 Muhammad Khan at exhibit 8 who produced roznamcha entry No.12 at exhibit 8/A, memo of pointation of place of abandonment of dead body at exhibit 8/B, memo of pointation of place of abandoning the Vigo vehicle at exhibit 8/C, memo of recovery of shoes at exhibit 8/D, memo of recovery of stolen money and blood stained clothes of all accused at exhibit 8/E, memo of arrest of accused Muhammad Urs at exhibit 8/F, memo of pointation of wardat by accused Urs at exhibit 8/G, memo of pointation of place of abandonment of crime vehicle at exhibit 8/H; (2) PW-2 HC Altaf Hussain at exhibit 9 who produced memo of arrest of accused Muhammad Ali at Ex-10 and memo of formal arrest of same accused at exhibit 11; (3) PW-3 PC Nazeer Ahmed at exhibit 12 who produced memo of inspection of dead body at Ex-13 and inquest report at exhibit 14; (4) PW-4 ASI Muhammad Saleh Abro at exhibit 15 who produced memo of recovery of crime weapon at exhibit 16; (5) PW-5 the then 12t Judicial Magistrate, Karachi South Mr. Zeeshan Akhter at exhibit 17 who produced application submitted to him by I/O for confession at exhibit 18, original confessional statement of accused Noman at exhibit 19; (6) PW-6 complainant Muhammad Yousif at exhibit 20 who produced his statement u/s 154 of Cr.P.C at exhibit 21, receipt of dead body at exhibit 22, memo of site inspection at exhibit 23, memo of arrest of suspects at exhibit 24, memo of arrest of suspect Malik Imran at exhibit 25, memo of arrest of accused Noman at exhibit 26; (7) PW-7 SIP Muhammad Pervaiz at exhibit 29 who produced application submitted by him to MLO at exhibit 29/1, death certificate of deceased at exhibit 29/2 and FIR at exhibit 29/3; (8) PW-8 PC Wasim Ahmed at exhibit 30 who produced memo of seizure of crime vehicle at exhibit 30/1, (9) PW-9 Senior Medical Officer at exhibit 31 who produced postmortem report of deceased Muhammad Ismail at exhibit 31/A; (10) PW-10 Inspector Tahir Aziz Abbasi at exhibit 32 who produced sketch of wardat at exhibit 32/A, roznamcha entry No.27 at exhibit 32/B, report submitted by him to SSP for releasing of suspects at exhibit 32/C, roznamcha entry No.19 at exhibit 32/D,h h
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roznamcha entry No.21 at exhibit 32/E, his letter to high-ups for permission for chemical examination at exhibit 32/F; (11) PW-11 SIP Ghulam Hussain at exhibit 33 who produced memo of roznamcha entry No.32 at exhibit 33/A, roznamcha entry No.12 at exhibit 33/B, five photographs of recovery proceedings at exhibit 33/C to exhibit 333/H, roznamcha entry No.10 at exhibit 33/I, letter for permission at exhibit 33/J, his letter for permission bearing No.481 at exhibit 33/K, letter for permission at exhibit 33/33/L, forensic examination report No.50/60 at exhibit 33//M, report of chemical examiner at exhibit 33/N, order .of transfer of investigation at exhibit 33/O; prosecution closed the prosecution evidence vide statement at exhibit 34. 6. By order dated 14.12.2017 (exhibit 35), charge upon accused was altered from offenses punishable u/s 396 PPC and article 17(4) of the Offence Against Property (Enforcement of Hudood) Ordinance 1979 to offenses punishable u/s 302 and 404 of PPC. Altered charge was framed upon accused vide exhibit 36 but both of them pleaded not guilty vide their respective pleas (exhibit 6/A to Ex-36/B). Learned counsel for the both accused then filed joint statement (exhibit 37) stating that on alteration of charge, they did not want any time for proceeding with the case and relied upon evidence available on record. Prosecution also filed similar statement (exhibit 38). 7. The statements of accused Urs and Noman were recorded (exhibits 39 and 40 respectively) wherein they stated that police had involved them in this case falsely at the instigation of complainant and no recovery of any incriminating material was effected from them. Accused Noman further pleaded that he had recorded judicial confession under coercion by police who had tortured him for three days and produced him learned Judicial Magistrate who obtained his signature on a paper without attending to his complaint of maltreatment. Both the accused neither examined themselves on oath nor produce any witness in their defence. 8. Learned trial Court framed and answered the points for determination as under:- POINT NO.1 Whether deceased Muhammad In affirmative Ismail died an unnatural death? POINT NO.2 Whether between 1745 hours on 08.05.2006 to 1900 hours on 09.05.2006 while travelling in Toyota Hi-lux Vigo vehicle having registration No.KN- 4058, at Sea V iew area Karachi accused Muhammad Noman and Muhammad Urs along with deceased co- accused Muhammad Ali in prosecution of their common intention committed qatl-i-amd of Muhammad Ismail s/o Muhammad Ibrahim by causing him firearm injuries and further stolen cash of Rs.850,000/- from his vehicle and then threw away his dead body in lane No.3 of Zulfiqar Street, DHA Phase-8, Karachi and abandoned his vehicle in Gizri?Proved POINT NO.3 What offence, if any, accused have committed and what should the order be?Accused are convicted for qatl- e-amd and are sentenced to life imprisonment.
9. I have heard learned counsel for appellants as well learned Additional Prosecutor General Sindh, perused the record. 10. Learned counsel for appellant Muhammad Noman has argued that the incident is unwitnessed one, accused are not nominated in FIR; that during investigation though main accused Muhammad Ali was arrested but police failed to record his judicial confession; that case papers were handed over to second investigating officer before formal order
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that is in violation of the law; that accused Muhammad Ali has got recovered incriminating articles at four different occasions which is not appealable to a prudent mind; complainant in his FIR has failed to disclose details of stolen articles however surprisingly on their alleged recovery he has identified those as belongings of his deceased brother; that confession allegedly recorded by appellant/accused Noman was obtained under coercion by police which is also delayed by four days of his arrest and its each page had not been signed by learned Judicial Magistrate and it has been denied by maker and after recording of confession investigating officer kept custody of accused for overnight hence owing to such defects, the confession was not voluntari ly recorded hence cannot be considered; .that during trial prosecution has failed to produce Vigo vehicle despite serious efforts taken by the trial Court; further it has failed to produce related articles of vehicle and moreover it was unbelievable that although deceased is alleged to have been killed inside his vehicle yet no corresponding damage inside of vehicle was detected; that complainant has disclosed one colour of the clothes lastly worn by deceased but during trial those clothes were found to have different colour . It is further contended that prosecution has failed to prove any motive against accused for his committing murder of deceased and even it has failed to establish any connection between him and accused; that recoveries allegedly effected during investigation were made after sufficient delay although accused Muhammad Ali was arrested on 23.05.2006 and mashirs of those recoveries are related to deceased hence they are interested and those recoveries are doubtful; that prosecution' s case against accused was highly doubtful and they are entitled for acquittal. Learned counsel has relied upon 2008 PCrLJ 1059, 2013 PCrLJ 267, 2003 PCRLJ 1608 , 2016 PCRLJ 1608 , 2014 PCRLJ 323, 2003 SCMR 1385 , 2007 SCMT 670, PLD 1982 Karachi 1000, PLD 1960 W.P-Karachi 797, 2008 PCRLJ 87, 1990 PCRLJ 677, 1983 SCMR 1292 , PLD 2000 Karachi 128, 1995 SCMR 1345 , PLD 1990 SC 484 , 2017 PCRLJ 327 and 2018 YLR 1629 . 11. Learned counsel for appellant Muhammad Urs, in line with the above arguments, has further submitted that present appellant was disclosed by co accused in his statement under section 164 CrPC; that prosecution' s case was of no evidence against accused Muhammad Urs and small amount from allegedly stolen money has been foisted on him to make a case; that prosecution has failed to prove on record that accused Muhammad Urs was known to the deceased and that he had any motive for killing him; that appellant is a poor person who was serving as a private driver with the brother of main accused Muhammad Ali as such he has been booked for that reason in present case. He placed reliance on 2004 YLR 206 , 1983 SCMR 573 , 2003 SCMR 1419 and 1992 SCMR 1983 . 12. Learned Addl. P.G. has argued that prosecution has proved the case beyond shadow of reasonable doubt by establishing complete chain of circumstantial evidence; that present appellants were arrested on pointation of deceased who was principal accused, from whom pistol used in the crime and partial robbed money of Rs.2,00,000/- were recovered and during investigation, accused Muhammad Noman has recorded judicial confession wherein he has implicated himself and two co-accused while disclosing facts of incident and pistol recovered from accused Muhammad Ali matched with the crime empties recovered from crime vehicle; that defence has not alleged any malafide on the part of complainant and initially, several persons were interrogated in the case but no incriminating material was found against them hence were released which shows fairness on the part of complainant; that although first investigating officer Tahir Aziz Abbasi has made some admissions in his cross-examination but his such admitted acts were neither unlawful nor fatal to prosecution case because defence has not suggested to investigating officer that he was not competent to conduct investigations; that defense has failed to adopt proper legal procedure for retracting from judicial confession of accused Muhammad Noman as detailed in section 342 of Cr.P.C and while replying to formal charge accused have failed to take such plea of coercion hence this contention had no weight. That accused have further neither examined themselves on oath nor have they produced any witness in their defence as such presumption shall be drawn that they had admitted the prosecution' s case and had no defence to offer; that there is motive for commission of the offence with accused that was to commit robbery . He has relied upon 2010 SCMR 55 , 1999 SCMR 1744 , 1995 SCMR 1615 , 1992 SCMR 1983 and PLD 1972 SC 363 . 13. The instant case was always un-witnessed one? so was rightly viewed by the learned trial Court judge while discussing the point No.2 as:- "28. The perusal of above prosecution evidence shall reveal that alleged offence has gone unseen as such prosecution case rests on following circumstantial evidence;
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a- corroborative evidence of witnesses and recovery f dead body and crime vehicle; b- Pointing out of two places of wardat by accused on their arrest; c- Recovery of crime empties, crime weapon and their matching during forensic analysis; d- Recovery of bloodstained clothes of accused and victim and positive report of Chemical Examiner; e- The judicial confession of accused Muhammad Noman during investigation; f- The motive of accused for commission of of fence" However , what the learned trial Court judge seems to have missed is the criterion for appreciation of evidences in such like cases, completely and entirely , depending upon circumstantial evidences including confession. I may add that in cases of unseen offences the duty of the prosecution becomes double because corroborative pieces of evidence are easy to be arranged / managed. This has been the reason that in recent case of Fayyaz Ahmed v. State (2017 SCMR 2026 ) the criterion for such like cases has been reaffirmed with a caution favouring to accused as:- 5. To believe or rely on circumstantial evidence, the well settled and deeply entrenched principle is , that it is imperative for the Prosecution to prov ide all links in chain an unbroken one, where one end of the same touches the dead body and other the neck of the deceased . The present case is of such a nature where many links are missing in the chain. To carry conviction on a capital charge it is essential that courts have to deepl y scrutinize the circumstantial evidence because fabricating of such evidence is not uncommon as we have noticed in some cases thus, very minute and narrow examination of the same is necessary to secure the ends of justice and that the prosecution has to establish the case beyond all reasonable doubts, resting on circumstantia l evidence. "Reasonable Doubt" does not mean any doubt but it must be accompanied by such reasons, sufficien t to persuade a judicial mind for placing reliance on it. If it is short of such standard, it is better to discard the same so that an innocent person might not be sent to gallows , To draw an inference of guilt from such evidence, the Court has to apply its judicial mind with deep thought and with extra care and caution and whenever there are one or some indications, showing the design of the Prosecution of manufacturing and preparation of a case, the Courts have to show reluctance to believe it unless it is judicia lly satisfied about the guilt of accused persons and the required chain is made out without any missing link, otherwise at random reliance on such evidence would result in failure of justice . Thus, it was legally reaffirmed that the Courts are not supposed to depart from its duty to make deep scrutiny and examination of every aspect of the case and evidences, so collected and claimed by prosecution in such like cases, and if during such scrutiny one or more indications appear, showing design of the prosecution of manufacturing and preparation of a case, then it is better to discard the same. In the said case, the Courts have further been advised not to be influenced from appearance of investigation material in such like cases but to strongly stick with their obligations while appreciating evidences in such like cases. The relevant portion reads as:- 6. It may also be kept in mind that sometimes the investigating agency collects circumstantial evidence seems apparently believable however if the strict standards of scrutiny are applied there would appear many cracks and doubts in the same which are always inherent therein and in that case Courts have to discard and disbelieve the same . 14. The learned trial court judge while referring to evidences of the PW-1 Muhammad Khan and PW-6 complainant Muhammad Yousif gave much weight to not directly naming the present appellants and dead accused Muhammad Ali while concluding the para-31 of impugned judgment as:- "It may be noted from above gist of evidence that complainant Muhammad Yousif had on first hand information about business matters of his deceased brother and for this reason he had not nominated any body in the FIR including present accused and deceased accused Ali Muhammad (Muhammad Ali) but later on when he learnt about business matters of his brothers he got three suspects arrested who were released during investigation and this fact suggest that complainant Muhammad Yousif and mashir brother Muhammad Khan both had been acting
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fairly in the case and they had no grudge or motive against anyone to falsely involve them in the murder of their brother". I am surprised why absence of a grudge could be sufficient to blindly ignore the abnormal conduct and attitude of these witnesses which, otherwise, were indications showing design on part of the complainant party . How the complainant led the investigation was quite obvious from admissions, made by PW-10 Inspector Tahir Aziz Abbasi in his examination-in-chief as:- ....On 18.05.2006, I was available at my duty at P.S Darakshan, when the complainant through mobile phone, contacted me and asked me to come at his residence. On such request, I reached at his residence situated PIB Colony , House No.404 and met with the complainant and he brought me inside the house, in drawing room. The complainant got me met with two persons already available in the drawing room and informed me that he has suspicion of murder of his brother upon them. On enquiry , they disclosed their names as Waseem Warsi and Zheerul Haq. I affected their arrest in the case and prepared such memo at about 0045 hours, on 18.05.2006 which was signed by complainant M. Yousuf and HC Amanullah. I see such memo at Exh.24, and say that it is same, correct and bears my signature. Thereafter , we shifted the said arrested accused alongwith the complainant at P.S. In the meanwhile the complainant also informed us about another suspect Malik Imran. Therefore, we alongwith the complainant went at flat of said Malik Imran, situated at Zamzama adjacent to Pizza Hut, Block-19-C, 3rd Flor and I do not remember name of the building. on the pointing of the complainant I arrested him, who was coming to his residence.... Thereafter , I got police remand of the said accused from the concerned Magistrate and remained in interrogation the accused but no clue was found. ...Thereafter , the complainant came at P.S and submitted in writing that the accused arrested as yet not are real culprits involved in murder of his brother . Therefore, I let off the said accused u/s 497-II Cr.P.C. after getting approval from my high ups. I made such entry for letting off the accused. I produce my such report submitted to the SSP having approval at Exh.32/C and xay that it is same, correct and bears my signature having endorsement of the SSP. I also produce such entry at Exh.32/D, and say that it is same and correct. On 23.05.2006 I was available at P.S when complainant M Yousuf alongwith Muhammad Ali came there and informed me that Muhammad Ali murde red his brother . Therefore, I affected arrest of said Muhammad Ali..." There can be no denial to fact that a clue even suspicion may expose all truths. The complainant party may have a right to disclose their suspicion but cannot dictate arrest and release of the suspects which legally must always be dependant upon evidence or absence thereof. However , the manner in which the complainant and his brother remained behaving was never worth appreciable. 15. Be that as it may be, the learned trial court judge also never appreciated that complainant and his brother never disclosed about factum of cash with deceased till they introduced deceased accused Muhammad Ali as suspect. The missing report and FIR nowhere indicate about such cash amount with deceased. PW-6 complainant in his evidence stated as:- Page-335 of paper book. ...after the Soyam I had disclosed to him on his asking that Waseem Warsi, and Zaheerul Haque and Malik Imran had met our brother on the day of incident, investigation may be made from them.. He admitted in his cross examination as:- Page-339 of paper book ...It is a fact that in my 154 Cr.P.C and FIR so also in the missing report of my brother , it is not mentioned that our deceased brother had also taken Rs.8 or 9 lacs from our house. Vol. say that this fact came to our knowledge subsequently through his wife. ...It is a fact that right from 09.05.2006 to 23.05.2006 we did not suspect present accused persons. The admission of ignorance of such vital fact by those who, being blood-relations, going in search of their own blood or for murderer of their own blood, was always not believable. However , it is also a matter of record that no words in support of such cash amount (alleged motive) ever came on surface with name of widow of deceased…
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