Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Muhammad Sharif VS Respondent: The State
Court Name: Supreme Court of Pakistan Judge(s): Javaid Iqbal, Muhammad Sair Ali, Sayed Zahid Hussain Title: Muhammad Sharif vs The State Case No.: Criminal Appeal No.598 of 2005 Date of Judgment:2009-05-06 Reported As: K.L.R. 2009 Supreme Court 340 Result: N/A
JUDGMENT
JUDGMENT SAYED ZAHID HUSSAIN, J. - This is appeal, as of right, in terms of Art. 185(2)(a) of the- Constitution of^Lamic Republic of Pakistan, 1973, as the appellant was convicted and sentenced to death by the Baluchistan High Court, Quetta vide judgment dated 17.12.1998, setting, aside the judgment of acquittal passed by the leamed Sessions Judge, Quetta dated 1,7.1998.. He had been charged for the commission of offence u/s. 302 read with s'342 and S.365 PPC. 2. The report (Ex.P/T-A), lodged, by Noor Muhammad complainant against the appellant on 2.10.1995 with SHO, New Saryab Police Station Quetta, was that his son Abdul Ghafoor aged 19/20 years was missing from the house since 10.9.1995; and that his son had friendly terms with Muhammad Sharif appellant (sepoy in Custom Force) to whom he (Abdul Ghafoor) had sold the land but full payment had not been made by Muhammad Sharif and that he (Muhammad Sharif) had purchased the said land for one Muhammad Younis; and that few days back Abdul Ghafoor had brought some plastic material from Muhammad Sharif and wanted to start that business as Muhammad Sharif had told him that it was a profitable business. On 23rd September, 1995, a letter was received by him in Bloom Star. Hotel, Quetta (where he was driver), demanding an amount of Rs.300,000/- to be left near Saryab Mill High School at 6.00 P.M. On 26.9.1995 and in case of failure, his son would be murdered. He suspected the appellant to have kidnapped his son for ransom, It was reported that his son had a sum of Rs.70,000/- with him when he left the house. Pursuant to this report the appellant was arrested on 2.10.1995 and after investigation he was sent up for trial. The charge framed by the Trial Court and read over to the appellant was follows:-
---
## Page 2
It is alleged that on 10.9.1995 time un-known you abducted the son of complainant Noor Mohammad namely Abdul Ghafoor about aged 19/20 years and confined him with such intention to receive or compelled the father of deceased to pay ransom to you, thereafter you also committed the murder of deceased, thereby you have committed an offence punishable u/s 302 Qisas and Diyat Ordinance r/w 342/365 PPC." The appellant pleaded not guilty and faced the trial. He was acquitted by the Trial Court i.e. Session Judge, (Adhoc) Quetta vide judgment dated 1.7.1998, where against the complainant Noor Muhammad father of Abdul Ghafoor (deceased) filed appeal before the High .Court of Baluchistan, Quetta, which was accepted vide judgment dated 17.12.1998. Finding him guilty of the offences, the appellant was sentenced as under:- "A. For offence under Section 302 PPC the respondent Mohammad Sharif son of Fazdi Haque caste Babahi is awarded capital Sentence of DEATH. He be hanged by neck till he be dead; ' 8. For offence under ' section 342 PPC, the respondent Mohammad Sharif is sentenced to one year R1 and to. Pay i.e of Rs. 1000/ or in: default in payment of i.e to further suffer two and a half month R1; C. For ^offence under section 305 PPC, the respondent Mohammad Sharif is sentenced to seven years R1 and to pay i.e of Rs.7000/- or. In default in payment of i.e to further suffer R1 for one year nine months;" This is appeal by the convict/appellaqt against the same. 3. Mr. Muhammad Zaman Bhatti ASC, the learned counsel for the appellant, has with the support of the precedents drawn our attention as to the scope of appeal - and duty of the Court in a matter of this kind where, an accused person had been acquitted by the Trial Court but convicted by the High Court, It is contended Ipy him that the Trial Court had the benefit of conducting the trial, recording the evidence, watching the demeanor of the witnesses, the findings recorded by the said court assume substantial significance which the Appellate Court could not have interfered merely because some other view was possible of the same evidence;, It is contended that mere suspicion whatsoever strong was not enough for convicting a person and that it is not for the Court to hunt evidence for this purpose, It is also contended that, an accused has the presumption of innocence unless proved guilty and where he is acquitted by the Court he gets double presumption of innocence, which should riot be disregarded by the Appellate Court. He has cited number of rulings such qs Abdul Majid v, Superintendent and Remembrancer of Legal Affairs, Government of East Pakistan. (PLD 1964 SC 422), The State v. Manzoor Ahmad (PLD 1966 SC 664), Zaheer Din V. The State (NLR 1993 Crl 587), Ansar Ahmad Khan Barki v. The State and another (1993 SCMR 1660), Muhammad Ishaque Khan and others v. The State and others (PLD 1994; SC 259), AsadulIah and another v. State and another (PLJ 1999 SC 1018) and Sarfraz alias Sappi and two others v. State (PLJ 2000 SC 1505). It is also contented by him that there was no convincing and confidence inspiring evidence, which could justify the involvement of the appellant in the killing of Abdul Ghafoor deceased and the High Court while passing the impugned judgment should have kept in view the evidence from all angles before recording the finding of guilt in the matter. 4. The learned Additional Advocate General Baluchistan has relied upon the circumstantial and medical evidence, which according to him was sufficient enough to prove the guilt of the appellant Including the confessional statement made by him and the recovery of the dead body ' on his
---
## Page 3
Plantation from the place where the deceased had been buried; According to him, the letter demanding ransom was sent by the appellant 'which stands proved by the evidence of-hand writing expert. 5. In order to assimilate the principles laid down by this Court from time, to time, ' in a matter of this kind reference to some of the past precedents may be made, In Abdul Majid y. Superintendent' and Remembrancer of Legal Affairs, cost, of East Pakistan (PLD 1964 S.C 422), The late A.R. Cornelius, C.J., while dealing with a case Where the.. Trial Court had acquitted the accused but on appeal the High Court had set aside the acquittal and sentenced him .To imprisonment for life, laid. Down the guiding principles applicable to such like cases. I can do no better than making reference to few paragraphs from that judgment, the relevant portions whereof are: "This being a case of reversal of an acquittal by the trial Judge, supported Unanimously by the assessors, it is desirable that we should commence by stating a fundamental principle applicable to. Such cases, It is that the full facts and circumstances of a case are laid open before a trial court and thereby come'. Within the comprehension of that Court including a jury or assessors, sitting as part 'of the Court, far more thoroughly and" completely than is ever possible on the basis of a written \ record canvassed to advantage or disadvantage by learned counsel in a Court of appeal. The trial Court, being close to the scene of the occurrence and familiar with the was and practices of the people involved. Envois a marked advantage in the formation of a complete and balanced picture of the incident or incidents which go into the making of the prosecution case as presented bv witnesses of the locality, It eniovs also another advantage of a principle character for such appreciation, namely that the* witnesses do not merely appear before it to give that evidence, which through repetition before the Police authorities and the committing Court they may be thought to be well schooled in. But also that which they give under the probing stresses 'of cross- examination. " And that "In setting aside an acquittal in a case which rested wholly on direct evidence of witnesses, as much importance must be given as in any other case, to the rule which runs through the criminal jurisprudence of our country as a golden thread that the benefit of every doubt must go to the accused person, In this case, the Judge of the trial Court had canvassed in his judgment a considerable number of features which went to create doubt regarding the, testimony of each of the aforesaid witnesses, a doubt which was clearly shared and expressly declared by the assessors. As was remarked by the Judicial Committee in the case of she Swar up and others, (1934 1A 398) the fact of the acquittal by the trial Court certainly does not operate to diminish the substantial nature of such doubts or of the benefit to the accused person which must necessarily follow." It was further observed that "Equally, a conclusion bv a Judge may be reversed, even where it has led to an acquittal. But where he has read the evidence fairly, and has formulated grounds of doubt which are not perverse or wholly illogical or unreasonable, there is a clear risk of departure from the rule of the benefit of the doubt in reversing his findings:" (Portions underlined for emphasis) Keeping such principles in view and on reappraisal of the evidence, the Court came to the conclusion that "the doubts were so substantial that to overcome them-by reasons to the contrary could only' have the result of giving the benefit thereof to the prosecution." The appeal against conviction was accordingly allowed and he was acquitted, In The State v. Manzoor Ahmad (PLD 1966 SC 664), the conviction order of the Trial Court was set aside by the High Court acquitting him of the charge of murder-. His acquittal had been challenged before this Court, leave was granted as the case depended wholly on circumstantial evidence. Hamoodur Rahman (late) (as he then was) speaking for the Court observed that "It is no doubt true that in a case resting wholly on circumstantial evidence the Court must, as observed by Wills in his Treatise on Circumstantial
---
## Page 4
Evidence, remember that the "processes of inference and. Deduction are essentially involvedly- frequently of a delicate and perplexing character-liable to numerous causes of fallacy." Mere suspicion will not be sufficient to justify conviction.. Before the guilt of the accused can. Be inferred merely from inculpatory circumstances those circumstances must be found to be incompatible with the innocence of the accused and ''incapable Of explanation upon any other reasonable hypothesis^ than that of his guilt. " It is also equally well settled that the circumstances sought to be relied upon must have been established beyond all doubt But this only means a reasonable doubt, i.e. a doubt such as would assail a reasonable mind and not any and every kind of doubt and much less a doubt conjured Up by pre-conceived notions. But once the circumstances have been found to be so established they may well furnish a better basis for decision- . Than any other kind of evidence. As Hewart, I.C.J. Observed 'in the case bf Percival Leonard Taylor, James Weaver :& George Thomas Donovan (1) "it is no derogation Of evidence- to say that it is circumstantial. ", It was further observed that "Straining of the evidence either in favour of the prosecution or in favour of the accused is a practice that, I would deprecate but I would undoubtedly, in accordance with the established principles of administration of criminal justice in our Courts, be prepared to resolve all genuine and reasonable doubts, if any, arising in favour of the accused person, It is always dangerous to indulge in the straining of evidence, for, once the process of straining begins there is no knowing where it will end" And that "It is not sufficient in such a case to sav that since there is no direct evidence to connect any one with the felonious act the guilt cannot be fixed, It is precisely in such cases that I conceive it to be duty of the Court to examine the probabilities in the light of the indirect evidence of the injuries on the deceased, the nature and condition of the place where the incident took place the articles found there, the motive for the crime and the other surrounding circumstances proved. " It was concluded that "Giving the benefit of all doubts, therefore, to the accused the Court has still to discharge the onerous function of not allowing an offender to escape justice and the meeting out just punishment to him, In the circumstances, taking the most lenient view in favour of the respondent I have come to the conclusion that a grave miscarriage of justice had been committed bv the High Court bv acquitting the respondent altogether. These appeals are, accordingly, allowed, the acquittal of the respondent Manzoor Ahmad is set aside and he is convicted under section 304, Part I of the Pakistan Penal Code and sentenced to rigorous imprisonment for seven years" Later on, as Chief Justice the same great Judge the late Hamoodur Rahman along with other brother members of the Bench whose erudite knowledge and comprehension of. Law begs no comments, decided one of the leading remarkable case i.e. Noora and another v. The State (PLD 1973 SC 469) laying down the guiding principles followed in subsequent cases about the scope, extent and amplitude of power and jurisdiction of the Court in criminal matters, which can usefully be reproduced; "The conclusion, therefore, to which I am driven after the examination of the relevant decisions and the constitutional provisions relating to the jurisdiction of Dm Court, is that this Court has every right to examine the evidence in a criminal appeal if it is necessary in the interest of justice.. In what' circumstances it will do so is a matter on which it is neither possible nor desirable to lay down any hard- and-fast rule. Each case will have to be judged upon its own facts and circumstances ; but, at the same time, I must point out that although under the constitutional provisions the powers of this Court are in no way fettered, yet, from the very nature of things, there must be some difference in its approach towards the cases which come before it directly as an appeal and cases in which leave to appeal has first to be obtained. The limitations, which the Court imposes on its powers are,, however, only such as are implicit in the nature and character of the power itself. They
---
## Page 5
. Cannot be defined with any precision, because, it is not advisable Fa fetter the exercise of this discretionary power by any set rule. The, Court will no doubt use its good. 'Sense in determining the circumstances in which it will grant leave and will', exercise ifs discretion on well established principles; but where the Court reaches the conclusion that a . Person has been dealt with in violation of the established principles of the administration of criminal justice, then no technical hurdles should be allowed to stand in its was of doing justice and seeing that injustice is not perpetuated or perpetrated bv the decisions of the Courts below. Now that we are no longer merely exercising a prerogative jurisdiction but are exercising powers conferred by the Constitution, there appears to me no valid reason for this Court to be inhibited by the limitations which the Judicial Committee of the Privy Council had imposed upon itself. I cannot, therefore, persuade myself to agree that we should go back again to the rule in Diller's case and narrow down the scope and content of our own constitutional jurisdiction. We should have the fullest power to do full. Justice without fettering ourselves with any self-imposed restrictions which are no longer necessary in the context of the changed circumstances in which we now' function." It was further observed, that "I should not be understood to be laving down that the opinions of the Courts below, particularly of the Courts which had the advantage of listening to the witness giving evidence arid watching his demeanour, should be disregarded or given no weight at all. As an ultimate Court, we must give due weight and consideration to the opinions of the Courts below, and normally we should hot interfere with their findings where we are satisfied that they are reasonable and Were not arrived at by the disregard of any accepted principle regarding the appreciation of evidence. The mere fact that this Court might have taken a different view of the evidence should not be sufficient to overrule the findings of the Courts below: but we should first satisfy ourselves that there is some serious defect in the process by which the finding has . Been arrived at. Where such defect is discovered and the finding is not considered tenable, then it should, be open to the Court to come to its own independent finding upon a re-examination of the evidence untrammeled by the opinions of the Courts below." In Ghulam Sikandar and another v. Mamraz Khan and another (PLD 1985 SC 11) Muhammad; AfzaL Zullah ACJ, (as he then was) after considering several cases cited before the leamed Bench with regard to the principles to be followed by the Court regarding appreciation of evidence in an appeal against acquittal observed "However, notwithstanding the diversity of facts and circumstances of each case, amongst other, some of the important and consistently followed principles can be clearly visualized from the cited and other case law on the question of setting aside an acquittal by this Court. Some of these are as follows:- In an appeal against acquittal the Sh pre me Court would not on principal ordinarily "interfere and instead would have' due weight and consideration to the findings of Court acquitting^ ' the accused. This approach is slightly different than that in an appeal against conviction when leave is granted. Only< for re-appraisement of evidence which then is undertaken so as to see that benefit of every Reasonable doubt should be extended' to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: One initial, that till found guilty, the accuse is innocent; and two that ~a in after the trial a Court below confirmed the assumption of innocence. The Court would hot interfere with acquittal merely because on re-appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court
---
## Page 6
would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous. " In the case reported* Zaheer Din v. The State (NLR' 1993 Criminal 587):, the Trial Court has Tacquitted^him of the charge of murder blit on appeal the High Court convicted and sentenced him to life imprisonment. It was observed that "The conclusions drawn bv the learned Judges of the High. Court on the basis of the re-appraisal of the evidence in the case, while convicting the appellant, were merely another possible view of the evidence which was not sufficient for reversing the acquittal of ' the appellant into conviction. The learned Judges of the High Court did refer to the case of Ghulam Sikandar and another v. Mirza Kh$h and other (PLD \1985 SC 11) in tha impugned judgment but . Unfortunately they failed to keep in sight the guiding principles laid down by this Court, for deciding an acquittal appeal in a criminal case." ' Accordingly the acquittal 'of the appellant was restored ' by observing that the High Court was not justified in interfering with the acquittal judgment of Trial court simply because it could take another view of the evidence in . The case, In Ansar Ahmad Khan Barki v. The State (1993 SCMR 1660) the appellant had been convicted and sentenced to life imprisonment by the Trial Court, which judgment was reversed by the High' Court enhancing ..The sentence of life imprisonment to death. He had filed appeal before this Court. On reappraisal of the evidence the Court felt "not inclined to subscribe to the reasoning of the High Court. The appellant was not bound to prove to the hilt his plea of defence and had merely to show the circumstances suggestive of reasonable possibility that there might be some truth in his allegation." It was found 0n examination and consideration of the evidence that he deserved lesser punishment. The appeal was accordingly accepted converting the death sentence into life imprisonment, In Muhammad Ishaque Khan v. The State (PLD 1994 SC 259) the appellant had been awarded life imprisonment-by the Trial Court, which sentence was however enhanced to death by the High Court. One. Of the reason that prevailed with the High Court for enhancement of sentence was the false defence taken by, the appellant before the Court, It was observed that "The punishment to be awarded to an accused person in a criminal case entirely depends oh the strength and circumstances established against him by the prosecution in the case. The weakness or falseness of the defence plea is not to be taken into consideration while awarding Punishment to the accused in a criminal trial. " . In State v. Farman Hussain and others {PLD 1995 SC 1) it was highlighted that while trying a criminal case "/Y /s the duty of the Court to appraise evidence strictly according to the legal requirements described by law without being swayed away emotionally for any other extraneous reasons, which" fall outside the pale of legal jurisdiction of. Appraisement , of evidence, In the criminal jurisprudence which we follow, it is invariably the duty of the prosecution to prove the case against accused beyond doubt and the accused is presumed to be innocent until the case is fully proved against him and in that process not only if there is room for doubt, benefit thereof is to go to the accused but if any legal provision, which is to be relied, upon in the appraisement of evidence and is open to two interpretations, one beneficial to the accused is to be adopted." It was observed
---
## Page 7
that- "there is difference between appraisal of evidence in this Court in appeal arising from conviction and in the appeal arising from acquittal recorded by High Court. In appeal arising from acquittal, appraisal of evidence in this Court not so rigid as in the appeal arising from conviction and normally in the former case this Court hesitate to interfere unless it becomes necessary on the ground of gross misreading of evidence resulting into miscarriage of justice. In Asadullah and another v. State and another (PLJ 1999 SC 1018) the appellant was found guilty and was sentenced to death by the Trial Court, which was confirmed By the High Court. The principle lard down in the case of The State v. Manzoor Ahmad {Supra) was followed that "in a ease resting wholly on circumstantial evidence, Court must remember that processes' of inference and deduction are essentially involved-frequently of a delicate and perplexing character-liable to numerous causes of fallacy. Mere suspicion will .Not be sufficient to justify conviction." The appeal was accepted and conviction set aside. In Sarfraz alias Sappi and two others v. State (PLJ 2O0O SC 1505) the appellant had been convicted by the Trial Court and Sentenced to death where against his appeal was dismissed by the High Court. While deciding the appeal , of the convict it was observed by: his lordship Iftikhar Muhammad Chaudhry J., now the Hon'ble Chief Justice that "for safe administration of justice, a condition has been imposed namely that the evidence which is going to be believed to be true must get independent corroboration on material particulars meaning thereby that to find out credible evidence principle of appreciation of evidence i.e, sifting chaff out of grain was introduced as it has been held in the cases of Syed AII Bepari v. Nibaran Mollah and others (PLD 1962 SC 502) Tawaib Khan another v. The State (PLD 1970 S.C. .13), Bakka v. The State (1997 SCNR 150), Khairu and another v. The State (1981 SGMR 1136) Ziaullah v. The. State (1993 SCMR 155) and Ghulam Sikandar v. Mamaraz Khan (PLD'1985 SC 11), Shahid Raza and another v. State (1992 SCMR 1647) Irshad Ahmad and others v. State and others (PLD 1996 SC,138)'' . On examination and consideration of the evidence the sentences awarded by the Courts below were altered. 6. From the perusal of the constitutional and legal provisions and above pronouncements by the esteemed Hon'ble Judges, the developing trend is evident and some of the principles deducible there…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.