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Petitioner: SHAHABUDDIN VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Ajmal Mian, Tanzil-ur-Rehman Title: SHAHABUDDIN vs THE STATE Case No.: Criminal Appeal No,84 and Cr. S.M.Rev. No,116 of 1983 Date of Judgment:1984-09-04 Reported As: 1985 P Cr. L J 609 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' AJMAL MIAN, J.--This is an appeal against the judgment, dated 7-8-1983 passed by the learned Vth Additional Sessions Judge, Karachi in Sessions Case No,180/1980 convicting the appellant under section 302, P.P.C. For murdering Aslam and sentencing him to life imprisonment and to pay a fine of Rs,10,000 in default of payment of fine 2 years' R.I. And under section 382 sentencing him for 3 years R.I. And to pay a fine of Rs,2,000 in default of payment six months' further R.I. It has also been ordered that half of the fine amount be paid to the legal heirs of the deceased, if recovered. 2. The prosecution case in short is that on 11-1-1980 the complainant Amir Ahmad, elder brother of deceased Aslam alongwith his mother P.W. Sharifan his wife and his nephew, the appellant at 7-30 p.m. Left their house for attending a function at Jamshed Road leaving behind in the house deceased Aslam alone. It is also the case of the prosecution that the appellant on the way got down at railway crossing after enquiring from the complainant when they would return to their house, whereupon he was told that within two or three hours. It is further the case of the prosecution that on the way the complainant took his father Allauddin from his garage and when they returned at 11-00 p.m. They found that the main gate of the house was lying open. When they went inside the house they found the television on and when they called Aslam for six or seven times he did not respond, on whose face a Dopatta was lying and on going near him it was found that he was lying dead strangulated by the Dopatta which was tied to the neck and a piece of which was also in his mouth. The F.I.R. Was lodged at 00-15 hours at the police station Nazimabad. It is further the case of the prosecution that when the complainant had returned to his house after lodging the report, he was informed by his mother P.W. Mst.Sharifan that a sum of Rs,2,300, 12 golden bangles and two ear-rings had been stolen from the almirah which was locked and the key
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was lying under the Holy Quran which was kept by her in presence of the appellant. After that a further report was lodged early in the morning about the above theft. In the F.I.R. It was stated that Aslam was murdered by unknown person on account of enmity. However, the appellant was arrested on 28-1-1980 at 2-30 p.m. From his house under Exh.41 in presence of P.W. Iqbal Hussain and one Sardar Alam by the S.H.O. Nazimabad Police Station P.W. Abdul Hafiz Qadri. It is alleged that on the pointation of the appellant on 29-1-1980 at 6-15 p.m. 12 stolen bangles were recovered under Mashirnama Exh.20 in presence of P.Ws. Muhammad Jalil and Iqbal Hussain by P.W. Abdul Hafiz Qadri from P.W. Gulzar Muhammad to whom the appellant had sold the 12 bangles on 13-1- 1980 for a sum of Rs,19,000 out of which the appellant had received a sum of Rs,12,000. It was further alleged that at the pointation of the appellant on 29-1-1980 at 7-40 p.m. a motor cycle bearing No,KCW-8371 alongwith its documents and a cash amount of Rs,3,000 were recovered from House No,D/176 of Shahab Bashir Shah son of Syed Bashir Ahmad Shah with whom the appellant had kept the above articles in presence of P.W. Riaz Hussain and Syed Muhammad Amin Ashraf by the S.H.O. P.W. Abdul Hafiz Qadri under Exh.22. It was also alleged that at the pointation of the appellant on 30-1-1980 at 2-30 p.m. Three wrist watches and the pieces of new clothes allegedly purchased by the appellant out of the sale proceeds of the bangles were recovered from the shop of Saeed Ahmad, Proprietor of Qureshi Tailoring Shop No,136/1, Orangabad quarter, Bara Maidan under Mashirnama Exh.42 by P.W. Abdul Hafiz Qadri in presence of P.Ws. Muhammad Zaheer and Nazir Hussain. 3. The prosecution in support of the case examined P.W.1 the complainant Amir Ahmad, P.W.2 Alauddin, father of the complainant and P.W.4 Mst. Sharifan, mother of the complainant. The above P.Ws. Alauddin and Mst. Sharifan have supported the version given in the F.I.R. i.e, leaving of the house at 7-30 p.m. For attending the marriage ceremony alongwith the appellant (who got down on the way). P.W. Sharifan has also deposed that she had kept the gold bangles in almirah in presence of the appellant and also had kept the key in appellant's presence. The above witnesses have also stated that on return at about 11-00 p.m. They discovered that Aslam was strangulated and was lying dead in the drawing room and the T.V. Was on. The prosecution also examined the following witnesses: (i) P.W.3 Zahirul Hach Mashir to the Mashirnama of the dead body Exh .11 . (ii) P.W.5 Jamal Zaidi, Mashir to the recovery of clothes under Exh.15 from Matin Tailoring Shop, 152/3 Nazimabad. However, before the Sessions Court he stated that when the recovery was made the accused was not with the S.I.P. Abdul Hafiz Qadri. (iii) P.W. Nasiruddin one of the Mashirs to the place of Wardat Exh.18. (iv) P.W.Gulzar Muhammad the goldsmith to whom the appellant had allegedly sold 12 stolen gold bangles on 13-1-1980. (v) P.W.7 Riaz Hussain one of the Mashirs to the seizure of motor cycle etc. Allegedly purchased by the, appellant Exh.22. (vi) P.W.8 Muhammad Rail one of the Mashirs to the recovery of bangles Exh .20. (vii) P.W.9 Kamil Shaikh one of the Mashirs to the inspection of dead body Exh.11 and Inquest Report Exh.12, (viii) P.W.10 Adalat Khan a police constable attached to the Nazimabad Police Station who carried the dead body to the Civil Hospital for the post-mortem. (ix) P.W.11 Nannay Khan, brother-in-law of P.W.2 Alauddin who went to the complainant's house on hearing about the murder. (x) P.W.12 Muhammad Qayoom who got the 12 stolen gold bangles made for HO Alauddin about six months prior to the incident through P.W.13 Muhammad Razi, who has corroborated P.W.12 Muhammad Qayoom on the question of making 12 golden bangles for P.W.Haji Alauddin.
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(xi) P.W.14" Dr. Abdul Majid who was incharge of Medicolegal Department Abbasi Shaheed Hospital on 12-1-1980 and received the dead body of Muhammad Aslam son of Alauddin from the S.H.O. Nazimabad at 7-00 a.m. He started post-mortem examination at 9-15 a.m. And finished it at 10-00 a.m. He found the dead body of a boy aged 15 years which was well nourished and cold. On external examination he found the following injuries: (1) Abraded contusion 3/4" x 4" on the front of the chin just 1" below middle lower lip. (2) Ligature mark non-contineous on the front and left side of the neck just below the cricoid cartilage which is contineous on the left side of the neck upto the back of middle of the neck and on the right side of the neck it is non-contineous which goes up to the back right side neck. The colour of Ligature mark was dark brick colour which is gelatinous and slightly grooved Ecchymosis present at the margins of the groove at different places. It is not high up in the neck but straight just below the tiyroid cartilage on both sides of the neck and back of the neck. (3) Contusion about 2" x 2" on the front of upper third right leg. ' He opined that injuries Nos. 1 and 3 appeared to have been caused by some hard blunt substance such as Danda or a kick. He also opined that injury No,2 appeared to have been caused by strangulation by a cloth. He also opined that the age of the injuries was within 12 hours and that the deceased sould have died instantaneously. ' On internal examination he found the following three injuries: (1) Both lungs were congested and spongy. (2) Emphysanatous bullae present on the margins of lungs. (3) On section blood oozed out from the disected area. There was Engorgement of coronary vessels. ' He also examined perineum of the deceased and found as under: (1) Faecal matter coming out from the anus--Dried faecal matter was also found on perineum and thigh. (2) There was congestion of anus and lucus membrane. There was contusion about 24" x 4" on the inner side of medial periria fold. (3) There was whitish crest found on the glance and around the Urithra trickling of semen from the Urithra. (4) A tear was found on 3 O'clock position on the anus with slide contusion. Two rectal slides were prepared and were handed over to the police for sending to the Chemical Analyser for examination and report. ' He opined that the death was on account of strangulation and the injury No,2 was sufficient to cause death in the ordinary course of nature. He also opined that sodomy was also committed on the deceased prior to his death. He produced post-mortem report Ex h .33. (xii) P.W.15 Amjad All who has deposed that on 19-1-1980 the appellant had purchased motor cycle for Rs,9,550 from him against cash memo. Exh.39. (xiii) P.W.16 Abdul Hafiz Qadri, S.H.O. Police Station, Nazimabad at the relevant time who has narrated the facts of lodging of the F.I.R. By P.W.1 Amir Ahmad, arrest of the appellant made by him and the recoveries made by him, and the other steps taken during investigation. (xiv) Court witness No,1 Muhammad Latif who was examined to prove that P.Ws. Ali Hassan and Anwarul Haque could not be served with the notices. (xv) P.W.17 Rashidul Haq who visited the complainant's house after coming to know about the murder on the day of incident. (xvi) P.W.18 Dr.Muhammad Rafiq who was Medico Legal Officer, Civil Hospital on 29-1-1980 to whom the appellant was referred by the police for medical examination on the point whether he had committed act of sodomy or not. He found that the appellant was 123 lbs in weight, 5 feet 2 inches in height. He did not find any mark of injury on any part of the appellant's body or any mark of
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blood or semen. He also found that the appellant's penis was erectile and his secondary sexual character was well developed. He found that the appellant was capable of committing sexual intercourse but he was not in a position to say whether he had committed the act of sodomy prior to his examination. He produced Exh.58, the certificate which was issued by him on examination of the appellant. 4. Mr. Muhammad Ali Shaikh, learned counsel for the appellant has urged that from the evidence on record a case of having in possession stolen property has been made out and, therefore, the appellant's conviction and sentence awarded to him under sections 302 and 382, P.P.C. Are not sustainable. 5. On the other hand the learned counsel for the complainant party Mr. Khawaja Adeel and Mr. A.A. Muhammadally, learned Assistant Advocate-General for the State have contended that appellant should have been convicted under section 380, P.P.C. And not under section 382, P.P.C. For the commission of theft and that the case of murder has been proved on the basis of the evidence on record. 6. At the outset it may be stated that on 11-1-1980 after 7-30 p.m. And before 11-00 p.m. Three offences/crimes were committed in the house of the complainant namely: (i) theft of 12 gold bangles, 2 ear-rings and a cash amount of Rs,2,300. (ii) Muhammad Aslam was strangulated. (iii) That sodomy was also committed on the deceased before his death. 7. Learned counsel appearing for the parties concede that there is no direct evidence against the appellant for the commission of murder and sodomy. Learned Additional Sessions Judge has acquitted the appellant from the charge of sodomy on the ground of want of evidence and has convicted him for murder on the basis of circumstantial evidence. Since the State has not filed any appeal against the acquittal of the appellant from the charge of sodomy we cannot convict him for the above charge at this stage. ' The facts that P.W.2 Alauddin got 12 gold bangles made, has been proved by his deposition coupled with the depositions of P.W.12 Muhammad Qayoom and P.W.13 Muhammad Razi. The fact that the above 12 gold bangles were stolen by the appellant after 7-30 p.m. And before 11-00 p.m. On 11-1-1980 has been proved by the testimony of P.W.4 Mst.Sharifan, coupled with the recovery at the pointation of the appellant. The above witness has also proved that the appellant had seen that she had kept the above bangles in an almirah in the lock and also the place where the key of it was kept just before leaving the house at 7-30 p.m. On the day of incident. The factum that the above stolen gold bangles were sold by the appellant to P.O. Gulzar Muhammad on 13-1-1980 has been proved by the evidence of P.W. Gulzar Muhammad, the goldsmith who had purchased the same from the appellant and P.W.8 Muhammad Jalil one of the Mashirs to the recovery of the said bangles and P.W.16 Abdul Hafiz Qadri S.H.O. Furthermore, the fact that the appellant had purchased a motor cycle on 19-1-1980 out of the sale proceeds of gold bangles stand proved by P.W.15 Amjad Ali, a motor cycle dealer for a sum of Rs,9,550 against the cash memo. Exh.39 has been proved by the testimony of above P.W.15 Amjad Ali, P.W.7 Riaz Hussain one of the Mashirs to the seizure of motor cycle at the pointation of the appellant and P.W.16 Abdul Hafiz Qadri S.H.O. It has also come on record that the appellant had also purchased three wrist watches and certain pieces of new clothes. Nothing has been brought on record by the defence tc indicate that either the complainant or any of the witnesses produced by the prosecution had any motive to falsely implicate the appellant. On the contrary the defence has not challenged the factum that the appellant is a close relation of the complainant i.e, son of his cousin, he had good relations with the complainant party inasmuch as he was a frequent visitor and on the day of incident he accompanied the complainant and his other members of the family at 7-30 p.m. For attending a function, but got down on the way. There is no probability that the complainant party would have
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falsely implicated the appellant. Nor the defence in the cross-examination of the above witnesses has brought out anything which may adversely reflect on the veracity of their testimony. 8. From the above-proved facts, it is evident that the appellant was the person who had committed the theft after 7-30 p.m. And before 11-00 p.m. On 11-1-1980 at the place of Wardat. The question in issue is whether the appellant was also the person who had committed the other two offences,which were also committed during the above period on the above date. As observed hereinabove there is no direct evidence on the record to connect the appellant with the commission of the other two offences and the question in issue is whether the circumstantial evidence on record is sufficient to warrant the sustaining of conviction of the appellant for a murder. 9. Mr. Muhammad Ali Shaikh in support of his contention that there does not exist circumstantial evidence on record justifying the conviction of the appellant under section 302, P.P.C. Has referred to the following cases: (i) Eradu and others v. The State of Hyderabad PLD 1956 SC (Ind.) 286 in which the evidence against the four accused was only circumstantial evidence comprising of, firstly on the evening of the day four accused had gone to the house of the deceased and accosted him asking him to accompany them, there was motive namely ill-will and thirdly there were recoveries of a silver Kardoda alleged to have been removed from the person of the deceased and buried in a secluded spot which was pointed out by one of the accused. There was also recovery of a white turban having human blood which was not sent to the Chemical Analyser and recovery of stick from the house of another accused. The Indian Supreme Court while accepting the appeal of the accused held that it is a fundamental principle of criminal jurisprudence that circumstantial evidence should point inevitably to the conclusion that the accused and the accused only were the perpetrators of the offence and such evidence should be incompatible with the innocence of the accused. It was further held that the recoveries and the circumstances alleged without anything more to connect the accused with the crime are not enough. (ii) Mst. Sairan alias Saleema v. The State PLD 1970 SC 56. In the above case the facts were that the appellant was convicted under section 302, P.P.C. And was sentenced to death for the murder of Mst. Bano alias Bholi aged about 4-5 years which sentence was confirmed by the Lahore High Court. The only evidence against the appellant was circumstantial evidence proved through six witnesses. Out of the above six witnesses one was discarded by the learned Sessions Judge, and out of the remaining five witnesses the High Court disbelieved one of the witnesses, thus leaving four witnesses. High Court maintained the conviction and sentence on the basis of the statements of the above four witnesses in the examination in chief without taking into consideration the contradiction in the cross-examination highlighted. The Supreme Court while allowing the appeal observed that conviction based on circumstantial evidence alone, the rule is that the facts proved must be incompatible with the innocence of the accused a-nd incapable of explanation upon any other reasonable hypothesis than the guilt of the accused. (iii) Abu Bakar v. The State PLD 1974 Kar. 393 in which the facts were that the appellant was sentenced under section 302, P.P.C. To imprisonment for life and a fine of Rs,500 for the murder of one Jan Muhammad. The evidence against him comprised of: (a) Motive, (b) The fact that the deceased was last seen alive in the company of the appellant, (c) Extra-judicial confession allegedly made by him, (d) The fact that he pointed out the corpse, (e) Recovery of blood-stained clothes at his instance, (f) Recovery of knife at his instance, (g) Securing of a chit from his person indicating that he got himself medically treated, and
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(h) Judicial confession. ' A Division Bench of the Erstwhile High Court of Sind and Baluchistan after analysing all the above pieces of evidence allowed the appeal and inter alia observed on the question of circumstantial evidence that circumstances put together must not only point to the accused's guilt but must also be inconsistent with any reasonable hypothesis. It was further held that each circumstance is to be established satisfactorily and if it is open to doubt the benefit of doubt should go to the accused. (iv) Muhammad Ibrahim v. Arif and another 1975 SCMR 142, in which the Supreme Court of Pakistan while refusing leave to appeal against the judgment of Lahore High Court (whereby the conviction under section 302, P.P.C. And the sentence of death recorded by an Additional Sessions Judge, Lahore, against one Muhammad Arif was set aside) observed that the circumstances proved on record at best only created suspicion which is not a substitute for proof in a criminal case involving capital charge. In the above case the evidence was that deceased had gone to the respondent's house in the evening of 29-4-1970 before disappearance, deceased was seen entering respondent's house by one Haji Nazir Ahmad P.W.11, discovery of the deceased in a gunny bag alongwith tin from the well at the pointation of the respondent, respondent's admission about the throwing of the dead body of the deceased in Chah Angraizsinghwala, recovery of Rs,2,520 from the trunk in the respondent's house alongwith canvas bag which also contained two notices issued by the Municipal Corporation and addressed to the deceased, the existence of four semi- healed abrasions on the front of the neck of the respondent. ' The above pieces of evidence were discussed by the High Court and were found unreliable. The Supreme Court as observed hereinabove did not interfere with the above appraisal of evidence by the High Court. (v) Rehmat alias Rahman alias Waryam alias Badshah v. The State PLD 1977 SC 515, in which the facts were that the appellant was convicted under sections 366, 376, and 302, P.P.C. And sentenced to 10 years ELI., life imprisonment and death respectively under the above provisions which convictions and sentences were maintained by the High Court of Lahore. Upon appeal the Honourable Supreme Court was pleased to allow the same in respect of the conviction and sentences under sections 302 and 376, P.P.C. But maintained the conviction and sentence under section 366, P.P.C. The evidence against the appellant was that he at the request of the deceased's mother came to live in the house of the complainant for treating the complainant's daughter Mst.Rashida Bano who was allegedly under the influence of evil spirits. After about 22 days the appellant between the night of 12th and 13th August, 1970 disappeared alongwith Mst. Rashida Bano with cash and jewellery. On 31-8-1970 the complainant lodged the report against the disappearance of his daughter at Police Station, Garh Maharaja. Incidently on 31-8-1970 at 7-00 a.m. The dead body of a young woman was discovered by P.W.Muhammad Shafi near the railway line close to the residential quarter of P.W.1 which information was conveyed to the police at Shandara police station which was transmitted in the form of F.I.R. At the Police Station, Shandara under section 302, P.P.C. The news and the deceased's photograph appeared in newspaper. The complainant identified his daughter. The appellant was arrested on 18-12-1970. The medical evidence revealed that the injuries on the deceased consisted of multiple contusions over the cheeks, lips, nose and chin and also a ligature all around her neck. The death was caused by asphxsia due to strangulation. The Supreme Court after appraising the evidence observed that in the instant case beyond the evidence that on or about the night between 12th and 13th August, 1970 the appellant was last seen with Mst.Rashida Bano deceased entering one of the rooms in the house of her father and that they had disappeared therefrom in the darkness of the night, there is nothing to hold that he was responsible for the murder of Mst. Rashida Bano deceased or for committing rape on her shortly before she was strangulated. Her dead body was discovered long afterwards on 31-8-1970. It was also observed that the circumstantial evidence namely last seen
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carried weight depending upon the varying degree of probity and the facts and circumstances in each case. It was further held that the circumstances must be found to be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than the guilt of the accused. (vi) Allah Ditta v. The State 1980 P Cr. L J 163. In the above case the Lahore High Court allowed the appeal of the appellant who was convicted under section 302 and sentenced to death by the learned Sessions Judge. In the above case also the only evidence against the appellant was circumstantial. A Division Bench while allowing the appeal observed that the circumstances cannot lie but can mislead and that conviction for murder cannot be allowed unless fact of death be proved either by direct evidence for example finding of body or by circumstantial evidence of exceptionally strong character but mere suspicion is not sufficient to justify conviction. 10. On the other hand Messrs Khawaja Adeel and A.A.Muhammadally have relied upon the following cases: (i) Billmoria alias Muhammad Hussain v. The State PLD 1958 SC 313, in which the facts were that the appellant was convicted and sentenced for murder and robbery. The above conviction was maintained by the High Court. The appeal filed by the appellant before the Supreme Court was also dismissed. The evidence against the appellant was only circumstantial namely at the time of the arrest the appellant was wearing the pair of brown crepe sole shoes belonging to the deceased and was carrying a spectacle case containing a pair of spectacles upon which the name of Mukhtar Ahmad deceased was engraved in Urdu. The appellant led the police party to the Malir City railway station, in the vicinity of which he looked around a little and then began moving loose earth, rubbish and refuse from a place of few pieces from a telegraph pole bearing No,805 and produced a bundle tied in an old shirt containing few items of clothes belonging to the deceased and also produced safety razor, shaving stick and a packet containing three blades. The Supreme Court found the above evidence as sufficient. It was observed that practically everything which was robbed from the murdered man was recovered from accused's possession on the fourth day following the discovery of the crime which was a very strong circumstance favouring the belief that he was the person who removed these things, following the murder, and that the natural inference was that he was directly concerned in the murder. It…
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