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Petitioner: TANVEER alias RABAIL and anothers VS Respondent: THE TATE
Court Name: Sindh High Court Judge(s): Muhammad Ali Mazhar, Shahid Anwar Bajwa Title: TANVEER alias RABAIL and anothers vs THE TATE Case No.:Criminal Jail Appeal No.D-71 of 2010 and Criminal Appeal No.73 of 2010
Criminal Appeal No.D-72 of 2010 Confirmation Case No. 2 of 2010 Date of Judgment:2012-05-09 Reported As: 2012 YLR 2026 Result: Appeal dismissed Judgment ORDER ' MUHAMMAD ALI MAZHAR, - - This Jail Appeal along with two other Criminal appeals have been brought to challenge the judgment dated 4-5-2010, 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), P.P.C. And sentenced to death, as. Tazir. They were also convicted for offence under section 201, P.P.C. 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 F.I.R. No. 55 of 2005, at Police Station Kandhra, against the appellants under sections 302, 201 and 34, P.P.C. 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
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lying in Sheroo jo Pattan of Nara, canal. The complainant along with P.Ws. 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, P.W. Jan Muhammad came to the complainant and informed him that he is labourer 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 r/o 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-e-amd of deceased Sajjad Ali and caused his dead body to disappear in Nara canal." 3 . After registration of F. I. R. Postmortem 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 P.Ws. Were recorded under sections 161 and 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 29-9-2007 against accused Dildar, Tanveer and Zameer under sections 302, 201, 34, P.P.C. All the accused persons pleaded not guilty. 4. To substantiate its case, the prosecution examined P.W. Complainant Allah Dino, who produced the F.I.R., P.W. 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 postmortem 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 F.I.R. He further stated that on 15-9-2005, one Jan Muhammad came to him and told that on 9-9-2005 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 F.I.R. 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. ' The P.W.2 Manzoor Ahmed stated that the complainant is his brother-in-law and another P.W. 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 17-9-2005 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 K.Ms. He further stated that the distance between Sheroo Jo Pattan and village Arore would be 10/11 KMs. 7. The P.W.3 Muhammad Moosa SIO Police Station, New Pind, Sukkur deposed that on 15-9-2005 he was posted at Police Station, Kandhra as Incharge Investigation Team. He visited the place of
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incident in presence of mashir Jan Muhammad and Zaheer Ahmed. Blood-stained earth was collected. On 17-9-2005, he recorded the statements of P.Ws. 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 cloth and chappal 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, clothes 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 P.W.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 P.W.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 P.W.6 was Mir Ghulam Asghar Senior Medical Officer, RHC, Kandhra, who deposed that on 13- 9-2005 at 5-00 p.m., he received dead body of Sajjad Ali. Postmortem was conducted from 5 p.m. To 6 p.m. The Medical Officer on external examination found the following injuries on the person of deceased:- "(1) Lacerated wound measuring 3 x 1 cm on upper lip with abrased gums and dislocation of upper incisor teeth posterior. (2) Contusion 4 x 4 cm on top of scalp. (3) Multiple abrasions on the anal region. (4) Contusion 4 x 4 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 postmortem. To a specific question " whether there were marks of naught at the neck of the dead body of deceased". He answered that postmortem of the dead body of the deceased was carried out after four days of his recovery from ater, therefore, it was not possible at all to -emain alive any such mark over the neck of thumb or fingers. 12. The P.W.7 was the learned Civil iudge 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 P. Ws.
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13. Now the star witness Jan Muhammad P.W.8 comes in the witness box, who deposed in his examination-inchief that for last five years he used to work as labor at Arore. On 9-9-2005, he took bath and came out from the entrance of Nara canal. It was 2-30 p.m. 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 neighbours 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 14-9-2005 he read in the daily newspaper Kawish that dead body of deceased Sajjad was recovered from Sheroo Jo Pattan and on 15-9-2005, 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 Dilda 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 K.Ms. At the time of fighting nobody 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 P.W. 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 bloodstained clothes 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 P.W. 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 postmortem 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 cannot 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
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court failed to consider that at the time of the alleged offence the appellant was also minor. P.W. 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 postmortem 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 F.I.R. 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. Clothes 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 SCM R 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 cannot 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 SCM R 1009). Appreciation of evidence Principle. When two interpretation of evidence are possible, one favouring the accused and the other favouring the prosecution, then one favorable to the accused is required to be taken into consideration. All incriminating pieces of evidence available on record in examinationin-chief, cross-examination or reexamination 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 SCM R 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 SCM R 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 honourable 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 PCr.LJ 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
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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 PCr.LJ 1314). In this case 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. Accused had jointly disclosed knowledge regarding the presence of dead body and jointly had led 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 SCM R 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 SCM R 949). In this judgment, the honourable Supreme Court by majority view held that complainant and other eyewitnesses were chance witnesses as they cannot normally present at t: 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 PCr.LJ 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 D.P.-G. 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
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that there are some minor contradictions which cannot 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 K.Ms. 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 D.P.-G. Submits that appellant Tanveer at the time of incident, was munir, 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 SCM R 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 Pr 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…
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