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Petitioner: Muhammad Nawaz and others VS Respondent: Rajabuddin Kalhoro
Court Name: Sindh High Court Judge(s): Zulfiqar Ali Sangi Title: Muhammad Nawaz and others vs Rajabuddin Kalhoro Case No.: Cr. Appeal No. S-32 of 2016 Date of Judgment:2022-02-14 Reported As: 2022 SHC 98 Result: N/A
JUDGMENT
JUDGMENT Zulfiqar Ali Sangi, J. Through this appeal, the appellants have assailed the judgment dated 20.02.2016 (impugned herein) passed by learned 1st Additional Sessions Judge, Naushahro Feroze whereby they were convicted under Section 302(b) PPC and sentenced to suffer imprisonment for life and to pay fine of Rs.50,000/-each and in case of default, they shall suffer R.I for two years more; besides they were further sentenc ed u/s 201 PPC to suffer R.I for two years and to pay fine of Rs.10,000/- each, in case of failure, they will also suffer S.I for two months more. However benefit of Section 382-B Cr .P.C was extended to them. 2. The brief facts of the case as per FIR are that the Complaint owned agricultural land and is Tractor driver . They are four brothers, out of them namely Ali Muhammad aged about 45/50 years was their elder brother , who has four sons and four daughters and they all brothers were residing altogether in one house. His brother was laboring at the brick kiln. Sometimes ago their relative namely Muhammad Nawaz s/o Ghulam Farooque Kalhoro had borrowed an amount of Rs.35,000/- from his brother for construction of his house and some days ago when his brother had demanded the said amount from Muhammad Nawaz, he had become annoyed with him. On 24.10.2007 in the evening at sunset time, complainant along with his relatives each one Ghulam Nabi s/o Moula Bux and Niaz s/o Allah Dino Kalhoro, were returning from Dehat to their village Khan Wahan and were coming on the bank of Khan Wahan Minor , when reached near the culvert of Haji Nasarullah Abbasi, where they saw coming from opposite side on the bank of minor his brother Ali Muhammad with Muhammad Nawaz s/o Ghulam Farooque Kalhoro, (2) Muhammad Qasim s/o Zainul Abdin Kalhoro, (3) Habibullah s/o Shafi Muhammad, Kalhoro, they met with them. Complainant enquired from his brother at this time where he is going, who replied that now Muhammad Nawaz will return his amount therefore, he is accompanying him to his village. Thereafter they came to their village while his brother accompanied Muhammad Nawaz and others, but his brother did not return back home, hence he went to enquire from Muhammad Nawaz about his brother who did not give satisfactory reply to them and said in
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angry position that they may go away from here. Thereafter they continuously searched their brother and on 30.10.2007 in the early morning they came to know through police that the dead body of a person is floating in the cotton crop water of one Sajjan Phiriro near Khan Wahan minor and the same has been secured on the information of one Farmer namely Allah Wadhayo s/o Ghulam Hussain Kalhoro, therefore, on receipt of such information, complainant alongwith his above named witnesses and nephew Zahid Hussain s/o Ali Muhammad went over there and at about 7.30 a.m reached there and saw that the dead body was decomposed and was lying downward in the cotton crop water in the lands Mud. Com plainant and his witnesses and nephew saw the footwear and cap of his brother and identified that it is the dead body of his brother and after necessary formalities and with the help of witnesses and brothers took the dead body to Taluka Hospital, Kandiaro and got it's autopsy and after interment, complainant appeared and lodged report that the accused persons namely Muhammad Nawaz, (2) Muhammad Qasim, (3) Habibullah in furtherance of their common object, due to demand of return of borrowed amount, have taken his brother and have murdered him and so also concealed the evidence by throwing his dead body in the thick crops. 3. After usual investigation, challan was submitted in court of law. Co-accused Muhammad Qasim and Habibullah were let off by the police and their names were placed in column No.2 of the challan, while present accused were challaned on basis of material collected during the investigation including confessional statement dated 15.11.2007 of appellant Muhammad Nawaz recorded before learned 2nd Judicial Magistrate, Kandiaro. 4. After completing all the legal formalities, the trial court initiated trial by supplying copies to the accused as required under Section 265-C Cr.P.C. The charge was framed against the appellants; they pleaded not guilty and claimed to be tried. 5. The prosecution in order to support its case examined PW-1 Complainant Muhammad Rajib at Ex-9, who produced FIR of the case at Ex-9/A and further statement recorded before police at Ex.9/B, PW-2 Niaz Ahmed eye- witness at Ex.10, while PW Zahid Hussain being formal witness was given up by learned State Counsel through statement at Ex.11. PW-3 mashir of the case Muhammad Yousif at Ex.12, who produced the mashirnama of dead body , as well as inquest report, memo of vardat and memo of recovery of clothes of the deceased Ali Muhammad at Ex.12/A to D, PW-4 Allah Wadhayo eye-witness at Ex.13, PW SIP Wali Muha mmad was given up by learned State counsel through statement at Ex.14, PW-5 learned Magistrate Mr. Altaf Hussain Dayo was examined at Ex.15, who produced the application submitted by I.O before him for recording confessional statement of accused Muhammad Nawaz at Ex.15/A, he also produced the original confessional statem ent of said accused at Ex.15/B, PW-6 SIP Nazir Ahmed, the author of the FIR, who also secured the dead body and prepared such mashirnama and Chakas Form was examined at Ex.16 and he produced copy of entry of departure at Ex.16/A, PW-7 I.O of the case SIP Mevo Khan was examined at Ex.17, who produced memo of arrest of accused Muhammad Nawaz and recovery of the crime weapon from him, as well as the memo of arrest of accused Juman at Ex.117/A to C, as per record, the Medical Officer Dr. Masood Ahmed who conducted post mortem of deceased Ali Muhammad, before recording his evidence was expired, therefore, PW-8 Medical officer Dr. Mukhtiar Ali being well acquainted with the signature of late Dr. Masood Ahmed, was examined at Ex.18, who produced the inquest report , as well as the post mortem report at Ex.18/A and B and the learned State counsel through statement at Ex.19 submitted the copy of Ballistic Expert report, PW-9 Tapear Mushtaque Ahmed was examined at Ex.20, who produced the sketch of place of vardat at Ex.20/A, in the last, PW-10 corps bearer PC Raza Muhammad was examined at Ex.21, who produced the receipt of handing over the dead body of deceased Ali Muhammad at Ex.21/A, thereafter learned State counsel through statement at Ex.22 closed the side of prosecution evidence. 6. On 31.10.2013 statement of appellants u/s 342 Cr.P.C were recorded at Ex.23 to 25, in which appellant Muhammad Nawaz denied the allegations of prosecution and stated that he himself appeared at PS, where police shown his arrest. He further stated that he was in police custody , hence I.O compelled him to confess the guilt before Magistrate otherwise he will be booked in other cases and he will also commit murder of his son, who was in his custody . He further stated that he did not record the confessional statement voluntarily , the weapon was foisted upon him by the SIO and the PWs have deposed against him at the instance of Nisar Abbasi, he is innocent, hence, prayed for justice. Appellants Muhammad Juman and Abdul Hafeez in their statements denied the
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allegations of prosecution and stated that they were arrested from their houses; PWs have deposed due to enmity over landed property , hence, they prayed for justice, however , all the three appellants neither examined themselves on oath nor led any defence evidence in their support and prayed for justice. 7. Learned Counsel for the Appellants has contended that the Appellants are innocent and have falsely been implicated by the Complainant party; that there were material contradictions in the evidence of prosecution witnesses and the case of the prosecution is not free from shadow of reasonable doubts; that learned trial Court has brushed aside the material contradictions in the evidence and has not examined that there is no eye witness of the alleged incident, even has given unnecessarily weight to the evidence of prosecution witnesses; that learned trial Judge has failed to consider that complainant and PWs have stated in their evidence that they had allegedly lastly seen the deceased Ali Muhammad in the company of the appellants/accused; that there was no any unanimous evidence which could be cons idered for conviction of appellants; that there was no clear opinion of the Medical Officer as per postmortem report that the death may be occurred due to the injury on the left side of chest posterior interiorly; that the confessional statement recorded by the learned Magis trate was not true nor volunteer and it cannot be relied upon; that the impugned judgment is clear example of misreading and non-reading of evidence; that a single dent in prosecution case, which seems to be necessary , goes in favour of accused. In support of his contention, learned Couns el placed reliance upon the cases of Asif Mahmood v. The State (2005 SCMR 515), Mst. Roshan Bibi and another v. The State (2007 PCr.LJ 1792), Muhammad Pervez and others v. The State and others ( 2007 SCMR 670 ) and Doulat v . The State (PLD 2013 Sindh 23). 8. Learned Counsel representing the Complainant, at the very outset, submitted that though the alleged incident is unseen; however deceased was seen alive lastly with the accused persons; that deceased was going with accused Muhammad Nawaz and others for getting back his loan amount; that after missing of deceased Ali Muhammad, Complainant party searched themselve s and also enquired from Muhammad Nawaz but he did not give satisfactorily reply; that there is no delay in registration of FIR; that during course of investigation, appellant/accused Muhammad Nawaz pleaded his guilt and voluntarily recorded his confessional statement before learned Magistrate; that incriminating weapon was also recovered on the pointation of accused Muhammad Nawaz; that prosecution had examined all the material witnesses, who fully supported the prosecution version; besides medical officer also examined by the prosecution, who supported the prosecution case by producing postmortem report; lastly he submitted that accused persons committed the murder of deceased Ali Muhammad, which is a heinous offence hence learned trial Court has rightly convicted the accused persons. In support of his contention, learned counsel placed reliance upon the cases of Suleman v. The State (2012 YLR 2395 ), Khan Muhammad and 2 others v. the State (2003 YLR 2175), Nabi Bakhsh v. The State and another (PLJ 2000 SC 419) and Mst. Robina Bibi v . The State ( 2001 SCMR 1914 ). 9. Learned Deputy Prosecutor General has mainly contended that all the PWs have deposed in the same line; however some minor contradictions has been pointed out in their evidence which are not of a such standard to make the case as doubtful; that the prose cution evidence is reliable and confidence inspiring. Lastly he prayed that by dismissing instant appeal, conviction awarded by the learned trial Court may be maintained. 10. I have heard learned Counsel for the Appellants as well as learned Deputy Prosecutor General and the counsel for the complainant and have carefully examined the material available on record with their able assistance. 11. On reassessment of the entire evidence produced by the prosecution it is established that the prosecution had not proved the case against the appellants beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence. 12. The occurrence in the present case is unseen one, and the case of the prosecution against the appellants is wholly based on the circumstantial evidence i-e (i) last seen evidence of Rajibuddin s/o Nizamuddin (PW-1) and Niaz Ahmed (PW-2); (ii) supplementary statement of the complainant; (iii) recovery of a Pistol and the cartages allegedly used for commission of offence from appellant Muhammad Nawaz; (iv) Confessional Statement of appellant Muhammad Nawaz before the Magistrate; and (v) medical evidence as to post mortem examination of the deceased.
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Before examining the said circumstantial evidence it is necessary to state that the standard of care required for relying on circumstantial evidence and the approach to determine sufficiency of such evidence for reaching the conclusion of guilt of an accused person. The circumstantial evidence may sometimes be conclusive, but it must always be narrowly examined. In cases like the present case that rest entirely on circumstantial evidence, it is of the utmost importance that the circumstances should be ascertained with minute care and caution, before any conclusion or inference adverse to the accused person is drawn. The process of inference and deduction involved in such cases is of a delicate and perplexing character , liable to numerous causes of fallacy . This danger points the need for great caution in accepting proof of the facts and circumstances, before they are held to be established for the purpose of drawing inferences therefrom. A mere concurrence of circumstances, some or all of which are supported by defective or inadequate evidence, can create a specious appearance, leading to fallacious inferences. Hence, it is necessary that only such circumstances should be accepted as the basis of inferences that are, on careful examination of the evidence, found to be well-established. A high quality of evidence is, therefore, required to prove the facts and circumstances from which the inference of the guilt of the accused person is to be drawn. There are chances of fabricating evidence in cases that are based solely on circumstantial evidence; therefore, the court, in such cases, should take extra care and caution to examine the evidence with pure judicial approach on strict legal standards to satisfy itself about its proof, probative value and reliability . When there are apparent indications of possibility of fabricating evidence by the investigating officer in making the case, the court must be watchful against the trap, which may misled to drawing a false inference, and satisfy itself about the fair and genuine collection of such evidence. The failure of the court to observe such care and caution can adversely affect the proper and safe administration of criminal justice. The settled approach to deal with the question as to sufficiency of circumstantial evidence for conviction of the accused person is this: If, on the facts and circumstances proved, no hypothesis consistent with the innocence of the accuse d person can be suggested, the case is fit for conviction of the accused person on such conclusion; however , if such facts and circumstances can be reconciled with any reasonable hypot hesis compatible with the innocence of the appellant, the case is to be treated one of insuf ficient evidence, resulting in acquittal of the accused person. The circumstantial evidence, in a murder case, should be like a well-knit chain, one end of which touches the dead body of the deceased and the other the neck of the accused. No link in chain of the circumstances should be broken and the circumstances should be such as cannot be explained away on any reasonable hypothesis other than guilt of accused person. Chain of such facts and circumstances has to be completed to establish guilt of the accused person beyond reasonable doubt and to make the plea of his being innocent incompatible with the weight of evidence against him. Any link missing from the chain breaks the whole chain and renders the same unreliable; in that event, conviction cannot be safely recorded, especially in the cases of capital charge. Therefore, if the circumstantial evidence is found not of the said standard and quality , it will be highly unsafe to rely upon the same for conviction; rather , not to rely upon such evidence will a better and a safer course. Reliance is placed on the case of Naveed Asghar and 2 others V . The State (PLD 2021 SC 600). 13. Last seen evidence of Complainant Rajibuddin s/o Nizamuddin (PW-1). The complainant in the FIR registered on 31-10-2007 in respect of incident took place on 24-10-2007 has stated that he, Ghulam Nabi and Niaz saw the deceased with appellants Muhammad Nawaz, Habibullah and Muham mad Qasim on 24-10-2007 and on 31-10-2007 he came to know about the dead body through loudspeaker and he went and identified the dead body to be of his brother Ali Muhammad. After the FIR his further statement was recorded wherein he also added two names of other accused persons being Juman and Abdul Hafeez. He in his further statement exhibited in evidence as Ex. 9-B further stated that having free from funeral rites of his brother he remained in search of cause of death of his brother and real accused persons. His statement in respect of search as to the cause of death and of real accused person suggests that he never seen the deceased with the appell ants. The complainant even not lodged any NC in respect of missing of his brother for about 08 days nor he made complaint anywhere that he has any suspicion upon the appellants as he seen the deceased lastly with appellants but he remained mum. However , he while examining himself before the trial court has deposed that Muhammad Nawaz had taken a loan from his brother Ali Muhammad and time to time was demanding his amount from accused Muhammad Nawaz who used to
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become annoyed with his brother . Lastly the accused asked his brother that he will pay the amount on 24.10.2007. Complainant, Muhammad Niaz and Ghulam Nabi were coming from Dehat when they reached at Khan Wahan Minor near the Bridge of Haji Nasuruallah Abbassi, where they saw accused Muhammad Nawaz, Habibullah, Ghulam Qasim and his brother Ali Muhammad. He inquired from his brother Ali Muhammad that where they are going on which his brother replied that accused promised to return his money , therefore, he is going with them to collect his money . His brother Ali Muhammad did not return back at their house, they waited for him about 1 to 4 hours and thereafter they went to search him and went towards accused Muhammad Nawaz but he did not reply properly and asked them to go back as he had not taken their brother thereafter he came back at his house. He further deposed that on 30.10.2007 they heard on the loud Speaker that there was a dead body lying in the land of Sajan Fariro on which they rushed towards there and saw the dead body and identified the same to be of his brother Ali Muhammad. Some bad smell was also coming from the dead body . Thereafter police came at the spot and police referred the dead body for post mortem and after conducting the post mortem they buried the dead body of his brother . He deposed that on 31.10.2007 he lodged the FIR at police station Muhbat Dero. He deposed that after lodging the FIR they themselves investigated and came to know that the accused persons namely Juman Depar and Abdul Hafeez Kalhoro are actual culprits and are real murderer of his brother . Thereafter he recorded his further statement before the police. He deposed that the accused Muhammad Nawaz recorded his confessional statement before the learned Magistrate. During his cross-examination he stated that he did not go to any Nek Mard when his brother did not return at their house. He also during cross-exami nation admitted that he had not informed the police about missing of his brother . He has also stated that the accuse d Muhammad Nawaz had taken loan from his brother in presence of Ghulam Nabi and Niaz Hussain. During cross-examination to prove false implication of appellants this witness on suggestions made to him had replied as under:- "I know the brother of released accused Habibullah namely Roshan Kalhoro. I also know the daughter of deceased Ali Muhammad namely Mst. Ashraf Khato on, who is my niece. It is incorrect to suggest, that my niece was betroth with brother of released accused Habibullah namely Roshan Kalhoro. It is incorrect to suggest, that Mst. Ashraf Khatoon was given in marriage with Shabbir Kalhoro. It is incorrect to suggest that Roshan Kalhoro was annoyed on the marriage of Mst. Ashraf Khatoon and he used to threaten to my brother for dire consequence. Further says, that accused Muhammad Nawaz was used to issue threats. It is also incorrect to suggest, that released accused Habibuallah also used to threaten that he will commit murder of my brother . It is correct to suggest, that Dr. Nisar Abbassi is our Nek Mard. It is incorrect to suggest, that Dr. Nisar Abbassi has decided our matter privately . It is incorrect to suggest, that as per the decision of Dr. Nisar Abbassi, the released accused Habibullah had given Rs:5,00,000/- to us therefore, we delete the name of accused Habibullah from the F.I.R. It is incorrect to suggest that at the time of lodging of FIR Dr. Nisar Abbassi was with me. It is correct that wife of accused Muhammad Nawaz had expired, he has minor children. It is incorrect to suggest, that when accused Muhammad Nawaz was arrested his minor son was in our custody . It is incorrect to suggest, that I threaten the accused Muhammad Nawaz that since his minor son is in his custody and accused has to confess his guilt otherwise they will murder his son. It is incorrect to suggest, that we had given the name of accused Muhammad Nawaz at the instance of Dr. Nisar Abbassi. It is incorrect to suggest, that I am deposing falsely . I recorded my further statement 5/6 days after lodging the FIR. I cannot give the name that from whom I received the information about guilt of accused persons namely Juman and Abdul Hafeez. The village of accused Muhammad Nawaz is situated about two kilometers away from my village. When we lastly went on the Otaq of accused Muhammad Nawaz where he refused and also threatened us then I and my witnesses altogether go about one Farlong from the Otaq of accused and thereafter I went to my relative Muhammad Dural while my P.Ws came at our village, when my PWs went about one kilometer they saw accused Muhammad Nawaz, Abdul Hafeez and Juman together . The PWs disclosed this fact to me on the next morning. The PWs disclosed this fact about 5/6 days later after recording my further statement. Wadero Akram is our relative, he is a big Zamindar . I do not know whether Roshan Kalhoro is also big Zamindar . I know that Roshan Kalhoro is maternal cousin of accused Abdul Hafeez. I do not know Ahmer Memon. I do not know whether Ahmer Memon sold out the land to Roshan Kalhoro but Akram was interested to purch ase that land. It is incorrect to
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suggest, that I have given the name of accused persons namely Juman and Abdul Hafeez at the instance of Wadero Akram." 14. The evidence of PW-2 Niaz Ahmed is examined carefully who was the witness of last seen, he deposed that accused Muhammad Nawaz received Rs.35,000/- as loan from Ali Muhammad to construct his house and the same was received by accused in his presence. Ali Muhammad used to demand his money from accused Muhammad Nawaz on which accused Muhammad Nawaz was annoyed with Ali Muhammad. On 24.10.2007 at sun-set time when he, complainant, Ghulam Nabi were coming from their land towards their houses, when they reached at the Bridge/Pull of Haji Nasuruallh Abbassi where they met with Muhammad Nawaz, Habibullah son of Shafi Muhammad, Muhammad Qasim son of Zainal Abdeen and Ali Mohammad. The complainant Rajab Ali asked from his brother Ali Muhammad that where you are going on which Ali Muhammad replied, that accused Muhammad Nawaz asked him that he is giving his money , therefore, he is going with him for getting his money from him. After reaching their village they waited for Ali Muhammad but after passing of sufficient time Ali Muhammad did not come thereafter he, Rajab and Ghulam Nabi went at the house of Muhammad Nawaz and inquired from him about the brother of complainant Rajab on which accused Muhammad Nawaz did not reply them properly and asked them to go back then Rajab left them there and went away and they came at their village when they reached near the wooden Bridge where they met with Hafeez son of Qabool, Juman son of unknown by caste Depar , who asked them that why they are behind them. On 30.10.2007, the police made announcement on the Loud Speaker that the dead body is laying in the land of one Sajan Fariro. After hearing the news he alongwith Zahid Hussain and others left towards the pointed place where they saw the dead body , it was mostly destroyed, they identified the dead body through Sleeper and Cap, thereafter police shifted the dead body for completing the formalities and on 31.10.2007 the complainant lodged this…
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