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Petitioner: MUHAMMAD ISHAQUE VS Respondent: The STATE
Court Name: Sindh High Court Judge(s): Naimatullah Phulpoto, Muhammad Karim Khan Agha Title: MUHAMMAD ISHAQUE vs The STATE Case No.:Criminal Appeal No, D-22, Criminal Jail Appeal No, D-23 and Confirmation
JUDGMENT
Reported As: 2018 YLR 786 Result: Appeals dismissed Judgment JUDGMENT MOHAMMED KARIM KHAN AGHA, J.---Appellant Muhammad Ishaque was tried by learned Sessions Judge, Mirpurkhas in Sessions Case No,136 of 2002 for offence under section 302, P.P.C. By judgment dated 27.03.2013, (the impugned Judgment) appellant Muhammad Ishaque was convicted and sentenced as under:-- 1. Under section 302(a), P.P.C. for the Qatl-e-amd of deceased Ghulam Hyder son of Muhammad Alam and sentenced to death as Qisas, he be hanged by neck till death and to pay the compensation of Rs,2, 00,000/- to the L.Rs, of deceased Ghulam Hyder under section 544-A, Cr.P.0 for the mental anguish or psychological damage g caused by him to legal heirs, which shall be recoverable as land revenue arrears and in default he shall undergo SI for six months. 2. Under section 302(a), P.P.C. for the Qatl-e-amd of deceased Mst. Sahib Khatoon wife of Ghulam Hyder and sentenced to death as Qisas, he be hanged by neck till death and to pay the compensation of Rs,2,00,000/- to the L.Rs of deceased Mst. Sahib Khatoon under section 544-A Cr.P.C. for the mental anguish or psychological damage caused by him to legal heirs, which shall be recoverable as land revenue arrears and in default he shall undergo SI for six months. 3. Under section 302(a), P.P.C. for the Qatl-e-amd of deceased Muhammad Alam son of Ghulam Hyder and sentenced to death as Qisas, he be hanged by neck till death and to pay the compensation of Rs,2,00,000/- to the L.Rs of deceased Muhammad Alam under section 544-A, Cr.P.0 for the mental anguish or psychological damage caused by him to legal heirs, which shall be recoverable as land revenue arrears and in default he shall undergo SI for six months. 4. Under section 302(a), P.P.C. for the Qatl-e-amd of deceased Muhammad Azam son of Ghulam
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Hyder and sentenced to death as Qisas, he be hanged by neck till death and to pay the compensation of Rs,2,00,000/- to the L.Rs, of deceased Muhammad Azam under section 544-A, Cr.P.C. for the mental anguish or psychological damage caused by him to legal heirs, which shall be recoverable as land revenue arrears and in default he shall undergo SI for six months. 5. Under section 302(a), P.P.C. for the Qatl-e-amd of deceased Muhammad Nazim son of Ghulam Hyder and sentenced to death as Qisas, he be hanged by neck till death and to pay the compensation of Rs,2,00,000/- to the L.Rs, of deceased Muhammad Nazim under section 544-A, Cr.P.C. for the mental anguish or psychological damage caused by him to legal heirs, which shall be recoverable as land revenue arrears and in default he shall undergo SI for six months. 6. Under section 338(c), P.P.C. for Isqat-e-Janeen of an unborn child in the womb of deceased Mst. Sahib Khatoon and sentenced to pay 1/20th of Diyat and also undergo RI for seven years. Benefit of UTP period is extended to the accused as per section 382-B, Cr . P.0 . 2. Brief facts of the prosecution case as disclosed in the FIR are that on 23.09.2002 at about 0215 hours one Muhammad Ameen son of Shafi Muhammad by caste Panhwar resident of village Shafi Muhammad Panhwar Taluka Mirpurkhas lodged FIR with Police Station Taluka Mirpurkhas, alleging therein that he is Zamindar. On 22.09.2002 he, his cousin namely Azizullah and Yameen were sleeping in the cattle pen. On 23.09.2002 at about 0130 hours they heard the sound of firing, whereupon they immediately rushed towards the place of firing and saw that the firing was going on in the house of his maternal uncle Ghulam Hyder Panhwar. They entered into the house and saw that Muhammad Ishaque son of Sain Bux, who was having dispute on the landed property with Ghulam Hyder Panhwar, in order to usurp the agricultural land had fired upon Ghulam Hyder son of Muhammad Aslam Panhwar aged about 69/70 years, Muhammad Azam son of Ghulam Hyder Panhwar aged about 5/6 years, Muhammad Nazim son of Ghulam Hyder Panhwar aged about 3/4 years and they had been killed and blood was oozing from them. While Mst. Sahib Khatoon wife of Ghulam Hyder Panhwar aged about 30 years and Muhammad Alam son of Ghulam Hyder Panhwar aged about 8/9 years were injured and due to fire arm injuries blood was oozing from them. On seeing them accused Muhammad Ishaque fled away. Thereafter complainant and Yameen immediately brought the injured Mst. Sahib Khatoon and Muhammad Alam to civil hospital, for medical treatment, while Azizullah was left over the dead bodies of Ghulam Hyder, Muhammad Azam and Muhammad Nazim. Thereafter, complainant came at police station and reported the incident to SIP/ SHO Khuda Bux Panhwar who recorded the FIR of the complainant. 3. The investigation of the crime was conducted by SIO Ghulam Ali Chandio who prepared inquest reports in presence of mashirs. Memo of inspection of dead bodies, memo of injuries of injured Mst. Sahib Khatoon and Muhammad Alam and gave letters to medical officer Civil Hospital, Mirpurkhas for examination of the deceased namely Ghulam Hyder, Muhammad Azam and Muhammad Nazim and for medical treatment of injured Mst. Sahib Khatoon and Muhammad Alam. Thereafter, on 23.09.2002 at about 0630 hours arrested accused Muhammad Ishaque in presence of mashirs namely PC Shah Nawaz and PC Bhojraj and recovered crime weapon viz. one TT pistol of .30 bore loaded with three live bullets and one empty, license of pistol, two empty magazine of .30 bore and 22 live bullets. Thereafter, visited the place of vardat in presence of mashirs Mir Zafarullah and Ghulam Murtaza on the same date at about 0800 hours and recovered 13 empties of TT Pistol, 08 heads of fired bullets, blood stained beds and sealed the same. On 23.09.2002 he produced the accused before the learned Judicial Magistrate for recording the confessional statement of accused. SIO sent the blood stained clothes of deceased persons and beds and blood stained earth to the chemical examiner so also sent crime weapon i,e, .30 bore pistol No,B-705, one .30 bore crime empty, one magazine, 03 live bullets of .30 bore, 22 live bullets of 30 bore and 13 empties of .30 bore, 07 crime bullets of .30 bore, one .30 bore mutilated crime bullet and 05 live bullets of .30 bore to Ballistic
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Expert for F.S.L. report. During the course of investigation SIO also recorded dying declaration of injured Mst. Sahib Khatoon who was pregnant in presence of Doctor. Both injured i,e, Mst. Sahib Khatoon and Muhammad Alam expired at L.M.C.H. Hyderabad and I.O. collected such proof. After completing investigation accused was challaned before the Court of learned Judicial Magistrate and F.C.M-1l, Mirpurkhas. 4. The charge against the accused was framed at Ex.2, to which the accused pleaded not guilty and claimed to be tried. 5. In order to substantiate its case, the prosecution examined 15 P.Ws. and thereafter, the prosecution side was closed at Ex.25. 6. The statement of the accused was recorded under section 342, Cr.P.C.at Ex.28, wherein the accused denied the prosecution allegations and claimed his false implication in this case. The accused examined himself on oath at Ex.29, wherein he has stated that deceased Ghulam Hyder was his uncle as well as father-in-law. He used to reside with his father-in-law in the same house in the year 2002. He was posted in Intelligence Bureau as PC and after performing his duties he came to his house on 23.09.2002 at about 10.30 p.m. He entered in the house and saw that police party of Police Station Taluka was already available at the house and they captured him. They took him to the police station and thereafter he came to know about the murder of his father-in-law Ghulam Hyder, and his cousins Muhammad Alam, Azam and third name he did not remember. He was kept at Police Station Taluka and after sometime he was taken to Police Station. City. The police of Police Station City issued threats to him and were compelling him to confess to the murders. They produced him in the Court; name he did not know, for confession, where he confessed the commission of the murders due to compulsion. He had no enmity of whatsoever with Ghulam Hyder and his sons. Ameen (the complainant) was also son-in-law of Ghulam Hyder. Ameen is his relative as well as relative of Ghulam Hyder deceased. There was dispute between Ameen and Ghulam Hyder, over house prior to the murder. The accused claimed innocence and stated that he had not committed any murder. However, accused did not call defense witnesses in support of his case. 7. Learned Sessions Judge after hearing the learned counsel for the parties and examining the evidence available on record convicted and sentenced the appellant as stated above through the impugned judgment and made reference for confirmation of death sentence. Hence this appeal. 8. Learned trial court in the impugned judgment has already discussed the evidence in detail and there is no need to repeat the same here, so as to avoid duplication and unnecessary repetition. 9. Mr. Syed Tarique Ahmed Shah, learned advocate for the appellant has contended that the prosecution has failed to prove its case against the appellant for the following reasons; that the charge is defective in that it has charged the appellant with 3 murders, 2 attempts to murder and without mention of section 338(c), P.P.C. but the appellant has been convicted for 5 murders and under section 338(c) and due to such defects in the charge the case may be remanded back for retrial; that there has been an improvement in the evidence of the PW's at trial as against their earlier sections 161 and 164, Cr.P.C. statements; that the ocular evidence contradicts the medical evidence in particular the deceased Mohammed Alam and Mrs. Khatoon's injuries were not all consistent with bullet wounds and that as per the defense version the deceased persons were all murdered by the complainant and the 2 other eye-witness (PW Azizullah and Mohammed Yameen) who had a property dispute with the deceased Ghulam Hyder; that the complainant and the 2 other aforesaid eye-witnesses were chance witnesses since they had their own homes yet for inexplicable reasons they were all on that particular night staying at the cattle pond where they had conspired to murder Ghulam Hyder; that their story does not appeal to reason as according to their own evidence they were awaken by about 15 gun shots and were staying at a distance of about one acre from Ghulam Hyder's house which was the scene of the murder so how was it
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possible for them to reach the scene and be eyewitnesses to the murder? As such it was contended that there were no eye-witnesses to the incident and the complainant and the 2 other eye-witnesses were the real murderers and as already shown by the medical evidence the murders were caused by more than one person and that the complainant and the other 2 eye- witnesses had the means, motive and opportunity to carry out the murders; that there are major contractions in the evidence of the PW's for instance PW Abdul Jabbar puts the time of the incident in doubt and the PW I0 Ghulam Ali went to arrest the appellant by motor bike when according to the other members of the arrest party they went in a private taxi; that there was a delay in sending the empties for the ballistic report of about one month which delay has not been explained; that the appellants confessional statement was inadmissible as it was not in accordance with law; namely after the confession was recorded the appellant was handed back to the same police officer for judicial custody who had brought him for recording the confession which was completely illegal; that the dying declaration of Mrs. Khatoon was fabricated as the PW Dr. Jillani who was present when it was allegedly made to the I0 did not mention it in his evidence; that the PW's are all related to either the deceased or each other and as such cannot be safely relied upon especially as there were many other persons who had gathered at the house of the incident yet none of them had given evidence or been used as mushirs and thus for all the above reasons the appellant was entitled to the benefit of the doubt and may be acquitted. 10. In support of his contentions, learned counsel for the appellants relied upon the cases of Mubeen v. State (2006 YLR 359), Mumtaz All v. State (2000 PCr.LJ 367) Idrees Kiani v. State (2004 M LD 1762) Akhtar Ali v. State (2008 SCM R 6 (d)) Kamal Hussain v. State (2004 PCr.LJ 813) Arshad Khan v. State (2017 SCM R 564), Sardar Bibi v. Munir Ahmed (2017 SCM R 344) Hauji Ghulam Hussain v. State (PLD 1976 Kar. 1160), Ha i Said Muhammed v. Munawar (1994 SCM R 1842) Farman Bi v. Ghulam Farid (1994 SCM R 1852), Mataro v. State (PLJ 1997 Cr.0 (Kar) 217), Ali Akbar v. State (1988 M LD 186) and Khalid v. State (1998 PCr.LJ 606). _ 11. On the other hand, Syed Meeral Shah, learned Addl.P.G. fully supported the impugned judgment and contended that if there were any defects in the charge they could be cured through section 232, Cr.P.C. and S.537(a) Cr.P.C.; that there was no material improvement in the section 164 statements of the eye-witnesses and their evidence at trial; that the medical evidence was not contradictory to the ocular evidence; that the complainant and eye-witnesses were not chance witnesses and were all present that day at the cattle pond and were eye-witnesses to the incident, FIR was lodged promptly and who had provided the motive for the crime; namely that the appellant had a dispute over agricultural property with Ghulam Hyder and had murdered him and his family in order to obtain the agricultural property; that there were no major contradictions in the prosecution evidence; that the delay in sending the empties for ballistic report was not relevant especially as it was not put during cross-examination; that the confessional statement had been made in accordance with law and was legally admissible and could be relied upon and the same was the position with the dying declaration and as such the appeal should be dismissed as there was no doubt that the appellant had committed the 5 murders and the prosecution had proved its case through evidence to the required criminal standard. In support of his contentions he placed reliance on Faquirullah v. Khalil Uz Zaman (1999 SCM R 2203), Mumtaz v. State (2012 SCM R 556), Nazir Ahmed v. State (2009 SCM R 523) and Dadullah v. State (2015 SCM R 856). 12.Learned counsel for the complainant adopted the arguments of learned APG and additionally added that where there was no firearm injuries on Mrs. Khatoon such injuries had been caused when she fell down and that with Alam since he was a young boy his bone structure accounted for the appearance of a difference injury which had in fact been caused by a fire arm; that the appellants confessional statement which was voluntary not only proved his guilt but his motive for the murders; that the prosecution had fully proved its case through reliable evidence; that the
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appeals may be dismissed and that since there were no mitigating circumstances the death sentence may be confirmed. In support of his contentions learned counsel placed reliance on the following cases Muhammed Ehsan v. State (2006 SCM R 1857), Akthar Ali and others v. The State (2008 SCM R 6), Idress Kiani and others v. The State through Advocate-General (2004 MLD 1763). Irfan v. Muhammed Yousaf (2016 SCM R 1190), Takdir Samsuddin Sheikh v. State of Gujrat and another (2012 SCM R 1869), Khan Muhammad and others v. The State (2011 SCM R 705), Mumtaz Ali and another v. The State (2000 PCr.LJ 367) Salamat Ali v. The State (2017 M LD 701), Tariq lqbal v. State (2017 SCMR 954), Khalid Mahmood v. State (2017 SCM R 201) Ashique Hussain v. The State (2017 SCM R 188), Mohammed Sharif v. State (2006 SCM R 1170), Mohammed Aslam v. State (2012 SCM R 593) and Inayatullah v. State (PLD 2007 SC 237). 13.We have considered the arguments of learned counsel, examined the entire evidence with their able assistance and considered the relevant law and authorities cited by them at the bar. 14.At the outset we would like to make it clear that we have considered the evidence in a holistic manner and considered each piece of evidence in isolation as well as how it fits in with the entire prosecution case to see if the prosecution has been able to prove its case beyond a reasonable doubt through such evidence. 15.We shall consider each argument in turn as raised by learned counsel for the appellant. Defects in the Charge. The Charge reads as under:-- "IN THE COURT OF FIRST ADDL: SESSIONS JUDGE, MIRPURKHAS. S.C. No, 136 of 2002. The State v. Muhammad Ishaque. 12-07-2003. CHARGE I, Ghulam Qadir Leghari, First Addl: Sessions Judge, Mirpurkhas do hereby charge you: Muhammad Ishaque son of Sain Bux Panhwar, as under:- That on 23.09.2002 at 0130 hours in the house of deceased Ghulam Hyder situated in deh Phandro Taluka Mirpurkhas, you accused intentionally made firing with T.T. pistol .30 bore which hit Ghulam Hyder and his sons Muhammad Azam and Muhammad Nazim resulting their death. You thus thereby committed Qatl-i-amd of the above deceased punishable under section 302, P.P.C. within the cognizance of this Court. That on the same date, time and place you accused made firing with T.T. pistol with intention to commit Qatl-i-amd or by that act the death could be caused and the firing shots hit Mst. Sahib Khatoon and Muhammad Alam. You thus thereby committed offence punishable under section 324, P. P. C . within the cognizance of this Court.(bold added) And I hereby direct you be tried of the aforesaid offences. This 12th day of July, 2003. Sd/- 12.07.03. (GHULAM QADIR LEGAHRI) First Additional Sessions Judge, Mirpurkhas." 16. According to sections 221 to 225 Cr. P. C . the charge must state as under:-- "221. Charge to state offence.---(1) Every charge under this Code shall state the offence with which the accused is charged. Specific name of offence sufficient description.---(2) If the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only. How stated where offence has no specific name. (3) If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the
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accused notice of the matter with which he is charged. (4) The law and section of the law against which the offence is said to have been committed shall be mentioned in the charge. What implied in charge. (5) The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case. Language of charge. (6) The charge shall be written either in English or in the language of the Court. Previous conviction when to be set out. (7) If the accused having been previously convicted of any offence, is liable, by reason of such previous conviction, to enhanced punishment of a different kind, for a subsequent offence, and it is intended to prove such previous conviction for the purpose of affecting the punishment which the Court may think fit to award for the subsequent offence, the fact, date and place of the previous conviction shall be stated in the charge. If such statement has been omitted, the Court may add it at any time before sentence is passed. 222. Particulars as to time, place and person. (1) The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thinking (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. (2) When the accused is charged with criminal. breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 34: Provided that the time included between the first and last of such dates shall note exceed one year. 223. When manner of committing offence must be stated. When the nature of the case is such that the particulars mentioned in sections 221 and 222 do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in which the alleged offence was committed as will be sufficient for the purpose. 224. Words in charge taken in sense of law under which offence is punishable. In every charge words used in describing an offence shall be deemed to have been used in the sense attached to them respectively by the law under which such offence is punishable. 225. Effect or errors. No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice." (bold added) 17.In essence the object of the charge is to enable to the accused to know the case against him with sufficient detail so that he may be in a position to defend the case against him. In this regard reference is made to Idress Kiana's case (supra) which held as under at P.1766 "The object of charging accused is to make him aware, abreast and alert about the allegations and the basis on which the allegations are leveled against him. It enables the accused to know the precise accusation against him which he is required to meet before commencement of evidence of the prosecution." (bold added) 18.Likewise in Mumtaz Ali's case (Supra) at P. 370, which is set out as under:-- "It is mandatory that charge shall contain all material particulars as to time, place as well as specific name of the alleged offence, the manner in which the offence was committed and the particulars of the accused so as to afford accused an opportunity to explain the matter with which he is charged. The purpose behind giving such particulars is that the person against
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whom such charge is framed should prepare his case accordingly and may not be misled in preparing his defence. Charge is the very start of trial and it is at this stage that an accused comes across the accusation leveled by the prosecution against him, as such he will have to keep such material in his mind during the proceedings of the trial. By now it is well-settled that if any person is misled in preparing the defence by absence of necessary particulars, as stated above, or there is a serious defect in the charge, retrial is the remedy. The material thing for directing the retrial is to be seen as to whether by framing an improper charge, quite contrary to the case of prosecution, a prejudice was caused to the accused or not." (bold added) 19. In connection with curing any errors in a charge section 232 and section 357, Cr.P.C. are relevant and are set out below for ease of reference:-- "S. 232. Effect of material error. (1) If any Appellate Court, or the High Court for the Court of Session in the exercise of its powers of revision or of its powers under Chapter XXVII, is of opinion that any person convicted of an offence was misled in his defence by the absence of a charge or by an error in the charge, it shall direct a new trial to be had upon a charge framed in whatever manner it think fit. (bold added) (2) If the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction." S.537, Cr.P.C. provides as under:-- "537. Finding or sentence when reversible by reason of error or omission, in charge or other proceedings. Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account: (a) of any error, omission or irregularity in the complaint, report by police-officer under section 173, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or (b) of any error, omission or irregularity in the mode of trial, including any misjoinder of charge, unless such error, omission or irregularity has in fact occasioned a failure of justice. Explanation. In determining whether any error, omission or irregularity in any proceedings under this Code has…
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