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Petitioner: SAEEDUR REHMAN VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Shahid Anwar Bajwa Title: SAEEDUR REHMAN vs THE STATE Case No.: Criminal Appeal No, 145 of 2009 Date of Judgment:2010-04-23 Reported As: 2010 P Cr. L J 1226 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' SHAHID ANWAR BAJWA, J.---Appellant was charged under section 302, P.P.0 that on 6-7-2002 at about 1330 hours at Boundary of KPT near Kauser Masjid Keamari, Karachi he committed murder of his nephew namely Syed Meharban Shah by causing him Chhuri blows. He was tried and vide Judgment dated July 1, 2009 he was convicted under section 302(b), P.P.C., and was sentenced to undergo imprisonment for life and was also directed to pay fine of Rs,1,00,000, which if recovered was ordered to be given to the legal heirs of the deceased as compensation. In case of non- payment of fine he was ordered to suffer further rigorous imprisonment for six months. Benefit of section 382-B, Cr.P.C. Was allowed to the appellant. The Court further observed that lesser punishment was awarded because admittedly incident had taken place in appellant's house and it was not clear as to what had actually happened before the incident and therefore such facts were treated as mitigating circumstances for awarding lesser punishment 2. F.I.R was registered on 6-7-2002 at 1830 hours. It was registered on the basis of statement under Section 154, Cr.P.C. Of one Syed Ameer Shah son of Syed Sanwal Shah who stated that his son Meharban Shah (deceased) was married with Mst. Shama Bibi d/o Mubarak Shah about 8/9 months ago. He stated that Mst. Shama Bibi due to some domestic issue had become angry and had gone to house of her parents about 1 and 1/2 months prior to the incident. The complainant stated that he and his son Mahrban Shah went to the house of Mubarak Shah so that they could bring Mst. Shama Bibi with them. Mst. Shama Bibi refused to return. The complainant stated that he came to know through their relative that the present appellant was stopping Mst. Shama Bibi from returning to her husband. It may not be out of place here to mention that appellant is maternal uncle of the deceased. It is also stated in the F.I.R. That about 3/4 months prior to the incident the
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appellant and appellant's brother-in-law one Papu were in complainant's home when appellant abused his brother-in-law, upon which deceased Meharban Shah warned appellant against abusing appellant's brother-in-law in house of deceased. Upon this harsh words were exchanged between appellant and the deceased. On 6-7-2002 the complainant stated, when he came to his house his friend Younus informed him that his son Meharban Shah had been murdered and his dead body was lying at Civil Hospital. The complainant stated that he reached the mortuary and saw dead body of his son. His chest, left side at waist up from hip and on the left arm there were marks of injuries. The complainant further stated that his relative Javed informed him that he was present at Kamela Chowk, Lyari with his rickshaw when at about 1-30 p.m. He saw appellant who was running with his son and after sitting in rickshaw they went away, which made Javed suspicious. So he went to the house of appellant. There he saw a rush of people and he also saw that Meharban Shah was lying in unconscious and severely injured condition. He heard from the persons present on the spot that Saeedur Rehman at 1-30 p.m. Attacked Meharban Shah with Chhuri blows and thereafter fled away. Javed brought Meharban Shah to Civil Hospital in taxi and there doctor pronounced him dead. 3. At the trial the complainant Syed Ameer Shah appeared as P.W.1. He stated that he was informed by his friend that his son had been murdered. He went to Civil Hospital and he saw there dead body of his son, who had received injuries with sharp-cutting weapon on left side of his chest, left back-side and left hand. He stated that Javed Khan brother-in-law of his wife had informed him that at about 1-40 p.m he was present at Kamela Chowk Keamari when he saw Saeedur Rehman in puzzled condition. Saeedur Rehman went away in a rickshaw. He stated that Javed further told him that he went to the house of Saeedur Rehman and saw Meharban Shah was lying on ground in injured condition. Javed took Meharban Shah to hospital. He also narrated the incident of family acrimony prior to the death. He also stated that Shad Yaqoob and Ghulam Haider were with deceased at the time of incident. In cross-examination he stated that he went to the Police Station on next day after receipt of the dead body. He also stated that he could not say that injuries on the body of his son were caused by Glass or Chhuri. He stated that it is not a doctor who can ascertain the cause of death. 4. P.W.2 was Inspector Khalid Javed. He stated that on 6-7-2002 he was posted as Additional S.H.O. At P.S. Jackson. At about 3-00 p.m Saeedur Rehman came to the police station. He was wearing white shalwar-kameez Shirt of accused had blood-stains on it. Accused disclosed to S.I.P. Nazir, who was duty officer that he had killed his nephew. S.-I. Abdul Aziz made him sit and gave him a glass of water. Thereafter Abdul Aziz informed S.H.O. And he directed Inspector Jabbar of Investigation Branch. Inspector Jabbar came and arrested the accused. Accused took Khalid Jawed and others to the place of incident from where the crime weapon was recovered. Bloodstained Chhuri was stated to be produced by accused from the back side of the door. Imran was mashir of recovery of Chhuri. Imran was residing in the same mohalla where the crime weapon was recovered. In cross-examination witness admitted that he had not mentioned about shirt in his statement under section 161, Cr.P.C. He also admitted that Inspector Jabbar did not call any person from the neighbourhood to act as mashir of recovery. He also admitted that he could not say whether the accused was involved in the offence or not. In the mashirnama of recovery which is recorded by Inspector Abdul Jabbar and is witnessed by Imran of neighbourhood and Inspector Khalid Javed of P.S Jackson. It is recorded that accused himself being in custody led and entered into his house and from opposite the main door produced one Chhuri which was blood- stained and which he stated was the weapon of the murder. It was taken into possession and was duly sealed at the spot. 5. Muhammad Rafique was P.W.3. He stated that he came to know that deceased had been killed by the appellant. He consequently went to the hospital and was told that the dead body was in the
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mortuary. He stated that he saw the dead body in the mortuary. He stated that police prepared mashirnama of dead body and inquest report on the spot on which the witness also signed. During cross-examination he stated that he had been a friend of father of deceased for 20 years. He stated that he was informed by one Bashir Koja regarding the incident in which deceased had lost his life. It may be pointed out that the name of Muhammad Rafique did not appear either in the F.I.R. Or even in the challan. 6. P.W..4, was Ghulam Muhammad. His name also did not appear either in the F.I.R. Or in the challan. He stated that on the day of incident he saw that the present appellant and the deceased were fighting with each other and the present appellant was armed with Chhuri and that he was causing Chhuri blows to the deceased. Deceased fell down after receiving injuries. He further stated that the present appellant threatened that if any one came forward he will also be murdered. He stated that he and his friend Shahzaid who was with him became frightened and went to their houses. In cross-examination he stated that 20/25 persons were present at the spot. His statement was recorded by the police on 7-7-2002. 7. P.W.5 was one Syed Shah. He stated that he was present in the house of his niece when he heard commotion. He stated that he went out side the house and saw that the appellant and deceased were fighting with each other. He stated that he saw that the appellant gave Chhuri blows to deceased on his chest and thereafter he went away. In cross-examination he stated that they were fighting with each other at street. Many people were present at the spot and he could not give their exact number. He stated that his statement was recorded after three days of the incident and he did not try to intervene as the present appellant was armed with Chhuri and he was causing Chhuri blows to the deceased. He admitted that deceased was son of his brother-in-law. 8. Next witness was A.S.-I. Abdul Aziz, He stated that on the date he was posted along with Inspector Khalid at P.S. Jakson. He stated that at 1.45 p.m. Present appellant came to the police station and disclosed before him that he had murdered his nephew Saeedur Rehman. He further stated that the present appellant disclosed to him that he murdered deceased with Chhuri blows. He stated that he informed P.I. Jabbar of investigation branch. He stated that the present appellant was arrested in his presence when he appeared at the police station and that he was arrested by P.I. Jabbar. Witness produced mashirnama of arrest. During cross-examination the witness disclosed that he had been residing at Keamari since his childhood and that the present appellant was known to him for last 15/20 years. He denied that there had been any enmity between him and the appellant and denied that the appellant always advised him to grow a beard. 9. P.W..6, was Rahim Shah. He stated that at the material time he was posted as Police Constable at P.S. Jakson. He stated that his duty hours were from 8-00 a.m to 8-00 p.m. He stated that the appellant himself came to the police station and admitted his guilt and told Sub-Inspector Aziz that he had committed the murder. Witness stated that on direction of his officer he put the present appellant in lock-up. He further stated that personal search was made by the officer and he recovered one Chhuri from the appellant. He further stated that the officer took Chhuri and clothes of the appellant in custody and prepared mashirnama of arrest and recovery in his presence. During cross-examination he stated that the accused appeared at P.S. Between 4-30 and 5-00 p.m. He admitted that in the mashirnama of taking the accused in custody, recovery of Chhuri is not mentioned. He however, voluntarily, stated that Chhuri was recovered after mashirnama was prepared. He admitted that in his statement under section 161, Cr.P.C. He had not stated that accused who appeared in his presence before S.-I. 'Aziz had admitted his guilt. He admitted that he was not present in the room of his officer at the time of seizure of the property. He admitted that he had not stated in his statement under section 161, Cr.P.C. That the present appellant admitted guilt in his presence.
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10. P.W.7, P.C. Rayasat Ali was next witness. He stated that on that day his duty hours were 2.00 p.m. To 8.00 p.m. He further stated that Inspector Abdul Jabbar brought the present appellant. He stated that the present appellant was wearing Kurta Shalwar which was bloodstained. During cross- examination he stated that it was 4.30 p.m. And that the accused himself went to A.S.-I. Abdul Jabbar and admitted guilt and A.S.-I. Arrested him at the police station. He admitted that accused had not pleaded guilt in his presence. 11. M.L.O. Was P.W.8. He stated that when the body was brought to him deceased was wearing Shalwar only. Physical examination of the body revealed four injuries. One on upper chest, one on left renal area, one on palm of left hand and the last one also on palm of left hand. First two injuries were cavity deep, third injury was muscle deep and fourth injury was skin deep. Left lung was found ruptured and left chest cavity was found full of blood. Left kidney was also found ruptured and blood was found in the abdominal cavity. Cause of death was cardio respiratory failure due to haemorrhage and haemorrhagic shock resulting from sharp injury to left lung and left kidney. During cross- examination he admitted that he had not preserved kidney and had not sent it to ascertain the real cause of death. Medico Legal Officer, Imran was next witness. He stated that deceased was brought in dead condition. 12. Investigating Officer Abdul Jabbar was F. W.10. He stated that on 6-7-2002 he was Incharge as S.I.O. At P.S. Jakson, when the appellant appeared before him and disclosed that he had committed murder of his sister's son by giving him big knife blows in his house. He stated that the accused was arrested. He stated that thereafter he along with S.-I. Aziz and Inspector Khalid went to the place of incident. He stated that from the place of incident he recovered blood stained earth and shirt of the deceased which was also blood stained. Mashirnama was prepared accordingly. He stated that he sent the recovered articles to Chemical Examiner. He produced report of the Chemical Examiner. In his cross-examination he admitted that incident had taken place in the house of the appellant/accused and the deceased was not residing in the house of the appellant. He denied that the deceased has attacked the appellant and that it was deceased who was the aggressor. He admitted that letter to the Chemical Examiner was prepared on 29-8-2002 (the incident had occurred on 6-7-2002) and it was received by the Chemical Examiner on 18-12-2002. He admitted that no judicial confession of the present appellant was recorded. 13. After conclusion of evidence statement under section 342, Cr.P.0 was recorded. The present appellant stated that he was innocent and that he was apprehended by police while he was returning from his duty. Thereafter the impugned judgment was announced on 1-7-2009 and the present appellant was convicted under section 302(b) PPC as detailed above. 14. Learned counsel for the appellant made the following submissions:-- (1) Investigation is separate from operations. I.O. Has stated that he arrested the present appellant when he appeared at police station. Since he was one who arrested the appellant, the investigation by him was illegal. (2) I.O. Has stated that he had prepared the inquest report whereas in actual effect inquest report was prepared by A.S.-I. Aziz. (3) Exh: 7 is statement under section 154, Cr.P.C. And Exh: 13 is the Inquest Report. Both are stated to have been written by Aziz and handwriting on both is vastly different from each other. (4) F.I.R. Lacks material particulars and the complainant improved his statement thereafter. The complainant in F.I.R. Stated that Jawaid informed him about death of his son and Jawaid was not produced as prosecution witness. Similarly P.W.1, in his statement has mentioned that Shad Yaqoob and Ghulam Haider were friends of the deceased and were present with him at the time of incident. Shad Yaqoob had not been produced. Although Ghulam Haider's name was not mentioned in the F.I.R. Therefore, inclusion of his name was an improvement. Similarly name of witness Ghulam Muhammad has not been mentioned in the challan or in the F.I.R.
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(5) P.W.5, Syed Shah has mentioned only one injury i,e, injury to the chest of the deceased. (6) It has also come in evidence that the present appellant and the deceased were fighting with each other. Although the present appellant was not present at the scene, if the story of the prosecution is admitted action that was taken by the present appellant was taken in self-defence. This gets support from the fact that the incident is alleged to have taken place in the house of the present appellant. (7) On the question of recovery learned counsel submitted that the I.O. Stated that Chhuri was recovered from house of the appellant whereas P.C. Rahim Shah stated that it was recovered from the person of the appellant at the police station. (8) There is also discordance in statements as to who arrested the accused. (9) P.W.7, Rayasat Ali stated that it was I.O. Abdul Jabbar who brought the accused to police station. Inspector Aziz (P.W.6) stated that accused appeared before him at the police station and he called I.O. Abdul Jabbar. (10) Medical evidence is doubtful because it merely stated that wound on chest and renal area were cavity deep; no rib cut has been specified and depth of wound in the lung has not been specified. Depth of wound to the kidney is also not specified. (11) There is another discrepancy in the medical evidence; although it is alleged that the same Chhuri was used it describes one wound as 4 cm X 2 cm on chest and the other 4 cm X 1.0 cm in the renal area. 15. There is no evidence whatsoever as to where did the shirt of the deceased go. Learned counsel relied upon a plethora of case law to which I shall refer to at due place during the course of the judgment. 16. Learned A.P.-G. Made the following submissions:-- (1) Neither the date and time of death is disputed nor it is disputed that death was caused by injury. (2) Self-defence has been suggested for the first time when the I.O. Appeared as a witness. Self- defence was not suggested to any witnesses who actually saw the incident. (3) No suggestion was asked from the doctor regarding injury to any bone and no suggestion was made to him regarding any ill will on his part towards the appellant. Medical evidence has not been challenged and no question in this regard was asked from the doctor. (4) No enmity with the police has been alleged or suggested in the cross-examination. (5) If there are two witnesses it is not necessary that both witnesses be produced, it is quality of evidence and not quantity of evidence which determines decision of the Court. (6) It is a case of voluntary arrest and all the witnesses are at one that the present accused voluntarily appeared with bloodstained clothes, which clothes were sent to Chemical Examiner's and Chemical Examiner report was submitted. Clothes were sealed at the time of recovery and there is no suggestion whatsoever that seals were tampered. (7) Motive has been clearly established right from the word go, and there has not been any suggestion whatsoever. Regarding the motive to any of the witnesses. 17. Learned Deputy Prosecutor-General relied upon certain cases, to which I shall refer at due place during the course of judgment. 18. I have considered the submissions made by the learned counsel and have also gone through the case law cited at the bar as well as record and proceedings of the trial Court. 19. First contention of the learned counsel for the appellant was that investigation is separate from operation and I.O. Had stated that he arrested the present appellant when he came to the police station. Since he was one who arrested the appellant, it was submitted by the learned counsel, the investigation by him was illegal.
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20. First case he relied upon was Dodo v. The State, 2009 YLR 2049. Facts of this case were that complainant Ghulam Hussain Mashori, A.S.-1., posted at CIA, Hyderabad, lodged an F.I.R. And stated that during patrolling with other police officers he apprehended the appellant and recovered from him 27 Kg of charas, at a place about 25 km from the CIA, Centre Hyderabad. After charge was framed, evidence was recorded and accused was convicted. It was contended that the CIA had no authority to conduct investigation on its own. Division Bench of this Court noticed that, " In the instant case admittedly the appellant was not produced before the area police which was 5/6 k.m. Away from the alleged place of recovery. Instead the officials brought the appellant at the CIA Hyderabad after a travel of 25 kms which shows that on no occasion was the appellant ever produced before the Police Station Umersand with the contraband, in as much as no investigation was ever assigned to any police official of the concerned police station which was a clear violation of the order of the honourable Supreme Court, and then it was concluded, "In the present case the arrest and investigation conducted by the complainant was a clear flouting of the order of the honourable Supreme Court, hence cannot be declared legal. The CIA officials have also violated the provisions of section 166 (1) and (4) of Cr.P.C. And Chapter XXI Rules 25.3 and 25.4 of Police Rules, 1934 as prior to arrest of the applicant he should have informed the area police station and if arrested should have been produced the appellant before the concerned S.H.O." Conviction was consequently set aside. 21. Learned counsel also relied upon Muhammad Hashim v. The State PLD 2004 SC 856. It was a case relating to narcotic substances and Supreme Court held that under the Act of 1997 stringent sentences have been provided if offences charged against the accused within any component of section 9 are proved. Therefore, Act of 1997 has to be construed very strictly and the relevant provisions of law dealing with procedure as well as furnishing the proof like report of expert, are to be followed strictly in the interest of justice, otherwise in such like cases it would be impossible to hold regarding as to what quantity was recovered. Learned counsel next relied upon Nazeer Ahmed v. The State PLD 2009 Kar. 191. This was a case under the Control of Narcotic Substances Act, 1997 and it was held by the High Court that by excluding applicability of section 103, Cr.P.C. In narcotic cases, Legislature had not conferred any additional or extra sanctity upon officers of police or such other forces. It was also held that officer who was himself complainant in the case cannot be expected to collect and preserve evidence, which goes against his case because the 1.0. Should not commit himself prematurely to any view of the facts for or against accused person. 22. The above case law indicates that all the three cases were under the Control of Narcotic Substances Act, 1997. In all these cases a particular police officer was the complainant, he apprehended the accused and thereafter conducted investigation. Thus, it was a case in which three roles were combined in one person. He was the complainant, he was the one who apprehended the accused and he was the one to conduct investigation. In the present case, I.O. Abdul Jabbar is not the first informant because F.I.R. Was lodged by father of the deceased. 1.0. Abdul Jabbar was no where present at the scene of the crime. When the accused, it is stated, appeared at the police station and confessed his guilt, the person at the police station A.S.-I. Aziz was there and it was there that Abdul Jabbar arrested the appellant. Is there any other roie in respect of commission of the crime or being witness to the crime or making any attempt or going out for arresting the accused alleged against the I.O. Answer to all these question is, none. The learned counsel has failed to demonstrate as to what prejudice has been caused to the accused by mere fact that it was I.O. Who arrested the accused when the accused appeared himself at the police station. The case law is clearly distinguishable because in all three cases, the I.O. Was also the linch pin of detection of crime and the complainant.
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23. Second contention of the learned counsel was that F.I.R. Lacked material particulars and the complainant improved his statement thereafter. In this connection learned counsel submitted that in the F.I.R. It was stated by the complainant that Jawaid informed him about death of his son Jawaid was not presented as a witness at the time of incident. Similarly P.W.1, in his statement had mentioned that Shad Yaqoob and Ghulam Haider were friends of deceased and were present at the time of incident. Shad Yaqoob had not been produced as witness. Ghulam Haider's name was not mentioned in the F.I.R.. Therefore inclusion of his name was an improvement the learned counsel contended. Same was the position regarding witness Ghulam Muhammad. Learned counsel first of all relied upon Daniel Boyd (Muslim Name as Saifullah) and another v. The State 1992 SCM R 196. In this case it was held that F.I.R. Of the occurrence is the foundation of the case but if in the light of evidence, it was found that first informant had contradicted his version or F.I.R. Suffered from material particulars, his evidence would lose its evidentiary worth and value. He also relied upon Dr. Khalid Moin and others v. The State and others 2006 PCr.LJ 639. It was held in this case that if complainant had knowledge of the facts but did not disclose them in the F.I.R., at least major and important points which were required to be discussed, statement of such complainant would not be reliable. He further relied upon Khalid Javed and another v. The State 2003 SCM R 1419. It was held that any statement or further statement of the first informant recorded during the investigation by the police would neither be equated with F.I.R. Nor read as part of the same and the value of the supplementary statement therefore will be…
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