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Petitioner: Syed Altaf Hussain Shah and 3 others VS Respondent: The State
Court Name: Sindh High Court Judge(s): Muhammad Karim Khan Agha, Abdul Mobeen Lakho Title: Syed Altaf Hussain Shah and 3 others vs The State Case No.: Sp. A.T.A. Appeal No. 175 of 2019 and Confirmation Case No.7 of 2019 Date of Judgment:2021-05-04 Reported As: 2021 YLR 2107 Result: Order accordingly
JUDGMENT
JUDGMENT MUHAMMAD KARIM KHAN AGHA, J.---The appellants Syed Altaf Hussain Shah son of Syed Sikander Ali Shah, Syed Haider Ali Shah alias Zain son of Syed Altaf Hussain Shah, Syed Muhammad Arif Shah son of Syed Altaf Hussain Shah and Shahid Mehmood son of Muhammad Ali have assailed the impugned judgment dated 15.06.2019 passed by learned Judge, Anti-Terrorism Court No. XVII, Karachi in Special Case No.1021 of 2018 arising out of Crime No. 389 of 2018 under sections 302/ 376(1)/ 34, P.P.C. read with section 7 of ATA, 1997 registered at Police Station Sachal, Kara chi whereby the appellants were convicte d and sentenced under section 265-H(2), Cr .P.C. as under -- "Under section 302(b)/34, P.P.C. each and sentenced to death as (Tazir) subject to confirmation by this court with directions to pay fine of Rs.1,00,000/ - each and in default of payment thereof, shall undergo S.I. for six months more; Under section 376, P.P.C. each and sentenced to death subject to confirmation by this court, with directions to pay fine of Rs.1,00,000/- each and in default of payment thereof, shall undergo S.I. for six months more; Under section 7(a) of Anti-T errorism Act, 1997 each and sentenced to death subject to confirmation by this court, with directions to pay fine of Rs.1,00,000/- each and in default of payment thereof, shall undergo S.I. for six months more." 2. The brief facts of the case as stated by the complainant are that he resides in village of Ganhwar Lahbor , Taluka Naseer Abad District Kambar Shandadkot, holding CNIC No.43403- 0356808-5 and having mobile No.0344- 0139920 and engaged in labour work. His younger sister "Kainaat" aged about 6-7 years used to live in Karachi with her elder sister namely Reshma wife of Arif Shah since last one year. His father Syed Hussain Shah has died. He received information through phone from Police Station Sachal that his younger sister "Kainaat" has been killed. On such information he along with mohalla people namely Abdul Waheed Dero, Abdul Samad Dero and Pervaiz
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Ahmed came at Police Station Sachal and then went to the house of his sister Rukhsana at Bhitai Abad and she disclosed that yesterday on 31.07.2018 at about 1600 hours suddenly Kainaat was become ill on that Arif Shah immediately took her to the hospital where it was informed that she has been expired. On reaching at PS he came to know that Kainaat has been raped and then killed by strangulation. From the spot enquiry he came to know that accused persons namely 1. Shahid Mehmood son of Muhammad Ali, 2. Altaf Shah son of Sikander Shah, 3. Arif Shah alias Jamshed son of Altaf Shah and 4. Haider Shah alias Zain son of Altaf Shah have committed Zina upon Kainaat and then killed her by throttling her neck. He claimed against the above named accused persons for committing rape upon his minor sister Kainaat and then murdering her by throttling her neck. 3. After completing thorough investigation charge was framed against accused persons which they pleaded not guilty and claimed trial of the case. 4. The prosecution in order to prove its case examined 11 witnesses and exhibited various documents and other items. The statement of accused persons were recorded under section 342, Cr.P.C. in which they denied all the allegations levelled against them. None of them gave evidence on oath however between them they called three DW's in support of their defence case which was one of alibi. 5. After appreciating the evidence on record the trial court convicted the appellants and sentenced them all as set out earlier in this judgment. Hence, the appellants have filed this appeal against their conviction. 6. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment dated 15.06.2019 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition. 7. Learned counsel appearing on behalf of the appellants contended that they were innocent of any wrong doing and had been falsely implicated in this case by the police in collusion with the complainant; that there was no eye- witness evidence against them, that there was no last seen evidence against them, that there was a delay in filing the FIR of 26 hours which lead to fabrication of the case against the appellan ts by the complainant; that the confession made by one of the appellant Arif Shah before the judicial magistrate was not made with sufficient reflection time and as such it could not be relied upon; that no recoveries were made from the appellants at the time of their arrest to link them to the rape and murder; that in fact no rape had been made as the deceased's vagina was intact as per the medical evidence; that there was no chemical report; that the clothes recovered by the police were all planted; 'that there was no CDR to link the appellants to the house at the time when the rape and murder took place; that the only evidence against the appellants to link them to the crime was DNA evidence which was circumstantial evidence and had been planted by the police and was not sufficient, even if believed, on its own to lead to the conviction of the appellants. All the appellants had in effect produced alibi witnesses and that for any of the above reasons they should be acqu itted of the charge by being extended the benefit of the doubt to each of them. In support of his contentions he has placed reliance on Tariq Pervez v. The State (1995 SCMR 1345 ), Mst. Zohra Bibi v. The State (2013 PCr.LJ 772), Hashim Qasim and another v. The State (2017 SCMR 986), Said Muhammad v. The State (2009 PCr.LJ 604), Muhammad v. The State (2009 PCr.LJ 608), Khani Zaman v. The State (1983 SCMR 573), Raza and another v. The State and 2 others (PLD 2020 Supreme Court 523), Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274), Kareem Nawaz Khan v. The State through PGP and another (2016 SCMR 291), Kaleemullah v. The State and another (2018 YLR 2363 ), Shakir Muhammad alias Shakeel and another v. The State (2019 PCr.LJ Note 120), Ali Haider alias Papu v. Jameel Hussain and others (PLD 2021 Supreme Court 362), Afaq Ahmed v. The State (2020 YLR 676), Muhammad Akram v. The State (2009 SCMR 230), Ali Gul v. The State (2020 MLD 952), Muhammad Jabran and others v. The State (2020 SCMR 1493 ), Lal Khan v. The State (2006 SCMR 1846 ), Muhammad Ehsan v. The State (2006 SCMR 1857 ) and Nazeer Ahmed v . The State and others ( 2019 SCMR 594 ). 8. On the other hand learned DPG who was also representing the complainant has fully supported the impugned judgment and has contended that the prosecution has proved its case beyond a reasonable doubt based on circumstantial evidence through the evidence of the PW's, the early arrest of the appellants, the confession of appellant Arif Shah before the judicial magistrate and the DNA evidence which conclusively linked the appellants to the rape and murder of the deceased minor girl which was also supported by medical evidence; that there was no
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need for a chemical report in the light of the DNA report; that the DW's were all interested witnesses and had given false alibi's to the appellants and as such all the appeals should be dismissed. In support of his contentions he has placed reliance on Salman Akram Raja and another v. Government of Punjab through Chief Secretary , Civil Secretariat, Lahore and others (2013 SCMR 203) Ali Haider alias Papu v. Jameel Hussain and others (PLD 2021 Supreme Court 362) Sheraz Mehmood v. The State and another (2005 YLR 2467 ), Muhammad Ali v. The State (2020 MLD 1447 ), Zahid and another v. The State (2020 SCMR 590), Imran Ali v. The State (2018 SCMR 1372 ), Noor Muhammad v. The State (1999 SCMR 2722 ) and Dadullah and another v. The State (2015 SCMR 856 ). 9. We have heard the arguments of the learned counsel for the appellants as well as learned DPG who was also representing the complainant, gone through the entire evidence which has been read out by the counsel for the appellants, and the impugned judgment with their able assistance and have considered the relevant law including that cited at the bar . 10. At the outset we have observed that this is a very barbaric case where a 7 years' old minor girl has been raped and strangulated to death by 4 adults. We however make it clear that our findin gs are based solely on our re appraisal of the evidence on record and the relevant law. As was pointed out in the recent Supreme Court case of Naveed Asghar v. State dated 07.12.2020 (unreported) in Jail Appeal No.147 of 2016 (PLD 2021 SC 600) in reappraising the evidence factors such as the gruesomeness or heinousness of the offense are completely irrelevant and only come into play when determining the appropriate sentence to be handed down if the courts reappraisal of the evidence leads it 'to upholding the conviction of the appellant(s). 11. After our reassessment of the evidence we find that the prosecution has prove d its case beyond a reasonable doubt through the evidence of PW's, especially PW 4 Dr. Zakia Khursheed, her post mortem report and DNA results that on 31.07.2018 at about 1600hrs that minor girl Kainaat (the deceased) was raped/ seriously sexually assaulted and murdered by strangulation in the house situated at Katchi Abadi Bhitaeedabad Street No.16 where she was residing at the time. 12. The only issue therefore before us is who raped/seriously sexually assaulted and murdered the deceased at the aforesaid time, date and location. 13. After our reassessment of the evidence we find that the prosecution has proved its case beyond a reasonable doubt against all the appellants for the following reasons:- (a) Admittedly there was no eye-witness to the deceased being raped and murdered by the appellants or any one else. This is not unusual in cases of rape followed by murder as the rapists are not likely to expose themselves to witnesses and thus a large number of such like cases are decided on the basis of circumstantial evidence. (b) No recovery was made from any of the accused. We consider this irrelevant in a rape case coupled with murder through strangulation based on the particular facts and circumstances of this case since what recovery is expected to be made from a rapist in case of manual strangulation? The answer is nothing unless the raped person was held at gun point or with a knife to the neck which was not the case in this matter . The law on circumstantial evidence. (c) With regard to circumstantial evidence, upon which the prosecution case/ evidence is based, to lead to a conviction in a capital case it was held as under in Fayyaz Ahmed v. State. (2017 SCMR 2026 ) at P.2030 para's 5 and 6 which are reproduced as under; "To believe or rely on circumstantial evidence, the well settled and deeply entrenched principle is, that it is imperative for the Prosecution to provide all links in chain an unbroken one, wher e one end of the same touches the dead body and the other the neck of the accused. The present case is of such a nature where many links are missing in the chain. To carry conviction on a capital charge it is essential that courts have to deep ly scrutinize the circumstantial evidence because fabricating of such evidence is not uncommon as we have noticed in some cases thus, very minute and narrow examination of the same is necessary to secure the ends of justice and that the Prosecution has to establish the case beyond all reasonable doubts, resting on circumstantial evidence.
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"Reasonable Doubt" does not mean any doubt but it must be accompanied by such reasons, sufficient to persuade a judicial mind for placing reliance on it. If it is short of such standard, it is better to discard the same so that an innocent person might not be sent to gallows. To draw an inference of guilt from such evidence, the Court has to apply its judicial mind with deep thought and with extra care and caution and whenever there are one or some indications, showing the design of the Prosecution of manufacturing and preparation of a case, the Courts have to show reluctance to believe it unless it is judicially satisfied about the guilt of accused person and the required chain is made out without missing link, otherwise at random reliance on such evidence would result in failure of justice. It may also be kept in mind that sometimes the investigating agency collects circumstantial evidence seems apparently believable however , if the strict standards of scrutiny are applied there would appear many cracks and doubts in the same which are always inherent therein and in that case Courts have to discard and disbelieve the same." (bold added) In the case of Azeem Khan v. Mujahid Khan (2016 SCMR 274) the following was reiterated with respect to circumstantial evidence at P .290 as under; "In cases of circumstantial evidence, the Courts are to take extraordinary care and caution before relying on the same. Circumstantial evidence, even if suppor ted by defective or inadequate evidence , cannot be made basis for conviction on a capital charge. More particularly , when there are indications of design in the preparation of a case or introducing any piece of fabric ated evidence, the Court should always be mindful to take extraordinary precautions, so that the possibility of it being deliberately misled into false inference and patently wrong conclusion is to be ruled out, therefore hard and fast rules should be applied for carefully and narrowly examining circumstantial evidence in such cases because chances of fabricating such eviden ce are always there. To justify the inference of guilt of an accused person, the circumstantial evidence must be of a quality to be incompatible with the innocence of the accused. If such circumstantial evidence is not of that standard and quality , it would be highly dangerous to rely upon the same by awarding capital punishment. The better and safe course would be not to rely upon it in securing the ends of justice." So what evidence has the prosecution produced which provides all links in chain an unbroken one, where one end of the same touches the dead body and the other the neck of the accused in this case so as to lead to a conviction based on circumstantial evidence. (i) Firstly we turn to the lodgment of the FIR. This was lodged on 01.08.2018 a day after the murder . The delay in lodging the FIR is 26 hours. This delay however has been explained by PW 1 Soomar Shah who was the complainant in this case who according to his evidence was working in Panjgoor Balochistan when on 31.07.2018 (the day of the murder) he was informed that his youngest sister Kainat had died in Karachi. He immediately rushed to Karachi and reached there on the next day 01.08.2018 and went to Police Station Sachal where he came to know that his sister Kainat had been raped and murdered by strangulation. He told police officials that he wanted to meet his sister Ruksana and find out what happened. His sister told him that she had suspicions on her uncle Syed Altaf Shah and his sons Syed Arif Shah and Zain Shah and one Mehmood that they had raped and murdered her younger sister Kainat. He then immediately recorded his section 154 Stateme nt at the PS which became the FIR. It can be said that the complainant consulted with his sister . However as he was not present at the time of the incident and he wanted to know what had happened as his sister was living in the same house as the deceased it was only natural that he wanted to gather first hand information from her. He then immediately narrated the facts of the case which had been told to him and were already known to the police in his section 154, Cr. P. C. statement. His only addition apart from what was already known about the incident was that it was added in the FIR that he came to know that the appellants committed the crime against his sister Kainat. Thus it appears to us that nothing has been cooked up by the complainant after consultation with his sister except that the finger of suspicion has been pointed at the 4 appellants by his sister Ruksnana who was living in the same house as three of the appellants along with the deceased. It was then up to the police to investigate and gather evidence against any one who may have been linked to the crime . As such we do not find the complainants meeting with his sister and thereafter lodging the FIR a day after the event to be fatal to the prosecution case as the delay has been fully
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explained. The superior judiciary has cons istently held that in cases of rape and kidnapping for ransom the fact that the FIR is delayed by even up to three days is not fatal to the prosecution case as it is a matter of family honor and respect within the community . In this respect reliance is placed on Zahid v . State (2020 SCMR 590 ). (ii) The complainant had no reason to falsely implicate the appellants in this case as no enmity or ill will existed between them. Admittedly the complainant was related to the deceased and the appellants however it is well settled by now that evidence of related witnesses cannot be discarded unless there is some ill will or enmity between the witnesses and the accused which has not been proven in this case by any reliable evidence. Reliance is placed on Ijaz Ahmed v. The State (2009 SCMR 99) and NasirIqbal alias Nasra and another v. The State (2016 SCMR 2152 ) (iii) The deceased was residing with the complainants paternal uncle Syed Altaf Shah (one of the appellants), Syed Arif Shah (another appellant) was also residing in the house as he was married to the complainant's sister Ruksanna and Zain Shah (another appellant) was also living in the same house. Thus, three of the appellants were all living in the same house as the deceased at the time of her rape and murder . The appellants also informed the police during interrogation that Mehmood (another appellant) who lived in the same Mohalla had also committed the of fense with them. (iv) Less that a day after the FIR was lodged 3 of the accused were arrested from Panjab Bus Ada where they were trying to make their escape good. The appellant Altaf Shah took the police to their Mohalla where Shahid Mehmood (another appellant) was arrested on their pointation by PW 8 I.O. Syed Ahmed Ali Shah who also produced memo of arrest and recovery . (v) On 08.08.2018 PW 6 Sher Muhammed who was a judicial magistrate recorded the judicial confession of appellant Arif Shah which reads as under; Q. What you have to say? Ans. As soon as, I came from my duty my brother went out for duty and it was time around 10:00 or 10:30 hours. After short while my father also went out. I gave greed to baby girl for evil doing that time my wife witnessed me and also abused me, I then went to sleep. My mother was in AC room. I brought Kainat accompanied with. After some time my mother got me woke up and said me that what has been happened to Kainat and asked me to take her at Hospital, I then took her at Darul Sehat Hospital where Doctors said me that baby has been died. Police then brought me here. This is my statement. It is settled by now that a retracted judicial confession can be relied upon provided that it is made voluntarily , truthful and no major procedural irregularities have been committed whilst it was recorded. Admittedly the confession was made after the appellant had been in police custody for about 6 days however there is no hard and fast rule as to the time when a confession can be made although the later it is made the less weight it should be given. The evidence does not suggest that the confession was not voluntary and it appears to be truthful in most respects, fits in with the prosecution case and nearly all of the key procedural requirements were made by the judicial magistrate and as such we believe the confession of the appe llant and place reliance on it. In this respect reliance is placed on Ch. Muhammad v. Yaqoob v. The State (1992 SCMR 1983 ), Bahadur v. State (PLD 1996 SC 336), Manjeet Singh v. State (PLD 2006 SC 30), Muhammad Amin v. The State (PLD 2006 SC 219) and Azeem Khan v . Mujahid Khan ( 2016 SCMR 274 ). Significantly , in his confession appellant Arif Shah tries to exonerate his brother (appellant Zain) and his father (appellant Altaf) by saying that at least two other appellants (Zain and Altaf) were in the house at the same time as baby Kainat at around the time of the commission of the offense. It therefore might also form the basis of last seen evidence as the two other appellants in accordance with this confession were in the same house as the deceased around the time of her rape and murder . (vi) Although we have placed reliance on the confession of appellant Arif Shah this still has to be corroborated by way of abundant caution by an independent source in order to implicate the other co-accused especially in a capital case. (vii) PW 6 Dr. Zakia Khursheed who carried out the post mortem of the deceased took vaginal slides and swabs of the deceased stated as under in her evidence;
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"It is correct to suggest that the vaginal swab slide were sent for chemical and DNA analysis and if in the chemical examination report human sperms were found then we can give the time for sexual assault. If the sperms were found on the chemical examination report of vaginal swab then the sperms will be sent to DNA analysis and it will be decided that whose sperm was there. In this case the sperms is important to find out whose sperm was found on the swab. It is incorrect o suggest that neither I have sealed the cloth of deceased nor taken vaginal swab slide. From the chemical examination report of vaginal swab we can ascertain the time of committing the of fence of rape" (viii) PW 3 Zameer Hussain who was duty officer at Sachal PS at the date of the incident went to the hospital and received the cloths of the deceased however when he realized' that these were not the clothes which the deceased was wearing at the time of her rape and murder he immediately went to the house of the deceased and recovered the clothes which she was wearing at the time of the rape and murder which he duly sealed and prepared memo of seizure. He also received the sealed swabs from PW 6 Dr . Zakia Khursheed for DNA testing. (ix) PW 5 Dr. Muhammed Khalid carried out erectile test on the all the appellants and found them all capable of performing sex. He took the blood samples from all the appellants for DNA testin g. PW 8 Syed Ahmed Ali Shah sent such blood samples by TCS to Forensic Laboratory for DNA testing at LUMHS Jamshoro and exhibited the TCS receipt. (x) PW 7 Haji Imtiaz Ali who was posted at PS Sachal was the mushir when PW 11 10 Mumtaz Ali took the clothes which the appellants were wearing at the time of the incident from them when they were at the lock up. PW 9 Mehboob Elahi who was also an 10 of the case at one time states in his evidence that he deposited 5 sealed bundles of clothes of deceased and accused persons for DNA testing at Forensic and Molecular Biological Laboratory LUMHS Jamshoro. He exhibited letter of deposit and receipt. (xi) PW 11 Muhammed Ahmedani who was the last I0 produced the DNA correspondence and report which are produced as under for ease of reference: FORENSIC AND MOLECULAR BIOLOG Y LABORA TORY FOR D.N.A. TESTING LIAQUA T UNIVERSITY OF MEDICAL AND HEAL TH SCIENCES, JAMSHORO. No. LUMHS/FML/399/18 Dated: 13/10/2018. To, The Senior Superintendent of Police (S. S. P) Investigation-II, East Zone, Karachi. REFERENCE: No: SSP/INV -II/RDR/2287, Dated: 02/08/2018 SUBJECT : DNA Testing Ref: CS-SA-642. Respected Sir , With reference to above cited letter/subje ct, in connection with FIR No.3892018 under sections 302/376/34, P.P.C, of Police Station Sachal/Sohrab Goth, we have received the following samples for DNA Testing, by courier and By Hand from SIO/P .I. Mehboob Illahi P .S. Sohrab Goth on 03/08/2018 ; (bold added) Description: Remarks. Valve swab sample of deceased Kainat daughter of Syed Hussain Shah. Proceeded for DNA Analysis Parcel of Cloth of deceased Kainat daughter of Syed Hussain Shah. Proceeded for DNA Analysis Blood sample of suspect Hyder Ali son of Altaf Shah Proceeded for DNA Analysis Blood sample of suspect Altaf Shah son of Sikandar Shah Proceeded for DNA Analysis Blood sample of suspect Arif Shah son of Altaf Shah Proceeded for DNA Analysis Blood sample of suspect Shahid Mehmood son of Muhammad Ali. Proceeded for DNA Analysis
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Parcel Clothes of deceased Kainat daughter of Syed Hussain Shah Proceeded for DNA Analysis Parcel…
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