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Official Citation: 2024 YLR 126
Court / Jurisdiction: Sindh High Court
Year of Decision: 2023
Decision Date: 2023-12-31
Parties: Touqeer Ali Kalwar and another vs The State
Ruling Summary: This decision was rendered by the Sindh High Court on 2023-12-31, officially reported as 2024 YLR 126. In this matter between Touqeer Ali Kalwar and another and The State, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024 YLR 126
Court Name: Sindh High Court Judge(s): Muhammad Saleem Jessar, Abdul Mobeen Lakho Title: Touqeer Ali Kalwar and another vs The State Case No.:Criminal Appeal No. D-42, Confirmation Case No. D-06 and Criminal
JUDGMENT
Reported As: 2024 YLR 126 Result: Case remanded Judgment
JUDGMENT MUHAMMAD SALEEM JESSAR, J. By this single judgment we propose to dispose of Cr. Appeal No.D- 4212021 filed by appellant/convict namely Tauqeer son of Niaz Muhammad Kalwar, and Cr. Acquittal Appeal No.D-21/2021 filed by complainant Shoukat Ali Kalwar against acquittal of respondents Nos. 2 to 4 namely Abdul Qadeer son of Ghulam Mustafa, Ghulam Mustafa son of Muhammad Murad and Pehilwan son of Haq Nawaz and Confirmation Case/Reference No.D- 06/2021 under section 374, Cr.P.C. submitted by trial Court for confirmation or otherwise of death sentence awarded by trial Court to convict namely Tauqeer son of Niaz Muhammad Kalwar, as all the three cases arise out of the same judgment. 2. By means of above said Cr. Appeal the appellant has assailed the Judgment dated 10.06.2021 passed by learned I-Additional Sessions Judge (MCTC), Ghotki in Sessions Case No.67 of 2019, being outcome of FIR No.96 of 2018 under sections 302, 201 and 34, P.P.C. registered at Police Station Adilpur, District Ghotki, whereby accused/appellant was convicted under section 265-H(ii), Cr.P.C. for offence punishable under section 302(b), P.P.C. and sentenced to death as Tazir with direction to pay compensation of Rs.10,00,000/- (Rs. Ten lacs) to legal heirs of the deceased as provided under section 544-A, Cr.P.C. and in case of default, the payment of compensation was ordered to be recovered from him as arrears of the land revenue. The appellant/convict was also convicted under section 265-H (ii), Cr.P.C. and was sentenced for offence punishable under section 201, P.P.C. to suffer rigorous imprisonment for seven years with direction to pay fine of Rs.100,000/- (Rs. One lac) and in case of default, he was ordered to undergo S.I. for 6 (six) months more. Both the
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sentences were ordered to run concurrently. However, benefit under Section 382-B, Cr.P.C. was extended to him. 3. Through above said Cr. Acquittal Appeal the complainant Shoukat Ali son of Allah Wadhaya has challenged acquittal of respondents Nos. 2 to 4 namely Abdul Qadeer son of Ghulam Mustafa, Ghulam Mustafa son of Muhammad Murad and Pehilwan son of Haq Nawaz vide common impugned judgment. 4. The trial Court has also submitted reference under section 374, Cr.P.C. for confirmation or otherwise of death sentence awarded to accused/convict namely Tauqeer son of Niaz Muhammad Kalwar. 5. Brief facts of the prosecution case, as disclosed in the FIR lodged by complainant Shoukat Ali Kalwar, are that on 11.11.2018, his son, Sajid Ali, aged about 32/33 years, was a Mason. According to him, on 08.11.2018, his son left the house and went for his work towards Adilpur, but on the same day he did not return till late night hours, therefore, he started searching his son, but could not find him. He further stated that, on the very next day, they received information that one beheaded dead body of deceased was lying in the open "Bhanda" of Anaj Mandi Adilpur. Upon receiving such information, he along with his son Deedar Ali and Nadeem Ahmed son of Muhammad Paryal Kalwar, went to the old "Anaj" Mandi Adilpur. At about 1220 hours, they reached there and found in "Bhanda", a dead body, which was lying without its head. They identified the dead body, on the basis of body signs and clothes to be of complainant's son namely Sajid Ali. With the help of police, they got shifted the dead body to the Taluka Hospital Ghotki, where post-mortem was conducted. After post-mortem they brought the dead body of deceased to their village, where same was buried after completing funeral ceremonies in graveyard. He further alleged that in order to cause disappearance of evidence of murder of deceased, the culprits managed to conceal the head of deceased, while throwing the dead body in the "Bhanda" of Anaj Mandi, Adilpur. According to him, after completion of burial and funeral ceremony on 11.11.2018, he went to the Police Station Adilpur and lodged the FIR against the unknown culprits. 6. Record further reveals that after registration of the FIR, on 09.01.2019, complainant had appeared before the SHO Police Station Adilpur and got recorded his further statement, wherein, he had specifically nominated accused Abdul Qadeer, Pehilwan and Tauqeer. On 17.01.2019 complainant had also got recorded his 164, Cr.P.C. statement, before the Court of learned Judicial Magistrate (Family Court) Ghotki, wherein, he disclosed the names of four accused, namely, Ghulam Mustafa, Qadeer Ahmed, Tauqeer and Pehilwan. The motive behind the incident, as per further statement and 164, Cr.P.C. statement of the complainant was that deceased Sajid Ali alias Baloch had divorced the daughter of the accused Ghulam Mustafa and sister of accused Abdul Qadeer, so also he wanted to marry with the divorced wife of accused Tauqeer, to which, they had issued threats to him. In this regard, all the accused in furtherance of their common intention had committed the murder of his son in a brutal manner by cutting his head from body. 7. On completion of usual investigation, challan was submitted against accused in the competent court of law, showing accused Tauqeer in custody, whereas, rest of the accused namely Abdul Qadeer, Ghulam Mustafa and Pehilwan on bail. 8. After establishment of the trial Court being Model Criminal Trial Court (MCTC), the R&Ps of this case were received by the trial court on 29.10.2019 by way of transfer. 9. A formal charge against accused was framed and read over to them at Ex.2, to which, they pleaded not guilty and claimed to be tried vide their pleas recorded at Exs.3 to 6. 10. In order to prove its case, prosecution led evidence and examined PW-1, complainant Shoukat Ali Kalwar at Ex.7, who produced receipt, through which, he had received the beheaded dead body of deceased as Ex. 7-A, FIR as Ex. 7-B his further statement and 164, Cr.P.C. statement as Exs.7-C and 7-D. P.W-2. Deedar Ali was examined at Exh.08, who produced his 164, Cr.P.C. statement as Exh.8-A.
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P.W-3 Mashir Wajid Ali was examined at Exh.09, who produced mashirnama of recovery of dagger "Churro" voluntarily produced by accused Tauqeer as Exh.9-A. PW, Nadeem Ahmed and mashir Hazoor Bux Langah were given-up by the prosecution through statement of learned DDPP for state at Ex.10. P.W-4, I.O. / ASI Muhammad Sadiq Narijo was examined at Exh.11, who produced attested copy of departure entry No.8, as Exh.11-A, Mashirnama of inspection of beheaded dead body of deceased as Exh.II-B, Danistnama as Exh.11-C, inquest report, as Exh.11-D, attested copy of arrival entry No.12 as Exh.11-E. P.W-5, second IO SIP Roshan Deen Burdi was examined at Exh.12, who produced mashirnama of place of wardhat, as Exh.12-A, rough sketch of wardhat as Exh.12-B, Mashirnama of last worn clothes of the deceased, stained with blood as Exh.12-C, two .pictures of the deceased as Ex.12-D, PS copy of RC No.262 dated 13.12.2018 as Exh.12-E. PW-6, Tapedar Irshad Ahmed Kalwar was examined at Exh.13, who produced the sketch of wardhat as Exh.13-A. PW-7, SIP Muhammad Murad Sahto was examined at Exh.14, who produced Mashirnama of arrest of accused Tauqeer as Exh.14-A. PW-8, Mashir Faiq Ali was examined at Exh.15, who produced Mashirnama of recovery of head (Mundhi) of deceased Sajid Ali alias Baloch as Exh.15-A. PW-9, corpse bearer PC Abut Khair was examined at Exh.16. PW-10, Dr. Gobind was examined at Exh.17, who produced the postmortem report of deceased as Exh.17-A. PW-11, I.O. Inspector Abdul Majeed Arain was examined at Exh.18, who produced order of DIG, through which, investigation was consigned to him, as Exh.18- A, letter issued to MO, for DNA test of recovered head and left little finger in. sealed condition, as Exh.18-B, carbon copy of letter dated 13.12.2018, through which, he sought permission from the SSP for dispatching the left little finger and one head "Mundhi" of deceased to the MO, as Exh. 4-C, letter addressed to MO for sending the blood sample of father of deceased, as Exh.18-D, letter addressed to Forensic and Molecular Biology Laboratory for DNA testing LUMHS, Jamshoro, as 18-E, letter through which, he sought permission from JM (Family Court) Ghotki for recording 164, Cr.P.C. statements of complainant and PW Deedar Ali, learned Magistrate passed order thereon, as Exh.18- F, attested PS copy of entry No.16, through which, interrogation was made for recovery of crime weapon, as well as entry No.17, through which, left the Police Station along with accused, as Exh.18- G, PS copy of RC No.29, through which, knife "Churro" was dispatched to the chemical examiner Rohri, as Exh.18-H, positive chemical report as Exh. 18-I SHO P.S. Adilpur, received DNA testing report, through SSP Ghotki at Mirpur Mathelo as Exh.18-J, DNA reports, in all four pages along with covering file as Exh.18-K to 18-O, receipt as Exh.18-P. PW-12Inspector Muhammad Haneef was examined at Exh.19, who produced PS copy of RC No.221, through which, blood stained earth had dispatched to the Chemical Examiner, Rohri, as Exh. 19-A, positive report of Chemical Examiner as Exh.19-B. PW-13 DSP Ghulam All Jumani, Crime Branch, DIG-P, Sukkur Range was examined at Exh.20., who produced attested PS copy of report as Exh.20-A. Thereafter, learned DDPP for state closed side of prosecution vide statement Ex.21. 11. The statements of accused under section 342, Cr.P.C. were recorded at Exs.22 to 25, wherein, they denied the prosecution allegations and stated that they have been falsely implicated in this case and prayed for justice. However, they did not examine themselves on oath as provided under section 340(2), Cr.P.C. in order to disprove the prosecution allegations. However, accused Tauqeer produced certified copy of the memo of Cr. Misc. Application bearing No.D-1041 of 2018 re: Niaz Muhammad v. SSP Ghotki at Mirpur Mathelo and others along with affidavit, order dated 13.2.2018, passed on such application as Exh.22-B. The accused persons got examined DW-1, Sanaullah Kalwar at Exh.26 and DW-2, Mumtaz Hussain Kalwar at Exh.27. 12. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing counsel for the parties, trial Court vide impugned judgment convicted and sentenced the appellant Tauqeer, as stated above while other accused persons namely Abdul Qadeer, Ghulam Mustafa and Pehilwan were acquitted. Appellant/convict challenged his conviction by
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filing above said criminal appeal while complainant filed above noted Cr.Acq. Appeal against the acquitted accused persons. 13. We have heard arguments advanced by learned counsel for the parties and have perused the material available on the record. 14. Mr. Achar Khan Gabole advocate for appellant Tauqeer Kalwar in Crl. Appeal No.D-42/2021 submitted that appellant Tauqeer was given an advocate on State expenses; however, said advocate did not put a single question. to the prosecution witnesses at the time of trial rather opted to adopt the questions put by the counsel for co-accused, therefore, accused was condemned unheard and was not given proper opportunity of hearing as enshrined under the Constitution of Islamic Republic of Pakistan, 1973. He, therefore, prayed that case may be remanded to trial Court for de novo trial. He further submitted that appellant Tauqeer Kalwar was all along on bail during trial; therefore, he may be directed to remain on bail after remand of the case. He further argued that after pronouncement of the impugned judgment, the appellant Tauqeer is confined in Central Prison Sukkur; however, it may be directed that his custody may also be shifted to District Prison Ghotki and further submitted that if case is going to be remanded, the trial Court may be directed to decide the case within shortest possible time. In support of his contentions, he placed reliance on the cases report as 2011 SCMR 735 (Ghulam Rasool Shah and another v. The State) relevant Page (742), 2018 PCr.LJ 200 (Allah Dino and 2 others v. The State), 2011 SCMR 23 (Abdul Ghafoor v. The State), 2019 MLD 306 (Rajib Ali Mach and others v. The State) and 2013 MLD 244. 15. Mr. Shabbir Ali Bozdar advocate for complainant in Cr1. Appeal No.D-42/2021 and for appellant in Crl. Acquittal Appeal No.D-21/2021, submitted that both, the conviction of appellant/convict Tauqeer as well as acquittal of other accused persons, have been challenged, therefore, if the case is to be remanded to the trial Court, it will be appropriate to remand cases of all accused persons for cross-examination of the prosecution witnesses. After compliance of direction, the trial Court may re-write the judgment according to the evidence which is ought to be placed before the trial Court. He placed his reliance on the cases reported as 2020 PCr.LJ 1286 and 2022 SCMR 1187 (Bashir Ahmed and others v. The State and another). 16. Mr. Aftab Ahmed Shar, Additional P.G for the State did not oppose the proposal so advanced by advocates for the appellant/convict as well as the complainant to the extent of remand of the case; however; he submitted that entire judgment has been assailed, therefore, it will be appropriate for the parties to get remanded the cases of all accused persons. He, however, opposed de novo trial as according to him charge of the case is not defective and appellant Tauqeer Kalwar was not properly given chance to defend the case, therefore, he may be given chance to defend his case properly. He further argued that presiding officer of the trial Court was also duty bound to ascertain the truth by putting such questions from the prosecution witnesses as enshrined under Article 161 of Evidence Act/Qanun-e-Shahadat Order, 1984, but he opted to remain mum. He further argued that if the trial Court (presiding officer) would act in accordance with law, then this Court would have not been burdened. However, he opposed the proposal of Mr. Gabole to the extent of appellant Tauqeer Kalwar to be released on bail and submitted that appellant Tauqeer has been inflicted death penalty and if he wishes to be enlarged on bail, he may be burdened to furnish the surety amount equivalent to Diyat amount. In support of his arguments, he placed reliance upon AIR (29) 1942 Patna 90, AIR 1936 Lahore 887, 2011 SCMR 23 (Abdul Ghafoor v. The State) and 1975 SCMR 1 (Hakim Khan and another v. The State and another). He also referred chapter 24, of the High Court Rules Part-1 (C) and submitted that trial Court was bound and obligated to put the questions to the prosecution witnesses to ascertain the truth and if the counsel provided to appellant Tauqeer was not capable to conduct cross, then the trial Court had to
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ascertain the truth for just decision of the case, which the trial Court (presiding officer) did not perform. 17. Mr. Rukhsar Ahmed Junejo, advocate assisted by Miss Aisha Saeed advocate for respondents Nos.2 to 4 in Crl. Acquittal Appeal No.D-21 of 2021 submitted that FIR was registered by the complainant against unknown culprits; however the complainant got recorded his further statement on 19-11-2018 in which he had implicated Abdul Jabbar Kalwar and Abdul Majid Korai, who were arrested by the police on 20-11-2018 and were remanded to police custody up to 28-11- 2018. On 28-11-2018 both accused namely Abdul Jabbar Kalwar and Abdul Majid Korai was discharged by the Judicial Magistrate concerned. He further submitted that complainant got recorded his second further statement on 09.01.2019, wherein, he had implicated Abdul Qadeer, Pehilwan, Tauqeer and Ghulam Mustafa. 0n 17-01-2019, 164, Cr.P.C. statement of complainant Shoukat Ali was recorded before the Judicial Magistrate concerned, wherein he supported his second further statement dated 09-01-2019. He, therefore, submitted that it was blind case and the respondents in Crl. Acquittal Appeal had rightly been acquitted of the charges by the learned trial Court, therefore, remand of the case to the extent of 'respondents/ acquitted accused will be against the norms of justice. Mr. Junejo added that after prolonged trial, the respondents have been acquitted of the charges, therefore, they have earned double presumption of their innocence and remand of case to their extent will tantamount to double jeopardy, as one cannot be vexed twice for same offence. He, therefore, submitted that by maintaining their acquittal, case of appellant Tauqeer Kalwar may be remanded as prayed by the counsel for said accused. In support of his contention, he placed reliance on cases report as 2018 PCr.LJ 200. 18. In the first instance, we would like to deal with Cr. Acquittal Appeal No. D-21/2021 filed against the acquittal of accused Ghulam Mustafa, Abdul Qadeer and Pehilwan. 19. It appears that most important witnesses in this case are complainant, P.W.1 Shoukat Ali Kalwar and P.W.2 Deedar Ali, who are father and brother of the deceased respectively. Complainant in his evidence deposed that his son deceased Sajid Ali, aged about 32 years was doing work as Mason at Adilpur. He further deposed that on 08.11.2018, his son left the house and went to his work towards Adilpur, but did not return on the same day, so they made search for him but could not find him. According to him, on 09.11.2018, they received information that Adilpur police had found one beheaded dead body of the deceased. After receiving such information, he went to the old "Anaj" Mandi Adilpur, where the dead body was lying without its head. He further deposed that before their arrival, 40/50 persons were available there. He further stated that with the help of police they got shifted the dead body of his son towards Taluka Hospital Ghotki and after postmortem, it was handed over to him and after his funeral ceremony, he went to the PS Adilpur on 11.11.2018 and lodged the FIR, against unknown culprits. He further stated that after registration of the FIR, he tried to search the real murderers of his son, during which through some channels, they received news and, meanwhile, they also recalled their matrimonial dispute with Ghulam Mustafa and others, as his son had solemnized marriage with the daughter of Ghulam Mustafa namely Mst. Shagufta and out of that wedlock there was one female child namely, Hania and later on such relationship had ended in shape of Talaq (Divorce), but his son used to visit the house of his father in law in order to meet his daughter Baby Hania, whereupon his father in law Ghulam Mustafa and his brother in law Qadeer Ahmed used to remain annoyed and they also issued threats of murder to him. He further stated that in continuation of his efforts, he also came to know that one Muhammad Tauqeer had also divorced his wife, who was the daughter of Muhammad Hassan Kalwar. Later on, some rumors had spread that his son Sajid All wanted to contract marriage with divorced wife of Tauqeer and for this reason, Tauqeer Ali used to say that whosoever will marry with his divorced wife, he (Tauqeer) will separate the head from his body. He further deposed that, thereafter, accused Pehilwan, who was the maternal uncle of Tauqeer and Qadeer also became annoyed with them
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especially, when his son had divorced his wife. Later on, they came to know that due to certain strained matrimonial affairs i.e. dispute over the marriage of his son with the divorced wife of accused rauqeer Ahmed, they all had hatched a conspiracy for cause of murder of his son by separating his head from his body. He further deposed that after that he along with his two sons namely Wajid Ali and Deedar Ali had gone, towards the side of Ghulam Mustafa and informed them that they had come to know that this murder was committed by them, so he asked them to clarify the: position whereupon, they required some time. Thereafter, they also went to the father of Tauqeer namely, Niaz Ahmed so also towards accused Pehilwan, who too requested them to give them some time. He further deposed that after two/three days accused Ghulam Mustafa, Tauqeer, Qadeer, Pehilwan along with one Sanaullah came to their Otaq and confessed their guilt, but they requested them not to disclose such fact in public, as in such case they would face disrespect in the society. They also said to complainant party that they will give them "Faisla", but they never returned back thus, the complainant was compelled to report the matter to police and for this purpose he went to the Police Station on 09.1.2019, where he got recorded his further statement there. He further stated that on 17.1.2019, his 164, Cr.P.C. statement was recorded before Judicial Magistrate Ghotki. Thereafter, he had submitted one application to IG Sindh, and on the basis of such application, the SSP Inayatullah Bhatti had conducted enquiry and during said enquiry, his statement was also recorded by one Inspector Jumani Sahab. He recognized the accused present in the Court to be the same. 20. P.W 2 Deedar Ali deposed that on 08.11.2018, his deceased brother had left the house towards Adilpur, where, he was doing his work as a mason, but his brother did not return till late night. He further stated that on 09.11.2018, they received information that police had recovered a dead body from old Anaj Mandi Adilpur, and same was without head. They went to old Anaj Mandi, where on the basis of clothes and other signs, they identified it to be the body of his brother Sajid Ali. Thereafter, with the help of police, they went to the Taluka Hospital Ghotki and after post-mortem same beheaded dead-body of his brother was shifted towards their village, where burial and funeral ceremony was held. He further deposed that on 11.11.2018, his father had lodged. FIR against unknown accused and then police had arrested some persons, but they were released after some time. He further deposed that, in the meanwhile, they kept on searching the murderers of their brother, and received some news and recalled their old matrimonial affairs, and the threats, which were issued to them, so on the basis of their old memories, they concluded that all present accused had committed murder of his brother, due to stringent old matrimonial affairs. He further deposed that after .two weeks of registration of the FIR, they went towards the accused side and asked them to clear their positions, but they required some time and then after 3/4 days accused came along with their elders, to their Otaq, and one Sanaullah Kalwar also came along with them. He further deposed that at their Otaq all the accused had confessed their guilt and requested to give them some time, for giving them "Faisla", but they never returned back. He further deposed that on 09.1.2019, the I.O. had recorded his further statement and on 17.1.2019, his 164 Cr.P.C. statement was recorded before Judicial Magistrate Ghotki. Lastly, he identified the accused present in the court to be the same, who had committed the murder of his brother. 21. However, both above said witnesses have made certain material admissions which have put severe dents in the prosecution case to the extent of acquitted accused namely, Ghulam Mustafa, Abdul Qadeer and Pehilwan which goes in favour of said accused persons. Both the witnesses have admitted that the crime was not witnessed by any of the prosecution witnesses. The complainant and other PWs in their respective statements have clearly deposed that FIR was lodged against some unknown culprits and later on, on the basis of previous enmity and suspicion, they had nominated three accused, namely, Abdul Qadeer, Pehilwan and Tauqeer Ahmed in their further statements, which were recorded on 09.01.2019 and then again when their 164, Cr.P.C. statements were recorded, the complainant and PWs had nominated one more (accused namely, Ghulam
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Mustafa along with above named three accused because as per complainant party, deceased Sajid Ali prior to this incident had divorced his -wife Mst. Shagufta, who was daughter of accused Ghulam Mustafa and sister of accused Abdul Qadeer. 22. Complainant Shoukat Ali during his cross-examination made following admissions: "Once accused Ghulam Mustafa had beaten to my son and accused Abdul Qadeer had hurled abuses to him; but we had not lodged FIR of that incident. It is fact that my son had not directly disclosed to me, voluntarily says, he had narrated the whole story to his mother"."It is fact that in my examination in chief I had not specifically stated that accused Pehilwan had individually issued threats to us, voluntarily says,accused Pehihvan with other accused once had issued threats to us.""Ghulam Mustafa and Qadeer about two days prior to pronouncement of "Talaq" had issued threats to us, that they will commit the murder of Sajid All if he will not…
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