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Petitioner: MAZAR alias FOUJI and anothers VS Respondent: The STATE
Court Name: Sindh High Court Judge(s): Naimatullah Phulpoto, Aftab Ahmed Gorar Title: MAZAR alias FOUJI and anothers vs The STATE Case No.: Cr. Jail Appeal No,201 along with Confirmation Case No,3 of 2010 Date of Judgment:2016-03-29 Reported As: 2016 YLR 2815 Result: Appeal allowed
JUDGMENT
JUDGMENT ' AFTAB AHMED GORAR, J.---Through this Cr. Appeal Appellants have impugned the judgment dated 06.07.2009 passed by learned Additional Sessions Judge, Kandiaro in Sessions Case No, 142 of 2002, whereby they have been convicted under section 302(a), P.P.C. And sentenced to death and directed to pay compensation of Rs,1,00,000/- (Rupees One Lac only) each which, if recovered, was ordered to be paid to the legal heirs of deceased Shamsuddin alias Salik. The death sentence was made subject to confirmation by this Court. ' Concisely, the prosecution case, as per FIR lodged by the complainant Muhammad Sadique Chang, on 30.06.2002 at 0900 hours with P.S. Lakha Road, is that he is nekmard of the community and used to settle the private disputes of his Brotheri. Shamasuddin alias Salik Chang, aged about 48 years was his brother who was married with the daughter of one Amir Bux Chang r/o Shahzad Chang, while two other daughters of said Amir Bux were married with sons of his late uncle namely Haji Khadim Hussain Chang and Umed Ali Chang respectively. About 1-1/2 years back it was alleged that Jaaro Chang, Gulab Chang and others had committed gang-rape with the wife of Umed Ali Chang namely Mst.Amirzadi whereupon the complainant had got registered an FIR against the culprits through victim Mst. Amirzadi and all the accused in the said case were arrested and put behind the bars. It was further alleged that due to above grudge brothers of said Jaaro Khan namely accused Nek Muhammad Chang, Gulab Chang, his brothers Mazar alias Fouji Chang and Gulzar alias Gaujoo Chang and others used to extend threats of dire consequences to the complainant party that they would see them. On 29.06.2002 at evening time brother of complainant namely Shamasuddin Chang after informing his family members had gone to the house of late Khadim Hussain Chang, but did not return till 12.00 of the night, when cousins of the
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complainant namely Ghulam Sarwar, Bashir Ahmed, both sons of Haji Nangar Khan Chang and Rasool Bux son of Amir Bux Lashari came there and informed the complainant that they while riding their motorcycle were going towards their tube-well in order to look-after the same through Sangi minor and when at about 9.00 p.m. They reached at Sangi Minor they found seven armed persons standing there who were identified to be accused Nazir son of Muhammad Yaqoob, Gulzar alias Gujoo, Mazar alias Fouji, both sons of Daulat Chang, Nek Muhammad alias Nekoo son of Sijawal Chang including three unidentified culprits. On receiving such information the complainant apprehended some unfortunate incident, sent his cousins namely, Muhammad Ali and Muhammad Uris, his elder brother Ghulam Nabi and his son Zahid Chang and others in search of his brother Shamasuddin towards the house of said late Khadim Hussain Chang. They returned within one hour and informed the complainant that the son of said late Khadim Hussain namely Bux Hussain and his family members disclosed that said Shamshuddin had left their house at about 10.00 p.m. It was further alleged that after searching at various places when at about 7.00 a.m., they reached at Sangi Minor, Katcha path leading towards their village, they found the dead body of said Shamasuddin having cut-off head from the body in the ditches behind the bushes having sharp-cutting injuries on his abdomen and other parts of body. They also found there foot- print marks of 7/8 persons with shoes, as such the complainant while leaving his cousins and brothers over the dead body, went to Police Station concerned and reported the incident to the police FIR was recorded vide Crime No, 06/2002 under sections 302/34, P. P. C . ' During the investigation, accused Mazar alias Fouji and Nek Muhammad alias Nekoo were arrested on 09.07.2002 and their confessional statements were recorded before learned Civil Judge and FCM, Kandiaro on 12.7.2002. After completing usual investigation challan of the case was presented before the competent Court of law showing therein both accused Mazar alias Fouji and Nek Muhammad alias Nekoo in custody, while remaining two accused namely Gulzar alias Gujoo and Nazir as absconders. Both absconding accused were declared as proclaimed offenders. ' In order to prove the charge against the accused, prosecution examined PW-1 Complainant Mohammad Sadique (Ex.06), who produced FIR (Ex.06/A), PW-2 Illahi Bux (Ex.07), PW-3 Ghulam Sarwar (Ex.08), PW-4 Mr. Naeem Badar Qazi, the then Civil Judge and FCM; Kandiaro (Ex.10) who produced confessional statements of accused Mazar alias Fouji and Nek Mohammad (Ex.10/A and Ex.10/B), PW-5 Dr.Mazhar Ali Hisbani, Medico-legal Officer (Ex.11), who produced postmortem report (Ex.11/A), PW-6 Mashir Mohammad Uris (Ex.12) who produced mashirnama of inspection of place of wardat and dead body, recovery of torch, arrest of accused, recovery of bloodstained clothes of the accused and recovery of crime weapons viz. Knives from the accused (Ex.12/A to Ex.12/E) PW-7 Tapedar Wahiyuddin (Ex.13), who produced sketch of wardat (Ex. 13/A), PW-8 SIP Qurban Ali Pathan, Investigating Officer (Ex.14), who produced inquest report and chemical examiner's report (Ex.14/A and Ex.14/B). Learned D.D.A. Vide his statement (Ex.9) gave up P.W. Pehelwan. Thereafter, prosecution side was closed vide statement (Ex.15). ' Statements of the accused under section 342, Cr.P.C. Were recorded at Ex. 16 and 17, wherein they denied the prosecution allegations leveled against them stating that they have been falsely implicated in the case due to enmity at the instance of Mst.Amirzadi, the sister-in-law of deceased Shamsuddin, as the case under section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 filed by her against their brothers namely Gulam and Jaaro ended in their acquittal. They produced certified copy of the acquittal judgment (Ex.16/A). However, neither the accused examined themselves on oath under section 340(2), Cr.P.C., nor produced any witness in their defence. ' After formulating the points for determination, recording evidence of the prosecution witnesses and hearing counsel for the parties, the trial Court vide impugned judgment convicted and
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sentenced the appellants as stated above. Against the said judgment the appellants have preferred the instant appeal. ' We have heard .,learned counsel for the appellants as well as learned A.P.G. Appearing for the State and perused the evidence recorded by the trial Court. ' Mr. Abdul Qadir Halepota, learned counsel for the appellants argued that the appellants have been falsely involved in the case. Learned advocate for the appellants further contended that appellants have been convicted under section 302(a), P.P.C. And judgment of the trial Court is erroneous and against the law as there was no evidence regarding the witnesses to qualify test of tazkiyatul shuhud. He has contended that complainant was not an eye-witness of the incident. It is contended that not only four accused persons have been named by the complainant in FIR who himself is not the eye-witness of the incident but even three unknown persons have also been implicated in the FIR on account of previous enmity. It is contended that complainant due to suspicion named accused in the FIR as they were found present around the place of wardat at 9:00 p.m. On the night of incident. It is argued that no evidence whatsoever was collected against the absconding accused. Mr. Halepota argued that it was night time incident and P.W. Illahi Bux wrongly claimed that he was going on the motorcycle along with P.W. Pehelwan and witnessed the incident on torch light. It is submitted that P.W. Pehelwan, who was holding the torch and allegedly produced the same before the police, has been given up by the prosecution. He further contended that it was not possible for P.W. Illahi Bux to witness the incident as he was driving the motorcycle at odd hours of the night. It is argued that P.W. Illahi Bux was a chance witness, besides his name also does not find mention in the FIR. Elaborating his arguments, Mr. Halepota submitted that alleged eye-witness Illahi Bux stated that he had seen incident while he was going to attend the marriage ceremony of brother of one Misri Chang. It is argued that generally marriage ceremonies are not held in rural areas at night time. It is contended that it is unbelievable that eye-witness was going at odd hours of the night at 11:30 p.m., for attending the marriage ceremony. It is submitted that this witness also failed to disclose the name of the person whose marriage was being attended by him. It was dark night, identification of the accused on torch light was weak piece of evidence and torch was in the hand of PW-Pahlwan who was sitting on the rear seat of the motorcycle but he has not been examined by prosecution and has been given up. It is contended that presumption would be in case he would have been examined, he would not have supported the prosecution case. It is contended that according to the prosecution, the torch has been produced by PW Pahelwan but he was not examined at the trial. The reasons assigned by the prosecution for non-examination of P.W. Pahelwan was that on the same point eyewitness Illahi Bux had already been examined. It is contended that PW Pahelwan was carrying torch on which it was claimed that he identified the accused; non-examination of said witness would be fatal to the prosecution case. It is contended that it is unnatural and unbelievable that two persons while riding on motorcycle would see in ditch where deceased was being slaughtered. It is not case of prosecution that they stopped the motorcycle and witnessed the incident. It is argued that it was also not the case of the prosecution that eye-witnesses were attracted on the cries of the deceased. P.W. Illahi Bux has admitted in his cross-examination that he was having dining terms with the complainant, this fact has also been admitted by the complainant. Mr.Halepoto argued that presence of eyewitness was highly doubtful. Regarding conduct of eye-witness it is argued that in the given circumstances, he would have made efforts to rescue the deceased in case he would have been present at the spot but that has not been done in this case. It is also argued that it is alleged that after witnessing the incident P.W. Illahi Bux returned to the village but he did not narrate the incident to complainant or police, it created doubt in prosecution case. It is also contended that Illahi. Bux remained calm and silent for whole night and on the next day he went to the place of incident and disclosed to the police that he had seen the incident. It is submitted that it was unnatural and highly unbelievable. Mr.Halepota
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argued that there are material contradictions and discrepancies in the evidence of prosecution witnesses. It is contended that complainant and eye-witness Illahi Bux have stated that when police reached at the place of occurrence they also rushed to that place, on the other hand the Investigating Officer namely, Qurban Ali Pathan has deposed that when he reached at the place of occurrence complainant and PW Illahi Bux were already present there. It is contended that Illahi Bux informed the incident to police not to the complainant. He contended that presence of the eyewitness who was chance witness could not be relied upon in the case of capital punishment. ' It is argued that although there was no evidence against absconding accused regarding the commission of murder in a ditch, in spite of that question has been put to the present accused in their statements recorded under section 342, Cr.P.C. That both the accused along with absconding accused committed murder of deceased in a ditch. He further contended that although in evidence it has come that there were foot prints of seven persons but the accused involved in the case are four in number. ' Mr. Halepota further contended that the confessional statements of both the accused were recorded after a delay of three days. Besides, such confessional statements were not true and voluntary and were stereotype. He submitted that in the confessional statements both the accused stated that they had confessed guilt at the instance of police which made the confessional statements involuntary having been given reluctantly. He submitted that confessions of both the accused are contradictory to prosecution case. Accused Neik Mohammad said in confession that he himself killed the deceased. He in his confessional statement has not mentioned that with what weapon he committed murder so also place of murder has not been mentioned by him. The accused has also not mentioned that after commission of the murder, where he concealed his clothes and the dagger used by him in the commission of crime. Accused Mazar in his confessional statement has stated that he has made confessional statement at the instance of police. He has not mentioned as to where his bloodstained clothes and dagger were concealed by him. It is also argued that Magistrate after recording confessional statements of both the accused instead of remanding them to judicial custody handed over their custody to the peon of the Court. Mr. Halepota argued that accused Nek Muhammad in his confessional statement has stated that he himself committed murder of the deceased and after commission of the murder both the accused returned to home where they concealed bloodstained clothes in the village. It is argued that Nek Muhammad in his confessional statement has stated that he admitted guilt before the police and police asked him to give such confessional statement before the Magistrate. It is contended by Mr.Halepota that for these reasons the confessional statement of Nek Muhammad was not true and voluntary as it was made at the instance of the police. Confessional statements of the appellants also vary and are in conflict with the prosecution case. According to him, such confessional statements cannot be treated as true and voluntarily in the eyes of law. Mr. Halepota contended that both accused were produced before the Magistrate at the same time and they were made to sit together during reflection hours. Both the accused were handed over by the Magistrate to the custody of his peon, after recording the confessional statement again custody of both the accused was handed over to the peon. ' It is contended that recovery of the bloodstained clothes and Katties/daggers from the accused was doubtful as it was unbelievable that accused after committing murder would conceal churries and clothes at the same place where they committed murder. Mr.Halepota contended that this is the case of joint recovery of the bloodstained clothes and churries and argued that such piece of evidence is inadmissible under Article 40 of the Qanune-Shahadat Order, 1984. According to him, such conduct of accused is also unnatural that both the accused would burry crime weapons at one and the same place. He submitted that accused Mazar is alleged to have produced badami colour clothes (brown) whereas according, to P.W. Illahi Bux, the said accused at the time of
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commission of offence was wearing cream colour clothes. It is contended that in case the evidence of Illahi Bux is disbelieved, then the recovery would not be sufficient to sustain the conviction in this case. He further contended that although admittedly hundreds of persons had gathered at the vardat but the police selected only relatives of the complainant/deceased to act as mashirs. He pointed out that Mashir of recovery Muhammad Urs is the cousin of the complainant. Co-mashir Abdul Jabbar is the son of the cousin of the complainant. ' Mr. Halepota contended that ocular evidence was contradictory to the medical evidence. It is contended that evidence of Illahi Bux was contradictory to the inquest report which showed that there was only one hole at the abdomen of the deceased. ' Mr.Halepota submitted that the motive in this case was the enmity on account of zina allegedly committed upon Mst.Ameer Zadi, the sister-in-law of deceased Shamsuddin alias Salik, brother of the complainant. Mr.Halepota contended that the evidence of the complainant is not reliable for the reason that he was not eyewitness and he had mentioned the names of the accused persons on suspicion upon receiving information from PW Ghulam Sarwar that he had seen accused at the scene of occurrence at 9:00 p.m. Along with two absconding accused and three unknown persons. According to him, the motive has been set up by the prosecution as the complainant has admitted in his cross-examination that in the previous zina case there was a compromise between the parties. Mr.Halepota has also referred to the judgment authored by Additional Session Judge, Kandiaro in Session Case No, 110 of 2002 dated 26.1.2004 in the previous zina case which has been produced by one of the accused in which prosecutrix and WMO have stated that no act of zina was committed upon the victim girl. Mr. Halepota contended that motive was sufficient enough to commit the murder of the deceased in such a brutal manner by separating head from trunk. It is argued that perhaps offence was committed by some other person having deep-rooted enmity with the deceased and because of deep provocation. Evidence on the point of motive has been furnished by complainant on account of his enmity with the accused. ' Mr. Halepota further contended that there are legal flaws in the statements of accused recorded under section 342, Cr.P.C. Elaborating this contention, learned counsel submitted that Question No,1 is misleading, whereas Question No,3 relates to production of torch by P.W. Pehelwan on the light of which he saw the alleged incident, according to him such question could not be asked as P.W. Pehelwan was not examined and was given up by the prosecution. He also submitted that no question was asked regarding motive i.e, acquittal of accused's brothers in a case filed by Mst.Amirzadi. He argued that no question regarding motive was put to any of the accused therefore the evidence which was not confronted to the accused while recording their statements, cannot be used against them. It is argued that although there was no evidence against absconding accused regarding the commission of murder in a ditch, in spite of that question has been put to the present accused that both the accused along with absconding accused committed murder of deceased in a ditch. General and vague questions were put to the accused by the trial court in a very casual manner. Questions have been put in generalized manner and not specific. Questions regarding their confessional statements and recoveries were also put to them in general term which is against the requirement of law. It is contended that statement of accused Nek Muhammad alias Nekoo was stereo type and carbon copy of the statement of Mazar alias Fouji. ' Lastly, argued that the prosecution has not been able to prove its case against the accused beyond reasonable doubt benefit whereof must be extended to the accused as a matter of right. In support of his contentions he relied upon the cases reported as Sanaullah v. The State PLD 1991 Federal Shariat Court 186, Manzoor and v. The State and others 1991 SCMR 2037, Mohammad v. The State 2010 SCMR 1009, Israr Ali v. The State 2007 SCMR 525, Saleemuddin and others v. The State 2011 SCMR 1171, Mir Mohammad alias Miro v. The State 2009 SCMR 1188, Ghulam Qadir and 2 others
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v. The State 2008 SCMR 1221, Rukan Zaman v. Khizar Hayat and others 1988 SCMR 950, Mohammad Yaqub v. The State PLD 1969 Lahore 548, Ishtiaq Masih v. The State 2010 SCMR 1039, Noor Mohammad v. The State and another 2010 SCMR 97, Naeem Akhtar and others v. The State 1993 PCr.LJ 769, Naseem Akhtar and another v. The State 1999 SCMR 1744, Ahmad and another v. The State 1977 PCr.LJ 662, Rasool Bux and another v. The State 1980 SCMR 225, Allah Ditta v. The State 1999 YLR 1478 [Lahore] and an unreported judgment in Criminal No, 503 of 2010 and Judgment in Criminal 292 of 2009 in the case of Muhammad Hassan. ' Conversely, learned A.P.G. Appearing for the State supported the impugned judgment and contended that the incident was witnessed by P.W. Illahi Bux and all the prosecution witnesses have supported the prosecution case. He further contended that there was judicial confession of both the accused wherein they have confessed their guilt. He further contended that even the evidence of chance witness is reliable if he succeeds in establishing his presence at the spot at the time of the incident. He further argued that contradictions and discrepancies in the evidence of the prosecution witnesses, if any, in the instant case of brutal murder, are to be ignored. He contended that the defence has not succeeded in establishing that the judicial confessions of the accused were recorded under pressure, duress or coercion. It is contended that chance witness namely P.W. Illahi Bux was independent and was Lashari by caste. He argued that ocular evidence of Illahi Bux is corroborated by medical evidence, motive and recoveries. He argued that prosecution has proved the motive for committing murder. He submitted that both the accused had produced bloodstained clothes from lemon garden and bloodstained churries from the bushes. He, however, admitted that recoveries were made on the joint pointation of both the accused. He prayed for dismissal of the appeal. In support of his contentions, learned A.P.G. Relied upon the cases of Ghulam Hyder v. The State 1970 PCr.LJ 640 [Karachi], Fazal Rehman and others v. The State PLD 2004 SC 250, Nazir Ahmed v. The State 2009 SCMR 523, Iftikhar Ahmad v. The State 2005 SCMR 272, Mst.Nazakat v. Hazrat Jamal and another PLD 2007 SC 453 and Mohammad Asghar and others v. The State 1997 MLD 2197. ' We have gone through the evidence of the prosecution witnesses recorded by the trial Court. The evidence of complainant Mohammad Sadique is on the same line as narrated by him in the FIR, as detailed above. However, in his cross-examination he admitted that the accused involved in the abduction of Mst. Ameerzadi were acquitted by way of compromise. He further admitted that on their request the police arranged for the postmortem examination of deceased at the wardat. ' P.W. Ilahi Bux deposed that on 29.06.2002, he along with PW Pehelwan had gone to attend marriage ceremony of brother of Misri Chang on their motorcycle, which was being driven by him while PW Pehlwan was sitting on the rear seat holding a torch in his hand and they were going through the Katcha path of village Saindino Khan Chang. At about 11:30 p.m. When they reached at the watercourse of Sangi Minor they saw on the torch light that two persons were slaughtering a person in the ditch. He further deposed that accused Mazar and Nek Muhammad were holding local dagger (Kaati) and accused Mazar was slaughtering the deceased Shamasuddin alias Salik at his neck while accused Nek Muhammad was inflicting dagger blows at the abdomen of the deceased. He further deposed that accused persons warned them to go away. On the next day at about 11:00 am on coming to know about the murder of said Shamasuddin alias Salik, he and PW Pehelwan went to the vardat where police was available and complainant was also present there. He further deposed that they informed the police about the incident and police recorded their statements. PW Pehelwan also produced the torch before the police. This witness identified both the appellants in Court. ' In his cross-examination he admitted that they did not inform to any person of the village about the incident. He further admitted that he was on dinning terms with the complainant party.
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' PW Ghulam Sarwar testified that complainant Muhammad Sadique is his cousin and on 29.06.2002 he along with his brother Bashir Ahmed and PW Rasool Bux Lashari was going to their land on the motorcycle at about 9:00 p.m., when they reached at Sangi Minor they saw seven persons available at the Babool trees at the distance of about 50 paces from bridge who were identified to be Nazeer, Yakoob, Mazar, Gulzar and Nek Muhammad while the remaining persons were unknown to him. He further deposed that at 12:00 of the night when they came back to their village, they informed the complainant about the presence of abovesaid persons, whereupon Muhammad Ali, Muhammad Uris, Ghulam Nabi and Zahid Hussain were sent to the house of Khadim Hussain for the search of deceased Shamasuddin who had not come back to his house till late hours of the night. He further…
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