Full Judgment Text & Judicial Ruling

2020 Y L R Note 61 [Sindh (Larkana Bench)] Before Muhammad Saleem Jessar, J ABDUL GHAFFAR and others---Appellants Versus The STATE---Respondent Criminal Appeals Nos. S-60, S-61 and S-62 of 2011, decided on 20th February, 2019. (a) Penal Code (XLV of 1860)--- ----Ss. 302, 201 & 34---Qatl-i-amd, causing disappearance of evidence, common intention---Appreciation of evidence---Benefit of doubt---Circumstantial evidence---Contradiction in the statement of witnesses---Scope---Accused were charged for committing murder of daughter of niece of the complainant and throwing dead body in the well---Record showed that the unnatural death of the deceased was not in dispute---Two prosecution witnesses stated in their statement recorded under S. 164, Cr.P.C. that they had seen that accused persons threw some thing into well, on query, they replied that they had thrown garbage into well---Statement of said witnesses showed that they were going together to a hotel situated at bus stand, however, there was clear contradiction in their deposition---One witness in his deposition before court, stated that he did not say that he had seen the accused throwing anything in the well, however, other witness stated a different story by stating that it was sunset time, he had seen accused persons who had thrown something in nearby well---Since both the said witnesses clearly stated that they were going together, therefore, their deposition should have been identical---Contradiction in their statements clearly indicated that their deposition was not worth giving weight and was liable to be discarded---Said statements created doubt which resulted in creating dents in the prosecution case---Record transpired that there were also other contradictions in the depositions of the witnesses as to who informed the complainant about the dead body of the deceased---Assertion that the deceased was lastly seen playing with co-accused was a hearsay evidence as nobody came forward to depose that he / she had seen deceased playing with co-accused---In the present case, the chain of circumstances had broken at many places and did not link the neck of the accused with the dead body---Entire evidence was based on information gathered by the complainant from unknown persons or children---Witnesses, who alleged that they had seen the accused persons throwing something in the well were also not consistent in their testimony---No corroborative evidence was available to support said witnesses as nobody had seen the deceased girl in the company of the accused a fact which was not denied by any one---Nobody had seen the accused / appellants taking the deceased towards the well for throwing her in the well---As per statement of one witness, he had seen the accused throwing something in the well; however, said witness could not recognize whether it was a sack of garbage or a dead body---When the dead body of the deceased was taken out from the well it was not stated that the same was wrapped in any bag / sack or piece of cloth---Circumstances suggested that it could not be denied that if the accused were taking the deceased to the well, who was 4/5 years old and was allegedly subjected to sexual assault, they would hide her from the eyes of people/passer-byes and the only way to do so was to wrap her in the sack or bag or some piece of cloth---Said fact did not appeal to mind that the accused would take the girl for throwing her in the well in open view of all the people in the area without covering her in a sack/bag etc.---Circumstances established that prosecution case was full of improbabilities, legal and factual infirmities of fatal nature, contradictions and was bristling with doubts of grave nature---Prosecution had failed to connect the neck of the appellants with the dead body in any manner, whatsoever---Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court. Muhammad Akhtar and others v. The State 1986 PCr.LJ 2711; Mohammad Nazim v. The State 2000 PCr.LJ 1032; Amjad Ali v. The State 2008 PCr.LJ 194; Fayaz Ahmed v. The State 2017 SCMR 2026; Ghous Bux v. Saleem and others 2017 PCr.LJ 836; Abdul Jabbar and another v. The State 2019 SCMR 129 and 1972 SCMR 15 rel. (b) Penal Code (XLV of 1860)--- ----Ss. 302, 201 & 34---Qatl-i-amd, causing disappearance of evidence, common intention---Appreciation of evidence---Medical evidence---Scope---Accused were charged for committing murder of daughter of niece of the complainant and throwing the dead body in the well---In the present case, it seemed probably that the deceased girl, who was visiting the house of her relatives, lost her way and went towards the well and fell down in it and drowned---Medical report also supported said version as the cause of death had been shown as "Death occurred due to drowning into water"---Wound on the fore-leg must be result of falling down in the well---Whereas, there was no doubt that the deep incised wound on the tongue of the deceased could not have been caused by any person as tongue would be most unusual part to inflict an injury thereon---Same might have been caused due to crushing of the tongue between teeth while falling in the well---As per inquest report the deceased was wearing shalwar and shirt of sky blue colour---In his deposition as well as in his further statement, the complainant had not stated that the dead body of the minor girl was in a sack or bag or wrapped in a cloth---If the deceased was alive at the time when she was being taken towards the well she must have made hue and cry---Medico Legal Report did not state that deceased was drugged with some tranquilizer or opiate, which did not appeal to a prudent mind that a minor girl would go along with her assailant silently---Prosecution had failed to connect the neck of the appellants with the dead body in any manner, whatsoever---Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court. (c) Penal Code (XLV of 1860)--- ----Ss. 302, 201 & 34---Qatl-i-amd, causing disappearance of evidence, common intention---Appreciation of evidence---Related witness---Interested witness---Reliance---Scope---Accused were charged for committing murder of daughter of niece of the complainant and throwing dead body in the well---All the witnesses in the present case were related inter-se and to the complainant---Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court. (d) Penal Code (XLV of 1860)--- ----Ss. 302, 201 & 34---Qatl-i-amd, causing disappearance of evidence, common intention---Appreciation of evidence---Motive not proved---Effect---Accused were charged for committing murder of daughter of niece of the complainant and throwing dead body in the well---Motive, as set up by the prosecution, was that since the deceased minor girl was sexually assaulted by co-accused, therefore, in order to hide his crime, the appellants threw the minor girl in the well which resulted in her death---Trial Court had held that it was ambiguous whether co-accused had sexually assaulted her, thus, the very motive which resulted in the ultimate death of the minor girl was not proved when the Trial Court itself termed as ambiguous---Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court. (e) Criminal trial--- ----Circumstantial evidence--- Scope---Prosecution had to provide all links in the chain of circumstances in an unbroken sequence, where one end of the same touches the dead body and the other the neck of the accused. Faiz Muhammad Larik for Appellants (in Criminal Appeals Nos. S-60 and S-61 of 2011). None present for Appellant (in Criminal Appeal No. S-62 of 2011). Aitbar Ali Bullo, D.P.G. for the State. Date of hearing: 1st February, 2019. JUDGMENT MUHAMMAD SALEEM JESSAR, J.---Through this common judgment, I intend to dispose of the above three criminal appeals which emanate from a common FIR and same incident. 2. Accused Imdad alias Behram and his two sons Abdul Qadeer and Abdul Ghaffar (who was tried separately being juvenile offender) were booked by Chak Police to face trial for committing offences punishable under sections 302, 201, 34, P.P.C. Vide the impugned judgment dated 23.5.2011, passed by Sessions Judge, Shikarpur in Sessions Case No.476 of 2009, accused Imdad alias Behram and Abdul Qadeer were convicted under section 302/34, P.P.C. and sentenced to undergo R.I. for life as Tazir and also to pay fine of Rs. Five lac collectively as compensation to father of the deceased minor girl as provided under section 544-A, Cr.P.C. and in default thereof to further suffer R.I. for six months more and under section 201/34, P.P.C. to undergo R.I. for seven years and to pay fine of Rs.20,000/- and in default of payment of fine, to undergo R.I. for six months more. However, they were extended benefit of section 382-B, Cr.P.C. and both the sentences were to run concurrently. While through impugned Judgment dated 23.5.2011 passed by Judge, Juvenile Court, Shikarpur in Sessions Case No.476 of 2009, juvenile offender Abdul Ghaffar was also convicted and sentenced in the same terms. 3. Facts of the case, as narrated in the impugned Judgments, are that on 08.06.2009 at 1400 hours informant Arbello Bhayo approached Police Station Chak, District Shikarpur and lodged FIR No. 36 of 2009, stating that he resides in village Bhirkan and his brother Mohammad Ismail Bhayo also resides with him. Daughter of Mohammad Ismail is married to one Abdul Razzak, who had got two sons and one daughter from said wedlock. Name of his daughter was Gul Bano having age about 4-5 years. They had come to the house of complainant on visit. Abdul Razzak was mason and he was working in Pir Chhuttal Shah. On 06.06.2009 at 6.30 p.m. minor girl Gul Bano left her house and started going to see her father at Pir Chhuttal Shah by going by the side of Imam Bargah. Her father, after completing the work, had gone to his house in village Jehan Khan. The girl did not return so complainant party started searching for her. They enquired from Abdul Razzak on phone, who told them that girl had not come to see him. Abdul Razzak came to village Bhirkan on next day. Later on, the complainant accompanied by Abid Hussain and Abdul Razzak took Holy Quran along with villagers and showed it to the people to return the girl or tell them about her whereabouts, if they knew, but none informed them. On 08.06.2009 they came to know that dead body of minor girl Gul Bano was lying in a well of the village. They went there, took out the dead body from well and found the girl bleeding from mouth and nose. Body had swelled, tissue of kin was not there and flesh looked being reddish in colour. Leaving the PWs to guard the dead body, the complainant came and lodged report at Police Station Chak stating that some unknown accused killed their girl Gul Bano and threw dead body in the well. 4. On 09.06.2009, additional statement of the complainant was recorded wherein he disclosed that on 06.06.2009 he was informed by villagers that the minor girl was lastly seen playing with juvenile offender Abdul Ghaffar son of accused Imdad alias Behram. They met with Imdad alias Behram who offered them to provide information about the girl through his super natural power locally called "Karo-Ilum". Subsequently he performed his ritual and recited Arabic words "Ina lillahwainaeleh raja un", a phrase usually recited when someone hears a sad news, Later on, he informed them that their girl has died and dead body will be found by them soon. He then informed complainant party that dead body of the girl was lying in the well situated in the land of Sattar Muhajar. On the next date they were also informed by juvenile Abdul Ghaffar that dead body of girl was lying in the well. They went and took out the dead body from said well. In the said statement complainant further added that accused Imdad alias Behram then brought people to their residence and claimed that girl was subjected to illicit intercourse by juvenile offender Abdul Ghaffar and, in order to suppress the crime, they killed the girl by throwing dead body in the well. He sought forgiveness. The complainant party then alleged that accused Imdad alias Behram and his two sons Abdul Qadeer and Abdul Ghaffar were involved in the crime. 5. Investigation of the case was assigned to SIP Asghar Ali Solangi, posted in Investigation Branch of Police Station Chak, who inspected scene of offence under a memo in presence of mashirs Hadi Bux and Dilshad. He also prepared mashirnama and Inquest report on dead body in presence of same mashirs. He referred the dead body to hospital for autopsy, examined father of the deceased girl, namely, Abdul Razzak as well as Hajan alias Abid, who all claimed that they were informed by accused Imdad alias Behram that girl was subjected to lust by his son Abdul Ghaffar and they killed her by throwing her in the well but accused was not produced before Magistrate for recording his confessional statement. The I.O. also examined witnesses Ali Mohammad and Ali Murad who claimed to have seen accused Imdad alias Behram, his sons Abdul Qadeer and Abdul Ghaffar standing on the well from which dead body of the girl was recovered. On their query accused had informed that they had thrown garbage in the well. The IO produced all the four witnesses before the Magistrate concerned i.e. CJ&JM Lakhi, who recorded their 164, Cr.P.C. statements. He also collected autopsy report issued by Female Medical Officer, Taluka Hospital Lakhi, wherein it is mentioned that the girl had sustained an abriated wound on fore head, deep incised wound over tongue and she opined that death had occurred due to suffocation, shock, haemorrhage caused by the injuries sustained by her, especially the injury on her tongue. The I.O. arrested all the three accused and submitted charge sheet in the court. The Magistrate, finding accused Abdul Ghaffar minor, referred him for his medical examination, who was proved to be juvenile having age about 15 years as reported by the Chief Residential Medical Officer, RBUT Hospital, Shikarpur, vide his letter No.3140/41 dated 20.06.2009. The case was challaned and the accused were sent up for trial. It was assigned to learned 5th ADSJ Shikarpur for trial who separated case of juvenile offender Abdul Ghaffar from adult accused and tried it separately in his chamber while case of adult accused was tried in open court. 6. Charge against the adult accused was framed as Ex.3 to which they pleaded not guilty and claimed trial. 7. In support of case the prosecution examined complainant Arbello PW-1 Ex.6 who produced FIR as Ex.6/A, additional statement as Ex.6/B; PW-2 Abdul Razzak witness/father of deceased, as Ex.7 who produced his 164, Cr.P.C. statement as Ex.7/A; PW-3 Hajan alias Abid as Ex.8, who produced his 164, Cr.P.C. statement as Ex.8/A; PW-4 Ali Mohammad as Ex.10, who also produced his 164, Cr.P.C. statement as Ex.10/A, PW-5 Ali Murad as Ex.11, who produced his 164, Cr.P.C. statement as Ex.11/A, PW-6 Hadi Bux mashir, at Ex.12, who produced memo relating to inspection of scene of offence as Ex.12/A, inquest report as Ex.12/B, and mashirnama of arrest of all the three accused as Ex.12/C, PW-7 Dr. Naila Shaikh at Ex.14, who produced post mortem report as Ex.14/A; PW-8 I.O. SIP Ali Asghar Solangi at Ex.15, PW-9 Mr. Abdul Hafeez Lashari, CJ&JM, Lakhi at Ex.16 who produced certified true copy of 164, Cr.P.C. statement of PW Hajan alias Abid as Ex.16/A, letter showing arrest of accused and confinement in jail as Ex.16/B. Thereafter, side of the prosecution was closed by DDPP vide statement Ex.17. 8. Statements of accused Imdad alias Behram and his son Abdul Sattar were recorded under section 342, Cr.P.C. as Exs.18 and 19. They again professed their innocence and prayed for acquittal. The accused Imdad alias Behram claimed that a false case is registered against him and his two sons by complainant party due to enmity over matrimonial affairs. He produced compromise agreement executed between him and his relatives before Mr. Abdul Sattar Janwari, Advocate / Oath Commissioner. However, both the accused did not examine themselves on oath under section 340(2), Cr.P.C. nor led evidence in defence. 9. The learned trial Court, after hearing the parties and perusing the record sentenced and convicted the appellants as above. Hence, present appeals. 10. I have heard learned counsel for the appellants in Criminal Appeals Nos.S-60 and S-61 of 2011 and the DAG for the State and have perused the record with their assistance. 11. Learned counsel for the appellants has vehemently contended that the impugned judgment is contrary to law and facts available on record, hence the same is not maintainable and is liable to be set aside. Learned counsel submitted that there is no direct evidence to connect the appellants with the alleged offence as the entire evidence produced by the prosecution is hearsay and word against word, which is not supported by any independent and substantive piece of evidence. Learned counsel also submitted that the incident was not seen by anybody, therefore, there is no eye-witness of the incident and the trial Court has given undue weight to the circumstantial evidence without any reason and that the evidence produced by the prosecution at the trial is not confidence inspiring. Learned counsel further submitted that there are contradictions in the evidence of the prosecution witnesses, the benefit whereof' must be given to the appellants. Per learned counsel, the evidence brought on record by the prosecution was not properly assessed by the trial Court and, resultantly, the impugned judgments suffer from non-reading and mis-reading of evidence. The learned counsel also submitted that the case of prosecution is not free from doubt and is riddled with lacuna and contradictions. Finally, it was prayed that the impugned judgments may be set aside and the appeals may be allowed by acquitting the appellants of the charge. In support of his submissions learned counsel for the appellants relied on the following cases: 1. Muhammad Akhtar and others v. The State (1986 PCr.LJ 2711), 2. Mohammad Nazim v. The State (2000 PCr.LJ 1032), 3. Amjad Ali v. The State (2008 PCr.LJ 194), 4. Fayaz Ahmed v. The State (2017 SCMR 2026), 5. Ghous Bux v. Saleem and others (2017 PCr.LJ 836), and 6. Abdul Jabbar and another v. The State (2019 SCMR 129). 12. On the other hand, learned DPG supported the impugned judgment and submitted that an innocent minor girl has lost her life without any reason and the accused are involved in heinous crime, therefore, prayed that their convictions and sentences may be maintained. He contended that the juvenile offender committed excesses and the other appellants have tried to cover up his crime and in the process killed the minor girl and threw her body in the well. Therefore, it was prayed that instant criminal appeals may be dismissed and the conviction and sentence awarded to the appellants may be maintained. 13. The learned trial Court formulated the following points for determination: 1. Whether minor girl Gul Bano died her un-natural death? 2. Whether deceased girl was subjected to sexual inter course or un-natural lust by juvenile offender Abdul Ghaffar? 3. Whether accused Imdad alias Behram along with his two sons Abdul Qadeer and Abdul Ghaffar committed Qatl-i-amd of deceased girl by causing injuries and throwing her in well on date, time and place as claimed by the prosecution? 4. Whether dead body was thrown in well just to screen themselves from legal consequences? 14. Learned trial Court answered Point No.2 as "ambiguous" while answered Points Nos.1, 3 and 4 in the affirmative and, accordingly, convicted and sentence the appellant as stated above. 15. In respect of Point No.1, the learned trial Court relied upon memos, inquest report, and statements of IO as well as WMO Dr. Naila Shaikh who conducted autopsy on the dead body of the deceased girl. They confirmed that the deceased died unnatural death as her dead body was recovered from well. The unnatural death of the deceased is not in dispute. Thus point No.1 was answered in the affirmative. 16. The Point No.2 formulated by the learned trial Court was whether the deceased girl was subjected to sexual intercourse or un-natural lust by juvenile offender Abdul Ghaffar and this point was discussed by the trial Court as under: "Admittedly none had seen juvenile offender Abdul Ghaffar committing sexual inter course with the girl nor there is any medical evidence on this point that girl was subjected to sexual inter course or that accused Abdul Ghaffar was capable to perform sexual inter course whose medical examination was not conducted during investigation. There are only words in shape of extra judicial confession of Juvenile offender Abdul Ghaffar himself and his father accused Imdad alias Behram who firstly claimed himself to have got super natural power and informed complainant party that girl has died and her dead body was lying in the well but later on, he collected people, came at the residence of complainant party and sought forgiveness for assaulting sexual and killing the girl. Thus this point remained little bit ambiguous and cannot be answered correctly due to lack of medical evidence." (emphasis supplied) 17. The learned trial Court has very rightly observed that ...none had seen juvenile offender Abdul Ghaffar committing sexual inter course with the girl nor there is any medical evidence on this point that girl was subjected to sexual inter course". All that has come on the record in this respect is the extra-judicial confession of accused Abdul Ghaffar and Imdad alias Behram. Although the trial Court has used the word "ambiguous" in respect of Point No.2, however, in fact, Point No.2 was proved and the answer to this point should have been a clear "in negative" and should have proceeded to deal with the case accordingly. However, by using the word "ambiguous" the trial Court misguided itself and that resulted in miscarriage of justice, as would be discussed below. 18. The learned trial Court, while discussing Points Nos. 3 and 4, observed as under: "Entire prosecution case is based on admission/extra judicial confession of the accused Imdad alias Behram and his son Abdul Ghaffar supported by circumstantial evidence regarding presence of girl with accused Abdul Ghaffar before her death, admission of accused before complainant party regarding sexual assault and subsequent murder of the girl by throwing her dead body in the well, their presence on well from which dead body of the girl was recovered and their act of seeking forgiveness from complainant party by bringing elders at their doors." 19. The above observations by the learned trial Court are mostly result of misreading and non-reading of evidence as there is no evidence on record to show that accused Behram was with the deceased before her death. The complainant has stated that they were informed by village people that accused Abdul Ghaffar was playing / sitting with deceased girl near Pir Chuttal Shah. This is hearsay evidence as no witness has been produced by the prosecution before the trial Court who has said that he / she saw the accused playing / sitting with the deceased. Such type of deposition has no evidentiary value unless it comes from the mouth of the person who saw the fact by his own eyes. The prosecution did not produce a single person before the trial Court who can testify to such fact. 20. Furthermore, the case of the prosecution is that the deceased girl was subjected to sexual assault by the juvenile offender Abdul Ghaffar and in order to cover-up / conceal the crime of Abdul Ghaffar, the appellants killed the girl by throwing her in the well. Thus, the act of killing the minor girl Gul Bano is result of illicit intercourse by the juvenile offender with her. Therefore, in view of the fact that neither there was any ocular evidence to prove that the minor girl was subjected to sexual assault by accused Abdul Ghaffar; nor is there any medico legal evidence to prove that the deceased was subjected to any sexual assault. Even the prosecution has not been able to pin point the place where the minor girl was allegedly raped by Abdul Ghaffar. Therefore, the learned trial Court rightly held that this point remained little bit ambiguous and cannot be answered correctly due to lack of medical evidence. The whole edifice of the prosecution case is built on the premise that the minor girl was first subjected to sexual assault by juvenile offender Abdul Ghaffar and, thereafter, in order to hide the crime committed by accused Abdul Ghaffar, the accused threw the deceased girl in the well which resulted in her death. However, it is very strange that while holding that the first offence / act…

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