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Official Citation: 2023 MLD 1677
Court / Jurisdiction: Sindh High Court
Year of Decision: 2023
Decision Date: 2023-12-31
Parties: Asadullah and Sajjad Ali vs The State
Ruling Summary: This decision was rendered by the Sindh High Court on 2023-12-31, officially reported as 2023 MLD 1677. In this matter between Asadullah and Sajjad Ali 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 2023 MLD 1677
Court Name: Sindh High Court Judge(s): Amjad Ali Sahito Title: Asadullah and Sajjad Ali vs The State Case No.:Criminal Appeal No.S-152 of 2023, Criminal Appeal No.S-155 of 2023,
JUDGMENT
Reported As: 2024 SHC 188 Result: Appeal Disposed of Judgment JUDGMENT Amjad Ali Sahito, J-. Since the above named appellants have filed their respective appeals against their convictions and sentences by challenging the one and same judgment, as such, all these appeals are being disposed of by this single judgment. 2. In terms of impugned judgment dated 23.08.2023, passed by the learned trial Court/Additional Sessions Judge-I/MCTC, Matiari in S.C. No.23/2020, Crime No.75/2019 for the offences under sections 302, 201, 34 PPC registered at PS Shahpur, the appellants were convicted under section 302 (b) PPC read with section 34 PPC as Ta'zir for committing murder of deceased Asif Ali and sentenced them to suffer Imprisonment for life and to pay compensation of Rs.200,000/- each as compensation under section 544-A Cr.P.C. to the legal heirs of deceased; in default whereof, to suffer S.I. for six months more. They were also convicted for the offence u/s 201 PPC read with section 34 PPC and sentenced them to suffer R.I. for seven years and to pay fine of Rs.50,000/- each; in default whereof, to suffer S.I. for two months more. However, both the sentences were ordered to run concurrently. Benefit of section 382-B Cr.P.C was extended to the appellants. 3. Briefly the facts of the case lodged on 01.08.2019 by the complainant namely Mehboob Ali at PS Shahpur alleging therein that his younger brother namely Asif Ali besides Zamindari was carrying the business of onion seed and used to visit Nasarpur and Hala for such business; and used to take the onion seed from merchant namely Ali Muhammad @ Alu Barejo at Nasarpur. As per complainant, on 29.07.2019 at 09.00 a.m. while his relative Ali Asghar and brother Asif Ali were available at their house, Asif Ali left the house by saying that he would go along with his friends from Sakrand towards Nasarpur to take the onion seed from Ali Muhammad. He proceeded to
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Sakrand towards his friends. At the evening time, complainant tried to contact with his brother Asif Ali on his cell numbers viz. 0300 0355984 & 0300-3766802, but his cell phone was found switched off. Subsequently the complainant made contact with Ali Muhammad @ Alu Barejo, who on query disclosed that at about 12:00 noon Asif Ali contacted him on mobile phone and told that he along with his friends was going to Jam Datar to see the land of Brohi community and then he would come to him. Said Ali Muhammad further informed the complainant that after some time he repeatedly dialed the cell number of Asif Ali but could not make any contact. On such disclosure, the complainant made search and also informed at PS Bachalpur about the missing report of his brother. One day before lodging of the FIR, complainant came to know through social media about the recovery of an unidentified dead body by police of PS Shahpur. Accordingly, complainant approached PS Shahpur where saw the photographs of dead body of an unknown person who was identified as his brother namely Asif Ali. The complainant came to know that after postmortem the police handed over the dead body to Edhi Centre Khursheed Town Hyderabad who buried the same. Hence, instant case was lodged against unknown culprits. 4. After registration of FIR, the complainant filed application for handing over the dead body of his brother for burial, as such, on his application, the dead body of deceased who buried at Tando Yousif graveyard Hyderabad after exhumation was handed over to him. Police, visited place of wardat, prepared such memo, recorded 161 Cr.P.C. statements of P.Ws. Further statement of complainant was recorded on 04.08.2019 wherein he has nominated accused Saleemullah and Ashique Ali to be involved in the instant case, who were arrested by police on 07.08.2019. Again further statement of complainant Mehboob Ali was also recorded on 06.12.2019 whereby he also implicated accused Asadullah and Sajjad Ali. Investigating Officer collected provisional and final postmortem reports, Histopathology report and DNA report, chemical report regarding clothes of deceased etc, report of ETO concerned regarding car used in the crime, chemical report regarding iron wrench, prepared sketch of place of incident etc. and after completing the investigation of the case, the police report under section 173 Cr.P.C(challan) was submitted by the Investigating Officer against the accused before the court of concerned Magistrate showing the names of accused namely Asadullah and Sajjad Ali in column No.2 of the report. However the learned Magistrate did not agreed with the police report and took cognizance against all accused person including accused who have been shown in column No.2. 5. A formal charge framed against the accused was framed, to which they did not plead guilty and claimed their trial. 6. In order to establish its case, the prosecution has examined PW-1 complainant Mehboob Ali; PW- 2 Ali Asghar; PW3 Sadam Hussain; PW-4 Allah Obhayo (eyewitness); PW-5 Muhammad Ramzan; PW-6 Ali Muhammad @ Alu; PW-7 ASI Muhammad Ibrahim (First I.O.); PW-8 SHO Shah Zaman (Second I.O.); PW-9 P.C. Dhani Bux; PW-10 Ayaz Ali (mashir); PW-11 Tapedar Abdul Karim; PW-12 Dr. Zohaib Hassan. The prosecution witnesses produced numerous documents. Thereafter prosecution closed its side through statement. 7. Statements of the appellants were recorded under section 342 Cr. P.C, wherein they denied the prosecution allegations levelled against them and claimed their innocence and false implication due to matrimonial dispute. However, neither they examined themselves on oath nor led defense evidence. 8. Learned trial Court, after hearing the learned counsel for the parties and going through the material brought on record, awarded convictions and sentences to the appellants through the impugned judgment as stated above, which the present appellants have impugned before this Court by way of filing their respective appeals. 9. Learned counsel for appellant Saleemullah, who is main accused, has contended that the complainant is not eyewitness of the incident, however, he came to know through social media
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regarding recovery of an unidentified dead body by the police of PS Shahpur Darpur then through photograph he identified the same being his brother and received dead body from Edhi Centre Hyderabad (graveyard of Edhi); that as per PW Ali Asghar he made investigation from Sakrand and came to know that appellants Saleemullah and Ashique Ali in connivance with each other called deceased Asif Ali fraudulently on the pretext to purchase seed from Sakrand and then took him in white colour Mehran car and on the way committed his murder, thrown his dead body at sugarcane crop on Nasarpur link road via Oderolal Station they also caused injuries to the deceased on his head and also strangulated him with towel. He further contended that police recorded further statement of complainant wherein he stated that on 30.11.2019 he was present at his village, where Allah Obhayo Bughio and Muhammad Ramzan Chandio came and disclosed that on 29.07.2019 at about 02.00 p.m. while were present at Nasarpur to purchase onion seed, they saw everyone accused Saleemullah, Ashiq Ali, Asadullah and Sajjad were extending harsh words with Asif Ali and accused Ashiq caused iron rod blows on the backside head of Asif Ali, who fell down on the ground, accused Saleemullah Strangulated Asif with towel while accused Asadullah caught hold Asif by his legs and accused Sajjad caught hold by his arms. He further contended that during search complainant party did not find any clue about people of Brohi community whose land was to be visited by deceased as per version of Ali Muhammad alias Aloo; that the complainant in his further statement dated 04.08.2019 has not disclosed the source of information regarding involvement of accused Saleemullah and Ashique Ali nor has disclosed the date, time and place of information; that Allah Obhayo and Muhammad did not meet with complainant till 30.11.2019 nor to any of his relative; that it has been admitted that sister of accused Sajjad Ali, who is cousin of accused Saleemullah is wife of complainant; that PW Ali Asghar admitted that he did not disclose the names of villagers who informed him about involvement of the accused in the murder of deceased Asif Ali neither before police nor in his 164 Cr.P.C. statement even he did not disclose the date, time, place as well as names of the villagers; that as per PW Saddam Hussain on 29.07.2019 he accompanied Hussain Bux went to meet Raees Ali Nawaz Chandio at his otaque in Sakrand and he found relative Asif Ali, Saleemullah and Ashique Ali Dahri already there at Siyal Hotel and it was 09.00 a.m. He also admitted that in his 161 and 164 Cr.P.C. statements he has not disclosed that he informed the complainant or his relative about deceased in company of accused at Sakrand Siyal hotel, as such, question arises why he remained silent uptill 03.08.2019 and when he informed the complainant then why complainant produced him on 09.08.2019 and such delay is one of the aspects to create doubt in the story set up by the complainant. Learned counsel has further contended there is admission in the prosecution evidence regarding matrimonial relations between complainant and accused Saleemullah and Sajjad. Lastly, learned counsel has contended that there are material contradictions in the evidence of prosecution witnesses and it is the duty of prosecution to prove its case beyond reasonable shadow of doubt. In support of his contentions, he has relied upon the cases reported in 2001 SCM R 14, 2021 M LD 408, 2007 YLR 534 and 2008 YLR 1891. 10. Learned counsel for the appellant Ashique Ali in addition to the arguments as advanced by the learned counsel for the appellant Saleemullah has added that it has come on record that the recorded USB did not show the presence of accused Ashique Ali at the place of incident. He further added that the appellant Ashique Ali was implicated falsely despite fact that he was not aware of the commission of offence; that the alleged incident had taken place on 29.07.2019 however, FIR has been lodged on 01.08.2019 after two days unexplained delay; that further statement of complainant firstly was recorded on 04.08.2019 and secondly on 06.12.2019, as such, there is delay of four months and six days in between both the further statements of the complainant; that the accused are not nominated in the FIR; however, the names of appellant Saleemullah including appellant Ashique Ali is mentioned in the further statement of complainant recorded on 04.08.2019.
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He further contended that there are material discrepancies in the evidence of prosecution witnesses but the leaned trial Court has not considered the same. He further contended that as per evidence of complainant he contacted with Ali Muhammad @ Aloo on his cell phone and made query regarding arrival of his brother Asif, who replied that Asif Ali made phone call to him at about 12:00 noon and told him that he along with his friends going to Sakrand, as such, it is astonishing to believe that a person who is otherwise with his relative as per the whole story but how he will say any person that he is along with his friends; that no source of information has been disclosed by the complainant; that the complainant admitted in his evidence that he did not see the blood stain on wheel pana; however, the Chemical Examiner has analyzed the said alleged incriminating article (wheel pana) and reported it stained with human blood. According to learned counsel, PW Allah Obhayo has contradicted with a person whom he was travelling about four hours to just see the incident as he has deposed that Ramzan accompanied with him to Nasarpur many times whereas, said Ramzan deposed that it was his first time to proceed with Allah Obhayo. However, PW Allah Obhayo was unaware about the routes and Ramzan guided him from place of incident upto the Khyber whereas, on the other hand Ramzan deposed that he does not know the routes leading to Nasarpur, when they returned back from Nasarpur to village Bachalpur, Allah Obhayo knew the routes. They deposed that they saw Asif Ali was in dead condition and accused were causing blows to dead body but Ramzan deposed that they talked with Asif and requested accused to stop. Learned counsel further contended that there are several contradictions in the evidence of PWs Allah Obhayo and Ramzan with regard to the meal, stay at hotel, taking tea or taking water but Allah Obhayo deposed that they directly reached at Nasarpur; both these witnesses took different position of accused and deceased Asif Ali at the place of incident. He further contended that PW ASI Muhammad Ibrahim deposed that on 29.07.2019 at 1615 hours HC Mazhar of PP workshop made phone calls to him and informed that dead body of one unknown person is lying at the land of Shahoo Barecho, however the person who firstly saw the dead body was not examined whereas, this witness in his cross-examination has admitted that he did not ask HC Mazhar to act as complainant of the case being the informant; that inquest report clearly mentions that informer is HC Mazhar; that as per evidence of PW ASI Muhammad Ibrahim in his cross examination he admitted that they did not secure the crime weapon viz. wrench from the car at the time of arrest of accused till their shifting to police station, therefore, the crime weapon has been foisted; that he admitted that the memo of recovery did not show the crime weapon was bloodstained; but, expert report is in positive; that at the time of evidence, video recording of the accused was not sent to forensic expert for its verification even no record/entry was produced to show that the video was kept in safe custody even nothing has come on record to show that the contents available in the USB were recorded before any independent person; that neither the mobile phone nor the USB was sealed during investigating even there was no private person at the time of recording video. Learned counsel has further contended that PW Inspector Shah Zaman deposed that on the same day he took out accused Ashique from police lockup and interrogated him, who, during interrogation disclosed that the accused Saleemullah told him that he would kill the Asif, hence, he left accused Saleemullah at Hala and went away; that despite both the witnesses were resident of 150 kilometer away from the place of dead body, as such, how they travelled and became the witness but no CDR or any proof collected by the Investigating Officer in order to show their presence at the place of incident. He further contended that it has come on record that the crime weapon wheel pana as per evidence of PW Shah Zaman was washed with water despite that the expert report is in positive and the said PW did not find any availability of eyewitnesses Allah Obhayo and Ramzan with deceased at the place of incident. Learned counsel has also contended that the final postmortem report, certificate report was changed from incised wound to lacerated wound and the medical officer has deposed the duration between death and
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injury immediately while during between death and postmortem stated about 24 to 30 hours and the kind of weapon has been disclosed as sharp cutting and ligature material (ROMAL). Learned counsel further contended that when a witness has been found false with regard to implication of one accused about whose participation, credibility of such witness regarding involvement of other accused in same occurrence would be irretrievably. Lastly, learned counsel has contended that this is an un-witnessed incident and the eyewitnesses have been managed only to implicate the appellant in this heinous offence, as such, the appellant is liable to be acquitted of the charge. In support of his contentions, he has relied upon 2008 SCMR 6, 2010 SCMR 385, 2017 SCMR 344 and 2019 SCMR 631. 11. Learned counsel for the appellants namely Asadullah and Sajjad Ali mainly contended that the appellants are innocent and have falsely been implicated in the instant case; that in fact there is no eyewitness of the incident and eyewitnesses are set up witnesses notwithstanding that the accused are not known to them previously yet they nominated them with their name and parentage, as such, it is a question how they know about the names and parentage of the accused persons; that the complainant himself deposed that at the time of leaving home the deceased had cash amount of Rs.150,000/- or Rs.200,000/- and alleged eyewitness Allah Obhayo in reply to a question stated that he and Muhammad Ramzan went to Nasarpur for purchase of onion seed and at that time he had a cash amount with him, this clearly connects the alleged eyewitnesses with the commission of crime; that despite the alleged witnesses having visiting terms with the complainant party they hidden themselves for about three months without disclosure about the incident and subsequently their stance created doubt; however, in reply to a question the alleged eyewitness Allah Obhayo stated that after this incident he remained ill for about three months as such could not disclose about incident to complainant party; even if it is believed then why the other alleged eyewitness remained mum for three months; that as per version of alleged eyewitnesses that they tried to save deceased Asif Ali but accused Sajjad Ali threatened them and pointed pistol, does not appeal to the prudent mind that a person is being murdered by someone and the person passing there from is simply seeing them as a drama and did not try to save him or make huge and cry. He further contended that though as per statements of alleged eyewitnesses the accused persons were killing the deceased in daylight time; however, except them none of the nearby villages nor any passerby had seen the incident or heard hue and cry of the deceased, which makes the prosecution case highly doubtful. He further contended that the complainant had not alleged any motive against the appellants that as to why they had committed such a heinous crime. Learned counsel has also contended that even if it is presumed that the alleged involvement of the appellants Asadullah and Sajjad Ali, then both the co-accused did not implicate them in their recorded video/USB statements though the same is not admissible. Per learned counsel, even the CCTV recording of Hotel and Petrol Pump wherein the appellants are not present. The case is not based upon any direct evidence but in order to bring the alleged FIR to logical end, police in connivance with complainant has manipulated evidence that too of interested witnesses, chance witnesses because not a single independent witness is examined. The entire story is suspicious and without corroboration of version of the complainant, learned trial Court has grossly violated, ignored, miss-appreciated the principles regulating safe dispensation of criminal justice in consideration of legal status of FIR, supplementary statements of complainant, delayed statements of PWs and erred by awarding conviction and sentence to the appellants, as such, the impugned judgment is liable to set aside and appellants Asadullah and Sajjad Ali are liable to acquitted of the charge. In support of their contentions, learned counsel have relied upon the cases reported as PLD 1979 Lahore 263, PLD 1980 Peshawar 25, PLD 1992 SC 570, PLD 2000 Lahore 216, PLD 2002 Lahore 110, PLD 2019 SC 64, PLJ 1980 SC 197, PLJ 1980 Cr. C (Peshawar) 338, PLJ 1988 Cr. C (Karachi) 545,1988 SCMR 570, 1995 SCMR 1350, 1996 SCMR 1553, 2004 SCMR 1185,
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2008 SCMR 6, 2012 SCMR 419, 2017 SCMR 486, NLR 2000 Criminal 357, 2014 YLR 877 and 2014 P Cr.LJ 206. 12. Conversely, learned counsel for the complainant and learned A.P.G. have supported the impugned judgment. Learned counsel for the complainant further added that prosecution has proved its case from all corners. The evidence of PWs with regard to involvement of accused has not been shattered. The appellants Saleemullah and Ashique Ali both have admitted their guilt and in this regard their video statements were recorded, which is part and parcel of record. He further added that initially an application under Article 164 of Qanun-e-Shahadat Order, 1984 for sending the USBs to the expert for opinion and verification of the voice of the accused was filed before the learned trial Court and since the said application was dismissed, as such, complainant filed Criminal Revision Application before this Court, which was allowed, hence, the I.O. was directed to collect the USBs for sending to the expert for verification and report, which were collected and examined by the Forensic Agency wherein after forensic video analysis, no editing features were observed in the visual contents; and the said report has produced by the Investigating Officer. He also added that the eyewitnesses have also fully implicated the accused and their version has also been corroborated by the chemical examiner report, therefore, if even there are minor discrepancies in the evidence of prosecution witnesses, the same have no importance as they do not go to the root of the prosecution story in presence of truthfulness ocular account as well as medical account. Learned counsel further added that the there is no element of false implication of the appellants as if the complainant had to involve them falsely, he should have directly involved them at the time of registration of FIR whereas the discrepancies, if any, in medical evidence relating to nature of injuries do not negate the substantive evidence. He also added that the prosecution witnesses have fully implicated the appellants chain-to-chain despite the appellants tried to conceal themselves from their involvement by committing murder of deceased. He further added that mere relation of between the parties alone cannot support the plea of accused especially in the cases of capital punishments and the circumstances of last seen are absolutely against the accused. He, therefore, prayed for dismissal of the instant appeal by relying upon the cases reported as 2019 SCMR 1224, 2019 SCMR 2039, 2023 SCMR 900, 2023 SC,R 1375,2020 PCr.LJ Note 99, 2021 PCr.LJ 689, 2023 PCr.LJ Note 5,2022 YLR Note 109, 2002 YLR Note 173, 2022 YLR 324, 2023 YLR Note 42, 2023 YLR 1204, 2023 YLR 1311, 2023 MLD 156 and 2023 MLD 1677. 13. I have heard the learned counsel for the parties and perused the material available on record including the case law cited at bar.On evaluation of the material brought on the record, it appears that the case of prosecution mainly depends upon two point's i-e admissibility of further statement of the complainant at later stage and extra judicial confession of appellants namely Saleemullah and Ashique Ali apart from other factors. Point No.1 What is the value of further statement under section 162 Cr.P.C. in the eyes of law and how it can be used against accused? 14. Any statement or further statement of the first informant recorded during the investigation by police would neither be equated with First Information Report nor read as part of it.[1] It is also settled proposition of law that further statement has no value in the eyes of law.[2] Recording supplementary statement would be an important factor which is likely to give rise to interference that second version contained in it was introduced by the prosecution after deliberation and if it is it will adversely affect the prosecution case.[3] As far as the legality of supplementary statement of the complainant is concerned, it is suffice to observe here that the same has got no sanctity in the eye of law. The value of supplementary statement or further statement is not more than a statement recorded under section 161, Cr.P.C.[4] When a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the
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witness has improved his statement dishonestly, therefore, his credibility will become doubtful on the well-known principle of criminal jurisprudence that improvements once found deliberate and dishonest casted serious doubt on the veracity of such witness.[5]No doubt further statement recorded by the Investigating Officer has no value in the eyes of law until and unless it is corroborated by other evidence; however, the same opens room for the Investigating Officer to conduct further investigation. Point No.2 What is mode and method of recording of statement under section 164 Cr.P.C. What is the evidentiary value of Extra judicial confession of the appellants namely Saleemullah and Ashique Ali apart from other factors, and Judicial confession. Describe the mode and…
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