Full Judgment Text & Judicial Ruling

2020 P Cr. L J Note 56 [Sindh] Before Fahim Ahmed Siddiqui, J DULAT KHAN and others---Appellants Versus ADDITIONAL DISTRICT AND SESSIONS JUDGE-IV,MALIR KARACHI and others---Respondents Criminal Appeals Nos. 453 and 455 of 2016, decided on 28th September, 2018. (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 364 & 34---Qatl-i-amd, kidnapping or abducting in order to murder, common intention---Appreciation of evidence---Benefit of doubt---Ocular and medical evidence---Contradiction---Effect---Prosecution case was that the accused-appellants were involved in abducting the cousin of complainant, who was subsequently found dead---Admittedly, there was no witness of ocular account and even it was not clear as to where the deceased was slain and even by whom---Prosecution was equipped with last seen evidence, in the shape of abduction of the deceased regarding which the accused persons were allegedly responsible---Complainant had mentioned that his car was damaged by the accused persons but it was noteworthy that the Investigating Officer neither prepared 'memo of damaged car' describing the nature of damage caused by the accused persons nor any photographs of the damaged car was taken and made part of the record---Said car was also not made a 'case property' and was not produced before the Trial Court---Prosecution case was that on the date of alleged incident, the deceased was on duty but the prosecution did not bother to establish said fact by producing any credible evidence---Complainant in his statement had stated that the deceased had taken refuge in an office where the staff was also available but none from the staff was cited as a witness or produced before the Trial Court to establish that the deceased was abducted from the office---According to complainant, the incident had taken place at the site of the office and subsequently the deceased was taken away from the office but neither any complaint nor any report was filed/lodged by the office authorities in respect of offence taken place at their office---Complainant, in the FIR as well as in his deposition mentioned that the incident was reported to "15 police" by one person "M" from his mobile phone and the number of mobile phone was also given by the complainant in FIR---Said person "M" was an important prosecution witness but he was not examined besides no Call Data Record was produced to establish that a phone call was made to "15 police" from the phone number mentioned in the FIR---Although, the complainant had minutely described the details and had mentioned the names of accused persons but he could not point out any reason or motive for the alleged incident---Alleged incident was said to be a motiveless incident of abduction and murder and as far as the act of slaying of the deceased was concerned, there was no witness of the same---Complainant, after describing the incident of abduction, stated that after about one hour of the incident of abduction, he received information about the murder of the deceased and availability of his dead body at the police station---After receiving such information, complainant went to police station and found the dead body of his cousin, which was in a bad condition due to torture and the skin from different portion of the body was plucked out---Medico Legal Officer did not observe any such thing while examining the dead body---Complainant in his deposition had stated that the accused persons were armed with hatchet and weapons but he did not describe the kind of weapons, the accused persons were armed with---Complainant had just stated in his deposition that the accused persons arrived at the place of incident and the prosecution witness improved the version by saying that the accused persons arrived by a car---Said witness in his deposition had stated that the accused persons had inflicted 2/3 hatchet blows but the complainant did not say anything about receiving hatchet blows by him---Complainant did not examine the Medical Officer in respect of such injuries---Witness had stated that he had tried to rescue complainant from the clutches of the accused persons but nothing of the sort was mentioned by the complainant in his statement---Complainant in his deposition had stated about availability of five persons but witness described that five persons came in a car but there were in all 10 to 12 accused persons at the place of incident---Said witness in his further cross-examination admitted that he was friend of complainant since last 25/30 years---Statement of complainant, in circumstances, could not be relied upon as gospel truth without corroboration---Said witness in his further cross-examination stated that his statement under S. 161, Cr.P.C. was recorded on 28-07-2007 but in the same breath he admitted that the date mentioned on his S. 161, Cr.P.C. statements was 02-02-2008, in such a situation, it could be said that the statement of said witness was badly shaken---Such contradictions made the ocular account regarding abduction of the deceased as non-trustworthy---Prosecution could not establish the charge against the accused persons beyond reasonable doubt, in circumstances---Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court. [Paras. 7, 14, 15 & 16 of the judgment] 2006 PCr.LJ 639; 1995 SCMR 127; 1996 SCMR 1553; 1998 SCMR 279; 2009 SCMR 916; 2008 SCMR 6; PLD 1978 Lah. 210; 2017 SCMR 283; 2017 PCr.LJ 1121; 2013 PCr.LJ 727 and 2012 PCr.LJ 816 ref. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 364 & 34---Qatl-i-amd, kidnapping or abducting in order to murder, common intention---Appreciation of evidence---Delay of about three days in lodging the FIR---Effect---Prosecution case was that the accused-appellants were involved in abducting the cousin of complainant, who was subsequently found dead---First Information Report was lodged with a delay of three days, although, the delay had been reasoned out that the same was lodged after seeking directions from Ex-Officio Justice of Peace---Facts remained that after getting a direction from the Ex-Officio Justice of Peace, the complainant himself had not appeared before the concerned officer at police station for recording his statement but the contents of an application received by the concerned officer were reproduced in the body of FIR---Complainant in his statement before the Trial Court said that the FIR was not lodged promptly because police demanded illegal gratification for doing so and he obliged to approach the Sessions Court for getting an order, thereafter the FIR was lodged---Complainant had not described in his examination-in-chief that he had filed any application at the police station---Although, it is mentioned in the FIR that the author of the same had received an application with the date mentioned on it as 24-7-2007 on the day of inscribing the FIR (i.e. 27-07-2007), which was reproduced word by word---Said application was an important document and the same would be produced to verify as to whether the same was presented at police station on 24-07-2007---Memo of application filed before the Ex-Officio Justice of Peace was also not produced to establish that the fact of filing an application to police station was mentioned therein or not---Neither the said application nor the memo of application under Ss. 22-A & 22-B, Cr.P.C. was produced; therefore, a counter presumption was also available that a story was crafted to defeat the delay in lodging FIR. [Paras. 11 & 13 of the judgment] Muhammad Saleh Kolachi for Appellant (in Criminal Appeal No. 453 of 2016). Suleman Badshah for Appellants (in Criminal Appeal No. 455 of 2016). Shaukat Ali Rajput for the Complainant. Sagheer Abbasi, APG for the State. Dates of hearing: 29th, 30th August, 11th and 12th September, 2018. JUDGMENT FAHIM AHMED SIDDIQUI, J.---This single judgment will dispose of the above-mentioned two criminal appeals filed against the one and the same judgment dated 24-11-2016 pronounced by Additional Sessions Judge-IV, Malir Karachi in Sessions Case No. 397/2007, whereby the appellants were convicted and sentenced under section 364, P.P.C. to suffer rigorous imprisonment for 10 years and fine of Rs.10,000/- each and they have to suffer simple imprisonment for one month in case of default in payment of fine. The appellants were also convicted and sentenced under section 302, P.P.C. and directed to suffer life imprisonment. It was also pronounced dead both the sentences shall run concurrently. 2. The facts of the prosecution case as described within the body of FIR are that complainant Asghar Bhutto reports that he is contractor in MDA and his one cousin namely Luqman was employed in MDA as supervisor. On 24-07-2007 at 7:30 a.m. he approached to the site situated at MDA office, where construction work was being carried out. He was looking after his construction work while Luqman was also busy in his job. At about 9:0/9:15 a.m., when he approached to his car, he saw five persons amongst them Doulat Baloch, Ameen Baloch. Kanjal Baloch, Muhammad Baloch armed with weapons who damaged his car and demanded him to go with them. On showing his resentment, the accused persons beaten him and meanwhile they caught hold of Luqman but he succeeded in running away into MDA, office. Momentously. some other accused persons reached there and took out Luqman from MDA office after beating him and then under the force of weapons. they abducted him and flew from the scene of offence. One Muhammad Sharif informed 15-police through telephone and complainant also informed his relatives about the kidnapping of Luqman. After about one hour, police informed the complainant that Luqman has been Murdered and his dead body was lying at Police Station. The complainant approach to the police station and found the dead body of his deceased cousin Luqman. He noticed the marks of violence on the dead body of the deceased, whose skin was forcibly plucked from different parts of body. The complainant lodged report against the appellants as well as absconding accused and subsequently involved those accused, who have been acquitted by the trial Court. 3. Initially, the appellants were convicted and sentenced under section 364, P.P.C. only for a term of 7 years' rigorous imprisonment and fine through the earlier judgment dated 26-11-2010 which was set aside by this Court in Criminal Appeals # 530/2010 and 531/2010 and the trial Court was directed to make correction in date of incident and rerecord the statement of accused/appellants under section 342, Cr.P.C. afresh and then pronounce the judgment after hearing the arguments from either sides. Nevertheless, the trial Court has reframed the charge, which is identical to earlier charge, except the correction in date of incident, which was previously mentioned as 24-04-2007 instead of 24-07-2007. After framing charge, the trial Court allowed an application for recalling and cross-examining some witnesses again. After examining those witnesses, the statement of accused persons were recorded under section 342, Cr.P.C. and then the impugned judgment was pronounced. 4. Mr. Salman Badshah, learned counsel for the appellants in Criminal Appeal No. 455/2016, while addressing the court, has described the matrix of the case and have gone through certain pieces of deposition of different witnesses. While addressing on merits of the case, he submits that during first trial, the charge was framed against 11 persons including appellants under section 365, P.P.C. in which only the appellants were convicted and sentenced for 7 years on 26-11-2010. Against the said judgment, two appeals were filed and this Court remanded the case under Judgment dated 27-11-2014. Since charge was reframed; therefore, only three witnesses PW-3 (Asghar Ali), PW-8 (Mehboob Ali) and PW-9 (Muhammad Essa) were recalled for cross-examination, while the remaining evidence recorded in the previous trial was adopted. He points out that there is a delay of three days in lodging of FIR. He submits that the alleged abduction was carried out in presence of witnesses but the reason is not given why they remained silent for three days or even more as their statements under section 161, Cr.P.C. were recorded with further delay. According to him, none from the staff of MDA was examined by the police or even by the trial Court. He submits that in the first judgment, the appellants were convicted for 7 years only under the charge of abduction while murder was not proved but in the second judgment on the same set of evidence punishment for capital offence was also awarded to the appellants, which is not conceivable. He points out that the investigating officer has deposed that about 20 witnesses examined during investigation, who say that the accused persons are innocent. According to him, there is vital contradictions between the ocular account of complainant regarding condition of dead-body and medical evidence. He further submits that the prosecution has not examined an important witness i.e. PW Hussain which amounts to withholding evidence as such it goes against the prosecution. In the end, he relies upon 2006 PCr.LJ 639, 1995 SCMR 127, 1996 SCMR 1553, 1998 SCMR 279, 2009 SCMR 916 and 2008 SCMR 6. 5. Mr Muhammad Saleh, advocate for appellant in Cr. Appeal No.453/2015 after adopting the arguments advanced by Mr. Salman Badshah submits that appellant Daulat Khan is innocent and have been falsely involved in the instant case. According to him, there is no convincing evidence available on the record of trial Court. He submits that nothing was recovered from the appellant Daulat Khan after his arrest. He further submits that the eye-witnesses of abduction are not reliable while no ocular testimony is available with the prosecution regarding the actual incident of murder. He submits that a good number of accused persons were nominated amongst them some have been acquitted, as such the entire case becomes doubtful. 6. As against the above, Mr. Shaukat Rajput, learned counsel for the complainant overwhelmingly supports the impugned judgment. Before discussing about the merits of the case, he strongly objected about the procedure adopted by the trial Court regarding recalling of some of the witnesses after reframing the charge. He submits that there was no direction from this Court at the time of remanding the case to recall any of already examined witnesses and the order is very much clear that the case was to be decided after reframing of charge and re-recording statements of accused persons under section 342, Cr.P.C. He submits that the application for the second cross-examination was previously declined but after the transfer of learned judge, new Presiding Officer allowed another application filed before him, which he could not do. According to him, there is a strong last seen evidence, which is sufficient to connect the appellants with not only the offence of abduction but also murder. He submits that the appellants have acted with highhandedness. as such they do not deserve any relief. He submits that the trial Court has already taken a lenient view against the appellants by not awarding to them death sentence. He submits that from the bare perusal of FIR, it is clear that there is no delay as the application was filed in the police station on the day of the incident i.e. 24-07-2007 and the FIR is nothing but the reproduction of the said application. He further submitted that there is no delay in recording statements of witnesses under section 161, Cr.P.C. Regarding non-recovery of crime weapons, his contention is that after the incident, the appellants were admitted to pre-arrest bail, as such, non-recovery of crime weapon is not fatal for the prosecution case. According to him, the police was supporting the appellants and the first two investigating officers, under the influence of the appellant, did not conduct the investigation properly and it was the third investigating officer who conducted the proper and meaningful investigation and collected evidence to connect the appellants and others with the commission of the offence. He submits that as per deposition of PW Essa, the statement under section 161, Cr.P.C. was recorded by the first investigating officer without delay but since the investigation was conducted thrice; therefore, certain statements under section 161, Cr.P.C. were recorded with some delay. According to him, the question of conflict between ocular and medical evidence does not arise, as the ocular testimony, available on the record, is of abduction only. He also tries to make it a great point by submitting that since no cross was conducted upon the medical officer, therefore, his testimony being unrebutted is to be acknowledged as correct. He submits that plea of alibi is not acceptable besides on this point, they did not claim to produce any witness before the trial court. He takes reliance from PLD 1978 Lah. 210, 2017 SCMR 283, 2017 PCr.LJ 1121, 2013 PCr.LJ 727 and 2012 PCr.LJ 816. 7. I have fastidiously heard the arguments advanced and have scanned the entire material in the light of valued submissions made before me. It is the prosecution case that the appellants are involved in abducting the deceased Luqman, who was subsequently found dead. The prosecution story consists of two parts, one is the abduction of the deceased Luqman and the other is finding his dead body by police. It is admitted position that regarding the murder of the deceased, there is no witness of ocular account and even it is not clear where the deceased was slain and even by whom. However, the prosecution is equipped with last seen evidence, which was actually in the shape of abduction of the deceased regarding which it is alleged that the appellants are responsible. In the peculiar circumstances of the case, it is to be seen whether the narrations of facts, given by the complainant and others prosecution witnesses in respect of abduction of the deceased, appears to be rational and believable. If the first part of the incident is established with unshaken and confidence inspiring evidence: then there is a case in the hands of the prosecution against the appellants. For the same purpose. it is necessary to go through the entire evidence so that it can be evaluated whether the prosecution succeeds in bringing the guilt of the accused (appellants) at home without any reasonable doubt. 8. Before discussing about the evidence of the prosecution, it would be appropriate to discuss about the happening of affairs before the trial Court, after remanding the case from this Court in the earlier round of litigation. In the previous trial, it was held that only the charge of abduction was proved, as such the appellants were awarded lesser punishment in the previous trial. It is worth mentioning that at the time of deciding earlier appeals. the entire trial was not wiped off but only because of mistake committed by the trial Court in framing questions under section 342, Cr.P.C. While remanding the case at the time of disposal of the earlier appeals, it was also observed that 'the date has wrongly been mentioned in the charge' and it was also mentioned that none of the learned counsel disputed that the charge can be amended or altered by the trial Court at any stage of the proceedings before pronouncement of judgment. However, there was no clear-cut direction by this Court in respect of 'charge' in the judgment dated 27-11-2014 pronounced in Cr. Appeals Nos. 530/2010 and 531/2010. I would like to reproduce the operating portion of that judgment as under: "It is therefore, by consent ordered that the finding of conviction and sentence is awarded against the appellants through impugned judgment are set aside and case is remanded back to the trial court for proceedings against the Appellants from the stage of statements of accused to be recorded afresh under section 342, Cr.P.C. and learned trial court should proceed further in accordance with the law against the appellants. So far the question of charge is concerned, it is also left to the trial court who may pass any appropriate order after hearing the counsel for the accused and learned prosecutor." It is evident from the above that it was left on the discretion of trial Court to decide what to do in respect of the mistake committed by the trial Court at the time of framing charge. For the trial Court, there were two options i.e. either to make a correction in the charge by passing a separate order or to frame the charge afresh the trial court adopted the second option. Now I consider what would be the effect of re-framing the charge by making a correction in the date of alleged incident. The purpose of 'charge' is to make the accused aware of the concise narrative of allegations against him to enabling him to defend himself properly. If there are certain major changes, addition or alteration made in the charge either by way of 'correction' or by 're-framing' the same, it would prejudice the accused in respect of his defence especially when the entire evidence has already been recorded. I am of the view that correction in 'date of the incident' is a major change in charge, as such accused or prosecutor may demand to recall all or some witnesses for re-examination or cross-examination but up to that extent only. In this respect, I would like to reproduce section 231, Cr.P.C., which reads as under: "231. Recall of witnesses which charge altered: Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, and also to call any further witness whom the Court may think to be material." 9. I am of the view that it is the right of the accused to call the witness or witnesses for cross-examination in respect of such amendment or alteration in the 'charge' if it causes prejudice to him. After asking questions regarding such amendment or alteration, there will be no harm to ask some more questions in consequence of replies given by the witness but it is not proper to conduct a new cross-examination from the scratch, as it was done in the present case. Nonetheless, the word, 'may', used in the last portion of above quoted legislative provision makes it 'directive' and not the 'mandatory' provision in respect of such cross-examination.' There is a sort of liberty to a court to deviate from a directive legislative provision but certainly it cannot deviate from mandatory statutory provision. In this respect reliance may be taken from a case of the Hon'ble Supreme C6urt in the case reported as Niaz Muhammad v. Mian Fazal Raqib (PLD 1974 SC 134), wherein it is held as:-- "It is the duty of the Courts to try to get at the real intention of the Legislature, by carefully attending to the whole scope of the statute to be construed. As a general rule, however, a statute is understood to be directory when it contains matter merely of direction, but not when those directions are followed up by an express provision that, in default of following them, the acts shall be null and void. To put if differently, if the Act is directory, its disobedience does not entail any invalidity; if the Act is mandatory, disobedience entails serious legal consequences amounting to the invalidity of the act done in disobedience to the provision". 10. Since, the above provision is not mandatory; therefore, a non adherence to it is not fatal for the trial. Besides, it is worth noting that the order of learned trial Court for further cross-examining was neither agitated before the trial Court by the prosecution nor it was challenged before this Court by preferring a revision application. I am of the view that in the existing position of affairs, the deposition of further cross-examination of some of the witnesses remains intact and the same cannot be ignored. 11. In the instant case, FIR was lodged with a delay of 3 days. Although, the delay has been reasoned out that the same was lodged after seeking directions from learned Sessions Judge (ex-officio Justice of Peace). No doubt, it appears to be a good explanation but I will discuss about it after a while. It is worth noting that after getting a direction from the learned ex-officio Justice of Peace, the complainant himself has not appeared before the concerned officer at police station for recording his statement but the contents of an application received by the concerned officer were reproduced in the body of FIR. It is also worth mentioning that the date of said application is given as 24-7-07. Nevertheless, as per facts mentioned within FIR, the following points are considerable: i. The incident was taken place on a construction site situated at the office of MDA. ii. On the day of incident, the deceased Luqman, who is an employee of MDA as…

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