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Petitioner: SALEEM MASIH and anothers VS Respondent: The STATE
Court Name: Lahore High Court Judge(s): Malik Shahzad Ahmad Khan, Manzoor Ahmad Malik Title: SALEEM MASIH and anothers vs The STATE Case No.: Criminal Appeal No,272 of 2008 and Murder Reference No,48 of 2008 Date of Judgment:2013-02-07 Reported As: 2013 P Cr. L J 1813 Result: Appeal accepted
JUDGMENT
JUDGMENT ' MALIK SHAHZAD AHMAD KHAN, J.---Saleem Masih and Asif Masih alias Sahib alias Sahibi appellants were tried in case F.I.R. No,397/04 dated 25-6-2004, registered at Police Station, Satto Katla. District Lahore in respect of offences under section 302/34 of P.P.C. After conclusion of the trial, the learned trial Court vide its judgment dated 13-3-2008 has convicted and sentenced both the appellants under section 302(b)/34 of P.P.C. For committing the murder of Falak Sher alias Fakri Masih to death with a direction to pay the compensation amount of Rs,50,000 (Rupees Fifty Thousand only) each to the legal heirs of deceased. In case of default in payment of compensation, they were directed to further undergo six months' S.I. 2. Feeling aggrieved, the appellants have challenged their convictions and sentences through Criminal Appeal No,272 of 2008, whereas, the learned trial Court has transmitted Murder Reference No,48 of 2008 for confirmation or otherwise of the death sentences of Saleem Masih and Asif Masih alias Sahib alias Sahbi (convicts). We propose to dispose of both these matters by this single judgment as these have arisen out of the same judgment dated 13-3-2008 passed by the learned Additional Sessions Judge, Lahore. 3. Brief facts of the case are that initially the matter was reported to the police by Saleem Masih appellant through his Fard Biyan Exh.PD on the basis of which formal F.I.R. (Exh.PD/2) was chalked out. He stated in his Fard Biyan that his 'Saala' (brother-in-law) namely Falak Sher Masih alias Fakri aged about 20/25 years was a labourer by profession. His father was mentally abnormal. They were living in the same house. On the day of occurrence (25-6-2004) at about 1-00/2-00 p.m., he (Saleem Masih),gave Rs, 700 to Falak Sher Masih alias Fakri (deceased) and sent him for payment of the electricity bill in the bank situated at `Ghazi Chowk'. At about 3-30 p.m., his maternal uncle
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namely Munawar Masih informed him that he had seen the dead body of Falak Sher Masih alias Fakri, smeared with blood, lying near water tank of Punjab Housing Society, of villas, Satto Katla. Saleem Masih (appellant) along with his maternal uncle Munawar Masih and brother Nazeer Masih went to the spot and found the dead body of Falak Sher Masih alias Fakri lying there and his throat was cut with some sharp edged weapon. He further stated that the deceased was murdered by some unknown persons. ' On the same day. Moru Masih (P.W.4), moved application Exh.PD/I to the Incharge Investigation Cell of Police Station Satto Katla, Lahore that on that day, i.e, 25-6-2004 at about 9-00/10-00 a.m., he came to the house of his brother Surjan Masih situated at Yuhana Colony Green Town, Lahore in order to see him as he was sick. At about 11-00 a.m., in his presence, Saleem Masih, son-in-law of Surjan Masih and Asif Masih alias Sahibi (appellants) took Ashraf alias Falak Sher Masih alias Fakri (deceased) along with them on the pretext of payment of electricity bill. Thereafter, he (Moru Masih P.W.4) went back to his house situated at Mauza Kamas. He, on receiving the information that Ashraf alias Falak Sher Masih alias Fakri had been murdered by some unknown person by cutting his throat, returned to Lahore where Soba Masih (P.W.5) and Anwar Masih (P.W.6) informed him that on that day (25-6-2004) at about 1.45 p.m, they saw Saleem Masih (appellant), Sahib Masih (appellant) and Ashraf alias Falak Sher Masih alias Fakri (deceased), while sitting at 'Rohl Nala' of Satto Katla, opposite to the Punjab Housing Society, Phase-II and after some time at about 2.00 p.m., they again saw Saleem Masih and Sahibi Masih (appellants) while running from 'Rohl Nala' towards Qasim Bridge, WAPDA Town and clothes of Sahibi Masih (appellant) were stained with blood. Moru Masih (P.W.4) alleged that Saleem Masih and Sahibi Masih, with consultation of each other had murdered Ashraf alias Falak Sher Masih alias Fakri. 4. According to Moru Masih, the motive behind the occurrence was that Saleem Masih had developed illicit relations with his niece and Falak Sher Masih alias Fakri (deceased) used to admonish him and due to this grudge the accused persons committed the murder of the deceased. 5. The appellants Saleem Masih and Asif Masih alias Sahib Masih alias Sahibi were arrested on 9-7- 2004. On 12-7-2004, Saleem Masih appellant led to the recovery of Chhuri P-6 from 'Rohi Nala' opposite to village Satto Katla, Lahore, which was taken into possession vide recovery memo Exh.PN. After completion of investigation, the challan was prepared and submitted before the learned trial Court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellants on 9-3-2005 to which they pleaded not guilty and claimed trial. 6. In order to prove its case, the prosecution produced 15 witnesses during the trial. Moru Masih complainant (P.W.4) is the witness of last seen evidence, Soba Masih (P.W.5), Anwar Masih (P.W.6) are the witnesses of last seen and Wajtakkar' evidence. Jeeta Masih (P.W.10) and Mukhtar Masih (P.W.11) are the witnesses of extra-judicial confession of the appellants. ' The medical evidence was furnished by Dr. Aman Ullah Khan (P.W.3). Muhammad Anwar (P.W.9) is the recovery witness of Chhuri (P-6), which was taken into possession on the pointation of Saleem Masih appellant vide recovery memo Exh.PN. The investigation of the case was conducted by Haider S.I (P.W.14). ' Muhammad Ashraf, Constable (P.W.1), Syed Younas Ali Bokhari, Draftsman (P.W.2), Ghuman Khan, HC-2300 (P.W.7), Mushtaq Masih (P.W.8), Maqsood Ahmad (P.W.12), Noor Ali, S.I (P.W.13) and Abdul Raul Inspector (P.W.15) are the formal witnesses. The prosecution also produced documentary evidence in the shape of memo of possession of blood-stained clothes of deceased Exh.PA, scaled site plan in duplicate of the place of recovery of dead body Exh. PB and Exh. PB/1, post mortem report Exh. PC, pictorial diagrams Exh.PC/1 and Exh.PC/2, acknowledgement of receiving of dead body Exh. PC/3, Fard Biyan' of Saleem Masih Exh. PD, application of Moru Masih to Investigating
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Officer Exh.PD/1, copy of F.I.R. Exh.PD/2, memo of possession of shirt of accused Exh.PE, inquest report Exh.PF, memo of possession of blood-stained earth Exh.PG, application for issuance of docket for post mortem examination of the deceased Exh.PH, application for conducting post-mortem examination of the deceased Exh. PJ, injury form Exh.PK, copy of site plan without scale Exh.PL, memo of possession of shoes of the deceased Exh. PM, memo of possession of `chhuri' Exh.PN, site plan of the place of recovery of 'chhuri' Exh.PN/1, report of Chemical Examiner about earth Exh.PQ, report of Serologist about earth Exh.PQ/1, report of Chemical Examiner about `chhuri' Exh. PR, report of Serologist about `chhuri' Exh.PR/1, report of Chemical Examiner about shirt of accused Exh.PS, report of Serologist about shirt of accused Exh. PS/I and closed its evidence. ' The statements of the appellants under section 342, Cr.P.C. Were recorded. They refuted the allegations levelled against them and professed their innocence. While answering to question ' Why this case against you and why the P. Ws. Have deposed against you", the appellants replied as under:-- Saleem Masih "Mst. Parveen, sister of the deceased was enticed away by me and later on with the intervention of the Family members/Panchait Mst. Parveen contracted marriage with me in the presence of her family members. Due to this reason her family members were not happy with me and they were looking for chance to get rid of me. On the fateful day i.e, 25-6-2004 they got chance to satisfy their echo, they planned and booked my and my friend in this case." Asif Masih "1 have been implicated in this case due to friend of Saleem Masih, otherwise, I have nothing to do with the commission of offence. The 1.0. i.e, P.W.13 has admitted in his statement Oat 1 have not inflicted any injury at the person of the deceased." ' Neither the appellants opted to make statements under section 340(2) of Cr.P.C. Nor produced any evidence in their defence. The learned trial Court vide its judgment dated 13-3-2008, convicted the appellants under section 302(b)/34, P.P.C. And sentenced them as mentioned and detailed above. 7. Learned counsel for the appellants in support of this appeal, contends that the appellants have falsely been implicated in this case because Saleem Masih (appellant) contracted marriage with the niece of Moru Masih (P.W.4), namely Mst. Parveen Bibi against the wishes of her family; that initially this case was got registered by Saleem Masih appellant as it was an unwitnessed occurrence but subsequently he has falsely been implicated in this case by Moru Masih (P.W.4) in connivance with the police; that there is no direct evidence against the appellants and the circumstantial evidence produced by the prosecution is not worthy of reliance; that the evidence of Soba Masih (P.W.5) and Anwar Masih (P.W.6) who have stated that they saw the appellants in the company of the deceased at the place of occurrence is highly unreliable; that the alleged extra-judicial confession of the appellants also carries no value in the eye of law, as the same has been alleged to be jointly made by the appellants; that alleged recovery of `chhuri' and reports of Chemical Examiner and Serologist also carries no value due to delayed deposit of `chhuri' in the office of Chemical Examiner because recovery of `chhuri' was allegedly effected on 12-7-2004 and it was sent to the office of Chemical Examiner on 27-7-2004, i.e,, after the lapse of more than one month from the date of occurrence which took place on 25-6-2004 and there is no explanation of said delay; that alleged recovery of shirt of Saleem Masih appellant is also not helpful to the prosecution because shirt of the deceased was mentioned to have been washed in the recovery memo, therefore, positive reports of Chemical Examiner and that of Serologist about presence of human blood on the shirt P-5 are not reliable; that the prosecution has miserably failed to prove its case against the appellants beyond the shadow of doubt. Thus, this appeal be accepted and the appellants may be acquitted from the charge.
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8. Conversely, the learned Deputy Prosecutor-General for the State, assisted by learned counsel for the complainant, opposes this appeal on the grounds that the witnesses have no enmity with the appellants to falsely implicate them in this case; that initially it was Saleem Masih appellant who got registered the case against unknown persons but after that when the real facts were brought into the notice of Moru Masih (P.W.4), he reported the real facts to the police and the police got recorded his statement on the day of occurrence; that the prosecution witnesses of last seen evidence have no enmity to falsely depose against the appellants and they have categorically stated that they saw the appellants in the company of the deceased at the place of occurrence and after some time they again saw the appellants while running from the place of occurrence towards WAPDA Town; that it is in the statement of Moru Masih (P.W.4) that on the day of occurrence the deceased was taken by the appellants along with them on the pretext to deposit the electricity bill; that case of the prosecution is fully corroborated by the extra-judicial confession of the appellants; that the recovery of `chhuri' was effected from Saleem Masih appellant which further corroborates the prosecution case; that reports of Serologist and that of Chemical Examiner about presence of human blood on chhuri P-5 and shirt P-6 are also positive which have fully proved the prosecution case against the appellants; that there is no mitigating circumstance in this case; that the sentence of death was rightly awarded to the appellants and the same may be maintained, appeal may be dismissed and Murder Reference be answered in the affirmative. 9. We have heard the arguments of learned counsel for the parties and have also gone through the evidence available on the record with their able assistance. 10. Since there is no direct evidence and prosecution case hinges on the circumstantial evidence, therefore, utmost care and caution is required for reaching at a just decision of the case. It is settled by now that in such like cases every circumstance should be linked with each other and it should form such a continuous chain that its one end touches the dead body and other neck of the accused. But if chain link is missing then its benefit must go to the accused. In this regard, guidance has been sought from the judgments of the Apex Court of the country reported as 'Ch. Barkat Ali v. Major Karam Elahi Zia and another' (1992 SCM R 1047), `Sarfraz Khan v. The State' (1996 SCM R 188) and 'Asadullah and another v. The State' (1999 SCM R 1034). In the case of Ch. Barkat Ali (supra), the august Supreme Court of Pakistan, at page 1055, observed as under:-- ...Law relating to circumstantial evidence that proved circumstances must be incompatible with any reasonable hypothesis of the innocence of the accused. See 'Siraj v. The Crown' (PLD 1956 FC 123). In a case of circumstantial evidence, the rule is that no link in the chain should be broken and that the circumstances should be such as cannot be explained away on any hypothesis other than the guilt of the accused.' ' In the case of Sarfraz Khan (supra), the august Court of Pakistan, at page 192, held as under:-- 7....It is well-settled that circumstantial evidence should be inter-connected that it forms such a continuous chain that its one end touches the dead body and other neck of the accused thereby excluding all the hypothesis of his innocence.' ' Further reliance in this context is placed on the case of 'Altaf Hussain v. Fakhar Hussain and another' (2008 SCM R 1103) wherein, at page 1105 it was held by the Hon'ble Supreme Court as under:- '7....Needless to emphasise that all the pieces of evidence should be so linked that it should give the picture of a complete chain, one corner of which should touch the neck of the deceased and other corner to the neck of the accused. Failure of one link will destroy the entire chain.' ' Keeping in view the parameters, laid down in the above-mentioned judgments, we will discuss each part of the prosecution evidence, separately. 11. The prosecution case is based on the following pieces of evidence:-- (i) Evidence of last seen.
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(ii) `Wajtakkar' evidence. (iii) Extra-judicial confession of the, appellants. (iv) Motive. (v) Recovery of 'churri' and shirt of accused (Saleem appellant) from the place of occurrence. (vi) Medical evidence. 12. The occurrence in this case took place on 25-6-2004 at 2-45 p.m., whereas, the matter was reported to the police on the same day at 3-45 p.m. And the F.I.R. Was also lodged on the same day at 4-15 p.m. On the basis of Tard Biyan' of Saleem Masih (appellant). However, Moru Masih (P.W.4) on the same day i.e, 25-6-2004, moved an application to the Incharge Investigation Cell of Police Station Satto Katla through which he implicated the appellants in this case on the ground that the deceased. Falak Sher alias Fakri was lastly seen in the company of the appellants by him (Moru Masih P.W.4), as well as, by Soba Masih (P.W.5) and Anwar Masih (P.W.6). It was further alleged that on the day of occurrence Soba Masih (P.W.5) and Anwar Masih (P.W.6), also saw the appellants when they were running away from the spot, after the occurrence, while the shirt of Asif Masih alias Sahibi appellant was stained with blood. Moru Masih (P.W.4) is paternal uncle of Falak Sher alias Fakri deceased, whereas, Saleem Masih (appellant) is brother in law of the deceased. According to the evidence of Moru Masih (P.W.4) on 25-6-2004 at about 10-00 a.m. He went to the house of his real brother Surajan Masih as he was sick. The said house was situated in katchi abadi' Yohana Colony, Green Town, Lahore. He further stated that Saleem Masih and Asif Masih alias Sahibi (appellants) took his nephew Fakri Masih (deceased) along with them for payment of electricity bill at about 11-00 a.m. He (Moru Masih P.W.4) thereafter, returned to his town, Kamas. He was later on telephonically informed by Sooba Masih (P.W.5) and Anwar Masih (P.W.6) that his nephew Fakri Masih had been murdered by the appellants. ' It has come on the record that Saleem Masih (appellant) contracted marriage with Mst. Parveen who is niece of Moru Masih (P.W.4) and the said marriage was contracted according to their own wishes and this fact was admitted by Anwar Masih (P.W.6) who is brother-in-law of the father of the deceased and of Moru Masih (P.W.4). Anwar Masih (P.W.6) has further admitted during his cross-examination that after convening a punchaie it was agreed between the parties that Mst. Parveen be given in the marriage of Saleem Masih (appellant). So it is evident that relationship between Morn Masih (P.W.4) who is paternal uncle of the deceased and Saleem Masih (appellant) was not cordial. We have also noted that Moru Masih (P.W.4) is resident of village Kamas. He stated that he had lastly seen the deceased in the company of the appellants in the house.Of his brother Surjan Masih situated at Youhana Colony Green Town, Lahore. He has further stated during his cross- C examination that his village is situated at a distance of 25 miles from the house of Surjan Masih. He is, therefore, a chance witness. He has stated that he came to the house of his brother Surjan Masih as he was sick but neither any medical prescription was produced by him nor any one out of the children or wife of his brother Surjan Masih appeared in the witness box to corroborate the evidence of this witness, therefore, it is not safe to rely upon the evidence furnished by Moru Masih (P.W.4). 13. The prosecution has also produced evidence that the deceased was lastly seen in the company of the appellants through Soba Masih (P.W.5) and Anwar Masih (P.W.6). The said witnesses have also given the evidence of `Wajtakar' Soba Masih (P.W.5) has stated that on 25-6-2004 at about 11- 00 p.m. He along with Anwar Masih P.W.6) saw the appellants in the company of Falak Sher alias Fakri deceased near `Rohi Nala'. They, thereafter went to the Police Station Satto Katla and when they returned from the police station at about 2-00/2-30 p.m. They saw the appellants running near Rohi Nala'. He also stated that the shirt of Asif Masih alias Sahibi (appellant) was stained with blood whereas the shirt of Saleem Masih (appellant) present near Rohi Nala' which was also stained with blood. He further stated that when he reached back at his house he came to know
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that Falak Sher alias Fakri had been murdered. The statement of Anwar Masih (P.W.6) is also on the same lines. The conduct of Soba Masih (P.W.5) and Anwar Masih (P.W.6) is un-natural. Anwar Masih (P.W.6) has admitted during his cross-examination that he is brother-in-law (behnoi) of the father of the deceased. The above mentioned witnesses claimed that they had seen the deceased in the company of the appellants on the day of occurrence and after some time they had again seen the appellants while running and their shirts were blood-stained but they did not bother to go to the spot in order to inquire about the deceased who was close relative of Anwar Masih (P.W.6), rather they went back to their respective houses, where they were informed about the murder of Falak Sher alias Fakri. Soba Masih (P.W.5) has stated during his cross-examination that on the day of occurrence Anwar Masih had come to his house at 2-00/2-30 p.m. And when they reached their houses they came to know that Falak Sher alias Fakri had been murdered. It is evident from the perusal of the statement of Soba Masih (P.W.5) that the fact about the murder of Falak Sher alias Fakri came to the knowledge of this witness and Anwar Masih (P.W.6) at 2-00/2-30 p.m. On the day of occurrence but even then they did not report the matter to the police rather the incident about the murder of deceased was reported to the police by Saleem Masih (appellant) on the day of occurrence at 3-45 p.m. And the formal F.I.R. Was registered on the same day at 4-15 p.m. Soba Masih (P.W.5) and Anwar Masih (P.W.6) have not given any plausible explanation as to why they did not immediately inform the police regarding the incident. We have also noted material contradictions and improvements in the statements of Soba Masih (P.W.5) and Anwar Masih (P.W.6). Soba Masih (P.W.5) has stated that on the day of occurrence when he saw the appellants while running near `Rohi Nala', the shirt of Asif Masih alias Sahbi was stained with blood whereas Anwar Masih (P.W.6) has not stated that the shirt of Anwar Masih alias Sahbi was stained with blood at that time. Soba Masih (P.W.5) also stated that the shirt of Saleem Masih appellant was present near 'Rohi Nala' which was stained with blood but Anwar Masih (P.W.6) did not state that the shirt of Saleem Masih (appellant) was stained with blood and the same was present near 'Rohi Nala'. The improvement made by Soba Masih (P.W.5) in his statement regarding the presence of shirt of Saleem Masih (appellant) near `Rohi Nala' was duly brought on the record when he was confronted with his statement before police Exh.DA. We are, therefore, of the view that the evidence of last seen and wajtakkar furnished by Soba Masih (P.W.5) and Anwar Masih (P.W.6) is not worthy of reliance. 14. The prosecution has produced the evidence of extra-judicial confession of the appellants through Jeeta Masih (P.W.10) and Mukhtar Masih (P.W.11). The examination in chief of Jeeta Masih (P.W.10) is reproduced hereunder for ready reference:- 'On 8-7-2004 I was sitting along with my maternal nephew Mukhtar when Sahbi Masih and Saleem Masih came and stated that they have committed mistake that they had killed the deceased and they be pardoned. We replied that we will gather and will consider over it. Then we went to the police and made statements.' The examination-in-chief of Mukhtar Masih (P.W.11) is also on the same lines. It is evident from the perusal of the statements of Jeeta Masih (P.W.10) and Mukhtar Masih (P.W.11) that the alleged confession of the appellants was jointly made by them. The role of the appellants during the occurrence, the manner in which the occurrence took place, the kind of weapon used by the appellants or the reason for committing the murder of Falak Sher alias Fakri (deceased) was not mentioned in the said extra-judicial confession. Jeeta Masih (P.W.10) has admitted during his cross-examination that he was neither lumberdar nor a councilor of the area and was an ordinary labourer. Similarly Mukhtar Masih (P.W.11) has 'also admitted during his cross-examination that he was neither "lumberdar nor a councillor of the area and he used to cultivate land in the village on `batai', as well as, on lease. He further stated that he was not owner of any land. He has also admitted that he was paternal nephew of the deceased. Jeeta Masih (P. W.10) and Mukhtar Masih
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(P.W.11) were not the persons in authority and there was no reason with the appellants to confess their guilt before the said witnesses. It is by now settled law that the evidence of extra-judicial confession is a weak type of evidence. The evidentiary value of the extra-judicial confession (joint or otherwise) came up for consideration before the august Supreme Court of Pakistan in the case reported as SAJID MUMTAZ AND OTHERS v. BASHARAT AND OTHERS (2006 SCM R 231), wherein, at page 238, the apex Court of Pakistan has been pleased to lay emphasis as under:- "17 This Court and its predecessor Courts (Federal Court) have elaborately laid down the law regarding extra-judicial confession starting from Ahmad v. The. Crown (PLD 1961 FC 103-107) upto the latest. Extra-judicial-confession has always been taken with a pinch of salt. In Ahmad v. The Crown, it was observed that in this country (as a whole) extra-judicial confession must be received with utmost caution. Further, it was observed from time to time, that before acting upon a retracted extra-judicial-confession, the Court must inquire into all material points and surrounding circumstances to 'satisfy' itself fully that the confession cannot but be true'. As, an extrajudicial- confession is not a direct evidence, it must be corroborated in material particulars before being made the basis of conviction. 18. It has been further held that…
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