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Petitioner: Irfan Ali and others VS Respondent: The State
Court Name: Federal Shariat Court Judge(s): Khadim Hussain M. Shaikh, Syed Muhammad Anwar Title: Irfan Ali and others vs The State Case No.: Jail Criminal Appeals Nos. 4/I and 6/I of 2020 Date of Judgment:2021-06-11 Reported As: 2022 YLR 1097 Result: Appeals allowed
JUDGMENT
JUDGMENT KHADIM HUSSAIN M. SHAIKH, J. This judgment will dispose of both the captioned appeals, which are directed against the single judgment dated 14.11.2019, passed by the learned Additional Sessions Judge-I/Model Criminal Trial Court Mirpurkhas, in Sessions Case No.276 of 2017 re-The State v. Irfan Ali and others, emanating from Crime No.93 of 2017 registered at P.S Digri, whereby appellants Irfan Ali Jat son of Muhammad Ilyas, Imran Ali Jat son of Khalid Hussain, Wanjaro son of Sachoo, Rajoo son of Sachoo and Sono alias Sajan son of Premchand were convicted and sentenced as under:- i). "For offence punishable under section 302(b), P.P.C. for the murder of deceased Irfan Ali Otho to undergo Life Imprisonment as Tazir and to pay Rs.100,000/- each as compensation under section 544-A, Cr.P.C. to the legal heirs of deceased Irfan Ali Otho and in case of default of payment, to surfer S.I. for the period of six (06) months more each." ii). "For offence punishable under section 337-A(i), P.P.C. to suffer R.I. for one (01) year each as Tazir and to pay Rs.10,000/- each as Daman to P. W/injured Imran Ali Sodhar." iii). "For offence punishable under section 337-L(2), P.P. C. to pay Rs.5,000/- each as Daman to P. W/injured Imran Ali Sodhar." iv). "For offence punishable under section 337-F(vi), P. P.C. to suffer R.I. for two (02) years each as Tazir and to pay Rs.25000/- each as Daman to P.W./injured Imran Ali Sodhar.". All the sentences awarded to the appellants were ordered to run concurrently and they were also extended benefit of section 382-B, Cr. P. C. 2. Briefly, the facts of the prosecution case are that on 21.07.2017 at 1430 hours, complainant Ahmed Ali son of Buxial Sodhar lodged his FIR at Police Station Digri mainly contending therein that he is
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doing his job as labour at Jio Mehran rent a car situated at Sohrab Goth, Karachi, while his brother Imran Sodhar is serving as a driver on an XLI Car bearing Registration No, BEK-875 and whereas one Jawaid Magsi is also doing job at the said Adda with the complainant. On 09.07.2017 Jawaid received a phone call on cell phone Number 0302-3045909 from cell phone number 0306- 8355655 that a car was required for Digri. It is alleged that Jawaid Magsi had given the aforesaid cell phone number to the complainant's brother Imran Sodhar, who carried the passenger, who hired his car on rent towards Digri. It is alleged that at 11.29. p.m., the complainant's brother Imran Sodhar sent a message from his mobile phone to his another brother Muhammad Hassan Sodhar that he is in Digri and two persons one Sindhi and the other one Punjabi are with him. Of them one is named Irfan, while the name of other person is not known. In the morning, Muhammad Hassan showed that message of his brother Imran Sodhar to the complainant, who tried to contact his brother Imran Sodhar on cell phone, but it was found switched off. On obtaining the information regarding location of the car through tracker department he came to know that the said car is located in Digri city. Then he contacted S.H.O. Police Station Digri, who informed him that during patrolling he received information about an abandoned car and two persons were found lying in its dikki, who were taken to Taluka Hospital, Digri, where one person had expired, whose dead body was lying in mortuary of hospital while the other person being seriously injured was referred to Civil Hospital Hyderabad. Then the complainant along with Jawaid Magsi and Hafiz Ali Gohar reached at the Civil Hospital, Hyderabad where the SHO showed him the injured person, who was identified to be his brother Imran Sodhar. The complainant allegedly took his injured brother Imran to Liaquat National Hospital, Karachi for his further treatment. On 11.07.2017 SHO, Digri informed the complainant on cell phone about the arrival of relatives of deceased person, who was identified to be Irfan Otho and their taking away his dead body to Sukkur. The complainant then contacted one Imran Otho, the brother of the deceased. On their personal inquiry they came to know that accused Irfan Jat, Imran Jat, Wanjaro Bheel, Rajoo Bheel and Sono alias Sajan Bheel have committed murder of deceased Irfan Otho and caused injuries to the complainant's brother Imran Sodhar and then the complainant lodged his FIR on 21.07.2017 as discussed Supra. After usual investigation final report under section 173, Cr.P.C. was submitted by the police whereupon the learned trial Court took cognizance of the case. 3. After completing all the formalities, a formal charge was framed against accused Irfan Ali son of Muhammad Ilyas, Imran Ali son of Khalid Hussain, Wanjaro son of Sachoo, Rajoo son of Sachoo and Sono alias Sajan son of Premchand ["the appellants"], to which they pleaded 'not guilty' and claimed their trial. 4. In order to prove its case, the prosecution examined PW-1 MO Dr. Ehtesham-ul-Haque at Ex.4, who produced police letter for examination, treatment and certificate of injured, provisional medico-legal certificate of injured, report of Radiologist, final medical legal certificate of injured, the police letter for post-mortem of deceased Irfan Ali, post-mortem report of deceased Irfan Ali, two receipts, letter dated 24.07.2017, issued by him for correction of date from 12.07.2017 to 11.07.2017 in the post-mortem report and the police letter No.933 dated 10.07.2017 at Exs,4/A, 4/B, 4/C,4/D, 4/E, 4/F, 4/G, 4/H, 4/1, 4/J and 4/K respectively; PW-2 Tapedar Naveed Ahmed at Ex.5, who produced police letter and sketch/map of vardhat at Exs. 5/A and 5/B respectively. PW-3 complainant Ahmed Ali Sodhar at Ex.6, who produced FIR at Ex.6/A: PW-4 eye-witness/injured Imran Ali Sodhar at Ex.7 who produced his statement under section 161, Cr.P.C. on non-judicial stamp paper at Ex.7/A; PW-5 mashir Imran Otho at Ex.8, who produced mashirnama of identification of dead body of deceased Irfan Ali mashirnama of recovery of Towel and izarband, lash chakas form, danistnama, mashirnama of clothes of deceased Irfan, mashirnama of place of incident and recovery of chapel of deceased Irfan Ali, mashirnama of place of recovery of the car and mashirnama of recovery of motorcycle at Exs.8/A, 8/B, 8/C, 8/D,
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8/E, 8/F, 8/G and 8/H respectively; PW-6 witness Jawaid Magsi at Ex.9; PW-7 Mashir PC Arif Ali at Ex.10, who produced mashirnama of arrest of accused Irfan and Imran and mashirnama of arrest of accused Wanjaro, Rajoo and Sono alias Sajan at Exs.10/A 10/B respectively; PW-8 first investigating officer SIP Hothchand at Ex.12, who produced copy of entry No.25 of roznamcha, police letter for treatment of injured, mashirnama of inspection of injuries of injured, mashirnama of clothes of injured, mashirnama of recovery of izarband, mashirnama of inspection of dead body of deceased, lash chakas form of dead body of deceased, receipt for handing over dead body to one Nadeem Ahmed and copies of entries Nos.26 and 29 of roznamcha at Exs.12/A, 12/B, 12/C, 12/D, 12/E, 12/F, 12/G, 12/H, 12/I and 12/J respectively; PW-9 IInd I.O. SIP Muhammad Aslam at Ex.13, who produced copy of entries Nos. 20 and 23 of roznamcha, mashirnama of place of the incident, report of chemical examiner, copies of roznamcha entries, copy of letter to Civil Judge and JM-1, Digri for recording confessional statements of accused persons and copy of notice given to the accused persons for recording their confessional statements at Ex.13/A, 13/B, I3/C, 13/D, 13/E and 13/F respectively. PW-10 Mashir PC Roshan Ali at Ex.14; and PW-11 Amir Latif Civil Judge and JM Digri at Ex.15, who produced confessional statements of accused and copy of order dated 02.08.2017 at Exs.15/A, 15/B, 15/C, 15/D, 15/E and 15/F respectively. Then the prosecution closed its side vide statement of the learned ADPP at Ex.16, Thereafter, the statements of all the appellants under section 342, Cr.P.C. were recorded, wherein they denying the prosecution allegations professed their innocence and their false implication. Appellants Irfan Ali and Imran Ali have further stated that they have old enmity with Chaudhry Wajahat, who has occupied their land and he has got them falsely implicated in this case through the police as he is an influential person. Appellant, Wanjaro, Rajoo and Sono alias Sajan, besides having denied the allegations of the prosecution, have further stated that they worked in the land of their landlord Chaudhry Wajahat, who did not pay their labour charges, due to which there was exchange of hot words between them, therefore, landlord Chaudhry Wajahat being influential person, has got them involved this false case. The appellants neither examined themselves on oath nor did they produce any person as their defence witness. At the conclusion of the trial and after hearing the learned Counsel for the parties and learned ADPP for the State, the learned trial Court has convicted and sentenced the appellants, as discussed in paragraph-1 supra vide impugned judgment dated 14.11.2019. 5. Having felt aggrieved by the said judgment dated 14.11.2019; the appellants have preferred the captioned Criminal Appeals. 6. Learned Advocate for appellants has mainly contended that the FIR was delayed by 12 days without proper explanation thereof, which is fatal to the prosecution case; that there are material contradictions in the evidence led by the prosecution; that the medical evidence is in conflict with the ocular evidence; that the prosecution witnesses during trial made dishonest improvements in the evidence; that the appellants are innocent and they have been falsely implicated in this case at the instance of Chaudhry Wajahat, who is a zamindar and an influential person of the locality, having dispute with appellants over the landed property and labour charges; that PW/injured Imran Ali Sodhar has not given the names of appellant Wanjaro, Rajoo, Sono alias Sajan in his statement under section 161, Cr.P.C; that identification parade of the appellants through eye- witness PW.4 injured Imran Sodhar has not been conducted before any Magistrate/Judge; that the confessional statements of the appellants. which are retracted ones, were recorded on 02.08.2017 with the delay of 7-8 days of arrest of the appellants, who were shown to have been arrested on 25.07.2017 and 26.07.2017, without adhering to the mandatory requirements as provided under the law and rules; per learned counsel the alleged confessional statements of the appellants are illegal, untrue and involuntary; and, that the prosecution has miserably failed to prove its case against the appellant: beyond reasonable doubt. The learned counsel prays that the appeal may be allowed and the appellants may be acquitted of the charge, extending them benefit of doubt.
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7. The learned Advocate for the complainant has mainly contended that the prosecution by examining 11 (Eleven) PWs and producing necessary documents including post-mortem report, MLCs, mashirnamas, danistnama, inquest report and FSL report etc, has proved its case against the appellants beyond any shadow of doubt; that there are minor contradictions in the evidence led by the prosecution, and, that the learned trial Court has rightly convicted the appellants. The learned Deputy Prosecutor General, Sindh, adopting the arguments of the learned counsel for the complainant, prays for dismissal of the instant appeals. 8. We have considered the submissions of the learned counsel for the parties and have gone through the evidence brought on the record with their assistance. 9. From a perusal of the record, it would be seen that the incident was shown to have taken place on the night falling between 09.07.2017 and 10.07.2017 and whereas the FIR was lodged on 21.07.2017 and no proper explanation has been offered by the prosecution for such an inordinate delay of more than 11 days in lodgment of the FIR; the statement under section 161, Cr,P.C. of PW/injured Imran Ali, who per prosecution, was the sole eye-witness of the occurrence, was recorded with further delay on 31.07.2017 i.e. after more than 21 days of incident and 10 days of the FIR without any plausible explanation thereof. It needs no reiteration that the delay in lodging FIR has been viewed with grave suspicion, how much it throws clouds of suspicion on the seeds of prosecution, depends upon a variety of factors, it requires careful scrutiny when number of accused is large, when such delay has resulted in embellishment, which was a creation of afterthought, assuming importance going to the extent of being fatal to the prosecution case in absence of convincing explanation, which prima facie points out to fabrication of the prosecution story. In the wake of the afore- mentioned unexplained inordinate delay in lodgment of the FIR and in recording statement under section 161, Cr.P.C. of the alleged solitary eye-witness P.W.4 injured Imran Ali Sodhar, the possibility of false implication of the appellants after consultations and deliberations could not be ruled out and that being significant could not be lost sight of, more particularly in a case like case one in hand, in which at the very outset the police was in motion and the complainant and witnesses, having already gone to the Police Station, met with the police, who instead of registering FIR, had started investigation as is evident from the statements of the two investigating officers namely PW.8 SIP Hoot hand and PW.9 SIP Muhammad Aslam Jamali. Reliance in this context is placed on the case of Akhtar Ali and others v. The State (2008 SCMR 6), wherein the Hon'ble Supreme Court of Pakistan has held that:- "It is also an admitted fact that the FIR was lodged by the complainant after considerable delay of 10/11 hours without explaining said delay. The FIR was also not lodged at Police Station as mentioned above. 10/11 hours delay in lodging of FIR provides sufficient time for deliberation and consultation when complainant had given no explanation for delay in lodging the FIR." In the case of Ayub Masih v. The State [PLD 2002 SC 1038], the Hon'ble Supreme Court of Pakistan has held that: "Unexplained inordinate delay in lodging the FIR is an intriguing circumstance, which tarnishes the authenticity of the FIR, casts a cloud of doubt on the entire prosecution case and is to be taken into consideration while evaluating the prosecution evidence. It is true that unexplained delay in lodging the FIR is not fatal by itself and is immaterial when the prosecution evidence is strong enough to sustain conviction but it becomes significant where the prosecution evidence and other circumstances of the case tend to tilt the balance in favour of the accused." In case of Muhammad Asif v. The State (2017 SCMR 486], the Hon'ble Supreme Court of Pakistan has held that: "There is a long line of authorities/precedents of this Court and the High Courts that even one or two days unexplained delay in recording the statements of eye-witnesses would be fatal and testimony of such witnesses cannot be safely relied upon.
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10. PW.3 complainant Ahmed Ali in his FIR had stated that after their search and personal inquiry and the police's inquiry, they came to know that the appellants have committed this offence, but when he came into the witness box he did not say so and went on to depose that "I cannot say whether accused present in Court are the same or not" , even otherwise no source of information about gaining such knowledge, has been disclosed by the prosecution either in the FIR and/or during the trial. And thus, manifestly, the appellants have been implicated in this case on the basis of suspicion, and it is well settled that the suspicion howsoever grave or strong may be, it can never be a proper substitute for the standard of proof required in a criminal case, which is to be proved by the prosecution against the accused beyond any shadow of doubt. 11. From the evidence of PW.4 Imran Ali son of Buxial-Sodhar Ex.7, it would be seen that he had lastly seen deceased Irfan Otho going with Irfan Jat and Wanjaro and he does not claim to have seen any person committing murder of Irfan Otho, stating that "Irfan Otho went with Irfan Jat and Wanjaro, while accused Imran Jat, Rajoo Bheel and Sono alias Sajjan stood with me and one of them caused blow of hard and blunt substance on my head, due to which I became unconscious and gain conscious (sic) after about 15 days at Liaquat National Hospital, Karachi", and in cross-examination he has stated that "it is correct that no accused caused any injury to the deceased in my presence; it is correct that after receiving blow on my head I remained conscious; I was not conscious at Taluka Hospital Digri; I do not know that I was conscious at Taluka hospital Digri and Hyderabad hospital but was unable to speak", while PW.3 complainant Ahmed Ali, who is brother of PW.4 injured Imran Ali, has stated that "my brother became conscious after 10 to 15 days at Liaquat National Hospital Karachi" and whereas PW.1 Dr. Ehtesham-ul- Haque has stated that "the injured was conscious when brought at hospital"; even otherwise nothing has been brought on the record by the prosecution to show that PW.4 injured Imran Ali Sodhar was ever admitted in Liaquat National Hospital, Karachi and the statement of PW.1 Dr. Ehtesham-ul-Haque Ex.4, Radiologist Report, provisional MLC and final MLC of PW.4 injured Imran Ali, produced by PW.1 Dr. Ehtesham-ul-Haque at Ex.4/B, 4/C and 4/D respectively, also do not reveal about PW.4 injured Imran Ali Sodhar's referral and/or his admission and treatment even for a single day in Liaquat National Hospital, Karachi, meaning thereby he (injured Imran Ali Sodhar) had left Civil Hospital Hyderabad on the following day i.e. 11.07.2017 against the medical advice (LAMA), which also adversely reflects upon the prosecution case, furthermore PW.4 injured Imran Ali Sodhar claimed that he was caused one blow of hard and blunt substance, on back side of his head by one of the accused out of three accused namely Imran Jat, Rajoo, Bheel and Sono alias Sajjan, but PW.1 Dr. Ehtesham-ul-Haque, who initially examined PW.4 injured Imran Ali Sodhar, found four injuries on his person, out of which one injury on his chin was caused by sharp cutting substance, while remaining three injuries were caused by hard and blunt substance and such provisional MLC, showing four injuries on the person of injured PW.4 Imran Ali Sodhar, issued by PW.1 Dr. Ehtesham- ul-Haque, was produced at Ex.4/B and whereas in the final MLC five injuries were shown on the person of injured PW.4 Imran Ali, thereby fifth injury was added in the final MLC Ex.4/D without any explanation regarding the earlier omission, if any. And, thus the medical evidence is in direct conflict with the ocular account; PW. Dr. Ehtesham-ul- Haque has further deposed that "there were total four injuries on the dead body caused by hard and blunt substance. Duration of injuries and death was within 10 to 20 minutes and the duration between death and post-mortem was about 35 to 44 hours. The cause of death was cardiorespiratory failure and injury to the vital organ i.e. brain". while PW.5 mashir Imran Otho, who per prosecution identified the dead body of deceased to be his brother Irfan Ali Otho before conducting the post-mortem, in his cross- examination has stated that "when we saw the dead body its post-mortem had already been conducted. I cannot tell exact number, however, there were many injuries on the dead body with main injury, of head. May be the deceased had 15/20 injuries", even otherwise no reasonable
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explanation has been offered by the prosecution for delay of 35 to 44 hours in conducting post- mortem of deceased Irfan Ali Otho, despite the fact that in July there is always scorching heat in Digri and its surrounding and keeping the dead body in scorching heat for such a long period, when, per prosecution, the dead body of deceased Irfan Ali Otho at the very outset, was allegedly taken to the Taluka Hospital Digri on 10.07.2017 at 0215 hours (night), where all the required formalities such as giving letter for post-mortem of the deceased to the MLO Dr. Ehtesham-ul- Haque, preparing mashirnamas, danistnama and lash chakas form etc, is not understandable; moreover, per prosecution PW.9 Investigating Officer SIP Muhammad Aslam Jamali and PW.10 mashir PC Roshan Ali while they were on patrolling duty, received information from PC Asif by mobile phone at 0145 hours about the availability of two dead bodies in Dikki of an abandoned car and then he along with his staff on patrolling including PW.10 mashir PC Roshan Ali reached at the pointed place after covering a distance of 15 kilometers and found two unknown persons (deceased Irfan Ali Otho and injured Imran Ali Sodhar) in unconscious condition in the Dikki of the pointed car; he prepared mashirnama of the place of incident in presence of mashirs PW.10 PC Roshan Ali and PC Ashok Kumar Ex.13/B and then took both the unconscious persons and brought them at Civil Hospital Digri in the same car after covering the distance of 25 kilometers reached there and per him Dr. Ehtesham-ul-Haque on duty had examined both the injured persons and one of the injured, who was subsequently/ identified to be Irfan Otho, had died after 10 minutes of his having been rushed to the hospital, but the medical evidence is also not in line with the prosecution case on this aspect. 12. It is worthwhile to mention here that no statement made by any person to a Police Officer in the course of an investigation under section 161, Cr.P.C., if reduced into writing, be signed by the person making it; and it can also not be on oath or solemn affirmation, but it is strange enough that the purported statement under section 161, Cr.P.C. of the solitary ocular witness PW.4 injured Imran Ali is computerized and that too as an affidavit on non-judicial stamp paper of Rs.100/- at Ex.7-A, allegedly recorded on 31.07.2017, but its perusal would show that the aforesaid non-judicial stamp paper was purchased on 01.08.2017 i.e. after one day of the date of recording of the alleged statement of said PW.4 under section 161, Cr.P.C. that was also admitted by PW.4 injured Imran Ali Sodhar in his statement by deposing that "the police recorded my statement on 31.07.2017 at Police Station Digri; it is correct that my statement was recorded on affidavit also on 31.07.2017, I produce my statement on affidavit at Ex.7-A it is same, correct and bears my signature; it is correct that affidavit produced by me is purchased on my name on 01.08.2017", and it was also admitted by investigating officer SIP Muhammad Aslam PW.9 by deposing that "it is correct that the statement of injured Imran Sodhar produced at Ex.7-A is on stamp paper and signed by me". And, therefore, the so-called statement under section 161, Cr.P.C. of solitary eye-witness PW.4 injured Imran Ali, besides being alien to law, is patently maneuvered in antedate and such manipulation regarding statement of the alleged solitary eye-witness of the occurrence namely PW.4 injured Imran Ali also adversely reflects upon the prosecution case in its entirety. It is also strange enough that at the very outset on 10.07.2017 at 02.00 a.m. PW.9 SIP Muhammad Aslam Jamali, the SHO, who is also investigating officer, had found two injured persons in unconscious condition in dikki of the subject car and then took them in the same car to Taluka hospital Digri, where one of them, who was subsequently identified to be Irfan Ali Otho, had died and other one to be PW.4 injured Imran Ali Sodhar, but the said car was not secured and it was on 27.07.2017 at 1400 hours when the recovery of the said car was shown to have been made as is evident from mashirnama of recovery produced at Ex.8/G, and no explanation about the preservation and whereabouts of the said car for 17 days from 10.07.2017 to 27.07.2017, has been offered by the prosecution. The prosecution case is that PWs came to know about the incident through cell phone calls and source of tracker, but neither the cell phone numbers on which the PWs and their relatives
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had repeatedly talked to each other were disclosed nor did the prosecution produce CDR and car tracker record to substantiate its case regarding receiving the alleged text message of PW.4 injured Imran Ali by the PWs and their telephonic talks with their relatives etc. 13. The prosecution case rests only on the statement of solitary witness PW.4 injured Imran Ali, but his statement being self-destructive and contradictory with dishonest improvements, cannot be relied upon as he named all the five appellants in his…
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