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Petitioner: IMAM ALI VS Respondent: STATE
Court Name: Sindh High Court Judge(s): Sajjad Ali Shah, Muhammad Ali Mazhar Title: IMAM ALI vs STATE Case No.: Crl. Jail Appeal No, D-62 of 2008 & Confirmation Case No, 2 of 2008 Date of Judgment:2011-06-03 Reported As: PLJ 2011 Cr.C. (Karachi) 1069 Result: Appeal dismissed
JUDGMENT
JUDGMENT Muhammad Ali Mazhar, J.--This jail appeal has been brought to challenge the judgment dated 09.07.2008, passed by learned Sessions Judge, Nawabshah in Sessions Case No, 47/2005, (Crime No, 18/2005 registered at P.S Sakrand), whereby the appellant was convicted and sentenced under Section 302 (b) PPC to death as Tazir. 2. The brief facts as disclosed in the FIR are that on 28.2.2005 at 1100 hours, one Abdul Malik Mugheri lodged reported that Muhammad Essa aged about 70 years, the father of the complainant, used to look after his agricultural land. Accused Imam Ali is cousin of the complainant who was annoyed due to some domestic affairs and used to say that he would kill Muhammad Essa. About 2/3 days before the date of incident, the harsh words were exchanged between accused Imam Ali and Muhammad Essa. On 28.2.2005, the complainant, his maternal uncle Muhammad Nawaz, nephew Zulfiqar and cousin Muhammad Isma il went together to their land. Accused Muhammad Essa was also coming from his house to the said land and as soon as he reached near Kouro Pir Graveyard at about 10-00 a.m., the accused having hatchet arrived there and raised lal.kara to Muhammad Essa saying that since he was not being respected, therefore, he would commit his murder and he started causing injuries with hatchet to Muhammad Essa who fell down on the ground and expired. 3. During course of investigation, appellant/accused was arrested and after completion of usual investigation, case was challaned and the appellant was sent up to the trial Court to face the charge. A formal charge was framed by the trial Court u/S. 302 PPC to which the appellant pleaded not guilty and claimed the trial, 4. To substantiate the case, the prosecution had examined PW1, complainant Abdul Malik, PW-2, Muhammad Nawaz, PW-3, Zulfiqar Ali, PW-4, Dr. Atta Muhammad, PW-5, HC Muhammad Amin, PW-
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6, Abdul Ghafoor, PW-7, SIP Abdul Latif, PW-8, SIP Faiz Muhammad. 5. The statement of the Appellant under Section 342 Cr.P.0 was recorded, wherein he denied the allegations and claimed his innocence. Accused neither examined himself on oath nor led any evidence in his defence to disprove the allegations against him. 6. We have examined the entire evidence produced by the prosecution to prove the guilt of the appellant. The first prosecution witness was P.W-1, complainant Abdul Malik (Ex.4), who deposed in his testimony that the deceased Muhammad Essa was his father On 28.2.2005 at about 10 a.m he was present at his land along with Muhammad Nawaz, Zulfiqar and Muhammad Ismail while deceased was about 1-00 acres away and was coming to the land. In the meantime, accused Imam Ali appeared from opposite side having hatchet in his hand and he made hakal that he will kill my father as he was not paying due respect to him, thereafter he started hatchet blows on his father. The complainant further deposed that they had made hakals but the accused warned them not to come, otherwise they will also be killed, therefore, they did not go near to him due to fear, thereafter the accused ran away towards the graveyard. The complainant thereafter went to his father and saw that blood was oozing from his injuries and he had died. He produced the FIR as (Ex. 4-A). In the cross-examination, he admitted that the P.W. Muhammad Ismail in his paternal cousin, Zulfiqar is son of his brother and Muhammad Nawaz is his maternal uncle. He further stated that his house is situated at the distance of 150 feet away from the land where the incident took place. He further stated that he along with other witnesses was standing at the distance of 250 to 300 feet away from their house. The accused person gave hatchet blows to his father when he was 150 feet away. The witness further stated that he took hardly four minutes in reaching the place where accused person was blowing hatchet to his father and when they reached at the place of incident the accused person ran away towards graveyard. The witness admitted that he did not to follow the accused inside the graveyard and stated that he cannot say about the real dispute between his father and accused but it was domestic dispute. He further stated that it is incorrect to suggest that we have forcibly occupied the land of accused person and it is incorrect to suggest that we are in occupation of the land belongs to accused person. He admitted that his father as well as father of accused person were real brothers. He further stated that it is incorrect to suggest that we are not giving due share of land to the accused person from the land belongs to my grandfather. 7. The P.W-2, Muhammad Nawaz (Ex.5) deposed that the deceased Muhammad Essa was his sister's husband. The incident took place on 28.2.2005 at about 10 a.m and he along with his nephew Abdul Malik, Zulfiqar and Muhammad Ismail was present on their land and saw that the deceased Muhammad Essa was coming to them about 100/150 feet away meanwhile from graveyard side accused Imam Ali came out along with hatchet and made hakal to deceased Muhammad Essa stated that you did not pay respect to me in usual course of life, so I will murder you today and by saying this inflicted the hatchet blows to deceased Muhammad Essa, where upon we also made hakal and run towards the place of incident and as soon as we reached the place of incident the accused caused the hatchet blows and he stated that nobody should come near to him otherwise he will also be killed and ran away towards the graveyard along with the hatchet, thereafter we saw that deceased Muhammad Essa received hatchet injuries and blood was oozing from his body and was died. The witness further stated his statement under 161 and 164 Cr.P.C. were recorded by Civil Judge and FCM Sakrand. He produced his 164 Cr.P.C. statement as Ex.5-A. In the cross-examination the witness deposed that it is correct to suggest that we did not resist the accused person when he came to kill the deceased. The accused took two or perhaps two and half minutes in injuring the deceased, the deceased received four injuries. It is correct to suggest that we did not try to catch hold the accused on the spot. It is incorrect to suggest that the accused was at dispute with the deceased over the land. Finally he denied the suggestion that he was not present at the place of wardat.
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8. The P.W-3, Zulfiqar (Ex.6) deposed that deceased Muhammad Essa was his grandfather. The incident took place on 28.2.2005 at about 10:00 a.m. He along with Muhammad Nawaz, Abdul Malik and Muhammad Ismail was present on his land, during that time deceased Muhammad Essa was coming from his house and at the distance of 150 feet away the accused Imam Ali emerged from the graveyard armed with hatchet and made hakal to his grandfather that you did not pay respect to me so he will murder him today and started hatchet blows over his grandfather. The witness further stated that we also made hakals and rushed on the place of incident to rescue but accused gave hakals not to come near him otherwise we will also be killed. In the cross-examination, the witness deposed that he is 26 years old. The accused person took two or three minutes in causing injuries to deceased. We did not try to catch hold the accused on spot as he made hakals that he would kill us also. It is incorrect to suggest that we are in dispute with the accused over the land. It is correct to suggest that we are in dispute with accused in matrimonial affairs. 9. The prosecution witness Muhammad Ismail was given up by the DDA vide his statement dated 24.7.2007 on the ground that he has same ocular version which had already been supported by P.W Zulfigar and Muhammad Nawaz. 10. The P.W-4, Dr. Atta Muhammad (Ex.9) deposed that on 28.2.2005, I was posted as Medico legal officer at Taluka hospital Sakrand. On that day H.C. Muhammad Ameen Kerio brought the dead body of deceased Muhammad Essa for postmortem and report. He started postmortem at about 1:00 p.m and noted down the external injuries as follows:-- 1. Incised wound 6 cm x 1 cm x scalp deep x bone visible (c) shaped on right side of forehead. 2. Incised wound 1 cm x (1/2) cm x scalp deep on (right eyebrow). 3. Incised wound 26 cm x 2 cm x bone deep with brain matter visible and damaged extending from (right parietal region to right side of neck) 4. Incised wound 21 cm x 2 cm x bone deep x brain matter visible and damaged from left mastoid process to (right mastoid process with cut of right pinna of ear crossing Injury No, 3. 5. Incised wound 17 cm x 2 cm x bone deep spinal vertebrae fractured with spinal cord cut on the back of neck. 6. Incised wound 30 cm x 1/2 cm x skin deep from (right Trapeziums muscle) to the back of the left shoulder y) shapcd. 7. Incised wound 10 cm x 1/2 cm x skin deep on back of base of neck. 8. Incised wound 5 cm x 1/2 cm x skin deep above (right Trapeziums muscle). 9. Incised wound 10 cm x 1/2 cm x skin deep from back of right shoulder to upper border of (right scapulae) 10.Incised wound 3 cm x 1 cm x skin deep on the lower 1/3 part of (right forearm posterior)." He also found following injuries on the body of deceased. 1. Right parietal bone fractured. 2. Right Occipital bone fractured. 3. Right temporal bone fractured. 4. Upper cervical vertebrae fractured. 5. Spinal cord damaged. 6. Brain matter damaged. 7. Cerebral vessels ruptured. 8. Esophagus cut. 9. Internal & External carotid vessels ruptured. 10.Lungs are congested". The doctor had further deposed that after conducting the postmortem, he was of the opinion that the death of deceased Muhammad Essa had resulted due to shock hemorrhage consequent to the injuries mentioned above which were caused by sharp cutting weapon. In a very short cross-
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examination conducted by the counsel for the accused, he stated that he did not note whether the shirt was torn at the respective sides of hatchet blows. Injury No, 3 caused on the person of deceased could have caused probable death. 11.The P.W-5, Muhammad Ameen (Ex.10) had deposed that on 28.2.2005, he was posted as H.C, P.S Sakrand. On that day, SIP Faiz Muhammad Mirjat entrusted the dead body of the deceased Muhammad Essa for postmortem. After conducting the postmortem by Dr. Atta Muhammad, I had handed over the dead body to his relatives for funeral. In his cross-examination he stated that the dead body was handed over to him inside the hospital. He denied the suggestion that the LO handed over him the dead body of deceased at the place of wardat. 12.The P.W-6, Abdul Ghafoor (Ex.11) had stated that on 28.2.2005 my uncle Muhammad Essa was murdered while I was present at my house. Police had prepared the memo. of wardat, memo. of dead body and blood stained earth from the place of wardat and the witness produced the memo. of wardat, dead body and blood stained earth as (Ex. 11 -A). He further stated that police had also secured blood stained earth which was sealed in the gold flake packet in his presence. He had also produced inquest report of deceased as (Ex.11-B). On 7.3.2005 the witness was present at Keeria Petrol Pump where police came and took him for the arrest of accused Imam Ali, thereafter, he along with police party and co-mashir Haji Khan proceeded to Mallah Petrol Pump where accused Imam Ali was arrested. Police had prepared memo. of arrest which the witness had produced as Ex. 11-C. The witness admitted to have signed the mashirnama along with co-mashir Haji Khan. The witness further stated that on 9.3.2005, he was present in his Sakrand Office where police had informed him and co-mashir Haji Khan that during interrogation, accused Imam Ali has agreed to voluntarily produce the incriminating hatchet. The witness further deposed that he, along with co- mashir and police party was in mobile in which the arrested accused was also sitting. Accused led the police party to the pointed place and from the bush of khabar tree he had produced the blood stained hatchet to the police in his presence and he produced the mashirnama of recovery of blood stained hatchet as Ex.11-D. He admitted in the cross-examination that it is correct to suggest that the accused was not interrogated in his presence. He denied the suggestion that accused Imam Ali was not arrested in his presence. He further denied the suggestion that accused did not produce the hatchet from the graveyard in his presence. He had also denied that hatchet produced in the Court is not blood stained but it is a brand new hatchet. 13.The P.W-7, was Abdul Latif (Ex.12) who deposed that on 8.2.2005, he was posted as SHO PS Sakrand. On that day complainant Abdul Malik came to the PS and narrated the facts of murder of his father. The witness recorded the statement in the book of 154 Cr.P.C. as verbatim. Thereafter he handed over the FIR to the SIO Faiz Muhammad Mirjat for investigation of the case. In the cross- examination, the witness deposed that complainant came at P.S for lodging the report at 1:00 p.m and at that time two other persons were also with the complainant. The witness further stated that he cannot say whether one of the companion of the complainant was Zamindar of the area. The witness denied the suggestion that he recorded the FIR of the complainant at the instance of said Zamindar. 14.The P.W-8, Faiz Muhammad, (Ex.13) stated that on 28.2.2005, he was posted as Investigation In charge Sakrand and was entrusted Crime No, 18 of 2005 under Section 302 PPC for investigation. On the same date, he along with his subordinate staff in government vehicle and also with mashir Abdul Ghafoor and Haji Khan visited the place of wardat and secured the blood stained earth and also inspected the place of incident and prepared the mashirnama of wardat and blood stained earth. He had also prepared the inquest report of deceased Muhammad Essa. After postmortem the dead body was handed over to the relatives. He also recorded statements under Section 161 Cr.P.C. of available witnesses. On 7.3.2005, the accused Imam Ali was arrested from Haroon Mallah Petrol Pump. During interrogation on 9.3.2005 accused Imam All became ready and willing to
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produce incriminating weapon before the police. He thereafter, led the police party to graveyard Karopir thereafter, he arranged the mashirs from the nearby locality Abdul Ghafoor and Haji Khan and in presence of mashirs the accused dig out the hatchet from Pealo tree which was also sealed on the spot in presence of the mashirs. He further stated that he produced the witnesses before the concerned Magistrate and got recorded their 164 Cr.P.C. statements. He further deposed that he prepared inquest report of the deceased in presence of mashirs and after some time he received chemical examination report of hatchet and blood stained earth from chemical examiner Rohri which he produced as Ex.13-A. In the cross-examination, the I.0 admitted the suggestion that the deceased, complainant and both the mashirs are resident of same village. He denied the suggestion that both the mashirs are his arranged persons and he used to take them as mashir in each and every investigation made by him. He further denied the suggestion that the hatchet produced in Court is not blood stained. He admitted the suggestion that the hatchet was recovered from the thoroughfare where each and every person had access. Finally he denied the suggestion that he has not investigated the case properly and falsely involved the accused at the instance of complainant. 15.On 1.11.2007, learned DDA had filed the statement in which he stated that all the material witnesses shown in the challan have been examined therefore, he closed his side. Thereafter, the statement of appellant Imam Ali was recorded under Section 342 Cr.P.0 on 17.6.2008, in which, he simply stated that he is innocent and has been involved in a false case but he did not examine himself on oath nor examined any witness in his defence. To a question asked by the Court as to why P.Ws have deposed against him he replied that they are interested and related but he has not stated anything in his statement as to why he was implicated in the case, except that the case is false. 16. The learned counsel for the appellant argued that the impugned judgment suffers from legal infirmities. He further contended that from the evidence available on record the prosecution has failed to prove its case beyond reasonable doubts against the appellant, hence the appellant is entitled to acquittal. He further argued that the prosecution story is unnatural inasmuch as if the complainant and other eyewitnesses were present at the spot, they could have caught the appellant. The motive part of the prosecution story has also not been proved. He further argued that the motive was trivial in nature and could not be believed, therefore, the prosecution case is not free from doubts. Learned counsel further argued that there are major contradiction and discrepancies in the statements of witnesses produced by the prosecution. Learned counsel argued that all the eye-witnesses produced by the prosecution were closely related with the deceased, therefore, the possibility of involvement of the appellant in a false case cannot be ruled out. Finally the learned counsel for the appellant argued that if this Court is not inclined to acquit the appellant then the sentence of death penalty may be converted into life imprisonment. In support of his arguments the learned counsel for the appellant relied upon the following case law:- - 1. 1983 SCM R 428 (Arif Hussain v. State). In this case, the honorable supreme Court held that there is no plausible explanation for the absence of trail of blood from the dried up palm to the haveli of the accused and secondly there appears to be no reason for the accused after having stabbed the deceased to carry him to their haveli and throw him there which would involve them in the commission of offence. This very fact could be a strong piece of corroborative evidence against them. The prosecution has failed to bring home the charges to them in the manner required under the law, thus we give them benefit of doubt allow their appeal and acquit Arif Hussain and Muhammad Ashraf of the charge of murder. 2. 2009 SCM R 237 (Shahid Abbas v. Shahbaz and others). In this case, the honorable supreme Court held that according to prosecution case at the relevant time P.W-9 Shahid Abbas and P.W10 Zahid
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Abbas were present along with their father Ghulam Abbas deceased. However, they did not try to save their father. It does not sound to be natural that real sons would allow the assailants to kill their father in their presence ass silent spectator so their presence at the scene of occurrence at the relevant time is doubtful. No empty was recovered from the spot, therefore, recovery of gun has no value. It is now well settled that there are different parameters for interference in an appeal against the acquittal and appeal of conviction. In case of acquittal the presumption of innocence of the accused becomes double. The supreme Court would not interfere unless the conclusion rendered by Courts below was such that no reasonable person would conceivably reach the same and grounds given by the High Court are not supportable from the evidence on record. Moreover, in case of acquittal supreme Court only interferes to avoid grave miscarriage of justice and when judgment of acquittal is perverse, capricious or arbitrary as laid down by this Court in case of Muhammad Iqbal u. Abid Hussain 1994 SCM R 19283 2008 SCM R 95 (Liaquat Ali vs. State). In this case, the honorable Supreme Court held that the explanation given by the witnesses that since Liaquat Ali had threatened them, therefore they could not go near Fazil deceased to rescue him is repellent to common sense as Laiquat Ali was not armed with a firearm which could have scared the witnesses away. He was single alleged assailant and if the witnesses were there at the spot they could have easily overpowered him. This makes their presence at the spot as doubtful. This view is further strengthen by the other pieces of circumstantial evidence. For instance as per P.W-7 Shameer, the ground was dry where the occurrence took place, yet the clothes of Fazil deceased were stained with mud. Similarly. P.W-7 Shameer is a chance witness. His explanation for being there at the spot was that he was going to lumberdar to deposit abyana, but when asked as to how much he had to deposit he could not quantify the same. The exact place of occurrence given by this witness i,e, in front of the house of Iqbal Kumhar was inconsistent with site plan, where the occurrence was said to have taken place in front of the house of Ghana Meerasi. The motive has been disbelieved, there is no independent corroboration of the ocular testimony. 4. 2003 SCM R 1419 (Khalid Javed vs. State). In this case, the honorable Supreme Court has held that supplementary statement by the complainant is not more than a statement under Section 161 Cr.P.C. Delay in recording supplementary statement of the informant giving different version after lodging the FIR would be an important factor which is likely to give rise to an inference that second version contained in the supplementary statement was introduced by the prosecution after deliberation and if it is so the same will adversely affect the prosecution case. Informant had claimed allowance on account of his disturbed mental condition but without proving medically through expert evidence. It would be dangerous and against the interest of justice to accept the explanation of the informant without legal proof. It was further held that although appellants have not disputed the fact that there clothes were blood stained when they were shifting the dead body of Ghazala Naveed into the Ambulance after the commission of offence but it is yet to be proved by the prosecution that these are the same clothes which were stained with her blood. Be that as it may, in absence of the evidence that the blood stained clothes matched with the blood group of deceased Ghazala Naveed it would not be in the interest of justice to connect the appellants with the commission of offence. 5. 2007 YLR 22 (Jamil Ahmed vs. State). In this case, the learned divisional bench of Lahore High Court held that ocular account was furnished by two sons of deceased and no independent witness was produced during trial. Postmortem report shows that deceased received twelve injuries caused by sharp edged weapon while a minute reading of postmortem report had revealed that in fact the number of injuries were about 36. Conduct of prosecution witnesses who were sons of deceased of not rescuing their father from assailant who was having only churi in his hand which could not be enough to deter sons of deceased and not apprehending the assailant was too unnatural to be true. Circumstances of the case showed that both such eye witnesses
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reached the spot after death of their father. 6. 1999 YLR 496 (Manzoor Hussain vs. State). In this case, the learned divisional bench of Lahore High Court held that conduct of complainant and eye-witness was not natural inasmuch as if they along with other eye-witness who was not produced, had witnessed the occurrence, nothing was there to prevent them from apprehending accused who were not carrying any firearm but they permitted accused to cause hatchet blow on the head of the deceased and to cut throat of deceased. Material discrepancies were found in statement of two eye-witnesses inasmuch as one of them had stated that the accused ran away by jumping over broken wall whereas other had stated that accused run away from the side of said wall. Presence of eye-witness at the spot was doubtful and motive part of prosecution story also had not been proved. 7. 2002 P.Cr.L.J 690 (Dholu and another vs. State). In this case, the learned single judge of this Court held that complainant had not stated in the FIR as which of the accused fired at which part of the body of the deceased. Prosecution witnesses were also silent in their evidence in that regard which fact had created doubt about their presence at the scene of offence. It is also not believable that by killing a person in presence of his close relatives accused would not attempt to cause any injury to the P.Ws leaving for them evidence to be hanged. 17. The learned DPG, on the other hand supported the impugned judgment by submitting that the name of appellant was specifically mentioned in the FIR which was lodged promptly. The ocular account is consistent and is corroborated by medical evidence which was further corroborated by the…
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