Full Judgment Text & Judicial Ruling

2021 Y L R Note 37 [Sindh] Before Adnan Iqbal Chaudhry, J KARAMAT HUSSAIN---Appellant Versus The STATE---Respondent Criminal Appeal No. 245 of 2018, decided on 31st March, 2020. (a) Criminal trial--- ----Circumstantial evidence--- Scope---Conviction could follow on circumstantial evidence but that such evidence should provide all links in an unbroken chain where one end of the chain touched the dead body and the other the neck of the accused. (b) Penal Code (XLV of 1860)--- ----Ss. 302 & 380---Qatl-i-amd, theft in dwelling house---Appreciation of evidence---Last seen evidence---Scope---Accused was charged for committing murder of mother of the complainant and also stolen away two mobiles of deceased---Record showed that the post-mortem commenced at 05:15 a.m. on 07.06.2014 and the time between death and post-mortem was approximately 32 to 36 hours, which would make the time of death somewhere between 17:15 to 21:15 hours on 05-06-2014---House-maid/ witness who used to work at the deceased's apartment from 10:00 am to 12:00 noon deposed that on 05-06-2014 (day of incident) when she was present at the deceased's apartment, the deceased had phoned accused and inquired as to why he had not attended to her since the last four to five days and she had insisted that accused should come over on that day---Other witness had deposed that on day of incident he was asked by the deceased to purchase juice for her, and he was told by the deceased that he need not attend to her at night as she was expecting a friend---Said witness on cross-examination, stated that he had gone to deliver the juice to the deceased at 13:45 hours on 05-06-2014 when the deceased informed him that accused would be coming to attend to her later in the day---Deposition of said witness read that he had seen accused using a laptop at the deceased's apartment on 05.06.2014---Said part of the deposition suggested that the deceased had been last seen with accused---However, the date of 05-06-2014 mentioned in that part of the deposition did not appear to be correct as said witness had also deposed that when he had gone to the deceased's apartment on 05-06-2014, he was told by the deceased that accused would be coming later in the day---In other words, testimony of said witness when read as a whole could not be taken as evidence of last seen---However, evidence of the fact that the deceased was expecting accused at her apartment on 05-06-2014---Prosecution witness, who used to drop by the deceased's apartment for her day-to-day needs, also deposed that on 05.06.2014, between 19:00 to 19:30 hours, the deceased had informed him over the phone that he need not attend to her that day as accused would be looking after her---Prosecution thus had established that on 05-06-2014, the deceased was expecting accused at her apartment in the latter part of the day---Nothing to show that any of the prosecution witnesses had any motive to falsely implicate the accused---Circumstances established that the prosecution had succeeded in establishing the guilt of the accused beyond doubt---Appeal against conviction was dismissed, in circumstances. (c) Penal Code (XLV of 1860)--- ----Ss. 302 & 380---Qatl-i-amd, theft in dwelling house--- Appreciation of evidence---Call Data Record---Scope---Accused was charged for committing murder of mother of the complainant and also stolen away two mobiles of deceased---Call Data Record of the accused had established that not only mobile number 0311-8258792 was in the use of accused but also placed accused at the scene of the crime at the time of the murder as opined in the post mortem report i.e., between 17:15 to 21:15 hours on 05-06-2014---Circumstances established that the prosecution had succeeded in establishing the guilt of the accused beyond doubt---Appeal against conviction was dismissed, in circumstances. (d) Penal Code (XLV of 1860)--- ----Ss. 302 & 380---Qatl-i-amd, theft in dwelling house---Appreciation of evidence---Recovery of finger-print of accused---Reliance---Scope---Accused was charged for committing murder of mother of the complainant and also stolen away two mobiles of deceased---Finger prints of the accused were collected from the frame of the bed in which the dead body was found and one wallet under the deceased's bed which contained the original CNIC of wife of accused and two business cards of caterers which bore the name of accused and his mobile number---However, said evidence could not be taken into account, firstly, because it was established that accused used to administer physiotherapy to the deceased and thus, his finger-prints on the frame of the bed might have been before and secondly, while examining accused under S.342, Cr.P.C., the Trial Court did not specifically confront him with his finger-prints and wallet found at the scene of the crime. (e) Criminal Procedure Code (V of 1898)--- ----S.342---Examination of the accused---Scope---Evidence implicating an accused could not be used to convict him if he was not confronted with it under S.342, Cr.P.C., but that did not mean to say that every inadequate examination under S.342, Cr.P.C. resulted in vitiating the trial nor did it mean to say that the other independent evidence standing against the accused stand diminished. (f) Criminal Procedure Code (V of 1898)--- ----S.342---Examination of the accused---Scope and object---Unless miscarriage of justice was shown to have occurred, an inadequate examination under S.342, Cr.P.C., could not be made a ground for setting aside conviction---Intent of S.342, Cr.P.C. was not simply to benefit the accused but it was for enabling the Court to discover the truth. (g) Penal Code (XLV of 1860)--- ----Ss. 302 & 380---Qatl-i-amd, theft in dwelling house---Appreciation of evidence---Recovery of incriminating material--- Reliance--- Scope---Accused was charged for committing murder of mother of the complainant and also stolen away two mobiles of deceased---Record showed that the accused led the police to his residence and produced from a box a Dell laptop; two mobile phones; NIC, passport and cheque book of the deceased; some artificial jewellery; four bracelets; two pearl bracelets; eleven bangles; one packet of ear-rings; and one packet containing three necklaces---Said articles were identified by the complainant and grandson of the deceased as the property of the deceased---On examination under S.342, Cr.P.C., accused was duly confronted with the recovery of the said items and was given an opportunity to explain as to how those items came to be in his possession---Accused did not give any exculpatory statement nor did he led any evidence in his defense---Circumstances established that the prosecution had succeeded in establishing the guilt of the accused beyond doubt---Appeal against conviction was dismissed, in circumstances. Mirza Muhammad Salman for Appellant. Ms. Amna Ansari, Additional Prosecutor General, Sindh for the State. Naeem Shahid Ghauri for the Complainant. Dates of hearing: 11th, 12th, 16th, 18th and 19th December, 2019. JUDGMENT ADNAN IQBAL CHAUDHRY, J.---This is an appeal from judgment dated 15-03-2018 passed by the learned IX-Additional Sessions Judge, Karachi South, in Sessions Case No. 2057/2014, whereby the Appellant (Karamat Hussain) was convicted for the qatl-i-amd of Amina Yousuf Patel (the deceased) and theft of her property and sentenced as follows: (i) under section 302(b), P.P.C., for rigorous imprisonment for life and fine of Rs.100,000/- (ii) under section 382, P.P.C., for rigorous imprisonment for 5 years and fine of Rs. 25,000/- (iii) in case of default in payment of fine, further simple imprisonment for 1 year; both convictions to run concurrently with the benefit of section 382(b), Cr.P.C. 2. Per FIR No. 220/2014, the Complainant, Savio Bennet Thomas, who was the son of the deceased, reported that the deceased resided separately in a rented apartment where the Complainant or his son Kyle used to visit her every evening; that on 05-06-2014 at 12:00 p.m., when Kyle visited the deceased, she asked him to purchase juice for her and told him that since she was expecting a guest in the evening, Kyle need not attend to her that evening; that the Complainant went to visit his mother (deceased) the next day on 06-06-2014 at 20:00 hours, but found the door locked; that the Complainant possessed a spare key to the apartment and he opened the door to find the deceased dead in her bed with a cloth ligature around her neck. Per the FIR, two mobile phones that were in the use of the deceased were missing from the apartment. The Complainant nominated Karamat (Appellant) as a suspect stating that Karamat used to visit the deceased quite often. The above statement of the Complainant under section 154, Cr.P.C. was recorded at 05:00 hours on 07.06.2014 at the hospital while the Complainant was waiting for the post mortem of the deceased. The FIR was registered at 06:00 hours on 07-06-2014 at Police Station Mehmoodabad. 3. The memo of examination of the crime scene is dated 06-06-2014 at 21:00 hours (Exhibit 3-A). The dead body was in a nighty with a cloth ligature tied around her neck. Twelve finger-prints were collected from the scene of the crime (Exhibit 3-B). Per SIP Istikhar Hussain (PW-9), he had lifted the finger-prints from the sides and stand of the bed in which the dead body was found. The I.O. Muhammad Aslam (PW-10) inspected the crime scene on 07-06-2014 at 09:00 hours (Exhibit 3-F) and seized a wallet from under the deceased's bed which contained the original CNIC of Kaneez Fatima wife of Karamat Hussain, and business cards of certain caterers which bore the name of Karamat Hussain and his mobile number. 4. The dead body was brought to the hospital at 03:00 a.m. on 07-06-2014. Post mortem was delayed due to non-availability of glass jars. The post-mortem eventually commenced at 05:15 a.m. Per the post mortem report and the certificate of cause of death (Exhibit 9-B and Exhibit 9-C), the deceased was aged about 65 years; the body was decomposing; there was a ligature mark around the neck caused by the crepe bandage tied around the neck; the cause of death was Asphyxia from constriction of the neck (strangulation) by using a crepe bandage; and the time between death and postmortem was approximately 32 to 36 hours. The post mortem report was produced by the MLO, Dr. Nasreen Qamar (PW-7). 5. Karamat Hussain (Appellant) was arrested near his residence on 13-06-2014 (Exhibit 3-H) when he was identified by the deceased's grandson, Kyle, who was accompanying the Police who lay in wait for Karamat to arrive at a location provided by an informant. On a search of his person, Karamat's mobile phone was also taken into custody (Exhibit 3-H). 6. During interrogation, Karamat is said to have confessed to the murder citing mental provocation, and also to the theft of the deceased's valuables. He pointed the police to the scene of the crime (Exhibit 3-I). He also lead the Police to his residence to produce the following items: a Dell laptop; two mobile phones; NIC, passport and cheque book of the deceased; some artificial jewelry; four bracelets; two pearl bracelets; eleven bangles; one packet of ear-rings; and one packet containing three necklaces (Exhibit 3-J); all of which were identified by the son (Complainant) and grandson (Kyle) of the deceased as the property of the deceased. 7. The 12 finger-prints collected from the crime scene were sent for forensic examination for cross-reference with the finger-prints of Karamat (Exhibit 11-A and 11-B). Per the report of the Forensic Division (Exhibit 11-D), one finger-print matched with Karamat's right middle finger, while the other finger-prints were incapable of a definite opinion. Charge was framed against Karamat on 22-09-2014 for murdering the deceased by strangulation and for the theft of her valuables to which Karamat pleaded not guilty. 8. The deposition of the Complainant and PW Kyle, who were the son and grandson of the deceased, was that the deceased had converted to Islam from Christianity; that she resided on her own in a rented apartment not far from the Complainant's residence; that the deceased did not keep well; that Karamat was attending the deceased for the past one month to give her physiotherapy, and at times he also cooked for the deceased; that apart from Karamat, one Nasreen and one Abdul also used to frequent the deceased's apartment; that Nasreen was employed by the deceased as a house-maid and came for work from 10:00 a.m. to 12:00 noon; that Abdul was a friend of the Complainant who used to supply day-to-day items needed by the deceased; that when the deceased was ill, she used to call Abdul to stay with her; that on 06.06.2014 the Complainant and Kyle became concerned as the cell phone of the deceased was off; that at around 21:00 hours the Complainant, Kyle and Abdul went to the deceased's apartment but found the door locked; that since the deceased was usually sick, they first went looking for her at nearby hospitals; thereafter they asked a key-maker to open the door of the deceased's apartment but the key-maker refused; thereafter they went to Police Station Mehmoodabad and then the police and a key-maker accompanied them to the apartment to open the door; the deceased was found dead having been strangulated by a cloth ligature, and a pillow was on her face; that there was also an injection mark on her arm. Both the Complainant and PW Kyle were also witnesses to Karamat's arrest, to his pointation of the crime scene, and to the recovery of the deceased's valuables and documents from Karamat's residence, all of which events were affirmed by them in their deposition. The parcel containing the items recovered from Karamat's residence was de-sealed in Court. Apart from the NIC, passport and cheque book that were in the deceased's name, her laptop, mobile phones and jewelry were also identified by the Complainant and PW Kyle. 9. On cross-examination, the Complainant denied that he had an extra key of the deceased's apartment; he stated that Abdul used to have an extra key of the deceased's apartment, but that on the fateful day, the deceased had taken the key back from Abdul for the reason that she was expecting a guest; that the Complainant had suspected Karamat of the crime and not Nasreen or Abdul because Karamat's wallet had been found at the crime scene, and because the dead body had a fresh injection mark and only Karamat had know-how of administrating injections. 10. PW Kyle had further deposed that on 05-06-2014 he was asked by the deceased to purchase juices for her, and he was told by the deceased that he need not to attend her at night as she was expecting a friend who would attend to her; that when Kyle asked her whether she required dinner, the deceased said that Karamat had cooked food for her; that Karamat used to attend the deceased after two to three days; that Kyle had met Karamat at the deceased's apartment two or three times during which Karamat mentioned that he resided at Qayyumabad; and that on 05-06-2014 when Kyle had gone to visit the deceased, he had seen Karamat at the deceased's apartment using a laptop. On cross-examination, PW Kyle explained that at the time of the FIR the Complainant did not have knowledge of all of the missing items of the deceased and that is why those were not mentioned in the FIR; he stated that the deceased used to give her apartment's key to Abdul only when she was ill wanted him to stay over; and that on 05-06-2014 when he had gone to deliver juices as requested by the deceased, the deceased had told Kyle that Karamat would be coming to attend to her at night. 11. PW Abdul Haq was a friend of the Complainant and the owner of a pan shop nearby. He deposed that on the request of the Complainant, he (Abdul) had been delivering day-to-day items needed by the deceased since the last 7/8 years; that he used to drop by the deceased's apartment at night after closing his cabin; that the deceased did not keep well and Karamat used to attend the deceased and give her physiotherapy, and sometime he also cooked for the deceased; that on 05-06-2014, between 19:00 to 19:30 hours, the deceased had phoned Abdul and asked him not to come over that night as Karamat would be attending to her. He corroborated the Complainant and PW Kyle as to the events leading to the discovery of the dead body. On cross-examination, Abdul acknowledged that he used to sleep over at the deceased's apartment when she was sick; he denied that he was in possession of an extra key of the deceased's apartment; and he denied the suggestion that relations between the deceased and the Complainant were strained. 12. PW Nasreen was the house-maid employed by the deceased. She deposed that she used to come to work at the deceased's apartment from 10:00 a.m. to 12:00 noon; that one Bengali person used to come to the deceased's apartment frequently (a reference to Abdul); that the deceased had informed her that she had hired Karamat as a cook; that she had on one occasion seen Karamat at the deceased's apartment; that on the fateful day (05-06-2014) and in her presence, the deceased had phoned Karamat and inquired why he had not attended to her since the last 4 to 5 days and insisted that he should come over that very day; that the deceased had mentioned to Nasreen that Karamat used to provide her services of medical dressing, drips and injections when needed; that on the next day (06-06-2014) Nasreen was not able to go to the deceased's apartment for work as her daughter had to appear for an exam. 13. PW Syed Mudassir Ahmed, was the son-in-law of the deceased who had been called by the Complainant after the dead-body had been discovered. He also deposed that PW Abdul used to facilitate the deceased in her day-to-day needs. 14. PW Khudadad Khan was an estate agent in the area through whom the deceased had obtained the apartment on rent. He deposed that he knew the deceased for the last 5/6 years; that the deceased used to call him from time to time for maintenance work at the apartment and for paying her utility bills; and that the deceased had also invested some money through him. He deposed that the deceased had gone to Uganda and on her return she had rented the apartment which was about 3 months prior to her death; that about 15/20 days prior to her death, when he had gone to the deceased's apartment to collect her utility bills, he had seen Karamat at the deceased's apartment and also a house-maid; that on 06-06-2014, about 05:00 p.m., he received a call from the Complainant enquiring whether the deceased had contacted him or not, to which he replied in the negative; that later he received another call from the Complainant informing him that the door of the deceased's apartment was locked but the electric bulb outside was lit, and asking him whether he should break open the lock, to which Khudadad advised the Complainant to contact the Police. On cross-examination, PW Khudadad stated that the deceased had informed him of her third marriage with one Qaiser Advocate, and that the purpose of renting the apartment was to reside with her husband Qaiser; that subsequently the deceased also informed him that her marriage with Qaiser was over as Qaiser had misappropriated some of her valuables; he denied the suggestion that relations between the Complainant and the deceased were strained. 15. PW Muhammad Aslam was the I.O. He deposed that during investigation the Complainant informed him that some of the possessions of the deceased were missing from the apartment viz. laptop, two mobile phones, cheque book, golden ornaments, artificial jewelry, passport and CNIC of the deceased. 16. Learned counsel for the Appellant submitted that there was no eye-witness of the incident nor had any person seen Karamat enter the deceased's apartment on the day of the incident. Learned counsel pointed out that in the FIR the Complainant had stated that he had opened the deceased's apartment with a spare key in his possession, whereas on cross-examination, he denied that he possessed a spare key and then both the Complainant and PW Kyle deposed that the door of the apartment was first opened with the assistance of a key maker and in the presence of the police. Learned counsel submitted that it was apparent that the Complainant was hiding true facts which made the Complainant a suspect himself; and that since the Complainant had made a false deposition, his entire evidence should be discarded. Learned counsel submitted that apart from two mobile phones, the FIR did not allege theft of any other property which shows that all items allegedly recovered from Karamat's house had been foisted on him. Learned counsel submitted that the prosecution had failed to explain that even though the house-maid Nasreen and one Abdul Haq also frequented the deceased's apartment, and there was an ex-husband of the deceased, Qaiser Advocate, with whom the deceased was estranged, why none of them were made suspects. 17. Learned counsel for the Complainant submitted that though the evidence against Karamat was circumstantial, but the same was reliable as the chain of circumstantial evidence remained unbroken; that PW Kyle had deposed that he had seen Karamat at the deceased's apartment on 05-06-2014 working a laptop; that the CDR of Karamat's mobile phone places him at the scene and time of the crime; that the finger-print report and the wallet seized from the crime scene also implicates Karamat; that though Karamat's confession was extra judicial, it was nonetheless corroborated by other evidence and cannot be ignored; that the valuables of the deceased were recovered from Karamat's house on his pointation; and that Karamat had never taken the plea that those valuables had been given to him by the deceased herself. Learned counsel submitted that the conduct of an accused after the incident is material, in that, before the murder, Karamat was a frequent visitor, but he vanished thereafter until he was arrested. The learned APG supported the arguments made by the Complainant's counsel; however, he pointed out that Karamat was not confronted with the finger-print report during his examination under section 342, Cr.P.C. 18. Heard the learned counsel and appraised the evidence. Per the postmortem report, there was a ligature mark on the neck of the deceased caused by the crepe bandage tied around her neck; and that the cause of death was Asphyxia from constriction of the neck by using a crepe bandage. Thus, the fact that the deceased was strangulated to death was beyond doubt. 19. Though the alleged crime was an unseen incident and Karamat's conviction rests on circumstantial evidence, it is settled law that even in a case involving capital punishment, conviction can follow on circumstantial evidence, but that such circumstantial evidence should provide all links in an unbroken chain where one end of the chain touches the dead body and the other the neck of the accused. 20. The deceased was a 65 year old lady residing alone in an apartment. Both the son and the grandson of the deceased i.e, the Complainant and PW Kyle, who regularly checked upon the deceased, had deposed that Karamat had been attending the deceased for the past one month or so to give her physiotherapy, and at times he also cooked for the deceased. PW Kyle had further deposed that he had met Karamat at the deceased's apartment two or three times during which Karamat mentioned that he resided at Qayyumabad. PW Abdul Haq, who had been supplying day-to-day items needed by the deceased for many years, deposed that Karamat used to come to the deceased's apartment to give her physiotherapy and sometimes to cook for her. PW Nasreen, the house-maid employed by the deceased, had deposed that the deceased had informed her that she had hired Karamat as a cook; and that she had on one occasion seen Karamat at the deceased's apartment; that the deceased had mentioned to Nasreen that Karamat used to provide her medical dressing, drips and injections when needed. PW Khudadad Khan, who used to attend to the maintenance work in the deceased's apartment and who collected and paid utility bills for the deceased, also stated that about 15/20 days prior to the deceased's death, he had seen Karamat at the deceased's apartment. Thus, the fact that Karamat was a person who regularly visited the deceased at her apartment was proved beyond any shadow of doubt. 21. Per the postmortem report, the post-mortem commenced at 05:15 a.m. on 07-06-2014, and the time between death and postmortem was approximately 32 to 36 hours, which would make the time of death somewhere between 17:15 to 21:15 hours on 05-06-2014. I now turn to the evidence of Karamat's whereabouts on the day and time of the murder. 22. PW Nasreen, the house-maid who used to work at the deceased's apartment from 10:00 am to 12:00 noon, deposed that on 05-06-2014 (day of incident) when…

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