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Petitioner: MUHAMMAD IQBAL MAKRANI VS Respondent: The STATE
Court Name: Sindh High Court Judge(s): Sajjad Ali Shah, Naimatullah Phulpoto Title: MUHAMMAD IQBAL MAKRANI vs The STATE Case No.: Criminal Jail Appeal No.235 and Confirmation Case 4 of 2010 Date of Judgment:2013-04-23 Reported As: 2015 P Cr. L J 1251 Result: Appeal dismissed
JUDGMENT
JUDGMENT NAIMATULLAH PHULPOTO, J.---Appellant Muhammad Iqbal was tried by learned Additional Sessions Judge Tando Adam in S.C. No,174/2009. He was found guilty and convicted vide judgment dated 21-12-2009 under section 302(b), P.P.C. And sentenced to death. Appellant was, also directed to pay Rs,2,00,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of deceased. Reference for confirmation of death sentence was made to this Court. This judgment will dispose of above appeal and confirmation case as the same arise out of a common judgment. 2. Brief facts of the prosecution case, as disclosed in the FIR are that on 10-10-2005 at 0130 hours, complainant Muhammad Khan Khaskheli lodged his report alleging therein that he is a Tailor Master One day prior to the lodging of the FIR in the evening time, there was, a quarrel between his brother Qurban Ali (now deceased) and appellant Iqbal over the matter of the parking of a Chingchi/Rickshaw in front of shop of accused. It is alleged that appellant Iqbal issued threats to Qurban Ali. On 9-10-2005 at 10-00 p.m. Complainant along with his brother Mumtaz Ali, nephew Ghulam Hussain were standing near Kira Hospital. It is, stated that Qurban Ali, brother of the complainant was standing on the other side of the road near Hospital in the street. It is alleged that appellant Muhammad Iqbal, carrying dagger in his hand appeared and challenged Qurban Ali while saying that as to why he had abused him and declared that he would not be spared, thereafter, it is alleged that appellant Iqbal gave dagger blows to Qurban Ali, who fell down. Complainant party raised cries. Appellant while seeing the complainant, coming nearer to him ran away to the Northern side. Complainant and P. Ws saw that Qurban Ali had sustained dagger blows at the left side of his stomach. Qurban Ali on the way to the Tando Adam Hospital died. Complainant gave such information on the telephone to the concerned police. Police arrived at
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hospital and after postmortem examination, the dead body was handed over to the complainant. After registration of the FIR, its copy was handed over to Inspector Muhammad Hassan Malah P.S Tando Adam for investigation. I.O. Visited the place of wardat, it was shown to him by complainant situated near his house in the street. I.O. Collected blood stained earth from place of vardat in presence of mashirs, sealed it, recorded 161, Cr.P.C. Statements of P.Ws Ghulam Hussain and Mumtaz Ali. On 10-10-2005 PC Ghulam Qadir produced blood stained clothes of the deceased to the I.O. He prepared such mashirnama in presence of the mashirs. On 12-10-2005, he arrested appellant/accused Muhammad Iqbal from Bhitai Nagar Bus stop in presence of mashirs Gul Hassan and Ali Nawaz. On 15-10-2005, during interrogation appellant admitted his guilt and prepared to produce crime weapon viz dagger, which he had hidden under the ground at abandoned godown. I.O. On the pointation of the accused, secured it in presence of mashirs and prepared such mashirnama and sealed it. Thereafter, blood stained earth, clothes of the deceased and dagger were sent to the Chemical Examiner for analysis and report. 3. On the completion of the usual investigation, Challan was submitted against accused under section 302, P.P.C. Case was sent up to the Court of Session. Learned Additional Sessions Judge, Tando Adam framed the Charge against the appellant under section 302, P.P.C. Appellant pleaded not guilty to the charge and claimed to be tried. 4. In order to prove its case, prosecution examined the witnesses i.e, P.W.1 Tapedar Manglio Mal, P.W.2 complainant Muhammad Khan, P.W.3 Mashir Ali Nawaz, P.W.4 Dr. Muhammad Ashraf Leghari, P.W.5 Ghulam Hussain, P.W.6 SIP Dur Muhammad, P.W.7 Inspector Haji Muhammad Hassan Malah Investigating Officer. Thereafter, prosecution side was closed. 5. Statement of appellant/accused was recorded under section 342, Cr.P.C., in which appellant has denied the prosecution allegations. It is stated that he had not committed murder of deceased Qurban Ali and he had no quarrel with deceased over the parking of Chingchi. He has stated that he was not arrested on 12-10-2005, but he was produced by his relative Lal Muhammad before police two days after lodging of the FIR. He has further stated that dagger has been foisted upon him. P.Ws. Are interested, hostile and inimical to him. In reply to the question what else he has to say? He replied that he is innocent and he has been falsely implicated in this case by the complainant due to enmity. P.W. Mumtaz Ali, brother of deceased Qurban Ali had so many enemies. P.W. Mumtaz Ali has criminal record and deceased was murdered in misunderstanding. However, appellant/accused did not examine himself on oath in disproof of prosecution allegations and no evidence in defence was produced. On the conclusion of the prosecution evidence, learned trial court assessed the evidence, convicted and sentenced the appellant as stated above. 6. Mr. A.Q. Halepota learned Advocate for the appellant contended that prosecution story is highly unnatural and unbelievable. It was night time incident. There was no electricity. P.Ws. Are setup in this case. PW. Ghulam Hussain was residing in a village at the time of incident. P.W. Mumtaz is involved in a number of cases. He had close resemblance in the features to the deceased and deceased has been murdered by his enemies in mistake. Mr. Halepota has argued that eye- witnesses have not given the probable cause of their presence in the street at the odd hours of the night. It is also argued that incident had taken place at 10-00 p.m. According to the Medical Officer, stomach of the deceased was empty. According to Mr. Halepota food takes about 6 hours in digestion and deceased had taken meal at 8-00/8-30 p.m. As per evidence of prosecution witness. Medical evidence is contradictory to the ocular evidence. He has further argued that in the mashirnama of recovery of dagger it is not mentioned that it was blood stained and possibility that the crime weapon has been foisted upon the accused could not be ruled out. Lastly, it is contended that recovery of dagger was in violation of section 103, Cr.P.C. In support of his contentions he has relied upon the cases reported as:
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(1) Muhammad Akram v. The State (2009 SCMR 230) (2) Khurshid Ahmad v. Kabool Ahmad and others (PLD 1964 (W.P.) Karachi 356). (3) Abdul Sattar and others v. The State (2002 PCr.LJ 51) (4) Muhammad Amir alias -Muskhi and 3 others v. The State (PLD 1977 Karachi 695) (5) Ata Muhammad and another v. The State (1995 SCMR 599) (6) Nawab and another v. The State (1979 PCr.LJ 736) (7) Piaremian v. The State (1978 PCr.LJ 369) (8) Muhammad Afzal alias Abdullah and others v. The State and others (2009 SCMR 436) (9) Wahid Bux v. The State (PLD 1963 (W.P.) Karachi 837) (10) Khan v. The Crown (PLD 1955 Sindh 65) (11) Ahmad and another v. The State (1977 PCr.LJ 662) (12) Lalan and 2 others v. The State (1976 PCr.LJ 52) (13) Rasool Bux and another v. The State (1980 SCMR 225) (14) Charan Singh and others v. State of Punjab (AIR 1975 Supreme Court 246 - 1974 Cri.LJ 1253) (15) Makhan. And 3 others v. The State (PLD 1977 Lahore 722) (16) Ibrahim and another v. The State (PLD 1969 Karachi 33) (17) Mehr Ali and others v. The State (1968 SCMR 161) (18) Muhammad Sadiq v. Muhammad Sarwar and 2 others (1979 SCMR 214) (19) Nazir Muhammad alias Nazir Ahmed v. The State (PLD 1974 Karachi 274) 7. In the case of Muhammad Akram 2009 SCMR 230 (supra) it has been observed as under: "The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace." 8. In the case of Khurshid Ahmad (Supra) it has been held as under: "There is also on record the evidence of Yasin Rajput P.W.8, who is a member of the Shahpur Chakar Union Council and who on coming to the scene that evening learnt from the complainant Khurshid as well as the other Khurshid P.W.11 that the, respondents were responsible for the attack made upon them. But, as neither the complainant nor Khurshid Ahmed P.W.11 were asked when giving evidence as to whether they had at all met or spoken to Yasin that evening the evidence of P.W. Yasin as to who were responsible for this attack on the complainant party is clearly inadmissible in law." 9. In the case of Abdul Sattar (2002 PCr.LJ 51) supra, it has been held as under:- "Admittedly, in neither of the cases in hand Roznamcha entry was produced by the prosecution in order to prove that the police, in fact, proceeded to the place of scene to recover the alleged weapon. This lapse on the part of prosecution has cut the root of the case of prosecution, thus, rendering the entire episode shrouded by doubt. This fact by itself was enough to disbelieve the prosecution version." 10. In case of Muhammad Amir alias Mushki supra it has been observed as under: "Contents of a mashirnama, do not constitute substantive evidence" 11. In the case of Ata Muhammad supra, it has been observed by the honourable Supreme Court of Pakistan as under:- "The ocular evidence may be classified into three categories--- firstly, wholly reliable; secondly wholly unreliable; and thirdly, partly reliable and partly unreliable. In the first category conviction may safely be sustained on uncorroborated testimony. In the second category, even strongest corroborative evidence may not rehabilitate such evidence. In the third category, conviction cannot be recorded unless such evidence is corroborated by oral or circumstantial evidence coming from distinct source. In the instant case the deceased suffered one fire-arm injury and Khizara suffered three firearm wounds caused by .12 bore gun. The possibility of three entry
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wounds-caused by one shot from .12 bore gun is very much there. The number of the injuries of the deceased and the P.W. Does not commensurate with the number of the accused named by the eyewitnesses. In view of the aforesaid infirmities in the ocular evidence we feel that in the instant case the testimony of the eye witnesses falls within third category." 12. In the case of Nawab and another supra, it has, been held as under: "Although the appellants may have had a dispute over land with the deceased, as alleged by the first informant and Mst. Alam Khatoon, were motive, howsoever strong, cannot provide corroboration to other pieces of evidence which are themselves infirm and not worthy of credence." 13. In the case of Piaremian supra, it has been held as under: "In our opinion the discovery of revolver cannot be considered voluntary because it was after three days of the commission of offence that the revolver was discovered." 14. In the case of Muhammad. Afzal alias Abdullah supra, it has been observed by the honourable Supreme Court of Pakistan as under: "(12) After taking out from consideration the ocular evidence, the evidence of identification and the medical evidence, we are left with the evidence of recoveries only, which being purely corroboratory in nature, in our view, alone is not capable to bring home charge against the appellant in the absence of any direct evidence because it is well settled that unless direct or substantive evidence is available conviction cannot be recorded on the basis of any other type of evidence, howsoever, convincing it may be." 15. In the case of Wahid Bux PLD 1963 (W.P) Karachi 837, supra, it has been held as under: "In my opinion, be necessary for the purpose of deciding as to whether the statements the witnesses made in the committal Court were true or whether the statements they were making in the Sessions Court were false. In the event of there being admittedly no evidence in corroboration it will be unsafe to base the conviction solely on the statements brought on record under section 288, Cr.P.C." 16. In the case of Nazir Muhammad alias Nazir Ahmed, supra, it has been held as under: "All the above circumstances create genuine doubts regarding the truth of the prosecution evidence which apart from being contradictory and being inherently incredible is also belied by the medical evidence as well as P.W. Jumo, mashir of the vardat, who is none else than the son of Shahbazi, the owner of the kiln where, the prosecution witnesses worked and it would be extremely unsafe to place reliance thereon on capital charge." 17. In the case of Muhammad Sadiq (PLD 1973 SC 469), supra, it has been held as under: "As the recovery of the gun was made in brazen disregard of the mandatory provisions of the law, the recovery is of no evidentiary value whatsoever, therefore, it is not necessary to examine the other infirmities about this recovery on which the learned counsel for the accused relied and it is sufficient to observe that far from supporting the ocular evidence, this strange recovery cast doubt on the prosecution case, because to say the least, the investigation was conducted in a most deplorable manner." 18. In the case of Mehr Ali and others (1968 SCMR 161), supra, it has been held as under: "The omission to indicate on the plan where Haku and Patti the alleged eye-witnesses were, when the shooting took place, thus gains significance and reflects on the possibility that Haku and Patti were not there at all when the shooting took place." 19. In the case of Ibrahim and another (PLD 1969 Karachi 33), supra, it has been held as under: "There was no quarrel with that proposition, but in view of the peculiar facts of this case we relied, on the medical evidence only as an additional circumstance, because admittedly our conclusion in regard to the time of death of the deceased was supported by other evidence." 20. In the case of Makhan and 3 others (PLD 1977 Lahore 722), supra, it has been held as under:
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"The corroboration need not be any recovery of incriminating article from the accused but the circumstances of the case which may satisfy the mind of the Court that witnesses have spoken the truth may be taken as a corroboration of the interested and partisan evidence." 21. In the case of Charan Singh and others (AlIR 1975 Supreme Court 246), supra, it has been observed by the Indian Supreme Court as under: "Normally a vegetable diet containing mostly farinaceous food as usually taken by an Indian does not leave the stomach completely empty within six to seven hours after its ingestion." 22. In the case of Rasool Bux and another (1980 SCMR 225), supra, it has been held by Supreme Court as under: "Now no doubt it might sometimes be difficult for the police to obtain independent witnesses as mashirs but if so, it is for the prosecution to explain how it could not obtain an independent witness as a mashir, and, in the instant case, neither of the Investigating Officers have explained why they were not able to find at least one independent person as a mashir." 23. In the case of Lalan and 2 others (1976 PCr.LJ 52), supra, it has been held as under: "On a capital charge, where the ocular evidence requites corroboration, it would, in my humble opinion, not be safe to rely on the evidence of a mashir, who was closely related to the party of the complainant; accordingly this appellant also has to be given the benefit of doubt." 24. In the case of Ahmad and another (1977 PCr.LJ 662), supra, it has been held as under: "As the evidence of the eye-witnesses in the case is not of a type which could inspire confidence, and reliance on the same for the purpose of conviction was unsafe, it was necessary to seek some independent corroboration. In the circumstances of this case no independent corroboration is available and corroborative evidence coming from a source which obviously was not of such a nature, cannot again be safely relied upon. The case against the appellants is not proved beyond reasonable doubt and the appellants are, therefore, entitled to benefit of doubt." 25. In the case of Khan (PLD 1955 Sindh 65), supra, it has been held as under: "If then in such cases a statement is made to the police, by an accused in custody that he has concealed or kept the property in such and such a place and then the property is so found, then that statement would become admissible and provide unambiguous evidence. The formal and ambiguous word "produce" is commonly used in such mashirnamas without any amplification or explanatory details." 26. Mr. Ali Haider Saleem, A.P.G. Argued that prosecution has examined two eye-witnesses of incident. They were natural witnesses of the incident. Incident had occurred in front of the house of the complainant in the street. Incident had occurred at 10:00 it was not odd hour of the night. Appellant was not stranger to the eye-witnesses and belonged to same Mohallah. Eye-witnesses had no difficulty to identify him. He has further argued that prior to the commission of the offence there was quarrel between the deceased and the accused over the parking of Chingchi Rickshaw in front of the shop of appellant. He has further argued that medical evidence corroborates the ocular evidence. Contradiction regarding digestion of food as highlighted by defence counsel is no contradiction as digestion of the food depends upon the digestive system of every individual. He has further argued that blood stained dagger was also produced by the appellant and report of chemical examiner was positive. All the pieces of the evidence have been properly appreciated by the trial court and he has supported the impugned judgment. In support of his contentions he has relied upon the following reported cases (1) Ch. Muhammad Yaqoob and others v. The State and others (1992 SCMR 1983) (2) Sh. Muhammad Amjad v. The State (PLD 2003 Supreme Court 704) (3) Anwar Shamim and another v. The State (2010 SCMR 1791) (4) Zakir Khan and others v. The State (1995 SCMR 1793)
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27. In the case of Ch. Muhammad Yaqoob and others (1992 SCMR 1983), supra, it has been observed by the honourable Supreme Court as under: "The Court is to sift grain from chaff and, therefore, any contradiction or improvement or any other factor which may adversely reflect on the credibility of a witness, would not be by itself sufficient to reject the testimony as a whole of such a witness. The Court can rely upon a portion of the testimony of such a witness, if it is corroborated by other reliable evidence or circumstances". 28. In the case of Sh. Muhammad Amjad (PLD 2003 Supreme Court 704), supra, it has been observed by the Honourable Supreme Court as under: "Further, it is noted that as per Article 40, corresponding to section 27 of the Evidence Act, when any fact is revealed in consequence of information received from any accused in custody of a police officer, such information whether it amounts to a confession or not as it relates distinctly to the fact thereby discovered, may be proved.. The information supplied by the appellant, under Article 40 ibid, relating to incriminatory articles is admissible." 29. In the case of Anwar Shamim and another (2010 SCMR 1791), supra, it has been observed by the honourable. Supreme Court as under: "It is a settled principle of law that mere relationship between the witnesses and the deceased is not enough to discard their evidence. It is duty and obligation of the court for requiring corroboration of interested witnesses then it must first ascertain whether he saw the occurrence and was in a position to identify the accused and whether he should be believed without corroboration. The witnesses have faced lengthy cross-examination but their veracity cannot be shaken by the defence counsel. Both the courts below have come to the conclusion that their statements are of such a nature that their testimony must be given due weight and were believed. It is also settled law that if court is satisfied about the, direct evidence then the -requirement of corroborative evidence is not of much significance. Corroboration is not a rule of law but is that of prudence." 30. In the case of Zakir Khan and others (1995 SCMR 1793), supra, it has been observed by the honourable Supreme Court as under: "However, the rule laid down by this Court in respect of the evidence of interested witnesses is only a rule of caution. No doubt, judicial authorities are replete with instances where a more cautious approach was preferred by the Court while dealing evidence of a partisan witness but support in such case may be sought from other independent evidence. The same would nevertheless depend upon the circumstances of each case. However, mere relationship of a prosecution witness to the complainant or other prosecution witness cannot render his evidence unreliable unless it is established that he had motive to implicate the accused falsely in the case. Nothing can be spelt out from the evidence of the accused falsely." From the perusal of prosecution evidence it appears that complainant Muhammad Khan has deposed that on 9-10-2005 at 10-00 p.m., he along with P.Ws. Mumtaz Ali and Ghulam Hussain were standing. Qurban Ali was also standing at opposite side at the distance of 30 to 35 feet. Appellant Iqbal appeared with dagger in his hand and moved towards his brother Qurban Ali. Appellant Iqbal challenged Qurban Ali that he would not be spared on account of parking of Chingchi in front of his shop of Refrigerators. Complainant has stated that two daggers blows were inflicted by appellant Muhammad Iqbal to his brother. He asked appellant not to kill his brother but appellant ran away. Complainant and witnesses found that one dagger blow was received by Qurbar Ali at his left lumber region and another blow on his head and his brother went unconscious. Complainant took the injured brother with the help of P.Ws. Mumtaz Ali and Ghulam Hussain to the Hospital, but Doctor declared him as dead. Complainant gave information on phone to the P.S Tando Adam. Police immediately arrived and handed over the dead body to the Doctor for postmortem examination. Leaving dead body of his brother complainant went to police station on 10-10-2005 at
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about 1-30 or 2-00 a.m., lodged FIR against accused and produced at Exh.8/A. In the cross- examination complainant has stated that place of wardat is surrounded by houses and shops. He along with P.Ws, and deceased reside in one and same house. Deceased had taken night Meal at 8-00 or 8-30 p.m. He has denied the suggestion that there was close resemblance of the features of the Mumtaz Ali with deceased Qurban Ali. Complainant had shown ignorance that P.W Mumtaz Ali had received threats, on account of criminal history. He has denied suggestion that some unknown persons had committed murder of Qurban Ali as they wanted to kill P.W. Mumtaz. He has denied the suggestion that he was deposing falsely as deceased was his brother. 31. P.W-Ghulam Hussain has stated that on 9-10-2005, he along with complainant and P.W. Mumtaz were standing near Hira Medical Centre, while deceased Qurban was Standing at the road at the distance of 30 to 35 feet from the Hira Medical Centre. It was 9-30 p.m. When appellant Iqbal attacked upon him while saying that he has exchanged hot words with him in the evening and declared that he would not be spared, while saying so, he has stated that the appellant inflicted dagger blow, which hit him at left region, he raised cries and fell down, appellant made escape good along with dagger. He along with complainant and P.W. Mumtaz shifted the injured to the hospital, but the deceased died. In cross-examination, he has replied that the place of wardat is surrounded by medical stores and Hira Medical Centre, which remained opened round the clock, however, he has denied the suggestion that P.W. Mumtaz is a criminal person, but admitted that cases were registered against him, in which he is facing trial. He has also admitted that Qurban and Mumtaz are brothers inter se and their features resemble. He has denied the suggestion that he was not present at the time of incident and denied for deposing falsely in this case. 32. P.W. Ali Nawaz has stated that on 9-10-2005, he was made as mashir of the inspection of dead body of deceased Qurban Ali at Taluqa Hospital, Tando Adam by Tando Adam police. Clothes of the deceased were blood stained. Mashirnama of the inspection of dead body was prepared in his presence and co-mashir was Gut Hassan. He has further stated that I.O. Collected clothes of deceased in the hospital in his presence, he was made as mashir of blood stained clothes, co- mashir was same. He has stated that 1.0. ..Inspected the place of wardat in…
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