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Petitioner: Shahid Ali VS Respondent: The State
Court Name: Sindh High Court Judge(s): Naimatullah Phulpoto, Abdul Mobeen Lakho Title: Shahid Ali vs The State Case No.: Criminal Appeal No. 609 and Confirmation Case No. 11 of 2018 Date of Judgment:2021-03-15 Reported As: 2023 YLR 1204 Result: Appeal dismissed
JUDGMENT
JUDGMENT NAIMATULLAH PHULPOTO, J. Appellant Shahid Ali was tried by learned IVth Additional Sessions Judge, Karachi West, for offence under Section 302, P.P.C. After full-fledged trial, vide its judgment dated 20.11.2018, appellant was found guilty for causing qatl-e-amd of child namely Waseem Akram under Section 302(b), P.P.C. as Tazir and sentenced to death. He was also directed to pay compensation of Rs.500,000/- to be paid to the legal heirs of deceased under Section 544-A, Cr.P.C. In case of failure to pay the same, he was directed to undergo S.I for six months. Appellant was extended benefit of Section 382-B, Cr.P.C. 2. Brief facts of the prosecution case as mentioned by the trial Court in Para-2 of the impugned judgment are as follows: "On 09.03.20214 complainant Raiyat Khan at mortuary of Civil Hospital, Karachi recorded his statement under Section 154, Cr.P.C. to SIP Ghose Bux of P.S. Saeedabad that he along with his family is residing in his own house bearing No. 568 at Sector 12/D, Saeedabad, Karachi for the last 10 years and serving as constable in police Department. On 08.03.2014, he left for his duty at 8:00 a.m. and when he was returning to home and in the way, he received phone call from his family that his son Waseem Akram had left home at about 7:00 p.m. did not return. He called his brother Akhtar Nawaz and both of them started to search for his missing son. He was busy in search in the area of Ittehad Town at about 9:(X) a.m. (09.3.2014) when he was informed through phone call that a wounded dead body of his son Waseem Akram is found in undergone water tank inside the shop known as Rashid Engineering Works near Quat-ul-Islam Masjid at Al-Saadat Chowk. He came to the occurrence, got the dead body out from underground water tank and shifted it to Civil Hospital. Hence the instant FIR was lodged with PS Saeedabad."
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3. After usual investigation, challan was submitted against accused Shahid Ali for offence under Section 302, P.P.C. 4. Learned trial Court framed charge against accused under Section 302, P.P.C. at Ex. 3, to which he pleaded not guilty and claimed trial. 5. At the trial, prosecution examined Complainant Raiyat Khan (PW-01) Muhammad Jan (PW-02), Tariq Zaman (PW-03), Dr. Qarar Ahmed Abbasi, (PW-04), Ayaz Ahmed (PW-05), Saeed Khan (PW- 06), ASI Sohbat Khan (PW-07), Mr. Azizullah Khoso, Judicial Magistrate (PW-08), Afzal Pervaiz (PW- 09), SIP Ghous Bux (PW-10), SIP Muhammad Ameer Bhatti/1.O. (P. W-11). Prosecution witnesses exhibited relevant documents/ reports before trial Court. Thereafter, prosecution side was closed. 6. Trial Court recorded statement of accused under Section 342, Cr.P.C. in which accused claimed false implication in this case and denied prosecution allegations. However, in reply to the question No.18, appellant admitted that on 11.03.2014, a team of T.V channel known as ARY News had interviewed him. Appellant in reply to question No.19 has admitted that he had admitted the commission of murder of the deceased boy Waseem. In a question as to why P.Ws. had deposed against him, appellant replied that "Allah" Knows better, he is innocent. Appellant was asked whether he wanted to say anything else, accused replied as under: "I am innocent. I have been falsely implicated in this case. At the time of my arrest on 09.03.14, police had also arrested my father Haji Iqbal and police demanded bribe for release of us. My father gave Rs.100,000/- to the I.O. whereafter he was released from the custody but I.O. demanded more amount of Rs.400,000/- for my release which amount was not paid by my father as such I have been falsely implicated in this case. I am innocent and pray for justice." 7. Appellant has examined himself on oath under Section 340(2), Cr.P.C. Appellant had stated that on 08.03.2014 he closed his shop at 5:00 p.m. and came to the home. He received a call of his aunty, he went to the house of his aunty and found her injured in an accident. Mother of the appellant was with him. He returned back to the home at 1:00 a.m. On the next day i.e. 09.03.2014 at 7:00 a.m. he went to his shop where he found that locks of his shop were broken. His father also came to the shop and his father called police 15 Madadgar. Police came and opened the shutter gate of his shop. In the meanwhile, two persons entered into the shop of the accused and stated that there was dead body in the water tank of the shop. Those persons took out a dead body from the water tank of the shop. Police brought accused at Police Station Saeedabad; his father was released but police arrested him in this case. He has stated that media person of ARY recorded his statement under pressure. Appellant had examined his father Muhammad Iqbal in his defence. In cross-examination to prosecutor, appellant admitted that dead body of deceased was recovered from the underground water tank of his shop. 8. Learned trial Court after hearing learned counsel for the parties, examination of the evidence available on record and defence plea, convicted the appellant and sentenced him to death as stated above. Trial Court made reference to this Court for confirmation of the death sentence as required under Section 374, Cr.P.C. Appellant preferred instant appeal against the judgment, which was heard by learned Division Bench of this Court and vide its judgment dated 30.08.2019, the appeal was dismissed, however, the death sentence of the appellant was converted into life imprisonment. Appellant assailed the said judgment before Honourable Supreme Court by preferring Criminal Petition No. 269-K of 2019. The Honourable Supreme Court vide order dated 27.10.2020, allowed the appeal, set aside the judgment of this Court and remanded the case back to this court with direction to decide afresh on merits by a Bench other than the Bench that had passed the impugned judgment. Relevant portion of the judgment is reproduced as under: "3. During the course of arguments, it has been noted by us that in Para 06 of the impugned judgment, it is mentioned that learned counsel for the appellant did not press the criminal appeal on merits and only prayed for reduction of sentence from death penalty to imprisonment for life,
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which was allowed by the learned appellate court. However, the convict-petitioner by filing the instant criminal petition has challenged the said judgment before this Court. After perusal of available record with the assistance of learned counsel for the convict-petitioner and learned Additional Prosecutor General and without expressing any opinion on the merits of the case, we consider it appropriate to remand the case to the learned High Court for a fresh decision after proper reappraisal of evidence available on record and hearing the parties. Learned Additional Prosecutor General and learned counsel for the petitioner have also requested that the matter needs to be remanded to the learned High Court for a fresh decision for safe administration of justice. 4. For the foregoing, the instant criminal petition is converted into an appeal and the same is hereby allowed. The impugned judgment of learned High Court is set aside. Criminal Jail Appeal No. 609 of 2018 and Confirmation Case No. 11 of 2018 shall be deemed to be pending before the High Court of Sindh, Karachi, which shall be decided afresh on merits, by a Bench other than the Bench that has passed the impugned judgment, after hearing the parties, positively within next three months." 9. By this judgment, we intend to decide the aforesaid appeal as well as confirmation reference made by the trial Court. 10. Learned advocate for the appellant contended that actual occurrence was un-witnessed; father of the appellant himself had informed the police regarding availability of a dead body in the water tank of the shop; that Muhammad Jan (PW-02) was chance witness; that his evidence could not be relied upon without independent corroboration. It is further submitted that appellant was not present in the shop at the time of incident; that recovery of the crime weapon has been foisted upon him by the police; that statement made by the appellant before media was due to pressure of police; that the CD of the interview was secured after lapse of 04 years it was unsafe. It is further argued that prosecution has failed to prove its' motive at trial. Lastly, it is prayed that prosecution case is doubtful, therefore, appellant may be acquitted. 11. On the other hand, learned Deputy Prosecutor General Sindh assisted by learned counsel for the complainant fully supported the impugned judgment. He has contended that Muhammad Jan (PW-02) had last seen the deceased in the company of the appellant; that he had no motive to falsely implicate appellant in this case. It is further argued that dead body was recovered from the water tank of the shop of the appellant as well as recovery of bloodstained crime weapon; that the shalwar of the accused sent to the chemical examiner was also found stained with human sperm; that last seen evidence is corroborated by the circumstantial as well as medical evidence produced at trial. Lastly, it is submitted that prosecution has proved its' case against the appellant, he prayed for dismissal of appeal. 12. We have heard the arguments of learned counsel for the parties, gone through the entire evidence which has been read out by the learned advocate for the appellant and have considered the relevant case law. 13. As regards to the unnatural death of deceased boy is concerned, prosecution has examined Dr. Qarar Ahmed Abbasi, who stated that on 09.03.2014, SIP Ghous Bux of Police Station Saeedabad referred to him dead body of a boy aged about 7/8 years, who was identified by Riyat Khan (father of the deceased) and relative Saeed Khan. Doctor conducted postmortem examination of the deceased and found following injuries on his person: 1.Three lacerated wounds close to each other. A large wound measuring 3 x 3 cm and 2 x 1 cm with irregular margin, muscle and cavity deep on chest. 2. Multiple incised wound on abdomen. A large wound measuring 20 cm with momentum out. Other wounds were muscle deep with multiple linear abrasions. 3. Multiple abrasion and contusion on forehead, face and lips.
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4. Multiple incised wound and abrasion on lower back of lumber region. From the external as well as internal examination of the dead body of the deceased, Doctor was of the opinion that death of deceased had occurred due to hemorrhagic shock leading to cardio respiratory failure as a result of multiple injuries caused by sharp edged and hard and blunt object. Doctor has further deposed that no mark of injury was seen around anus of deceased boy. Doctor had started postmortem examination at 11:10 a.m. and finished at 12:20 p.m. Time between injuries and death was within few minutes. Time between death and postmortem was about 12 hours. Doctor was cross-examined before the trial Court. Trial Court while appreciating the evidence came to the conclusion that death of deceased was unnatural. We are of the opinion that finding recorded by the trial Court relating to unnatural death of deceased requires no interference. Moreover, un-natural death of deceased has not been disputed by defence counsel. 14. Now, the question for determination is whether appellant had committed murder of deceased as alleged by the prosecution? 15. In order to substantiate the charge, prosecution examined Complainant Riyat Khan (PW-01), he stated that on 08.03.2014 in evening time his son namely Waseem Akram after tuition came at home, kept his bag in the house and went outside but then did not return back to home. Complainant started search of his son but could not succeed. On the next day, at about 8:30 a.m. he received information that one dead body of child was lying in water tank of welding shop of Haji Iqbal. Complainant reached at the shop where police was already available. In the shop, complainant found one chappal and clothes of his son so also blood on the earth. Complainant with the help of police removed dead body of his son from water tank and took him to the hospital. Police had inspected the dead body in his presence. Police had recorded 154, Cr.P.C. statement of the complainant. Police had arrested accused, who led the police and showed the place where the accused committed murder of deceased. Accused had also produced Raitee (file) in presence of mashirs with which he committed the murder of his son. During cross-examination, complainant has denied the suggestion that he had lodged FIR against unknown persons. 16. Muhammad Jan (PW-02) has stated that on 08.03.20214, he was standing at turn of Sector 8, Saeedabad and was waiting for transport. He saw one Rickshaw appeared from Gulshan Ghazi side. Muhammad Jan signaled him to stop. He sat in Rickshaw and stopped it at Qout-e-Islam Masjid, for offering Asar prayers at 1800 hours. Rickshaw was parked in front of puncture repairing shop. There was welding shop in the name of Rashid Engineering, in front of puncture shop. Muhammad Jan further deposed that he saw one boy aged about 7 years who was called by person welding inside in Rashid Engineering Shop upon which boy went inside the shop. Muhammad Jan and Rickshaw driver went for prayer inside the Masjid and after Namaz, he went to his home in said Rickshaw. On the next day, after his duty when he came back to his home, at 0900 hours, he came to know that police and Rangers personnel were available in the street. He came out from the house and found that officials were available outside Rashid Engineering welding shop. Muhammad Jan saw that a dead body of boy was taken out by the police from the water tank of the shop. He recalled that the boy was same, whom he had seen last day who was called by the person inside the shop, while Muhammad Jan was going inside Masjid for offering Asar prayers. He came to know the name of deceased was Waseem Akram whereas, he came to know the name of the person who called the boy inside shop was Shahid. He was examined by the police. His 164, Cr.P.C. statement was recorded before the Magistrate in presence of accused. During cross-examination he denied the suggestion that he was deposing falsely at the instance of father of deceased. 17. Tariq Zaman (PW-03) stated that on 09.03.2014, he had gone towards Sector 12 Baldia Town for his personal work. At about 1530 or 1600 hours, he reached near the shop of Shahid Welder, he saw many persons had gathered there. On inquiry, he came to know that someone had committed
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murder of a boy and thrown his dead body into water tank inside the shop. Police went inside the shop. Police called him and one Akhtar Nawaz inside the shop and in their presence collected dry blood stained mud, blood stained sleepers, iron sand in shape of road and blood stained clothes and sealed the same in their presence and prepared such mashirnama. In cross-examination, he denied the suggestion that he had not witnessed the recovery proceedings and signed on mashirnama at the instance of police. 18. ASI Ayaz Ahmed (PW-05) stated that on 10.03.2014, he along with his subordinate staff was on patrolling duty in the area. During patrolling, AS1 received spy information that accused involved in FIR No. 103/ 2014 namely Shahid Ali was sitting in front of Rashid Engineering Works shop. ASI reached at the pointed place at 2200 hours and caught him hold, who on inquiry disclosed his name as Shahid and produced crime weapon from his shop. Mashiranama of arrest and recovery was prepared in presence of mashirs. In cross-examination, he denied the suggestion that he was deposing falsely against the accused. 19. Saeed Khan (PW-06) has stated that SIP Ghous Bux inspected the dead body in his presence and prepared inquest report. 20. ASI Sohbat Khan (PW-07) has stated that accused was arrested in his presence and accused produced crime weapon in his presence from his shop. In the cross-examination, he denied the suggestion that accused had not produced crime weapon in his presence. 21.Mr. Azizullah Judicial Magistrate (PW-08) has stated that on 19.03.2014 SIP Muhammad Ameer Bhatti had produced P. Ws Muhammad Jan and Ayaz Khan for recording their statements under section 164, Cr.P.C. He recorded statements of above named P.Ws. under Section 164, Cr.P.C. in presence of accused. In the cross-examination, Judicial Magistrate denied the suggestion that he had recorded 164, Cr.P.C. statement of P.Ws in absence of accused. 22. Afzal Pervaiz (PW-09) deposed that on 09.03.2014 and 11.03.2014 news clippings published in the newspapers that a child had been murdered and dead body had been recovered from the water tank. In follow up of such information, he went to the PS Saeedabad and collected relevant information regarding incident. SHO Police Station Saeedabad told him that name of the deceased was Waseem whose dead body had been recovered from the water tank and appellant had been arrested in the murder of the deceased. Journalist requested SHO for the interview of the accused who was present in the lockup of the Police Station. During interview, it is stated that accused Shahid admitted that he had taken victim boy inside of his shop / Karkhana for toffee where he attempted to commit sodomy with him by putting cloth on his mouth when he failed in such attempt then he inflicted Reti (iron rod) on his body, threw the dead body of the boy in the water tank of Karkhana and ran away due to fear. Accused admitted before the journalist regarding commission of the murder of the boy and expressed his regret for such act. Journalist recorded his interview and telecast from his TV channel ARY in the program "Jurm Bolta Hai". Journalist had also provided copy of such program to the I.O. The witness clearly said before the trial Court that accused Shahid was same who admitted guilt before him. Journalist was cross-examined by the defence at length and denied the suggestion that he did not hand over CD for three .3/ears to the Investigating Officer deliberately. He has denied the suggestion that he was deposing falsely against the accused for damaging his reputation. 23. Inspector Muhammad Amir Bhatti (PW-11) received copy of the FIR No.103/2014 under Section 302/34, P.P.C. on 09.03.2014. He visited place of wardat on the same day at 1530 hours in presence of mashirs and prepared such mashirnama. Investigating Officer collected blood from the place of wardat, collected piece of cloth which was put by appellant on the mouth of deceased boy at the time of attempt to commit carnal sexual intercourse with him, articles were sealed and such mashirnama was prepared in presence of mashirs. Investigating Officer recorded 161, Cr.P.C. statement of P.Ws. On 10.03.2014, ASI Ayaz Ahmed arrested accused on spy information in the
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aforesaid crime in presence of mashirs in front of shop Rashid Engineering Works. Appellant led the police party towards his shop and produced crime weapon/ file tool "Raitee". ASI prepared such mashirnama in presence of mashirs. Postmortem examination of deceased was conducted. Investigating Officer collected postmortem report, dispatched articles to the Chemical Examiner for report. On 12.03.2014, I.O. produced appellant/accused before Police Surgeon Karachi, for ossification test for determination of his age. Appellant/ accused was found aged about 1$ to 19 years. Doctor had also certified that appellant was capable to perform sexual act. On 19.03.2014 I.O produced P.Ws. Muhammad Jan and Ayaz Khan before Judicial Magistrate for recording their 164, Cr.P.C. statements, which were recorded. On 23.03.2014, accused led the police and pointed out place of incident. Investigating Officer took the photo-graphs. Investigating Officer collected reports from Chemical Examiner which were positive. According to Report Shalwar of the accused / appellant was stained with human sperm. During investigation, I.O had also recorded 161, Cr.P.C. statement of media person team of ARY channel and collected C.D. from him. Investigating Officer was cross-examined by the defence counsel. Investigating Officer has denied the suggestion that proper investigation was not conducted by him. It was the whole prosecution evidence produced before the trial Court. 24. Trial Court while appreciating the evidence of prosecution witnesses convicted and sentence the appellant mainly for the following reasons: "32. In view of the above, where evidence of all the prosecution witnesses is natural, inspired confidence and they fully supported the prosecution version, which further was proved by extra- judicial confession made by accused. The motive of accused that he took the minor child aged about 7/8 years inside of his shop in sight and presence of above prosecution witnesses for doing nothing but to satisfying his evil minded plan of committing sodomy and upon his failure, he kept a cloth on mouth of the deceased and, inflicted repeated blows of raittee (a tool, Iron grinding rod) at chest of deceased and committed his murder is also proved by strong circumstantial evidence of the actual incident. The gravity of the offence of accused was further enhanced, when he attempted to conceal his offence by throwing the dead body of deceased in underground water tank inside his shop. The FIR of the admitted incident lodged by Complainant is also found free from any due deliberation and consultation to falsely involve the accused in this case, in absence of any enmity or ulterior motive on his part or any PW examined 14.ore the Cowl Therefore, the prosecution has successfully proved its case beyond all reasonable doubts." 25. We have re-examined the entire prosecution evidence. The prosecution case is mainly based upon last seen evidence of P.W-02 Muhammad Jan and evidence of media person PW-09 Afzal Pervaiz. For proper appreciation of evidence of PW-02 Muhammad Jan, we have examined the fundamental principles for conviction based on last seen evidence as laid down by Honourable Supreme Court in the case of Fayya z Ahmad v. The State (2017 SCMR 2026). 26. In another unreported case of Qaisar Mehmood and another v. The State (Criminal Shariat Appeal No. 23 of 2017), decided by Honourable Supreme Court on 02.12.2020, it is held that the Court may rely upon the evidence of last seen, without a demur, if found free from any taint, constituting a reliable link between the offender and the victim within the proximity of time and space. 27. In the present case, Muhammad Jan (PW-02) had lastly seen deceased boy at the door of appellant's shop. P.W-02 has explained his presence, in front of the shop of appellant, at Asar time in these words: "On 08.03.20214, I was standing at morr/turn of Sec. No. 8, Saeedabad and waiting for transportation. I saw one rickshaw was coming from Gulshan Ghazi side. I signaled him for stop. I boarded rickshaw and went to my house. I got stopped rickshaw at Qout-e-Islam Masjid for offering Asar prayers at about 1800 hours. The rickshaw was parked in front of the shop of puncture repairing. There was welding shop in name and style of Rashid Engineering in front of the puncture
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shop. I saw one boy of about 7 years was called by the person who was welding in Rashid Engineering shop. On this the boy went inside the shop. I and rickshaw driver went for prayer inside- the Masjid. After perform-ing Namaz came in rickshaw to my house and rickshaw driver also went away " 28. Record reflects that house of the deceased boy is situated at the distance of 2/3 minutes from the shop of appellant. Muhammad Jan (PW-02) had no enmity to falsely implicate the appellant in the offence of this shocking nature of the crime committed with a child of tender age. Argument that P.W-02 Muhammad Jan was a chance witness, no doubt his evidence requires more cautious scrutiny, but this P.W. has clearly explained that on the day of incident, he got stopped rickshaw at Qout-e-Islam Masjid for offering Asar prayers at 6:00 p.m. Rickshaw was parked in front of the shop of the appellant and he saw a boy aged about 7 years, was called by the appellant who was present in his wielding shop. Boy/deceased went inside the shop, then above named witness after offering prayers went on the same Rickshaw to his house. Evidence of Muhammad Jan (PW-02) is quite reliable and trustworthy, he had no motive to falsely implicate the appellant in this murder case. We have no reason to disbelieve him. Trial Court has also rightly relied upon his evidence. According to the evidence, appellant attempted to commit sodomy upon the deceased boy when he refused, appellant put piece of cloth on…
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