Nazar Muhammad & Anothers (Appellant) VS The State (Respondent)

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IN THE HIGH COURT OF SINDII'

CIRCUIT COURT HYDERABAD

Before:

Mr. Justice Naimatullah Phulpottt Agha il;. il;i;; Mohammad Karim Khan Cr. APPeal No'D-10 of 2015' Nazar Muhammad and another Versus.

The State

Muhamm ad Waseem Appellants : Nazar Through SYe d Muhammad and ano ther ' Shah, Advocate

Through sye d M ee ral leah B cl ukhari Respondent The State D ep u ty Pro S e C1l to r G e n e r a1 Date of hearing oa.os.zo tz Date of judgment 08.05.2017

JUD GM ENT

KHAN AGHA Appellants Nazar

J.-

MOHAM MAD I(ARIM

Muhammad and Ghulam Hyder were tried by learned Judge' Antr Terrorism Court, ShaheedBenazirabad@NawabshahirrSpecialCase No'13 l2}l4' registered at Police No.O6 of 2014, arising out of crime ' urrder sections 3O2' 31O-A' Station Jhol District S anghar for offence founcl guilty by judgment 201 PPC arrd 617 ATA' APpellants were judgment) and were convicted and dated 23.01.2015 (the imPu gned for life as "Taair" u/s 302(b)

PPC

sentenced to suffer imPrtsonm ent of disappearance of evidence and u/s 201 PPC on account o f causing years offence of murder committed bY both accused to sull'er seven concurrently' Benelit of Sectron imprisonment. Both sentences wilI run the the accused' While convicting 382-B Cr.P.C. was also extended to

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accused / aPPellants learned tria,l court tl-rrough the impugned namelY' Muhammad' judgment, acquitted the remarnlng. co-accused l(han' Mattzoor, Eidan, Noor Khair Muhammad, Nabi Bux' Ali The appellants have challenged Muhammad alias Nooro and Maqsood' the instant appeal the impugned judgment through

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The brief facts of the prosecution case as clisclosed in tl-re F'I'R'

I3'O3'2O14 at 193O lodged by complainant Shafi Muhammad Brohi on Ali l(han Maree' hours, are that he is cultivating the land of Zamindar Hehastwosonsandtwodaughters;hiselderdaughternamelv ahout 112 Sughran aged about t6117 years who was Llnmarriecl' Ali lfllrslrheli anc[ months back, left his house with one Muhamrnad hourse and aflter two who after one day returned his daughter to his Muhammacl and cousin days his uncle Nazar Muhammad S/o Raza village Muhammad Ghulam Hyder s/o Ali Muhammad Brohi both r\o Usman Nizamani near Karachi Hotel came in his house and complainantnarratedthemthefactstowlricl-rhisrrncletoldt}te to his horrse for sorne complainant that he wanted to take Sughran time and it will be better not to reside here' On 25'ol'2o14 his uncle took away his daughter Nazar Muhammad and cousin Ghulam Hyder his wife 2/3 times Sughran to their house, thereafter he alongwith with eacle other went to meet their daughter and after consultation things and wanted to they botJl decided that they shall resolve all the the F'I R' at- 5-OO p'rn bring her back to their home' One day before U:e comptainant alongwith his nephew Ali Flassan Brohi and rnaternal at the house of his cousin Khamiso Brohi went to meet his daughter Muhammad and uncle Nazar Muhammad where his uncle Nazar .\ cousinGhulamHyderBrohimetthembutheclidnotseelrisdaughter Ghulam disclosed that there. On asking for his daughter Nazar and wants to go-olrt of tl-reir she did not want to remain there and she she will leave their house and they have suspicious that at any time the family and therefore they house and it will be another disgrace for told Sughran to go to consulted with each other and on 01'03'2014 thehouseofherfatherintheeveningtime.Tlrereafter,GhulamFlyder At about O8:30 p'm' at went to hide the spade in the Bheel graveyard' house and when they night they told Sughran to return to her father's reached on the road near graveyarcl at about 21Oo hor-rrs they both

(Nazeer and Ghulam Hyder) caught hotd of her and dragged her they throttled her by keeping towards graveyard and in the laee trees they took out their hidden I cloth on her face and killed her' thereafter spade, excavated the large ditch and buried hel in il' with her cloths' and Ghulam) to show that place The complainant asked them (Nazar party and showecl theln tlle to him and they then led the complainant lodging the F'I'R' 'I'hereafter' grave which was built some days before and lodged t"n t"Oott;,, complainant went to Police Station

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3.After completing the usual investigation, police submitted the challan against the present accused/appellants and co-accusect'

4.Formal charge against the accused was framed bv tl're l-r'ial court at Ex.4. Accused pleaded not guilty and claimed to tre tried vide their pleas Ex.4/A to O4lJ.

5, In order to prove its case the prosecution examined12 witnesses vide (PW's) and thereafter learned DDPP closed side of the prosecution statement Ex.20.

6, Statements of accused were recorded under section 342' Cr'P'C' at Ex.21 to 30, in which they have denied the allegations o[ the prosecution. They however neither examined thernselves on oath nor

led any evidence in their defence.

for tlre

7.The learned trial court after hearing the learned cor-rnsel parties and on the assessment of the entire evidence convicted and sentenced the accused/appellants and acquitted the remaining juclgrr'retrL' accused persons as stated above in the impugreecl

8.The facts of this case as well as evidence produced before the judgment trial court find an elaborate mention in the impugned passed by the trial Court therefore the same maY not be reprocluced

here so as to avoid duplication and unnecessary repetition.

Learned counsel for the appellants contereded that g. tl:rere was was no eye absolutely no evidence against the appellants; there have not witness to the murder; that the key prosecution witnesses supported the prosecution case and there is not even any

circumstantialorothercorroboratoryevidenceagainstttreappellants. In support of his contention, he relied upon the cases of Muhammed SCMR) and Sarftaz V State (2013 SCMR), Aurengzeb V State (1990 Ameer Bakhsh v. State (2012 YLR 498)' State fullY

10.On the other hand learned DPG appeartng for tl-re supported the impugned judgment' According to him this was a I by the key prosecution classic case of Karo Kari which was supported witnesses in their 5.164 statements and the fact that they had now not supportin'g the been influenced to change their mind at trial int.o case as the fact prosecution case this was not fatal to the prosecution collapse the a witness had turned' hostile would not immediately that circurastantial and prosecution where there was other supportive' ,., |).

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corroborative evidence as in this case. ln support of his contention' learned DPG relied upon lVahid v. State (NLR 2OO2 Criminal 6)'

11.We have considered the arguments of learned counsel' perlrsed the record and the case law cited by them at the bar'

12.The prosecution case in essence is that this is a case of honour killing. Namely, that the appellants who were the uncle and cousin respectively of the complainant who ,was the father of the mlrrdered their lady Sughran (who was about 16/ 17 years of age) took her into house and thereafter murdered her near the Bheel grave yard through preserve the strangulation and thereafter buried her bocly in order to family honour' This was because allegedly irr the past the rrtrrdered. lady Sughran had run away with a Mr'Mohmmmecl Ali Iftraskheli before being returned home by him which brought disgrace on the family and there was apparently every likelihood of her doing the sarne

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13.Attheoutsetwhilstcondemningthebarbaricpracticeofhonotrr sight killing which in our view is cold btoodied murder we cattnot lose only of the fact that this is a criminal triat and that a criminal trial can be determined based on the legally admissible evidence which is brought before it and that such evidence must prove the guilt of the be guided accused beyond a reasonable doubt' As judges we call onty can by the evidence and nothing else. Mere suspicion, however strong, never replace cogent, reliable evidence'

L4. In this case it i5 not disputed in the evidence that the daughter had earlier of Shafi Muhammed (the complainant) named Ms Sughran left her fathers home without his permission and gone off with Muhammed Ali Khashkrih who returned her himself bacl< to her who were the fathers home a-fter a few days. Thereafter the appellant's uncle and cousin respectively of the cortplaina.n t tool< the who complainants daughter with the permission of the complainant disgrace on was her father to live with them in order to avoid further the family's name as they lived further way' That from time to Lime the

complainantandhiswifeusedtovisithisclaughteratttrehouseolt,he appellants but on one such visit she was not present in the house and the the appeltants had informed the complainant who had reachecl house with PW Ali Hasan and PW Khamiso (both of whom were related PW Ali to him) that she had run away' In our view the complair-rant' witnesses' Hasan and PW Khamiso are the three key prosecution

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15.At this stage in the complainants FIR and the S'164 statements despite not being of the abovementioned key prosecution witnesses, eye witnesses, they had stated in effect that the appellants had grave yard' murdered Ms Sughran and buried her near Bheel carne to

16.However when the aforesaid key prosecution wi'l,r.resses give evidence at trial the, complainant resiled on his IIIR and all 3 resiled. on their S.164 Statements and refuse d to suPPort the prosecution case. In their evidence they all statecl in effect that after leLt their hourse the appellants told them that Ms Sughran ha d (appellants) theY and other relatives searched for her an d came to Bheel gtave Yard know that one dead body was buried nearby was exhumed frorn the Whereupon the police were called and a body complainant as his aforesaid place which was identified by the daughter. There after a post mortem was carried out and after observing all legal formalities the dead bodv of Ms Sughran was reburied after a funeral ceremony' Al1 3 of the aforesaid key prosecution witnesses were cleclared t7.

and S'164 statements hostile and all 3 denied ever stating in their FIR the appellants mr-rrdered Ms respectively that they had ever stated that had been added by the Sughran and that the names of the appellants A police acting on their own wishes' They also cleniecL that they hacl threat' inducement or for changed their evidence due to compromise' any other reason'

18.PW Khuda Bux was a Mushir who stated that the appellants and spade lr'ad been were arrested at the PS,'that one ladies chapel he was present at the time recovered from the radies grave yard, that and tl-rat tl-re police of the exhumation of Ms sughran,s dead body and PW Jai Rarn Das only prepared all mashirnama's' PW Kaka Khan evidence namelY that Ms corroborate an admitted fact from: the was laLer t'etrtrned Lo the Sughran ran off with Mr'Khashkeii and to the prosecution case' complainant which in oui view adds nothing which again adds 1 PW Muhammad Arif supervised the exhumation nothing ner:r' to the prosecution case as it is an acimitted fact that the body of Ms Sughran was exhumed'PW Abdul Kaleem was the judicial of PW l(amisio and Ali magistrate who recorded the 5'164 statements Hasan in the presence of the appellants' 'out the exhumation and post 19 PW Dr. Qutubuddin carried the probable time of death was mortem of Ms Sughr an who found that vl

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were carried out on 01'- 3 to 4 weeks ago (exhumation and postmortem unnatrrral (homicidal) and 4-2L!4land found the cause of death to be No poision was found in the due to coma/asphyxi, a"9 suffocation' tapedar who had drawn a body.PW 8 Muhammed Muneer is the sketchofthewardatwhoseevidenceisoflittle,ifany,assistancein this case the FIR of the

20.PW IO Ghazi Khan states that he recorded verbatim on 13-03-2014 who named the appellants as complainant the persons responsible for murdering his daughter Sr-rghran and lead been buried by the him to the grave where his daughter had where he recovered one chapel appellants after murdering her and his daughter' later he arrested which the complainant said belonged to complainant' arrd recorded the the appellants on the pointation of the confessed their guilt to statements of the PW's' The appellants murdering Ms Sughran by throttling her ancl then lead them to the spade which they had used to dig her grave ancl he was one of the in Javed Iqbal is the second [O diggers during her exhumation' PW cleemecl' t-o l-re a case under this case who was appointed once it was judicial confessions of the the ATA who also confirms the extra appellants evidence is t'trere lo prove

21.The issue before us is simply what and does this evidence that the appellants murdered Ms Sughran prove beyond a reasonable doubt that the appellauts nrurdered Ms Sughran all in their evidence

22.The 3 key prosecution witnesses have under S'164 Cr'PC respectively resiled from their FIR and statements It is true that in Wahid's that the appellants murdered Ms Shughran' that evidence of a hostile witness can lre taken into case (Supra) of belief consideration so as to find out if the said witness was worthy other evidence' Iu this case horuever nll 3 of the key in the light of declared hostile resiled from prosecution witnesses who were all the appellants murdered their statements under 5'154 Cr'PC that 5'164 evidence on oath will trump Ms Sughran. It is settled law that which are later denied' Thus' there is no direcl ocular statements Ms Shughran' Even otherwise evidence that the appellants murdered even eye prosecution witnesses as mentioned above were not the 3 key the The complainant was a hearsay witness who allegedly witnesses- appellants confessed to' ve

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is the

23.The only oral evidence at trial against the appellants and second IO Javed hearsay evid'ence of the first IO Ghazi Khan lqbal.

and the

24.Dr. Qutubuddin was not able to give a time of death drle t.() t':on.ra/asphYxia cause of death was unnatural (homicidal) and and suffocation.

could 25, On this basis once Ms Shughran left the house anylcody was nol- recovered lrom the have strangled and buried her' The spade appellants nor was the other chapel ever found' oculal' 01'

26.Thus, in our view there is neither any clirecl. tl-rat they n-rurdered Ms documentary evidence against the appellants Sughran.

27.In our view this case falls into the category of a last seen case case (Supra) it will and as was held in the case of Ameer Bakhsh's depend on circumstanlial evidence:

ol tlrc prosecutiort "1O. As already observed, hereinfore' the case wholly a"p.,,'aJ*1" ciicumstantl't 10' evidence i'e' last seen The contention of the evidence, furnished by P'Ws' a,ani learned Additional 'ProsecutorGeneral that conviction can be evidence' is devoid of force' -made on th" ;;;; ti "ii""*"t*"tial establish a.lr offerrce by as ,r"""""u-,!*- i-nlieditnts' to instant c:ase and circumstantia] evidence, "," *,""i,lg l', tt-'" those are:

conclusions are

(r)The circumstances, from which the a.^*rr, be fullY established' "ftorld (i0 Al1 facts must be consistent with the hypothesis' collclusive nature

(iii)The circumstances shoulcl be of a and tendencY.

The circumstances should' to a moral certaintY (i") the one exclude every hypolhesis' lrut ".i".ffv proposed to be Proved'" Bukhsh V State (2004 28 Likewise as was held in the case of Khucla SCMR 331) at P.335 as rinder .t ot the incident and the 'Admittedly there is no ocular account entirely cleoencls u pon the case of the p""""""'lt" u ruqoirement' of proof in.such circumstantiat eviaence.- it cases is that every"iint tras io he proved hy good and con Lext' I lrc rrrlc o[ - l-lre convinciug evidence' In that against the accr'tsed is orosecution agency "ont"Ut'g evidencetlie sarne is above board i:Hffi;r'i;il"i iii"^[I"-"".., rhar any oottt"t Tfre motive also plays an and free from ""a "'"pi"tn't"tlt"lY on circumstantial important role in ";J;#tiJtJ P-tr"

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is to be ::t1Tf"*:$\:tl.:l"jfj1 evidence. Abov-e .1tr: " other."

any arises is whether: there r

29.The next question therefor e which eviderce l.o linh of c ircumstantial unbroken reliable chain maY have , of Ms Sugh ran. The aPPellants appe llants to the murder she ha<l blougtrt shame on Ms Shughran slnce a motive in murdering his rvit'e hacl alreadY visited and the comPlainant the familY' However' llants rroL alreacly ldlled her?

the appe so why had her a couple of times potential motrve This fact weakens this which ure evt dence the onlY Piece

30.With regard to circumstantial according to lO Ghazi Khan took the complainant it find available is that tes that the killers Pointed site which indica the P olice to the grave s tates in l-tis ev'tcletlce that in comPlainant out to him. However the uthat informerf him that' theY had site' the Police resPec t of the grave Perso that one dead com rnunitY from the Bheel view the received information Thus, kecltinPl irr in Bheel grave Yarcl bodY has been buried is very slringent evidence which in any event test for crrc umstantial ' has come no find that th e Prosecution cases' we as it must be in such t he aPPellants based on aC ase against A where near Provlng view there is no unllroken chain e since in our circumstantial evidenc theY actuallY nce against the aPPe Ilants that of corroborative evide o nce Ms Sughran left the As indicted above murdered Ms Sughran erson could have mur'dered her anY appellants house P witnesses view' once the 3 key Prosecution

31.ln effect' in our s became a case of no evidence stateinents thi re siled from their angle aPPellants when looked at from anY against the was ever to under stancl how this case J 2. In our view we also fail L]re clucial the arn b it of the ATA sinr:e falling under of classified as a case urder case within PLlrview ordinary m to bring an elements requr red t o be completely lacking in this case I the ATA seem above we lincl that the discuss ed

33.Thus' for the reasons its cas e beYond a reasonable doubt to prove pro secution has failed sal cl aPPellants in anY event are and that the against the aPP ellants this resPe ct reference is made to efit of the doubt' ln entitled to the ben such (1995 SC MR 1345) an<l as wez v. The State the case of Tariq Pe th e aPPeal imPugn ed judgment and uP hold ,/y set aside the

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Muhammad and Ghulam Hyder) (Nazar g4. As such the appellants released and are ordered to be immediately are both hereby acquitted cases unless they are in the'aforesaicl by the concerned jail authorities other case' in custody in respect of some reasons for our short orcler dater-l OS-05-2Q17 35. These are t-l:e appellants in this case' acquitting the a-foresaid

\r HvderaLrad: JUD oated: O8-O5-2017 a^-j ;3i?-

JUDGE

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