Mashooque Ali (Appellant) VS The State (Respondent)

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1 IVASI-{OOQUE ALI V/S TI-.IE STATE

STNI}TT [{IGH COURT , CIRCUIT COUI?T HYDERABAD

CCIMI)OfliiITION OF BtrNCH

II()N'III,Ii N4 IT..IIJS'I'ICIi VI()IIN NiIh,IAI) I(AITIM I(T.IAN AGHA (s.ts.)

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CBRTIFICATI}

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ORDEI{ SI-IEI-17

II\ T'[IE T{IGI{ COUITT OF SIhIDH,

CIITCT] I'I' COTJII'I', I IYDERABAD.

Cr. Jail Appeal No.S-89 of'2014

I)zVl'lr oltDlllt wll]-l sIGNA'ruRu oF JUDGII

Ntlr. Muhaurnracl .laureeI Ahmed, Advocate for appellant.

N4r'. Shahicl Ahured Shaikh, Aclcll. Prosecutor General, Sindh.

I\4r. Abcltrl Flameed B a irva, learnecl colrnsel for the courplainapt u'itliclt'at'r's his Val<alatnaura, as slrch, the cornplainant Abdul Ghaffar present in Ctlttrt reptlses his lull laith and conficlence in learnecl A.P.G.

I have heard the leatrnecl counsel for the ;rppellant as r,vell as learned A.l).C lbr State. Resen,ed for.ir.rclgment.

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{\,,er*-ult c-;n*^ n-.k f",,r=.^+ ry IhI TI{E HIGH COURT OF SIT{DFI, CIRCUIT COURT

HYDERABAD

Crirrrinal Jail i\ppeal No. S- g9 of Z0l4 Ivlr\sI-tooQuE ALI

Versus

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STA'] E

Appellant : Mashooque AIi s/o T'hrough Mr. Ivluhammacl Jarneel Ah,red, Inram lJux Metlo Arfirocate.

ltesfronrlelt : T[e State Through Mr. Shahicl Ahrnecl Shaikh, Arldl. Pr"osecutor Ceneral, Sinr-1h

Complainant : ALrdul Chal'far. Prese,t i. perso, a,cl praced relia^ce on r AI'C.

Date of hearing 78.72.2023

[)ate ol juciplntr.nt 21 12 2023

IUDG MENT

I\{OHAM MA D I(ARIM I(HAN AGHA, '1'l-ris T. Criminal Jail Appeal is directecl against the Juclgrnent ciatecl 1t).12.2013, passecl by thc' Iearned Ilncl Aclditional Sessions Juclge, Shaheecl Benazirabad in sessiotrs case No.135 of 2009 (re: The State v. Mehboob and another), orllanating f rotn Clrinre l\o.36 of 2009, registerecl at police Station I ur, unr{er sec tions Z0Z, 34 PPC, whereby the appellant IJir urla tp

IvlashooqLre Ali alo^g witrr co-accused Mehboob AIi has been cotrvictecl u / s 302(Lr) PPC as'I'a'zrr ancl 34 PPC and sentenced to suffer inrprisoutneut for life aud to pay the cornpensatiop of Rs.1,00 ,000/ - [Rupees one l-,ac] each. On realizartion, it shall be paid to the legal heirs of tleceasecl Mukhtiar Ahmecl. In case of non-payment of the saicl compelrsation, the appellants shall further unclel.go S.I for 06 mo.ths.

I-lolever, they were au'arrlerl benefit of Section 382-Cr,p,C. It is notecl

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that co-accusecl Mehboob Ali has already been releasecl from the Irrisou aftel completing his sentence and therefore, his appeal bearing Crinrinal lail Appeal lrlo.5-222 of 2017 was dismissed as not pressed vide rrrder clated 79.11,2023.

2, The brief facts of bhe proseclrtion case are as under:- " l'lttt, ou 24,03.2009 cotr4tlninnnt Abdul Glrffir Arnirr lodgetl i-'11i ruitlr Pttlice Stntiort Dnulntpur, stnting tlrcrein tlmt Mulclttinr Alntrcd nged nborlt 06 yefirs runs lds son rplto trced to go fo, offering prilyer nlonyuith lils grnnrlfntlrcr Milmrunmcl Sullernnrr. [t is fi.n'tlter stated tltnt on 23.03.2009 ltis sort Mttkhtinr ruent for offering sunset prttyer / Mnglrih ['Jnntnz nlorry ruitlt ltis grntdfatlwr but cottlcl did not retm'rt bnclc, Tlrc contplnittant, lds brotlrcr Abdul Sattar ntrrl cousin Hnji Mttsnib stsrted senrch for lds son nnd ruhen renclrcd nenr tlrc rulrcnt crop of Siddique Arnin nt nbout 2100 Itotrs, tlrcy lrcnrd cries of lris sot'Lt tlrcy Jlnshed tlrcir torcl,r liglrts rtni sntu mul idcntified Meltboob Ali nlortg ruith fiuo trtridettti.ficd p(rsotts stnrtrling there tuho seeing the t:otttplnitrttttt ytnrty sttcceetlcd to tlecntrryt tnking ndttnntnge of tlnrhu:ss rurtl rplrcnt crop, 'l'1rc conrylnirtwtt pnrty tJrcn ruent ncfir lis srttt nrrtl smt, lris sorr Mukhtisrkflr Tuns tying in nnked conditiott rtttd tnnrks of scrntclrcs Tuere nlso fottnd on lris neclc anrl chccks ntul lrc runs dend. Lle irtfornrcd Dnttlatptr police nnd police retclrcd tlutrc, ruith tlrc help of police lrc brottght tlentl body to lilrrnl llcnltlt Centre Dnrtlntyr nnd after llr,s burinl lrc ututf to police stntion nnci todged FIR thnt nccused Mel*oob Ali Metlo along r.uith two unlurown persons ruillr tlteir coriltnotl itltuttion lmd cortuttitted tlrc nnrrder of lils sotr Mttklrtinr Alrrucd." (trold added)

3.After ltsual iuvestigation police sr-rbrnitted the challan before the Court conceruccl ancl after completing necessary formalities, learned trial Courrt framcci Lhe charge argainst the appellant, to which he pleaded not guilty anrl clairnecl trial.

4.At trial, the Pl'osecution in ordc.r to prove its case examinecl 0B witnesses ancl exhibited numerous documents and other items. The statetlrent of accused was recorded under sei:tion 342 Cr.P.C whereby he t{cnietl the alk:gation levclecl against him and claimecl his false implication Lry tl-re cornplainant on account of enmity. However, ncithc'r thc appellant examined hirnself on Oath nor lecl any evidence in his defense.,

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5, Learnec{ trial Cor-rrt after hearing the learned counsel for the parLii:s atrcl t:xattniuing the eviclL,nce arzailabl(l on recorc{ convicted and seutenced the appellant arrd co-accuserl, as stated above. Hence, the arppellant has filecl thrs appeal against his conviction.

6.It is notecl that learrnecl counsel for the cornplainant Mr. Abdul I larneecl IJajr,r,a withrll'ews his Vakalatnama, as such, the complainant ALrdurl Giraffar presettt irr Cottrt reposed his full faith ancl confidence in Icarrl:c1 APC to argue tiris appeal on his beharlf.

7.I-ctrrucrl trial f-ourlt in thc inrpr-r6gnecl juclgment has alreacly discttsst't'l Lhe evitieuce irr cletail anrl there is no neec{ to repeat the sarrle here, so as to avoicl duplication and unnecessary repetition.

L l-earnecl counsel for the appellant contendecl that the FIR was loclgecl with a clelay of ot-re clay and that the appellant was not namecl in tire FIR but rather was referrecl to as an unknown person which m;rkes the involvetnent of the appellant doul:tful as the co-accused was spccifically uetrtretl in the FIR; that the sole eye witness who identified the appcllar-rt as LrL'ir-rg involverl in the murrck,r was r-rnreliable as it was too tlark for hirn to ntakc' a correct ic{entification; tl'rat there was no evitlellcc of tll1y abdutction of the deceased boy; that important eye l+'ituesses were given urp ancl as such the best eviclence was with helcl by thc' proseclttion with out explana tion; that there was enmity between the witnesses and the accused and all the witnesses were relatecl u'hich also macle their evidence unreliable and that for all or any of the abtlve l'easons the appc.llant shoulcl be acquittecl of the clrar'11e by extenrling, lrim Lhe Lrenefit of the cloubt.

c). l-carnecl A.P.G, who was also representing the complainant,

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vehemently opposecl the appeal anc{ prayecl for its ctisrnissal by arrguirrS5 that the appellant wars clearly iclentifiecl by one eye wihress in cotltnitting the crime whose eviclerrce courlcl be safely relied upon as his 5.161 Cr,l']C statement was given with promptitude; that he is narned in the FII( as an eye witness which was also todged with pl"olllptitudc; that the eye witrress knew the appellant from before and as slrch ther.e \ /as no case of mistaken iclentity ancl no neect to hold an iclentification parade; that the rnecliceri evidence corroborated the

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ocular erriclence and as such the prosecution had proved it case beyoncl a r:easonable doubt ancl as such the appeal be dismissed. In support of his argurments he plerced reliance Lrpon the reported cases of Qasim Slrahzad and another versus The State and others [2023 SCMR 117] anr1, Mtrhammad Bashir and another versus The State and others 17023 scrvrR 1e0l

10.I have hearcl the learnecl counsel for the appellant as well as Ieamed APC and have also perused the material available on record and cor-rsicleled the case law cited at the bar.

11.tlased on my reassessrnent of the evidence of the PW's especially the rnctiical cviclencc arnd other medical reports I find that the prosecution has provecl beyoncl a reasonable doubt that Mukhtiar Ahnrerl (thr. r-leceasecl) was murcierecl by straugulation on 23.03.2009 at about 9.30prn in the wheat crop of Sidique Arain situated in ward No.B,

12.Tire only rllrestion left before n-re is whether it the appellant participatecl in the murder of thc. deceased at the said time, date and Ioca tion?

13.Aftcr nly rcassessment of the eviclence I find that the prosecution has NIOl' prtlvt'rl [re1r1v1^1.1 t1 t'casttu;rL-',lc cloulrt the charge against the appelltrnt keeping in rzievi, that each crirninal case must be decided on its orvn particular facts and circumstances for the following reasons;

(a)Aclrnitteclly, the IrlR was loc{ged within a duy of the inciclerrt anrl tire c{elay has Lreen l'easonably explained by cleceasecl being taken to hospital for post rnortem and then releasecl for burial ancl as r;uch is not fatal to the ,t prosecution case. The appellanl however is not named in the FIIR..

(t,) I fintl that the prosccurt-ion's; case prirlarily rests on the cvitlcnce o[ thc cye witnessr:s to the rnurder of the tlcceasecl arrrl whether I believe their evidence whose evirlcnr:e I shall consicler in deteril below;

(r)Ly* witness PW 1 Abdul Ghaffar. He is the cotnplainant and father of, the deceased. Accorcling to his evir-lence on 23,03.2009 tl-re grandfather (Muhamrnecl Sullernen) of the cleceased l:ook the cleceaseci to Maghril:

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prilYel's howevcr wiren he returnerl back he infolmerl the complainant that the clrlc€aserl was not with hirn. I Ience the complainant, his brother l-{aji Abclul Sattar ancl his cousin Haji Museeki Ahmed went in search of the tleceaseri. When they lerichecl the masjid they heard cries of his son from the rvheat crop adjacent to the Masjicl. On torch light he saw Mehboob Metlo (convicted co-accuseri) and two unknorvn persons. FIe also saw the rleceaserl/son in naketl position with his face towards the gror-rnc1. 'l-l"re rleceasecl/ l;on diecl on the spot arrcl he saw marks of strarrgulation and bruising o11 the rieceaser-l. I-Ie informed the police who reached the crirne scelrL' anrl the cleceasecl's bocly was taken to hospital for post nrortenr.

'l'he founriation of the prosecution case rests with the granrlfather (Muhammecl liullernen) of the deceased r,r,ho took the cleceasecl to Maghrib prayers however when he returnecl frorn prayet's he did not have tl-re rleceaserl with him who presultlably as per prosecution case \ ias abclucted. Mr-rharnrnecl Sullemen however did not even have his 5.161 Cr.PC statement recordecl let alone beirrg called to give eiyidence which cuts away at tirc. f ounclation of the pl'osecution case. It is also surprising, to sery the least, that a glandfather who was errtrustetl to take his 6 year clcl grandson to prayers who vvoulrl hAve pre_\,ed Lreside him got lost or was allowec1 to Lrc abr-[ucterl.']'his atspect of the caste puts nle on calttiotr especiall), ut eltt ac1v,:rse inference catr be clrawn urrcler Ar:ticle 721) (g) Qanon-e-shahadat 1984 that he wouirl not have supportec-l the prosecution case and nleans that there is no eviclence of abduction of the tleceaserl.

Be that as it rnay, it is notable that this eye witness did NOT llarl1e the appellant in the FIR lodged a day later. Insteacl he was only able to recognize the convicted co- accuserl in the FII{ who he knew ancl was able to see by torch light. 'I'his again I find.surprisirlg as the convictecl cc)-acclrsed u,as the brother of tire appellant so if he was ablc to recognize the corl,icterl co-accused under the [orch ligirt how was he not able to recognize the appellanL wircr \^/as his brother' who he also knew who \Aiel'e stancling Logether if in fact the appellant was present. I-le also faileri to girze ar-ry huiia of the unknown

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persolts rn,hich incluried tl-re appellant. FIe also does not r,t,itness the act of sodonly (l'or wl-rich the appellarrt was r-rot couvictc'rl anci is noL rnentiorrei-l in the FIR) nor the murrler. 'fhe torch light was also not recoverecl. Thus, although the cornplainant rnight have been present I finrl that the cornplainant failecl to identify the appellant rt,hich he ourght to have been able to do, As such l find his evir{ence insufficient to convict the appellant,

(ii)l'w Haji Museeb. FIe is the cousin of the cornplainant ancl is also related to the deceased. I-le corroborated the evicleuce of the cornplainant in all rnaterial respects except that he sal,s Lhat he irJentifietl botir the convictedl

fiz c-accuserl arrrl Lhe appellant uncier the torch light of the cornplainant at the clime scene, I{e knew the appellant 1r'orl l-refore anri he gave his S.161 Cr,PC statement itlentil'1,ing the ;rppella,t with prornptitude, The difficulty I have u,ith tiris witness in terms of his correct ir,[e.ntificatiorr of the appreliar,t is that he harl enmity with tlit ;rppellant anrl \,\/as rel;rtr:c[ to the deceased ancl had reilson to irnplicate him in a false case. More significantly, hovvetrer, -when this eye witness irnrnecliately recognizecl the appellant at the crime scene vvhen he was with the appeliant he wouicl have irnmerliately tolcl the appellnnt who he hacl seen. Yet he a]-rpears tcl harre rerrairretl rnlrlrr for over a r{ay as the appellant's nalr-re cloes not finrl rneutiou in the FIR. l(eepirrg rrrunl for over a ctay baser.l on the particular facts ancl circumstances of ihe case does not appeal to rearsorl, iogic ol conlnlonsense ancl is against natural hurnan corrtlurct, I-le was bounrl to have tolcl the conrplainant immerliately orr the spot u,ho lre had seen (()nrrlitLinSl sr-rch a heinours crime against his relative. 'I'hc lact that he rernained lnurrl leacls ine to doubt his correct irientification of the appellant whom he may have falseli, implicatecl especially as there was enrnity between them arrti it \^/as r'lark and the appellant was allegedly seerl by hirn by an urlrecovered torch light, 'l'lurs, althor-rgh this vrritnesq might have been presenb I have r-loubt thart he i,rras able to correctly and honestly irientify the appellant.

Other evidence and considerations.

(.) Arrothcr allcged c1,q' wiLtrcss in ,the IrIR i-larji Abdul Sattar who \ /as thc Lrrothcr of l.hc complainerrrt and who was also prcscnt as i'ur rlye witncss at thr: time of the incident was also given up by the lrrosecution without explanation as such uucler Article 179 (g) Qanoon-e-Shahadat Ordinance 1L)84 the inference can be clrawn that he would not have suppor:tecl the prosecution case as I have alreaciy found in I"espcct of thc gratrctfathcr N4Lrhammec{ Sullernen.

(.1) fhat the appellant was rrot conv;cted for sodomy.

(*) 'I'l'rat the prosecution has not proved that tl-re appellant i hacl alty tnofirre to rnurlcler the cleCeasecl. On the contrary it \^/tis the cotnplaitriirtt's sidc who hacl enrnity with the appeilant's side.

(f)'l'hat the ailegeci clate of arrest car-r also be discarded as alleged Lry the pt'osecution as this question was not put to the appellant at the tirne of recording his 5.342 Cr.PC sttttcmctrt aucl it is n,cll scbtlecl by now that any question uot pt-tt to the accused in his 5342 Cr..PC cannot l:e used to convict hirn arrd as such there is no clarity as to the date of arrest of the appellant.

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(g)'l'[rat althourgh the meclical evidence supports the prosecution case it can only identifl' the nature of the injury, the seat of the injuly ancl type cf weapon used but is of no assistance in identifying the perpetrator.

(h)In essence the only piecc. of evidence against the appellant was .')re witrress PW 2 lJaji Mr,rseeb whose evidence in respect of the correct iclentification of the appellant I have alreacly founcl cloubtful.

14.'I'hr-rs, baserl on the abovc. c{iscurssion, I fincl that tire prosecution has NOT l-,roved its case against the appellant beyond a reasonatrle doutrt ancl by extending the appellant the i:enefit of the doubt for the reasons discussecl above, which he is entitled to,as a matter of right as opposed to colrcession, I herc,by seL asicle the impugned judgment, allow the appeal ancl acqr-rit the appellant of the charge who shall be lcleased urnless wantecl in any other custocly case.

15, Thc' appeal stands clisposerl ol' in thcr above terrns.

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