Shafqat (Appellant) VS The State (Respondent)

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TN THF, HTGH COIIRT OF STNNH AT KARACHT

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F. I . R. NO. 351 / 2009

U/S 30? i364 iA,l4 R/W

380,201,202 PPC

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CRIMINAL APPEAL UNDER SECTIOi'{ 4 1O

OP CRIMTNAL PP,OCEDURE CODE

{ Bei-nq dqqrieved w j t, fr ,rI'r.l r:l i ss'af j -cf i eri l:v lh€.r (.J1'ler Pasise'l bv the i'earnr:'J ?"r A'-l''li tir:nal 5 , -,t ?tnl datecl 14.11..lir1l l{.r I i r . lini.li'll t, tl t'ir,.ri,j

I No.6?.'1 /2.009, (The State V/'s. Sha f .Ja t: Hussain), wLrerebv li'h the Leanne.1 Tr:ia1 Cctr::l-, has {:onv i l]t-crci t l-,:,-appel l,lnt: t.r., &Wff*- e3 ,., i .iirr..1.llrt:

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IN THE HIGH COURT OF SINDH AT KARACHI

Criminal APPeal No.527 of 2011

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Mr. Iustice Moha mmad Kr.ritr Klutn,\slrr Mr. lustite llluhttrrrrurd 5 aleettt lesssr.

Appellant Shalqat Hussain S/o. Atta Muhammad Khan through Mr. Mallag Assa Dashti, Advocate

For State lvIr. Muhammad lqbal Awan, Deputv l)rosecutor General,

Criminal Revision APPlication No'207 of 2011

Applicant : None.

For Respondent: Shafqat Hussain S/o. Atta Muhammacl Khan throttglr Mr. Mallag Assa Dashti, Advocate.

State: Mr. Muhammad Iqbal Awan, I)cputl I)r()st'cut()l General.

{ Date of hearing: 27 022020

Date of announcement 12.03.2t)20

UD(lMEN'T

Mohammad Karim Khan Agha. J'- Appellant Shafqat Hussain S/o. Atta Muhammad Khan has preferrecl this Criminal Appeal against the impullr.tt'1l judgment dated 14.11.2011 passed bv the learnecl Ilntl Adtlitional St'ssiorrs ltttillc Malir Karachi, in Sessions Case No.627 of 2009, F.l'R' No 357 of 2(X)9 Lr/s' 302/364-A/34 PPC registered at P.s. Quaidabad, Karachi wheretrl' tht'apPcllant has been convicted and sentenced to R.l. for life imprisonment under s('ctiol) 302(b) PPC as Tazeer. The benefit of section 382-8 was also extencletl ttt tht' appellant.

{ 2. Being aggrieved and dissatisfied with the Judgment of learned llnci Additional sessions ]urige Malir Karachi dated 14.11.2011 the Complairrant lras also filed the Criminal Revision Application for morlification atttl otrh.tttc t'rrrt'nt of sentence to award major punishment of tleath uncler Section 302 PPC to the appellant instead of life imprisonment.

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3.The brief facts of the prosecution case as narrated in the FIR are that oll "1.6.09.2009, the complainant Sharafat Hussain, lodgecl the captiont'el t:lll, ,rllcplinl', inter alia therein that, he is residing at the address given in the IrlR atrtl st'n'ing itl Karachi Port. That about four years ago, he had e'ntereel in to tic' of Nikah n'ith Mst. Safia Bibi daughter of Gohar Rehman and out of the said wedlock trvo male issues, namely Muhammatl Ammad aged about 3 years and Muharnmael I ltrmzir aged about 9 months were born. On 15.09.2009, at about 0ti-45 arl, the complainant proceeded towards his job, whereas his wife antl botlr children named above were present in the house. At about 06-00 pm, lrc camt'tr.rck at lris house and knocked the outer door but nobotll' resp.rontlcel ltitrt antl thrrs lt,.' tltert went on the roof of his neighbour's house antl peepecl flom the grill inst.rllerl orr the roof of complainant's house. He noticecl bloocl ancl san, his son weeping. FIt' came inside his house and informeel the subiect lacts to Hakeenr .rn(l ()th('r neighbours. Thereafter, the complainant with the help of Iflikhar Lrroke tht'ltrk of the grill of the house and entereel into his Irouse and founcl the elcatl borlr t,i his wife Mst. Safia Bibi in a pool of blood, his younger son Muhammad fl.trnza was weeping near the dead body and elder son of complainant Muhatnrn.rd Ammad was missing. Consequently the complainant informetl to police of 15 Quaidabad as well as neighbouring people and relatives, thereafter, alorrg u'ith his elder brother Shafqat Hussain arrived at police station Quaiciatrael wlrert' he lodged instant FIR of this case against unknown persons.

4.The investigation of this crime was conducted bv Sub Inspector Zulfitlar Haider, he inspected the place of incident in prese'nce of masl-rir anci sccurt'tl blood stained clothes of the deceased, blood stainecl earth ant{ recorded statement of complainant as well as prosecution witnesses u/s 16i Cr.P.C. t Ic recovered missing child Ammad under mashirnama. On 28.09.2009, he got arrested accused Abid fronr bus stop 89 on the prointation of the complainanl rltrti prepared memo of arrest in Presence of mashirs. I'hert'after, hc nls().rrr('!tt'(l accused Shafqat and llyas and prepared their memo oI arrest. He also securecl one pistol from the house of accused Abid on the pointation of accusc(l Sllaf(lat and prepared memo of recovery in presence of mashirs. H!'scltt the recovt'rt'tl articles to chemical examiner. On 05.10.2009, the investigation was translcrrc(l to S.l. Zulfiqar Haider Bajwa who prepared memo o{ sketch of tlrt' pl;r6s tr[ itrt itit'nl He released the accused Muhammad Ilyas u/s 497(ii) Cr.P.C. On i2.10.20()9. ht'

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produced accused Abid before the concerned magistratc, whert' from accust'ti Abid recorded his confessional statement. C)n completing of other procetlural formalities submitted charge sheet against tl.re present accused n'ho wtls selrt u 1.r for trial before the concernecl trial court.

5.The charge was framed against the appellant Shafclat lJussairt antl accused Abid Khan to which they both pleaclecl not guiltl'antl claimeel to [rt' tried Subsequently accused Abid Khan was murdered anel proceeelings agaitrst him were abated on 07.05.2011 and the trial Proceeded only against the appellant Shafqat Hussain.

6.The prosecution to prove its case examineci 9 PW's rvho exhibitetl varior-rs documents and other items in support of the prosecution case where aitcr tlre prosecution closed its side. The statement under 5.342 Cr.PC of accusc(l Shai(lal Hussain was recorded where he claimed false implicatit>n in tlre case. I le alsrr examined himself on Oath in support of his tlefense case hon'evc'r he tl ir.l r.tot produce any witness in his liefence.

7.Learned IInd Additional Sessions Judge lvlalir, Karachi after l.reariltg thc learned counsel for the parties and assessment of evidenct' available on recortl, vide the impugned fudgment dated 14.11.2011, convictecl ancl st'rttcncccl tlrt' appellant Shafqat Hussain as stated above, hence this appeal has [tt'n filoe{ bv the appellant against his conviction.

8.The facts of the case as well as eviclence proeluced beforc thc trial court find an elaborate mention in the impugned jucigment, therefore, the satnc.rrc'not reproduced here so as to avoid duplication and unnecessary rcPetitioIr.

9.Learned counsel for the appellant has contendcel tl.rat lre is cottrplctt'h innocent and has been falsely implicated in this case on accoul.lt of cnlr.titt u'hich exists between himself and the cornplainant who is his brothcr cotlccrtrirrg tht' sale of some land, that the only evidence against him is the juclici;tl confession ol his co-accused Abid (deceased) before the iudicial magistratc' which ht'submittt'cl is not believable and should be discarded ancl as such by this court extentlirtll him the benefit of the doubt the appellant be acquitted of the charge. ltr sultport of his contentions he placed reliance on the case of Naqibullah and another v. The State (PLD 1978 Supreme Court 21), Muhammad Perez and others v. The

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State (2007 SCMR 670) and Mst. Roshan Bibi and another v. The State (20()7 I' Cr.LJ ^t792).

10.On the other hand learned DePuty Prosecutor General has fullv supportt'ti the impugned judgment. He has contendecl that thc' prosecutiotr hils proletl ils case against the appellant beyond a reasonable doubt as the aPPellant has bc't'tr fully implicated in the murder through the judicial confession of Abitl rvlricl.t is voluntary, truthlul and can be safely relietl upou, that thr: tlaggcr' [x'in1i tht' murder weapon was recovered at the scene ancl also a piskrl which was stolorr from the complainant's house was recoveretl on his pointation ancl as such Iris conviction and sentence shoulci be upheld ancl the aPPeal dismissetl. Irr suPP()rt of his contentions he has placer.l reliance upon the case of Iiaz Ahmad v. The State (2009 SCMR 99).When confronted by this court whether this was a casr.' which justified enhancement in sentence he was of the view that it clid not as thc offense was not carried out with any particular Lrrutalit\,.

11.We have also observed that a criminal revision application has llecn maelt' by the complainant for enhancement of sentence. The compl.rinant h.rs bectt served on numerous occasions but neither he nor any counsel on his behalf h.rvt' put in any appearance. The appellant has been behind the bars for al.rout I I vt'ars and as such we do not consider it just to wait any further for thc cr.rtll pla itratt t whose interest can be safe guardect by the learnetl DPC antl this court.

'12. We have heard the arguments of the learned counsel for the parties, gonc through the entire evidence which has been reaei out lrv the appt'llarlt, tht' impugned judgment with their able assistance ancl have consic{ereel the rulcr';ttrl law including that cited at the bar.

13.ln our view after our reassessment of the evidence basetl ol.t tlrc cvielcncc of the PW witnesses, PW MLO, Post lnortem rePort dltd othcr tlcclical evicl,.'rrtr', t IO's evidence, recovery of dagger at the scene of the offense and a positivc chemical report, we are satisfiecl that the Prosecution has prove'cl bt't'orrtl a reasonable doubt that on or about 15.09.2009 at ti.'l5am insitle Floust' No.l9'lt)/5t) Sector FJI, Labour Coloney Landhi Quaidabatl Karachi Mst.Satia llibi rvas

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murdered by churri.[ndeed learned counsel for the appellant alinritt('!l this position.

74.In our view therefore the only issue before us is whether the appellant was one of the persons who murdered by Churri Mst Safia Bibi whilst she wrts it't her home on 15.09.2009.

15.A{ter our reassessment of the evidence we are of the view tltat rhc prosecution has not been able to prove beyond a reasonable tloubt that the appellant murdered Mst Safia Bibi by Churri whilst she was in her ltoure t,tt 15.09.2009 for the following reasons;

(a)Admittedly this was an unwitnessed incident. The. main plank r''f tht' prosecution case rests on the judicial confession of co-accusccl Atlr.rar.r who is now deceased. Admittedly we can convict the appellant rrn tht' conJession of Adnan if we find it to be voluntary, truthful ancl in lint' with the prosecution case and the confc.ssion has bcctt nratlc itr accordance with law and is corroborated by somc' u n itl pttrcha Lrle evidence from an independent source. In this respect reliance is plact'tl on Azeem Khan V Muhahid Khan (2016 SCMR 27.1) ancl Bahadur V State (PLD 1996 SC 336)

(b)Turning to the juclicial confession;

(i)The jutlicial confession has been made by one co-accusetl against another and as such this in and of itself crr'.rtt's sonrt' doubt as to its reliabilitv in the absence of anv corroborati\,(' evidence.

(ii)It's voluntariness is also in doubt as it rvas nrarlc atrout a month after its maker's arrest during whiclt periotl Ite tr'.tr irr police custody so why woulrl he choose lo mlkt' it trotr' especially as there was hardly any other evider-rte a;iaitrst him ancl he woultl have been aware that it tn.rl lt'.rtl tt,,r potential death sentence when used in eviclence against him as he was so warnecl.

(iii)We also have some concerns about the h'uthfulncss oI tho confession as it does not particularly appeal to reasotr that he would wait in the house when tlre accusecl n'ilh his co-

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accused was tying up the tleceasecl ancl rhe n ntu rtlet'ing h,,'r with a dagger especially as the deceased who hatl no gag itt -fht'pr('scnc(' her mouth would probably have screamed out.

of two minor children in the house at the tim!'also nrilitates against his conduct especially as he diel not even knon, n,hr he was going to meet the accusecl at the lrouse .

(c)Thus, we have doubts whether the confession <:f Abicl can be sa|:lr relied upon.

(d)We also find other corroborative evidence against thc apprcllant trr lrt' lacking and the case of the prosecuti()n to contain ekrubts. For t'r;rnrirle, (D One of the key witnesses to the prosecution case w,l.to coulel have identified the appellant namelv a Mr.A.Khan as purchasing the dagger which was usetl to nrurrlt'r tlrr: deceased was not called before an identilication p"rra(l('in order to identify the accused anrl was not t.ven calleci as a PW without any explanation. No finger prints were takt'n from the dagger and as such there is no evirlenct'to link tht' appellant to the murder weapon i.e the dagger.

(ii)Iftikhar his neighbour who the conrplainant allcgedlv callctl to help him enter his house by breaking the lcrks rryas trol called to corroborate this evidencc. Neither the locks, grill or hammer and chisel which was used to break the lor-k were exhibited in eviclence which creates doubt as t() wl]etlrer th(' complainanl actually br(-'ke into his housc as lre lra.l a ke,r.

(iii)The wire used to tie his wife was also not exhibiteel into evidence.

(ir)From the evidence there app(.ars to lravr, b(,(.n (,nnrit\' between the accusecl anci the complainant ()\'er the pavnrr'r'tt of money and the sale of inheriteei lanel wl.ricl.r provit{r,,1 a motive lor the complainant to fix the appcll.rnt irt a l.tls| tast which is the appellants plea in his 5.342 Statemcnt .rnd evidence under oath.

(u)If the accused had enmity with the comPlainant then in our view it does not appeal to logic, con.rn.ron sensr'or r'()asor'l that he would murder the complainant's wife. Irrsteatl he would have murdered the complainant.

(ui)The recovery of the pistol at Abid's house lrv the.rccust'tl on his pointation in our view is not relevant as the appellant was the complainant's brother and coukl have stolen the pistol from his brother's house at an1' time and .rs such this is not evidence which will link hirn to thc murder espreciallt'as the pistol w'as recovered from Abirl's houst' arrcl nrtt llrt' house of the accused.

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(vii)There is no last st'en evidcnce.

(viii)Circumstantial evidence linkiug the appellant t() tlrt otl('r'ts(' is almost entirely lacking and will certainlv not r)re('t thc guidelines which would cuable a convictiolt b"tst'rl ttrt circumstantial evidence in the absence oI rlircct ocul.rr' evidence. Itr this respect reliance is [rl.1c('(l ()rr l\rizir Muhammad and another v. The State (2005 SCMR 277) anel Azeem Khan and another v. Muiahid Khan and others

(2016 SCMR 274),

'16. Thus, since we are of the view that the jur'licial conlession cannot be safelv relied upon and as discussed above we have founel no corrob()rative eviclenct' but rather doubts in the prosecution case anc.l thus bv extencling tlrt lrcncfit of fhc doubt to the appellant we hereby allow the appeal, actluit hinr ol thc clralgc anrl he shall be released unless he is wanted in any other custoely case. Ilavittg acquitted the appellant of the charge the criminal revision application is also dismissecl.

17.The appeal and criminal revision application are dispose'cl of irr lhe. alrovc terms.

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