IN THE HIGH COURT OF SINDH, CIRCUIT COURT HYDERABAD
Criminal Appeal No.S-267 of 2012
Date of hearing: 18.02.2013.
Date of decision 04.03.2013
Appellant : Hakim Ali Unar through Mr. Ghulam Ali Samtio Advocate
Respondent : The State through Syed Meeral Shah Deputy Prosecutor General Sindh
J U D G M E N T.
AFTAB AHMED GORAR,J- Appellant Hakim Ali has preferred this appeal against the impugned Judgment dated 27.08.2012 passed by learned VIIth Additional Sessions Judge, Hyderabad, whereby he was convicted the appellant u/s 302(b) PPC and sentenced him to suffer imprisonment for life. He was given benefit of section 382-B Cr.P.C.
2. Brief facts of the prosecution case are that on 05.03.2011 appellant Hakim Ali appeared at police station and disclosed that he had committed murder of his wife Mst. Raheela Sultana in his house situated at first floor of Hidayatullah Shahikh Plaza Phase II Qasimabad by causing firearm injury. On such admission, he was arrested in presence of mashirs. Complainant ASI Manzoor Ahmed Jamali alongwith police officials accompanied the accused to his house, where they saw dead body of Mst. Raheela Sultana and she had sustained firearm injury on her forehead. The complainant party took the dead body to Civil Hospital Hyderabad for postmortem and also contacted her father on his cell number, who disclosed that deceased had left the house and contracted marriage without their consent, therefore, he declined to come forward to received the dead body. During postmortem, it was also observed that deceased was 7/8th pregnant and the baby boy lying in her womb expired. The dead body was kept in cold room at Civil Hospital Hyderabad. The complainant registered the FIR u/s 302 PPC against the appellant. Subsequently, dead body was received by brother of appellant and was buried.
3. Formal charge u/s 302 PPC was framed against the appellant at Ex.2, to which he did not plead guilty and claimed his trial vide his plea at Ex.2/A.
4. In order to prove its case, prosecution examined P.W.1 Dr. Sabra Sultana at Ex.3. She produced police letter, provisional post mortem report, final postmortem report at Ex.3/A to 3/C. P.W.2 complainant Manzoor Ahmed Jamali was examined at Ex.4. He produced mashirnama of arrest, mashirnama of recovery of dead body, police letter, Lash chakas form, inquest report, receipt of dead bodies by brother of accused, mashirnama of clothes of deceasd, FIR, mashirnama of arrest dated 6.03.2011, and copies of entries at Ex.4/A to 4/K. Prosecution further examined Manzoor Ahmed Pathan SHO P.S Qasmabad at Ex.5, P.w.4 ASI Abdul Hameed at Ex.6. He produced mashirnama of place of incident at Ex.6/A. P.W. ASI Ghazanfar Hussain was examined at Ex.7. P.W.6 Jahanzeb son of appellant was examined at Ex.8. He produced his statement at x.8/A. P.W.7 ASI Shahnawaz was examined at Ex.9. He produced chemical report at Ex.9/A. P.W8 Shoukat ali was examined at Ex.10. Learned State counsel filed application u/s 540 Cr.P.C to call two sons of accused Hakim Ali namely Asif and Wajid which was allowed. P.W.9 Wajid Ali was examined at Ex.12. P.W. Asif Ali was examined at Ex.13. Thereafter prosecution side was closed.
5. The statement of accused was recorded u/s 342 Cr.P.C at Ex.15, wherein he denied the prosecution allegations and pleaded his innocence. However, neither he examined himself on oath nor led any defence evidence.
6. The learned trial court after hearing the parties and appraising the evidence convicted the appellant as mentioned above.
7. Learned counsel for the appellant argued that the impugned judgment suffers from legal infirmities, therefore is not sustainable in law. He contended that the learned trial court did not appreciate evidence available on record and committed gross illegality by misreading and non reading the evidence available on record. He further contended that there is no eyewitness of the incident and entire case is based on surmises and conjectures. Learned counsel submitted that as per FIR, the appellant appeared before the police at police station Qasimabad on 05.03.2011 at 1.00 p.m and disclosed about the incident and therefore, was arrested while postmortem report shows that dead body of deceased was identified by her husband appellant Hakim Ali at 2.00 pm, which creates doubt. He further argued that allegedly the appellant voluntarily appeared before the police and admitted the guilt of committing murder but the police did not recover crime weapon from him though he remained in their custody for long time. Learned counsel further contended as the complainant in his evidence stated that he interrogated the accused who disclosed the name of his father in law (father of the deceased) while mashirnama of arrest of appellant discloses the father’s name of deceased as Muhammad Yousif. He further argued that the deceased was firstly married with Malik Faisal Mansoor, who died and his parents were holding the deceased as responsible for death of her first husband and on their instigation, appellant has been falsely implicated in the case. He added that if the appellant had appeared before the police and confessed his guilt, why he was not produced before the Magistrate for recording his confessional statement, which shows that neither he confessed his guilt nor committed murder of deceased. Learned counsel further contended that sons of the deceased were called and examined by the prosecution at the trail but they did not support the prosecution case. Learned counsel argued that the admission before the police is not admissible under the provisions of Qanoon-e-Shahadat Order, 1984. He submitted that the prosecution has failed to prove its charge against the appellant, therefore, his conviction is liable to be reversed. In support of his arguments, he has relied upon the case of Muhammad Achar Machi Vs. The Stte (2001 P Cr. L J 1762), Sheral alias Sher Muhammad Vs. The State (1999 SCMR 697), Munwar Hussain alias Asghar Vs. The State (1991 SCMR 1601), Muhammad Farooq Afridi Vs. The State and 2 others (2003 YLR 2700), Abdul Mateen Vs. Sahib Khan and others (PLD 2006 SC 538), Khadim Hussain Vs. The State (SBLR 2004 FSC 73), Muhammad Akram Vs. The State (2009 SCMR 230).
8. On the other hand, learned Deputy Prosecutor General Sindh supported the impugned Judgment and argued that prosecution has proved its case beyond shadow of doubt. He argued that the present case rests upon the circumstantial evidence duly corroborated by the medical evidence. He contended that prosecution has succeeded to bring guilt of the appellant at home, therefore, his conviction does not call for any interference.
9. I have heard the learned counsel for the parties and examined the record carefully. The case of the prosecution is that on 05.03.2011 at 1.00 p.m. the appellant appeared before the complainant at police station Qasimabad and disclosed that he has committed murder of his wife Mst. Raheela Sultana. On his such statement, the complainant alongwith police party accompanied the appellant at his house, where he opened the door led them to the place of incident, where dead body of the deceased was lying. She had sustained fire arm injury on her forehead. The prosecution story starts from the appearance of the appellant before the police and his admission there. This case hinges upon the circumstantial evidence corroborated by the medical evidence. The prosecution examined complainant ASI Manzoor Ahmed Jamali, who stated the above facts and further deposed that he took the dead body to the Civil Hospital for postmortem and also contacted with father of the deceased but he declined to come forward in the matter. He further contended that during postmortem report, it was disclosed that there was a baby boy in the womb of the deceased, who also murdered with the murder of deceased. P.Ws complainant ASI Manzoor Ahmed Jamali, SHO Manzoor Ahmed, ASI Abdul Hameed and ASI Ghazanfar Hussain Abro were examined and all of them fully supported the prosecution case. Learned defence counsel could not shatter their evidence nor obtained any reply in favour of the appellant.
10. No doubt extra judicial confession is a weak type of evidence but in the present case, it is the sole appellant, who after committing the murder of the deceased voluntarily appeared before the police disclosed the details of the incident and stated that he has murdered his wife. Not only this but the dead body was recovered from his bedroom on his pointation. The articles i.e. blood stained clothes, blood stained earth, empty bullet from the place of incident corroborated the version of the prosecution with regard to commission of murder by the appellant.
11. The medical evidence has corroborated the circumstantial evidence. In her evidence, Dr. Sabra Sultan Ex.3, who had conducted postmortem of the deceased and prepared such postmortem report stated that she examined the dead body of the deceased and found a firearm wound lacerated punctured 1.5 cm in diameter with inverted margins on mid forehead by blackening and tattooing in an area of 04 cm in diameter situated exactly just laterally and 5 cm abov mid eye brow passing through and through and lacterated wound of exit on left side of occipital protuberance 01.cm x 0.4 cm with averted margins. She further stated that she also noticed a lacerated wound 2.1 cm x 1.0 mm deep to skin on palmer aspect of right ring finger on middle phalanx. The evidence of the Women medical officer has gone un-rebutted and un challenged.
12. So far the ground taken by the learned counsel for the appellant that ex-father in law of the deceased was holding her responsible for death of her first husband and that the appellant has been implicated at the instance of ex-father in law of the deceased is not believable. Had the father of first husband of the deceased held her responsible or guilty for death of her first husband, he could have initiated any proceedings against her. Even said ex-father in law of deceased denied such assertion in his statement recorded by the I.O, therefore, this ground appears to be vague ground and does not attract common sense. Likewise the evidence adduced by minor sons of the appellant as P.Ws is concerned, same cannot be considered as the minors had no knowledge about the incident. Even no required questions were put to the minors in order to know about their approach whether they knew that they were in court before a Judge and whether they were able to give statement or not. Without fulfilling such requirements, the examination of the minors could be of no legal effect.
13. The appellant in his statement recorded under section 342 Cr.P.C has denied the allegations but did not submit anything in disproof of the prosecution evidence, which prima-facie connected him with commission of offence. There is nothing on record to disbelieve the evidence of the P.Ws, who deposed on oath and the appellant did not prove any ill will or enmity against the P.Ws to falsely implicate him in the murder case of his own wife.
14. It is also observed that the appellant not only committed murder of Mst. Raheela Sultana but of her unborn son of about 7/8 months and thereby he committed double murders in a brutal manner. A person has been murdered before his birth, this act is highly condemnable and requires strict punishment. However the learned trial court taken lenient view while awarding him life imprisonment perhaps for lack of ocular evidence.
15. Another important aspect of the matter is that the parents and brothers of the deceased did not come forward to received the dead body of the deceased and to lodge the report against the appellant. The reason for lack of interest on the part of the parents of the deceased, as per complainant, is that the deceased had contracted marriage with the appellant out of her own free will and they were unhappy with her such act, therefore, neither they received the dead body nor registered the case. The complainant being a police officer registered this case.
16. In the case of Muhammad Achar Machi Vs. The State (supra), there was case u/s 9(b) of C.N.S Act, 1997, in which the roznamcha entry of the police party was not produced before the trial court and the recovered property was sent after delay of seven months besides it was observed that there was no signature on first page of his statement in violation of section 342(2) Cr.P.C. In the present case the appellant himself appeared before the police and on his pointation dead body was recovered from his house, therefore, this case is not helpful to the appellant.
In the case of Sheral alias Sher Muhammad Vs. The State (supra), enmity between the parties existed and it was held that prosecution story was highly improbable as five persons variously armed had come to spot and only one shot was fired at deceased and no harm was done to other inmates of the case. In this case, there was only appellant, who murdered his wife and came to police station where he admitted his guilt and led the police to the place of incident where dead body was recovered. This case too is not attracted in the present case.
In the case of Munawar Hussain alias Asghar Ali Vs. The State (1991 SCMR 1601) it was observed that accused was convicted on the basis of last seen evidence and there was no corroboration of last seen evidence. Circumstance of last seen was not even put to accused when he was examined under section 342 Cr.P.C. In the present case there is no such situation. There is strong circumstantial evidence against the appellant duly corroborated by the medical evidence, therefore, this case is also not helpful to the appellant.
In the case of Muhammad Farooq Afridi Vs. The State and 2 others (supra), it was in respect of Antiquities Control Act for Imports and Exports Contract Act in which statement of co-accused was used against the accused and there was no other evidence against the accused except his own statement which he had disowned and was not legally proved at the trial and therefore, accused were acquitted. There is no such situation in the present case.
In the case of Abdul Mateen Vs. Sahib Khan and others(supra), accused was convicted and sentenced to life imprisonment u/s 302(b) PPC but High Court had acquitted him. It was observed that High Court rightly concluded that discovery of dead body on pointation of accused was highly doubtful as prosecution had failed to bring on record any memo about seizure of dead body on the pointation of accused coupled with the fact that memo was prepared for recovery of blood stained earth from place of occurrence but the same had not mentioned recovery of dead body of deceased on pointation of accused. In the present case appellant himself appeared before police confessed his guilt and on his pointation dead body of deceased was recovered from his house in presence of mashirs under the mashirnama. Thus this case is of no help to the appellant.
In the case of Khadim Hussain Vs. The State (supra) it has been held as under;-
“Administration of justice—Conviction can be based on circumstantial evidence alone principles stated—There is no rule that conviction cannot be based on circumstantial evidence alone. Absence of direct evidence does not mean that guilt cannot be fixed. It may be noted here that circumstantial evidence is the evidence of basics facts wherefrom, further fact as inference of natural conclusion, according to reason and logic may be deduced. However, its strength as per circumstances of the case, may vary. Often it is stronger and more satisfactory than direct evidence because it is not liable to delusion or fraud and, therefore, in some cases where direct evidence is either not available or witnesses are not deemed wholly credible, circumstantial evidence, may be more convicting. The test is that it should not only be relevant but consistent and conclusive as well and should be so convincing that circumstances or facts proved on record must lead to a single conclusion. In order to carry conviction, however, it must be incompatible with any reasonable hypothesis of innocence of the accused.
Administration of Justice—Circumstantial evidence—All the circumstances must led to the guilt of the accused and no link in t he chain should be missing.
The above case is not favour of the appellant but it favours the prosecution. In the present case there is chain of circumstantial evidence and there appear no missing in the chain as the appellant appeared before the police and disclosed that he has committed the murder. On his pointation dead body of deceased was recovered alongwith empty bullet, postmortem was conducted which corborated the version of the prosecution, therefore, this case supports the prosecution case.
In the case of Muhammad Akram Vs. The State (supra), it was the case of abduction and the FIR was lodged after an inordinate delay of six months of abduction and recovery of complainant’s son. Same is not the case in the present matter. In this case the appellant appeared before the police and disclosed about the incident, dead body was recovered, postmortem was conducted and even due to the fact that father of the deceased did not come, the FIR was lodged on the same day after postmortem of the deceased. This case therefore, is not helpful to the appellant.
17. In view of the above circumstances, I am of the considered view that the prosecution has been able to prove its case against the appellant beyond shadow of doubt. There is strong circumstantial evidence against the appellant proving charge of murder of his wife deceased Mst. Raheela Sultana alognwith her unborn baby boy of 7/8 months. Even the appellant does not deny the murder of the deceased and the appellant nowhere stated that someone else has committed the murder. Neither he stated in his statement u/s 342 Cr.P.C that some other person murdered his wife nor he stated that he went to police station for lodging the FIR but he was falsely implicated by the police. Even the brother of the appellant, who had received the dead body did not make complaint in this regard against any person, from which it transpires that it was the appellant, who had committed the murder of his wife due to some domestic dispute. The medical evidence has corroborated the circumstantial evidence. So far the discrepancies pointed out by the learned counsel for the appellant i.e. arrest of the appellant on the day of incident at police station at 100 p.m and identification of deceased by him at the hospital at 2.00 p.m. does not carry any weight, when there is strong evidence against the appellant regarding murder of the deceased. Likewise, disclosure of father’s name of deceased by the appellant during interrogation and non recovery of crime weapon from the appellant etc are minor irregularities. Same are not fatal to the prosecution; when the prosecution has proved the charge against the appellant regarding commission of murder of the deceased and her baby boy of 7/8 of months lying in her womb.
18. The upshot of the above discussion is that the appeal merits no consideration, which is accordingly dismissed.