2014 P Cr (PLP)

SALAHUDDIN PANHWAR, J.

The instant jail appeal is directed against the judgment dated 28th February, 2009, passed by Anti-Terrorism Court, Khairpur in Special Case No.60 of 2003, Re: State v. Syed Mushtaque Shah and others, whereby the appellants were convicted and sentenced as under:-- (a) The accused Ali Raza Shah is convicted under section 364-A, P.P.C. and sentenced to suffer "Imprisonment for life". (b) The accused Mushtaq Hussain Shah and Ali Raza Shah are convicted under section 302(b), P.P.C. read with section 7, A.T.A., 1997 and sentenced to suffer "Imprisonment for life" each and to pay fine of Rs.50,000 each and in default whereof to further undergo R.I for six months more each. (c) The accused Mushtaq Hussain Shah and Ali Raza Shah are also directed to pay compensation of Rs.50,000 each to complainant Abdul Aziz Memon, under section 544-A, Cr.P.C. and in default of payment or of recovery as aforesaid accused shall suffer imprisonment for a period of 6 months. All the sentences shall run concurrently. (d) The Benefit of section 382-B, Cr.P.C. is extended to the accused. Whereas accused Imam Ali Shah, lady Mst. Ghulam Zainab, and absconding Mst. Robina (in absentia) were acquitted.

2. Succinctly, the facts of the case are that complainant Abdul Aziz Memon lodged F.I.R. on 7-9-2003, wherein it was contended that about one month back, theft was committed in the house of his relative Dr. Amanullah Memon. Syed Imam Ali Shah was suspected in that theft and such Faisla was held by Syed Muharram Ali Shah at Hingorja, thereby Imam Ali was fined Rs.6,

000. Syed Imam Ali Shah and his relatives were enraged with Memons and used to say that they will take revenge of it. On 4-9-2003 complainant, along with his sons Abdul Rasheed aged about 15 years and Abdul Musawar aged about 9/10 year were sitting in their house, when at about 1-00 p.m. his youngest son. Abdul Raqeeb aged about 2-1/2 years, went out of the house within their sight and did not return back. They came out of the house and made his search, enquired from relatives and got announcement on loud speakers from the mosque but he was not traced out. On suspicion, they inquired about Mushtaq Shah and Ali Raza Shah and they came to know that they were not available in their house. On the day of F.I.R., they saw Mushtaq Shah in the village, hence complainant along with Dost Muhammad Memon and Abdul Azeem Memon went at police station and disclosed that they have suspicion that Mushtaq Shah and Ali Raza Shah have abducted and murdered his minor son Abdul Raqeeb. On their request police called Mushtaq Shah through SIP-Inayat Ali Chandio and in their presence enquired from him about abduction of minor Abdul Raqeeb, who admitted his guilt and disclosed that on 4-9-2003, he along with Imam Ali Shah, his mother-in-law Mst. Zainab, his wife Mst.Ghulam Fatima and Mst. Robina wife of Ali Raza Shah, were sitting in his house, when at about 1-15 p.m. Ali Raza Shah brought Abdul Raqeeb and advised that the boy Abdul Raqeeb be killed mercilessly in order to take revenge from Memon community. They all agreed with him. He further disclosed that his wife Mst. Ghulam Fatima and Mst. Rubina wife of Ali Raza Shah clasped the legs of the boy, his mother-in-law Mst. Zainab caught grasped his right arm, whereas Imam Ali Shah caught griped left arm, while Ali Raza Shah broke 2 upper teeth of Abdul Raqeeb by causing blow with iron bar. The boy raised cries and Ali Raza Shah put his hand on his mouth and closed it, also he closed the nose of the boy thus the boy expired. They all wrapped the dead body of the boy in plastic sheets and then put the same in plastic bag and kept concealed the same inside the room under the cot. He further stated that he and Ali Raza Shah remained in the house to take care of the dead body, thereafter, they went Kandiaro, where Imam Ali Shah came there and told that the dead body was emitting bad smell, the same should be removed out of the house, and lastly disclosed that the dead body is lying in his house and he is ready to produce the same; thereafter Mushtaq Shah led the police and complainant party to his house and produced the dead body lying under cot inside the room of his house in plastic bag, complainant identified the dead body to be of Abdul Raqeeb, which was swelled and decomposed. Thereafter postmortem was conducted and dead body was handed over to the complainant; after observing funeral ceremony he lodged the F.I.R.

3. After registration of F.I.R., investigation was carried out and the appellants along with co-accused Syed Imam Ali Shah, Syeda Ghulam Zainab and Ghulam Fatima, were arrested and sent-up for trial, while co-accused Mst. Syeda Rubina Shah was declared absconder and was tried in absentia as provided under Anti-Terrorism Act, 1997.

4. To substantiate the charge, prosecution examined P.W.1 complainant Abdul Aziz Memon at Exh.12, he produced F.I.R. at Exh.12/A. P.W.2. Dost Muhammad Memon examined at Exh.13, he produced his statement under section 164, Cr.P.C. 13/A. P.W. Abdul Musawar was given up by SPP vide statement at Exh.14 on the ground that he is minor and will not be in a position to give full account of his evidence. P.W.3 Dr. Zahoor Ahmed at Exh.15, being Medical Officer produced postmortem Report of deceased Abdul Raqeeb at Exh.15/A. P.W.4 Dr. Amanullah Memon at Exh.16, he produced letter issued by Syed Kazim Ali Shah at Exh.16/A. P.W.5 Abdul Rasheed Memon at Exh.17. P.W.6 PC Riaz Hussain at Exh.18, he produced receipt of delivery of dead body at Exh.18/A. P.W. Muhammad Sharif was given up by learned SPP at Exh.19 on the ground that he was not traceable. P.W.7 Abdul Qadir Memon was examined at Exh.20, being mashir of place of incident, recovery of dead body of Abdul Raqeeb and arrest of accused, produced such memo at Exh.20/A, and separate mashirnama of visit of place of incident at Exh.20/B, mashirnama of visit of other place of murder at Exh.20/C, mashirnama of recovery of shirt of deceased at Exh.20/D, mashimama of arrest of accused Imam Ali Shah, Mst. Ghulam Zainab and Mst. Ghulam Fatima at Exh.20/E, Inquest report at Exh.20/F, mashirnama of arrest of accused Ali Raza Shah at Exh.20/G, mashirnama of recovery of iron bar from accused Ali Raza Shah at Exh.20/H. P.W.8 Abdul Azeem at Exh.21, he produced his statement under section 164, Cr.P.C. at Exh.21/A. P.W.9, Sher Muhammad at Exh.22, he produced Chemical Examiner's Report about iron rod the crime weapon at Exh.22/A. P.W.10 Muhammad Paryal at Exh.23, he is Tapedar and produced sketch of place of incident at Exh.23/A. P.W.11 Muzaffar Hussain Rajput at Exh.24, being Judicial Magistrate, recorded statements under section 164, Cr.P.C. of P.Ws. and P.W.12 Inspector Ghulam Shabir Jamaii at Exh.25. Exh.26. P.W. Mst. Zahida Memon at Exh.27. Thereafter, Special Public Prosecutor for State closed the side of prosecution at Exh.26.

5. Learned counsel for the appellants, inter alia, contended that this is a case of no evidence in spite of that learned Judge has convicted the appellants to suffer life imprisonment thus trial Judge has not appreciated the evidence, which was available on record, while convicting the appellants, learned Judge has neglected the basic principles of criminal administration of justice; admittedly, prosecution was not possessing sufficient evidence as instant case depends on sole admission of accused Mushtaq Shah, such admission before police officials and private persons has no evidentiary value and cannot be considered; as per F.I.R. deceased minor boy Abdul Raqeeb aged about 2-1/2 years son of the complainant was missing from the house and same was in the knowledge, even then instant F.I.R. was registered with the delay of 3 days, therefore story as narrated is not believable and false implication cannot be ruled out, especially, when no plausible explanation is provided; accused Ali Raza Shah was convicted on the basis of alleged extra-judicial confession of accused Mushtaq Shah and except recovery of a rod, nothing has been brought by the prosecution against him; medical evidence is in conflict with the ocular evidence but such aspect has not been considered by the trial Judge.

6. Conversely, learned DPG, while rebutting argued that impugned judgment is well-reasoned and speaking and has been passed on proper appreciation of evidence, therefore in any way, it cannot be said as illegal and against the law; appellant/accused Mushtaq Shah voluntarily confessed the offence when he was called at Police Station and subsequently on his pointation the dead body was recovered from his house. It has also come on record that co-appellant Ali Raza Shah caused fatal blow to deceased and statement of accused is exculpatory, therefore, it can be used against co-appellant and the appeal is liable to be dismissed.

7. Heard the arguments of the learned counsel for the parties and perused the record.

8. Before diving minutely in the merits of the case, it is admitted fact that instant case depends upon circumstantial evidence. It is settled proposition of law that circumstantial evidence is to be considered as a chain, and each piece of evidence, is link in the chain, if any one link breaks, the claim would fail. The circumstantial evidence can only form basis for conviction, when it is compatible with the innocence of accused or guilt of any other person and in no manner be incapable of explaining upon any reasonable hypotheses except that of guilt of accused. Every link in circumstantial evidence should be proved by cogent evidence and if not then no conviction could be maintained or awarded to an accused.

9. While keeping in mind the above said principle, we scanned the evidence available on record, it is elucidating that as many as six persons, were sent up to face their trial in the case. Out of them the learned trial Court found four accused persons entitled to acquittal, while the present two appellants have been convicted. The perusal of the available material further shows that in instant case no ocular evidence is available except the admission and circumstantial evidence. Since the prosecution has examined many witnesses with regard to the admission of accused Mushtaq Shah and recovery of dead body from the house and also the recovery of iron rod. It is a settled proposition of law that absence of ocular evidence is not tantamount to acquit the accused persons but conviction can be awarded on circumstantial evidence, if it is surfaced that the same is connecting with all the aspects with regard to the commission of the offence by the accused persons. Since in instant matter there is an admission in respect of commission of offence; recovery of dead body on pointation and recovery of one iron rod, therefore, it will be incumbent to examine the legality of the judgment, impugned, to the extent of conviction awarded to the present appellants.

10. We would like to discuss the case of co-appellant Syed Ali Raza Shah first. It is not disputed that extra-judicial confession, if any, was of appellant Mushtaque Ali and not of the co-appellant Syed Ali Raza Shah, therefore, it needs not be mentioned that one of the link of circumstantial evidence i.e. extra-judicial confession is not available to the extent of co-appellant Syed Ali Raza Shah, therefore, this link, in no way, can be insisted in making the chain of un broken link to claim conviction against the co-appellant Syed Ali Raza Shah.

11. The specific and clear words of the prosecution witnesses have made it clear that recovery of the dead body was not only at the pointation of the co-appellant Mushtaque Ali but also the recovery was effected from the house of the co-appellant Mushtaque Ali. Thus it is quite safe to say that both these links i.e. pointation of place of recovery of dead body and belonging of place of recovery, were never proved against the appellant Syed Ali Raza Shah.

12. What else the prosecution brought against the appellant Syed Raza Ali is the recovery of iron rod from his house on his pointation. It needs not be reiterated any more being a well-settled principle of law that mere recovery of alleged crime weapon is not sufficient to claim conviction in absence of direct evidence or least it finds support from other pieces of evidences making a chain of unbroken links, which too, should be above board and doubts. It is not the recovery of crime weapon which proves the charge but it is the direct or circumstantial evidence which establishes the material part of the charge i.e. manner in which the offence is committed by use of such weapon, therefore, the status of the recovery of crime weapon is only a corroborative piece of evidence in joining links of Chain by proving the guilt. Without prejudice to this, the medical evidence also negates the use of the alleged recovered iron rod therefore, the recovery of crime weapon, even does not find support from the medical evidence. Further, the cause of death of deceased minor boy is also shown by Medical Officer to be "mechanical occlusion of the external ear passages viz. nose and the mouth by hand cloth or any other material". We may further observe that it is quite illogical that a grown person needed five persons to close nose and mouth of a minor boy of 2 and half year.

13. As regards the extra-judicial confession of the co-appellant Mushtaq Ali, wherein the appellant Syed Ali Raza was involved, it would suffice to say that such extra judicial confession cannot be used against the co-accused persons as was rightly done by the learned trial Court Judge, while acquitting other co-accused persons whose case stood on same set of evidence. Needless to add here that the principles of appreciation of evidence are one and same therefore acquittal of some of the accused persons and conviction of other is not within spirit of Safe Criminal Administration of Justice. The Court(s) are always under heavy duties, while sifting the grain from chaff. In the instant matter the set of evidence against the appellant Ali Raza was also same as was against those co-accused persons, who have been acquitted from the charge, therefore, he was also entitled for same treatment.

14. The above discussion has made us of the clear opinion that prosecution failed to establish the charge against the appellant Syed Ali Raza, beyond reasonable doubt.

15. Now we would like to examine the case of the appellant Mushtaque Ali to examine whether the prosecution successfully established a chain, the every link, whereof fits in another. What we found from scanning of the available material that prosecution claimed conviction of appellant Mushtaque Ali on basis of (i) extra-judicial confession, (ii) pointation of dead body by him, (iii) recovery of dead body from his house, iv) medical evidence. Let's examine whether each link fits another and make out a chain beyond reasonable doubt.

16. As regards the extra-judicial confession, made by the appellant Mushtaq Ali the prosecution witnesses namely P.Ws. Dost Muhammad and P.W. Abdul Qadir, who have specifically claimed that appellant Mushtaque confessed his guilt in their presence and also narrated the manner of the incident, wherein expressing that it was he, who closed the mouth of the deceased minor boy. This extra-judicial confession of the appellant Mushtaque further strengthened by his subsequent act of leading the police party to his house from where the dead body of the boy was recovered at the pointation of the appellant Mushtaque Ali. It is settled proposition of law that a fact proved by subsequent fact is admissible under, Article 40 of Qanun-e-Shahadat order 1984. Further, the witnesses have also categorically stated about place of recovery of dead body to be house of the appellant Mushtaque Ali. P.W.1 Abdul Aziz in his deposition stated that "Accused Mushtaq Shah had produced dead body from his house at 12-00 noon. P.W.2 Dost Muhammad deposed in his examination that "We saw foot prints of a small boy and of a person. Foot prints disappeared in the street of accused Mushtaq Shah. He further stated that "On 7-9-2003 dead body was produced by accused Mushtaq Shah from his house from a bag lying under the cot wrapped in a plastic bag. P.W. Abdul Rasheed in his examination stated that "We suspected accused Mushtaq Shah". He further stated that "He made investigation from Mushtaq Shah who led the police party to his home. He got dead body of missing child from his house". P.W. Riaz Hussain in his examination-in-chief stated that "We went to the house of accused Mushtaq Shah on his pointation who led the police party to his house. P.W. Abdul Qadir, the mashir of various events including recovery of dead body, stated in his examination "The place of wardat was the house of accused Mushtaq Shah who led the police party to his house after confessing his guilt". P.W. Abdul Azeem in his examination stated that "Mushtaq Shah was arrested by the police who led the police party to his home where from he took out the dead body of the child from the room of the house". Not only this but the medical evidence also corroborates the extra judicial confessional statement of the appellant Mushtaque Ali because he had owned the act of closing the mouth of minor boy and per medical evidence the cause of death of the minor is also "mechanical occlusion of the external ear passages viz. nose and the mouth by hand cloth or any other material".

17. Thus it became obvious that extra-judicial confession of the appellant Mushtaque Ali stood corroborated by further events leading upto recovery of dead body from his own house and confirmation of cause of death in the manner stated by him, therefore, minor contradictions or mere delay alone in lodging of the F.I.R. are not helpful for defence to claim acquittal of appellant Mushtaque Ali. (2004 SCMR 204)

18. In view of above discussion it is manifest that each piece of circumstantial evidence perfectly fits in another and makes out a chain, which is sufficient to hold appellant Mushtaque Ali is guilty of the offence. Wherewith he stood charged hence conviction to his extent is sustainable under the law.

19. Accordingly, the judgment impugned is set aside to extent of conviction awarded to appellant Syed Ali Raza Shah while is maintained to extent of appellant Mushtaque Ali consequently the appellant Syed Ali Raza be released forthwith, if he is no more required in any other case. HBT/A-143/Sindh Order accordingly.