Murder acquittal | The court acquitted the accused due to inconsistencies in witness testimony, delays in reporting, and unreliable evidence, granting them the benefit of the doubt.
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| The court acquitted the accused due to inconsistencies in witness testimony, delays in reporting, and unreliable evidence, granting them the benefit of the doubt. |
2024 Y L R 1954
[Sindh (Sukkur Bench)]
Before Muhammad Iqbal Kalhoro, J
Shahid Ali Memon and another---Appellants
Versus
The State and another---Respondents
Criminal Jail Appeals Nos. S-11 and S-12 of 2020, decided on 11th September, 2023.
(a) Penal Code (XLV of 1860)---
----Ss. 302(b), 364, 201, 34, 148 & 149----Qatl-i-amd, abduction, causing disappearance of evidence of offence, or giving false information to screen offender, common intention, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Accused were charged for committing murder of the son of complainant after abducting him---Record showed that complainant and two eye-witnesses had identified the accused persons and other accused clearly atthe time of first two incidents ; abduction of the deceased occurring at 02:00 p.m. on 30.07.2014 and throwing of the deceased in the rice canal later in the day at 08:00 p.m.---Although these two incidents occurred on the same day, the perpetrators were identified, but surprisingly, FIR was not registered, no action was taken by the police timely to save the abductee and round the accused (duly identified) up to thwart the commission of the offence---Daily diary did not disclose name of any of the accused---Nothing had been brought on record to show that the incident had happened in the manner alleged; that it was witnessed as alleged and was reported to the police accordingly---Insofar as first incident was concerned, and purportedly was committed by the accused known to the complainant, and their respective roles were clearly seen, but at the time of conveying information to the police about it, the complainant did not disclose name of any of the accused or their respective role, till the dead body was discovered on 02.08.2014 by him---About dead body complainant, did not first inform the police, so that the police could document and preserve the same for a future reference, and brought it on his own to the hospital---Silence of complainant for 03 days and not reporting the matter and revealing names of the accused persons to the police was baffling and did not inspire confidence about the story, he had narrated---Appeal against conviction was allowed accordingly.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b), 364, 201, 34, 148 & 149----Qatl-i-amd, abduction, causing disappearance of evidence of offence, or giving false information to screen offender, common intention, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Unnatural conduct of eye-witness---Chance witness---Accused were charged for committing murder of the son of complainant after abducting him---Eye- witness, who was said to have witnessed accused persons and acquitted accused coming out of the car and throwing abductee in rice canal, was originally resident of another district and was related to the complainant---Said witness did not explain the exact circumstances behind his presence at the given time on the spot---Conduct of said eye-witness was not normal in that although he saw the accused persons throwing abductee in the rice canal, but did not try to save him with the assistance of a person, who allegedly was with him or raise even alarm to attract the people available to save the deceased or at least to take the dead body out of the water---City Point Bridge was a very busy place and remained open round the clock with cart pullers selling fruits, vegetables etc. and vendors available with rush of people---Being a busy place it was surprising that the incident was only noticed by persons who were somehow related to the complainant---Such facts and circumstances showed that evidence of said witness, who did not even convey information to the police but to the complainant, and the complainant only partially intimated the police, and the police remained inactive, was not reliable---Said witness was a chance witness and his presence at the spot was not without a doubt---Appeal against conviction was allowed accordingly.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b), 364, 201, 34, 148 & 149----Qatl-i-amd, abduction, causing disappearance of evidence of offence, or giving false information to screen offender, common intention, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Recovery of weapon of offence and other articles---Doubtful---Accused were charged for committing murder of the son of complainant after abducting him---Pistols were recovered from the accused persons---Recovery of pistols from the accused persons did not show their involvement with the offences when the same were admittedly not used/fired by them---Recovery of a mobile phone and university card of the deceased allegedly from one of the accused persons from a field of sugarcane which was not owned by him would not prove the charge against him of abduction and murdering the abductee/ deceased---More so, the recovery was made after 04 days of arrest of the accused in presence of witnesses, who were related to the complainant and were introduced to the prosecution case only after registration of FIR lodged on the 4th day of the incident, without any explanation---Said fact made such recovery itself unreliable, therefore, the case against the accused persons was not free from doubt---Appeal against conviction was allowed accordingly.
(d) Criminal trial---
----Benefit of doubt---Principle---Benefit of a single circumstance creating a reasonable doubt, is to be extended to the accused not as a matter of grace but as a matter of right.
Rukhsar Ahmed M. Junejo for Appellants.
Zulfiqar Ali Jatoi, Additional Prosecutor General for the State.
Khan Muhammad Sangi for Complainant.
Date of hearing: 11th September, 2023.
Judgment
Muhammad Iqbal Kalhoro, J.---Appellants, having been convicted through impugned judgment dated 04.02.2020, passed by learned Additional Sessions Judge-I (MCTC), Ghotki in Sessions Case No.402 of 2014 (Re: State v. Ghulam Murtaza and others), emanating from Crime No.76 of 2014 under Sections 364, 302, 201, 148, 149, P.P.C., registered at Police Station Sarhad, District Ghotki, and sentenced under Section 364 read with Section 34, P.P.C. to suffer R.I. for ten years and to pay fine of Rs.100,000/- each, and in case of non-payment of fine, to undergo S.I. for three months more; under Section 302(b) read with Section 34, P.P.C. to suffer R.I. for life as Ta'zir and to pay compensation of Rs.500,000/- each to the legal heirs of deceased, as provided under Section 544, Cr.P.C., and in case of non-payment of compensation, to suffer S.I. for six months more, however, with benefit of Section 382-B, Cr.P.C., have filed this Appeal challenging the same.
2. As per brief facts, in presence of complainant and PWs Sheral and Ghulam Hyder, his son namely Saeed Ahmed was abducted by appellants and other co-accused on the show of weapons on 30.07.2014 at about 02:00 p.m., when they were standing in a graveyard near their village, for the purpose of murder, as they were annoyed with the abductee for stopping them from having relations with criminals. Complainant and PWs due to fear of weapons remained silent and did not intervene. He, however, on phone informed the police about the incident, which kept entry No.08 on the same day, which has been produced by PW-12, who is Inspector of Police Station Sarjani Town, in his deposition. The complainant, meanwhile, mounted a search for his son and on the same day at about 08:00 p.m. was informed by PWs Bashir Ahmed and Akbar Ali that while they were standing at City Point (Bridge) over Rice Canal, they saw appellants, Qutubuddin, Aamir and Nizamuddin alighting from the car, throwing his son in Rice Canal and making their escape good. On receiving such information, he again intimated the police, which only kept entry No.20 on the same day about such fact, but did not register the FIR or sprung into action to locate the body or arrest the accused who were ostensibly implicated for murdering the deceased, which does not appeal to the common sense. But in any case, the complainant and his relatives then made a search about the dead body of his son, and found it on 02.08.2014 at a place called as 'Ruk Pull', District Shikarpur. He brought the dead body of his son at Civil Hospital, Sukkur in a Datsun and informed the police official concerned, who visited the hospital, gave a letter for postmortem and completed all other formalities. Complainant thereafter appeared at Police Station and registered FIR against appellants and co-accused named above.
3. During investigation, appellants were arrested on 18.08.2014, and on 22.08.2014, in interrogation, they admitted the guilt and caused recovery of .30 bore pistols from the places of their knowledge. On appellant Shahid's source, not only a pistol, allegedly used by him at the time of abduction of the deceased, but his university card and a mobile phone, which, however, was not subjected to forensic examination, were recovered from a field of sugarcane, which admittedly is not owned by him. After usual investigation, the Challan was submitted and appellants were referred to the trial, where a formal charge against appellants and co-accused Nizamuddin, who is shown to be along with the appellants at the time of abduction and throwing the abductee to Rice Canal, was framed.
4. Prosecution then led evidence of all the relevant witnesses, 12 in number, who produced all the relevant papers including FIR, memos. of place of incident, arrest and recovery of incriminating articles from the appellants etc. The Medico Legal Officer has produced postmortem report of the deceased opining that the deceased died due to asphyxia by way of drowning. But he has confirmed that the body of the deceased did not bear any external mark of violence. After the prosecution led the entire evidence, the appellants' statements under Section 342, Cr.P.C. were recorded. They have denied the allegations and pled their innocence without leading any evidence in defence or examining themselves on oath.
5. The trial Court by means of the impugned judgment has convicted the appellants in the terms as above, whereas, acquitted co-accused Nizamuddin, who apparently is held equally responsible by the complainant and his witnesses in the alleged offences. Purportedly, on the only distinction of recovery of pistols from the appellants, which were not used by them as is apparent from above facts except that allegedly, at the time of abduction of the deceased, they were armed with them. Since the pistols recovered from the appellants were not used for firing, they were not sent for forensic examination, and no report is otherwise available that these are the same weapons the appellants were armed with at the time of incident. More so, it is reported that appellants have been acquitted from the case of such recovery, although, against such acquittal, appeals have been filed against the appellants as well as co-accused Nizamuddin.
6. Learned defence Counsel has pleaded innocence of appellants and submits that there is delay of 03 days in registration of FIR although as per its contents and evidence of complainant he had identified all the accused at the spot; that the entry, showing conveying of information by the complainant to the police of such incident, does not disclose name of any of the accused. The witness, who revealed that he had seen appellants throwing the abductee in Rice Canal, is a chance witness; he is originally resident of District Ghotki and he has not explained about his presence at the time of above incident. More so, his conduct, suspicious as it is, does not tally with the story in that he did not take any effort to save the deceased or raise alarm to attract the people to save the deceased from drowning or taking him out immediately; that appellants' case is on identical footing to that of acquitted accused Nizamuddin, but the learned trial Court has failed to appreciate this fact; that in the daily diary No.20, recording information of throwing of the deceased in the Rice Canal, only name of accused Shahid is disclosed although the witness is said to have identified all the accused.
7. On the other hand, learned Counsel for the complainant, supporting the impugned judgment, has contended that names of appellants are mentioned in the FIR with specific role. The deficiency in investigation would not ruin the case of complainant, who has fully implicated the appellants in the offence. Acquittal of co-accused will not work out in favour of appellants as the acquittal appeal has been filed.
8. Learned Additional Prosecutor General, however, submits that there are loopholes in the prosecution case in that the FIR without a proper explanation has been registered after 03 days and only after recovery of the dead body, and only thereafter names of accused were disclosed by the complainant.
9. I have considered arguments of parties and perused material available on record. Prosecution in order to establish its case has examined complainant as a first witness who has produced FIR, and PW-2 namely Ghulam Hyder who has supported him insofar as contents of FIR and other developments ensuing FIR, as revealed above, are concerned. PW-3 Akbar Ali, who is originally resident of a village in Taluka in District Ghotki is said to be present at the bridge of Rice Canal at about 07:45 p.m. along with PW Bashir Ahmed and saw appellants and co-accused alighting from a car and throwing Saeed Ahmed in it: Rice Canal. He has confirmed that he had conveyed such information to the complainant. PW-4's evidence, who is Medico Legal Officer, is confined to conducting postmortem of the deceased, which he has produced. PW-5 is the Tapedar, who under the instructions of Mukhtiarkar, had sketched the site plan which he has produced accordingly. PW-7 is the first Investigating Officer of the case, who had recorded 161, Cr.P.C. statements of the witnesses. PW-8 is Ali Abbas Bharo, he is the mashir and witnessed preparation of memos by the police at every nook and cranny of the prosecution case. He has confirmed these facts in his evidence and has produced the relevant documents. The remaining witnesses are the police officials, either related to investigation or completing certain other formalities such as postmortem, producing the relevant daily diaries and confirming the fact that complainant had conveyed the information of the incident on the same day to the police, etc.
10. A scanning of their evidence shows that complainant and two eye-witnesses had identified the appellants and other accused clearly at the time of first two incidents: abduction of the deceased occurring at 02:00 p.m. on 30.07.2014 and throwing of the deceased in the Rice Canal later in the day at 08:00 p.m. Although these two incidents occurred on the same day, the perpetrators were identified. But surprisingly, FIR was not registered, no action was taken by the police timely to save the abductee and round the accused (duly identified) up to thwart the commission of the offence. Except the daily diary (No.08 dated 30.07.2014) which does not, however, disclose name of any of the accused, nothing has been brought on record to show that the incident in the manner as alleged had happened, it was witnessed as alleged and was reported to the police accordingly. The reported offence was a cognizable offence: Section 364, P.P.C., punishable for life imprisonment insofar as first incident is concerned, and purportedly was committed by the accused known to the complaiannt, and their respective roles were clearly seen, but at the time of conveying information to the police about it, the complainant did not disclose name of any of the accused or their respective role, till the dead body was discovered on 02.08.2014 by him. About which, he, however, did not first inform the police, so that the police could document and preserve the same for a future reference, and brought it on his own to the hospital. His remaining silent for 03 days, and not reporting the matter and revealing names of the appellants to the police is baffling and does not inspire confidence about the story, he has narrated. It conveys a strong impression that until the dead body was discovered, the complainant and the police were in dark, and after that they sprung into action, and all formalities including FIR, daily diary and 161, Cr.P.C. statements were covered and made part of the case.
11. The third witness namely Akbar Ali, who is said to have witnessed appellants and acquitted accused coming off the car and throwing abductee in Rice Canal, is originally resident of District Ghotki and is related to the complainant. He did not explain the exact circumstances behind his presence at the given time on the spot. His conduct is not normal in that although he saw the appellants throwing abductee in the Rice Canal, but did not try to save him with the assistance of Bashir Ahmed, who allegedly was with him or to raise even alarm to attract the people available to save the deceased or at least to take out of the water his body. Further, it is pointed out in the arguments that the place i.e. City Point Bridge is a very busy place and remains open round the clock with cart pullers selling fruits, vegetables etc. and vendors available with a rush of people. That being a busy place, noticing the incident only by persons, who are somehow related to the complainant, beggars belief and does not inspire confidence.
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