KHADIM HUSSAIN SOOMRO, J. Through captioned appeal, appellant Mehrab son of Muhammad Hayat Bangulani, has challenged the judgment dated 14.10.2023, passed by learned 1st Additional Sessions Judge/Model Criminal Trial Court Judge, Kandhkot, in Sessions Case No.53/2022, Re-State v. Mehrab and another vide Crime No.11312021 of Police Station Karampur, under Sections 302, 311, 120-B, 34, P.P.C., whereby the appellant was 'convicted and sentenced to suffer R.I for life by extending him a benefit of section 382-B Cr.P.C.
2. The prosecution story in a nutshell, as depicted in FIR lodged by complainant A.S.I. Manzoor Ahmed Jaffery, on 05.12.2021 at 1800 hours is that on 04.12.2021, he, along with other staff members, namely PC Altaf Hussain, PC Nadar Ali, and D.P.C. Muhammad Ayoob, left P.S. for patrolling. During patrolling, the complainant received spy information that Mst. Samul Khatoon, who, after the death of her husband Gada Ali Jakhrani, was residing with her brothers, has been murdered by accused Mehrab, Hidayatullah alias Haleem, Loung and two unidentified accused, after making conspiracy with accused Mureed son of Baggan Bangulani, by making gun fires upon her in the Otaq of Mehrab Banglani, on 04.12.2021, at 11:00 a.m. night. After that, the police party proceeded and arrived at the pointed place on 05.12.2021 at 01:00 a.m. near the Otaque of accused Mehrab Bangulani, where they found the dead body of a woman lying on a cot, and beside it, an old woman was available. Upon inquiry, the older woman revealed that the deceased was her daughter, Mst. Samul Khatoon, who had been murdered by the accused, Mehrab, Hidayatullah alias Haleem, Loung, of the Bangulani caste, and Mureed, son of Baggan Bangulani, based on a false allegation of KARAP. HC Muhammad Bux and PC Altaf were engaged as mashirs. The dead body of the deceased lady was inspected with the help of the above lady, and she was found to have firearm injury on the left bicep left breast, two shots near the navel and two fireshots on the left side of the abdomen. Such mashirnama, Laash Chakas Form, and Danistnama were prepared in the presence of mashirs. Then, the dead body was sent to the hospital through P.C. Nadar Ali for postmortem, whereas A.S.I. Manzoor Ahmed, along with other police officials, returned to P.S. and registered the FIR for the incident on behalf of the State.
3. After the usual investigation, a challan was submitted against the accused before the concerned court.
4. Perusal of the record reveals that the charge against appellant Mehrab Bangulani was initially framed. After that, the evidence of M.O Subhan Ali Jakhtrani, complainant Manzoor Ahmed Jaffery, eye-witness/mashir A.S.I. Muhammad Bux Chachar, corpse bearer P.C. Nadar Ali Bajarani, PW/dispatch rider D.P.C. Altaf Hussain Nasirani, Tapedar Muhammad Hussain Lashari and WMO Priyanka were recorded. They produced relevant documents and other artefacts in their evidence.
5. Thereafter, Counsel for the accused, Mehrab Bangulani, moved an application under section 540, Cr.P.C to summon Mst. Khanzadi, the mother of the deceased lady, Muhammad Hayat and Abdul Ghaffar, and to record their evidence subsequently, the application was allowed, and the evidence of Mst. Khanzadi was recorded wherein she implicated the accused Raheem, Basheer, Touk Ali, Ali Gohar, Sadique, Thangau, Mehrab son of Dangla and then Mst. Khanzadi filed an application under section 193, Cr.P.C, to join the above-named accused. The same application was allowed, and the accused Raheem, Basheer, Touk Ali, Ali Gohar, Sadique, Thangau, and Mehrab, son of Dangle, were joined. The charge was amended against the accused, whereby they pleaded not their guilt and claimed for trial.
6. To prove its case, the prosecution examined the complainant A.S.I. Manzoor Ahmed Jafferi, eye- witness/mashir A.S.I. Muhammad Buz Chachar, PC Altaf Hussain Nasirani, PW Mst. Khanzadi, the mother of deceased lady Mst. Samul, Corpse bearer P.C. Nadar Ali Bijarani, Tapedar Muhammad Hussain Lashari, M.0 Subhan Ali Jakhrani, WMO Priyanka, HC Shah Ghazi Bajkani, I.O/ASI Balach Khan Nindwani and the In-charge Malkhana W.H.C. Aijaz Ahmed Meerani. They all produced the relevant documents in support of the prosecution case.
7. Learned trial Court, after hearing the learned Counsel for the parties and assessment of evidence, vide judgment dated 14.10.2023, convicted and sentenced the appellant, as stated above.
8. Learned Counsel for the appellant contended that the mother of the deceased lady, i.e. Mst.
Khanzadi was examined, who categorically exonerated the appellant from the commission of the murder of Mst. Samul Khatoon implicated the accused: Bashir, Rahim, Touk Ali, Ali Gohar, Sadiq, and Thangau. He further contended that there are so many contradictions among the officials P.W.s. He further asserted that, based on the evidence presented by Mst. Khanzadi, the accused, Raheem and Bashir, discharged their respective firearms at her daughter, Samul Khatoon, resulting in her death. He further contended that S.H.O. called Mst. Khanzadi for registration of FIR; however, he demanded a bribe from her, which she refused, and thereafter, S.H.O. detained her son Mehrab Bangulani. He further asserted that the mother of the deceased, Mst. Samul Khatoon, identified as Khanzadi, transported her daughter's remains to the roadway for a public demonstration as a form of protest. Learned Counsel for the appellant also contended that there are glaring contradictions and inconsistencies in the evidence of the prosecution witnesses, which were not noticed by the trial Court, resulting in a serious miscarriage of justice; therefore, looking at all the above material contradictions, the appellant is entitled to acquittal.
9. On the other hand, while opposing this appeal, the learned Deputy Prosecutor General contended that police officials had no enmity with the appellant to falsely implicate him in this case, that there was last seen evidence against the appellant coupled with medical evidence; that prosecution had proved it's case against the appellant beyond any shadow of doubt and prayed for dismissal of the instant appeal.
10. I have heard the arguments advanced by both sides and reassessed and re-examined the evidence available on the record.
11. According to the prosecution case, the police officials were on patrol duty. A.S.I. Manzoor Ahmed received spy information on 04.12.2021, at 2300 hours, that appellant, along with co-accused Hidayatullah alias Haleem and Loung, has committed the murder of his sister Mst. Samul Khatoon at his Otaq, on the conspiracy hatched by accused Mureed, on the allegation of 'Kari'. Police proceeded to the Otaq of the appellant and found the dead body of the deceased Mst. Samul Khatoon was lying there where Mst. Khanzadi, the mother of the deceased, was also available. A.S.I.
Manzoor Ahmed conducted the requisite proceedings on the dead body after getting assistance from Mst. Khanzadi. Admittedly, the evidence of all the prosecution witnesses is merely hearsay, and none of the prosecution witnesses claimed to have seen the appellant while committing the murder of deceased Samul Khatoon. In legal proceedings, hearsay evidence is generally regarded as lacking probative value unless accompanied by corroborative evidence that substantiates its credibility. As such, the admissibility of hearsay evidence hinges on the presence of additional corroborative material that reinforces its validity and enhances its trustworthiness. Without such .corroboration, hearsay evidence fails to meet the legal standards necessary to impact the outcome of the case, as it does not sufficiently establish the facts it purports to support.
12. The star witness of the prosecution was Mst Khanzadi, the mother of the deceased. During her examination-in-chief in the initial phase of the proceedings, she did not support the prosecution's case. Instead, she testified that the accused Raheem Nindwani, Bashir Nindwani, Touk Ali Nindwani, All Gohar Nindwani, Sadiq Nindwani, Thangai Nindwani, and Mehrab Nindwani were responsible for her daughter's murder. She further stated that the police were reluctant to register the FIR, as per her verbatim, prompting her and other family members to organize a protest against the non- registration of the FIR. This claim is corroborated by the prosecution witness and Investigating Officer Bachal Khan, who, in his cross-examination, acknowledged that Mst. Khanzadi and the other protesters demanded the registration of the FIR in accordance with their exact words.
13. It is a matter of great concern that the examination-in-chief of Mst. Khanzadi was recorded in the first round of proceedings on 17.12.2022 at Ex-18. The examination-in-chief of the lady was recorded in the absence of the Prosecutor as well as the complainant's Counsel. Mst. Khanzadi, in her examination-in-chief, categorically stated that her daughter was killed by accused Raheem Nindwani, Bashir Nindwani, Touk Ali Nindwani, Ali Gohar Nindwani, Sadiq Nindwani, Thangai Nindwani and Mehrab Nindwani who were acquitted by the learned trial court. The police, instead of arresting the accused Mehrab Nindwani, had arrested her son namely, Mehrab Bangulani, compounding the family's anguish and highlighting the deficiencies in the investigative process.
14. Section 353 of the Code of Criminal Procedure (Cr.P.C.) establishes that all evidence in a trial or inquiry must be taken in the presence of the accused, ensuring their awareness of the proceedings and ability to contest the evidence against them. If personal attendance is deemed unnecessary, the presence of the accused's legal representative (pleader) suffices, allowing for continued legal representation. This provision underscores the right to a fair trial, promoting transparency and the accused's participation in the judicial process. Courts must ensure accurate records of attendance, balancing the need for the accused's presence with practical considerations, such as health issues or logistical challenges. However, if the accused is absconding, the court may proceed without them, albeit with caution, to uphold legal rights, particularly in serious criminal cases where the consequences of conviction are significant. The aforesaid section is reproduced as under:- "Section 353 lays down the general rule that at any inquiry or trial, all evidence "shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader."
15. It is indeed perplexing that the appellant was present with the police during the postmortem examination, identifying the deceased. The dead body was handed over to the appellant, as a legal heir of the deceased, for her funeral. If the appellant committed the murder of the deceased, then why was he not arrested during the above-cited events when the police accompanied him?
This shows that neither Mst. Khanzadi had nominated the appellant nor was he seen by the police at the place of the incident or involved in the commission of the offence. All the prosecution witnesses, while recording their examination-in-chief, did not identify the appellant present before the trial Court to be the same who committed the murder of the deceased.
16. The allowance of the application under Section 193 of the Code of Criminal Procedure has significant implications for the prosecution's case, effectively creating two conflicting versions of events. Initially, the prosecution's narrative was based on the information provided by the police, which formed the foundation for the FIR and guided the investigation; however, with the inclusion of Mst. Khanzadi, a second, alternative version emerged. Mst. Khanzadi's testimony diverged from the police's account, highlighting inconsistencies in the prosecution's overall case. Instead of supporting the police narrative, she presented facts that not only contradicted the official version but also introduced doubts about the reliability of the initial investigation. The existence of these two conflicting versions can lead to confusion regarding the actual circumstances surrounding the crime. It undermines the prosecution's position, as the jury or judge must grapple with which version of events to accept. This scenario emphasizes the necessity for a coherent and unified narrative in criminal proceedings, as inconsistencies can erode trust in the prosecution's case and may ultimately impact the pursuit of justice.
17. Another significant aspect of the case is the prosecution's allegation that Mst. Samul, the deceased, was involved in an illicit relationship with one Abdul Ghaffar Bangulani, who was designated as "KARO." According to the prosecution's narrative., the appellant is accused of murdering his sister, Mst. Samul, and injuring Abdul Ghaffar Bangulani at the time of the incident.
However, during the proceedings before the learned trial court, Abdul Ghaffar Bangulani did not support the prosecution's case. Instead, he stated that he sustained his injuries at the hands of other culprits, thus distancing himself from the narrative presented by the prosecution. He also reported the incident to the concerned police station, further complicating the prosecution's claims. This testimony from Abdul Ghaffar is critical as it challenges the prosecution's assertion that the appellant acted out of jealousy or anger related to Mst. Samul's alleged relationship with him. By failing to corroborate the prosecution's allegations, Abdul Ghaffar's evidence raises doubts about the motive attributed to the appellant and questions the overall credibility of the prosecution's case. The divergence in testimonies further underscores the complexities of this case, as it highlights inconsistencies in the prosecution's theory of the crime. The failure of key witnesses to support the prosecution's claims significantly weakens their position and puts a heavy dent and bent on the prosecution's case.
18. As regards the contention of the D.P.G. for the State that the appellant had committed the murder of his sister in his Otaq, some part of the onus had shifted to the appellant to explain the circumstances in which the deceased had died an unnatural death in his Otaq on the fateful day, which part of the onus had not been discharged by the appellant.
The investigating officer failed to collect the title documents of the alleged otaque from the relevant office. Suppose the Otaque is not registered in the name of any family member of the appellant; in that case, the investigating officer should have obtained a possession certificate for the house to link the appellant to the alleged recovery of a dead body. Still, nothing was brought to the record during the trial to establish a connection between the appellant and the alleged recovery. In the case of Asad Khan v. The State (PLD 2017 SC 681), the principle has been enunciated that the shifting of some part of the onus to the accused may not be relevant in a case where the entire case of the prosecution itself is not reliable and where the prosecution fails to produce any believable evidence. It is a matter of routine that in all such cases, the initial onus of proof always lies upon the prosecution. If the prosecution fails to adduce reliable evidence in support of its own case, then the accused person cannot be convicted merely on the basis of lack of discharge of some part of the onus on him. Reliance is placed on the case of Wajahat v. Gul Daras and others (2019 SCMR 1451). The relevant portion is reproduced as under:- "Appellant 's belated plea of the suicide even if rejected outrightly by itself would not absolve the prosecution to drive home the charge, on its own strength and same goes for appellant's absconsion; people avoid to face process of law or their adversaries for a variety of reasons, not necessarily inclusive of their guilt; Appellant's reticence to satisfactorily explain as to what befell upon his better half under the same roof, though somewhat intriguing, however, cannot be equated to qualify as evidentiary certainty, essentially required in order to saddle him with formidable corporal consequences; his failure would not give rise to an adverse presumption within the contemplation of Article 121 of the Qanun-e-Shahadat Order 1984 and thus it would be grievously unsafe to maintain the conviction, without potential risk of error as well as diametrical departure from adversarial nature of criminal trial."
19. Reverting to that circumstantial evidence, it is well established that it must be so interconnected as to create a continuous chain linking the deceased to the accused. This chain must be sufficiently robust that one end points to the victim and the other to the accused, effectively excluding any hypotheses that could suggest the accused's innocence. The evidence must collectively form a coherent narrative that leaves no room for reasonable doubt regarding the accused's involvement in the crime. In this regard, I am fortified with the guidance of the Hon'ble Apex Court of Pakistan in the case of "Sarfraz Khan v. The State" reported in 1996 SCMR 188 whereby the Hon'ble Supreme Court of Pakistan observed as under:- ".....It is well settled that the circumstantial evidence should be so inter-connected that it forms such a continuous chain that its one end touches the dead body and other neck of the accused thereby, excluding all hypothesis of his innocence...."
20. It is settled by now that in such cases when there is no direct evidence with the prosecution, it is bound to link each circumstance to the other so that it should form such a continuous chain of the circumstances firmly connecting the accused with the alleged offence. Without a solid chain of evidence linking the accused to the crime, the prosecution's case may be weak or insufficient to prove guilt. Reliance is placed upon the cases reported as Ibrahim and others v. The State (2009 SCMR 407) and Muhammad Hussain v. The State (2011 SCMR 1127).
21. From the re-appraisal of the evidence, I have come to the conclusion that the trial Court failed to appreciate the evidence according to the settled principles of the law for the reasons that the prosecution case was based upon the testimony of police officials alone, which was also hearsay.
It is necessary for this court to find out if there was any possibility of securing an independent person at that time. In the case of the prosecution, the complainant had acted upon spy information; in spite of that, he failed to associate or call private persons from the village to witness the proceedings. No doubt, evidence of the police officials cannot be discarded simply because they belong to the police force, but where the fate of an accused hinges upon the testimony of the police officials alone, particularly in the case of capital punishment, it is necessary to find out if there was any possibility of securing independent persons at that time. The judicial approach has to be cautious in dealing with such evidence, as held in the case reported as Saifullah v. The State (1992 MLD Karachi 984). Relevant portion is reproduced as under:- "8. The evidence of police officials cannot be discarded simply because they belong to police force.
In Qasim and others v. The State, reported in PLD 1967 Kar. 233, it was held:- "A police officer is as good a witness as any other person. The standard of judging his evidence is the same on which the evidence of any other witness is judged."
However, in a case of this nature where the fate of an accused person hinges upon the testimony of police officials alone, it is necessary to find out if there was any possibility of securing independent persons at that time. Judicial approach has to be cautious in dealing with such evidence."
22. For the purpose of conviction and sentence in a case of capital punishment, the evidence must be strong, and it should come through an unimpeachable source. The trial court has to see the intrinsic value of such evidence with strong corroboration, which is lacking in the present case.
23. It is settled law that it is not necessary that while giving the benefit of the doubt to an accused, it was not necessary that there should be many circumstances creating doubt in the prosecution case. If a single circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. In this regard, reliance is placed on the case reported as Muhammad Mansha v. The State (2018 SCMR 772).
24. Before concluding this judgment, it is important to note that the investigation in this case was fraught with defects, which effectively provided an easy avenue for the accused to evade justice.
These investigative shortcomings undermine the integrity of her legal process and hinder the pursuit of truth. It is essential for law enforcement to adhere to rigorous investigative standards to ensure the collection of evidence through so that any potential culpability is appropriately addressed. The deficiencies in this investigation highlight the critical need for reform and greater oversight in handling cases of this nature to prevent future occurrences of similar injustices. In light of the above discussion, several proactive investigative steps can be taken to ensure that the real culprit does not evade justice. This way, the chances of apprehending the actual culprit can be significantly improved, thereby promoting justice and accountability within the legal framework.
(a) In the course of adjudicating the bail applications bearing numbers 501, 515, 516, 517, 518, 548, 554, 555 and 556 of 2024, this Court has noted several historical deficiencies in the investigations.
The substantial gaps in the investigative process have been duly highlighted. The Inspector General of Police (I.G.P.), Sindh, has previously indicated that a proposal was made to appoint law graduates as Investigating Officers (I.O.s) within various police ranges in Sindh. Accordingly, the I.G.P., Sindh, is once again directed to take all necessary and expeditious measures to address these issues effectively.
(b) The Investigating Officer (I.O.) should ensure that the statements of key witnesses, including are recorded under Section 164, Cr.P.C. -This formal recording can help preserve their testimony and reduce the likelihood of witness tampering or deviation during trial.
(c) Investigators should actively secure photographs or videos related to the place of the incident, as provided by Article 164 of Qanun-e-Shahadat Order, and the same should be sent to Forensic experts to assess its genuineness; such report should be incorporated into the investigation.
(d) The I.O should conduct, a thorough inspection of the crime scene with the assistance of the Tapedar, who can collect and verify title documents related to the property where the incident occurred. In case the place of incidents is not registered under the name of the appellant, the investigating officer should have obtained a possession certificate for the place of incident to link the accused to the alleged recovery of a dead body.
(e) In light of the possibility that witnesses may turn hostile, it would be prudent to adopt protective measures aimed at safeguarding the witnesses' security, thereby fostering an environment where they are encouraged to testify truthfully, free from the fear of retaliation. The Witness Protection Security and Benefit Act, 2017. This law was enacted to provide protection, security, and certain benefits to witnesses who are at risk due to their involvement in criminal proceedings. The aim of the Act is to ensure that witnesses, especially those in serious criminal cases such as terrorism, corruption, or organized crime, are able to testify without fear of retaliation, coercion, or harm.
(f) If a witness has given false statements or made deliberate misrepresentations in that case an application under section Section 193 application Cr.P.C can be moved in the trial court against a witness, but it is typically in specific contexts. The trial court should decided the application before pronouncement of the judgment so that anyone who intentionally gives false evidence in any judicial proceeding is liable to be punished for perjury.
(g) During the course of investigation, the prosecution should regularly review the investigation files to identify any discrepancies or weakness in the evidence. This should involve collaborative meetings between the prosecution and the I.O. to rectify any issue.
(h) In cases of non-cooperation from the I.O., the concerned District Public Prosecutor (DPP) or District Prosecution in charge should formally communicate with the Inspector General of Police (I.G.P.) to address the matter. Disciplinary actions should be pursued against non-compliant officers to uphold accountability.
(i) The Inspector General of Police (I.G.P.), Sindh, is hereby directed to assign the investigation of cases under Section 311 of the Pakistan Penal Code (P.P.C.) to competent and experienced officers, with a clear mandate to conduct a fair, thorough, and impartial investigation in collaboration with the prosecution. The objective is to ensure that the investigation is carried out in a manner that upholds procedural integrity and guarantees that the actual perpetrator is brought to justice, without any possibility of the real culprit being shielded or evading accountability.
(j) Engaging with the community to encourage them to come forward with any information can be crucial, particularly in cases, involving closely-knit relationships, as community dynamics often play a significant role in such cases.
25. For the above-stated reasons, I have no hesitation in holding that the prosecution miserably failed to prove the charge against the appellant, and the trial Court also failed to appreciate the evidence on sound judicial principles.
26. By short order dated 03.10.2024, for the reasons to be recorded later, the instant appeal was allowed, and the appellant was directed to be released forthwith unless required to be detained in any other case. These are the reasons for allowing the appeal and directing the acquittal of the appellant. The Additional Registrar of this court is directed to supply a copy of this judgment to the I.G.P. Sindh, Prosecutor General Sindh for guidance and compliance.