NAEEM SABIR MOGHAL Versus NIZAM ALIAS NIZAMUDDIN
This petition for leave to appeal challenges the acquittal of seven respondents by a learned Single Judge of the High Court of Sind in a murder case. The petitioner, whose brother was killed, alleges that the High Court erroneously accepted the respondents' pleas of alibi despite evidence suggesting that hospital records were interpolated and court proceedings manipulated to fabricate these defenses. The petitioner contends that the High Court failed to properly weigh the ocular testimony of two injured witnesses who consistently supported the prosecution's case. The core legal question concerns the sufficiency of evidence required to sustain a plea of alibi and the extent to which appellate courts should re-appraise evidence when trial courts rely on potentially fabricated alibi defenses. The Supreme Court, finding that the petitioner made a prima facie case regarding the validity of the alibi claims and the weight of the ocular evidence, granted leave to appeal. The Court held that a re-appraisal of the evidence and a re-examination of the established case law regarding the plea of alibi are necessary to ensure justice.
- Under what circumstances should an appellate court re-appraise evidence in a criminal acquittal?
- What is the evidentiary standard required to substantiate a plea of alibi in a criminal trial?
- Does the failure to produce the treating doctor in support of a medical alibi render the plea unreliable?
- Section 363, Pakistan Penal Code 1860
- Section 380, Pakistan Penal Code 1860
ORDER
1. JAVID IQBAL, J.-- This petition for leave to appeal has been filed by Naeem Sabir Moghal petitioner against the acquittal of respondents Nos. 1 to 7 vide judgment of a learned Single Judge of the High Court of Sind Karachi, dated 22nd October, 1982.
2. Briefly the facts are that the petitioner in this case who is brother of Saeed Ahmad deceased as well as injured P.Ws. Zubair Ahmad and Ahmad Faheem was married on 23rd September, 1972 to Mst. Dilshad sister of Aftab Ahmad respondent at Shikarpur. The marriage was kept secret. By the middle of 1973 Mst. Dilshad became pregnant. Her father Agha Ziauddin as well as Aftab Ahmad respondent got F.I.R. registered under sections 363 and 380, P.P.C. at Police station Stuartgunj, Shikarpur on 16th December, 1973 against the petitioner, Mst. Dilshad etc. Mst. Dilshad was taken away from the petitioner by the police and her custody was given to her grandmother. Eventually the case against the petitioner under sections 363 and 380, P. P. C . was quashed by the High Court of Sind Karachi on 22nd November, 1974. In the meantime an attempt was made to kill the petitioner on 26th January, 1974 at Shikarpur by Aftab Ahmad respondent, his father and their servant. The father of Aftab Ahmad respondent fired at the petitioner and he was hit on the left shoulder. Then some of the members of the accused party started threatening the petitioner and his brothers who shifted their families to other town as a result of such threats. Saeed Ahmad deceased brother of the present petitioner even submitted an application on 27th January, 1974 before the then Chief Minister of Sind expressing apprehension about the danger to their lives. Eventually the occurrence in the instant case took place on 22nd June, 1974 at 7-30 p.m. near Hazari Gate in Shikarpur. First Information Report was promptly lodged at 9-00 p.m. on the same day by Muhammad Arif (since dead) father of the deceased and the present petitioner. According to the narration given in the F.I.R. Muhammad Arif (since dead) alongwith petitioner's three brothers namely Ahmad Faheem, Zubair Ahmad and Saeed Ahmad deceased plus two minor sons of Saeed Ahmad deceased went to Lakhi Gate Shikarpur for purchasing flowers in their car to be used at the betrothal ceremony of Ahmad Faheem P.W. After purchasing flowers when they were returning home a fast speedy car stood in front of them and thus they were stopped. Out of the car emerged respondents Nos. 1 to 7. Three of them, namely, Bhoora Khan alias Sultan Ahmad, Aftab Ahmad and Nazim alias Nizamuddin were empty handed whereas Agha Abdul Karim Khan alias Dinal Khan, Allah Bux, Agha Tariq and Nasrullah Khan were armed with guns. Bhoora Khan alias Sultan Ahmad respondent instigated the others not to spare the petitioner's father and brothers and on this indication the four armed respondents aimed their guns towards the complainant party and fired their weapons hitting Ahmad Faheem, Zubair Ahmad and Saeed Ahmad deceased who all fell down. Thereafter, all these respondents ran away in their car. Ahmad Faheem P.W. received fire-arm injury on his left arm, Zubair Ahmad P.W. received firearm injury on the back of his right shoulder but Saeed Ahmad deceased received firearm injuries on his chest and other parts of the body and died on the spot. The injured as well as the deceased were taken to the hospital and the matter was reported to the police.
3. It was submitted by the learned counsel that although the occurrence took place on 22nd June, 1974, four of the armed respondents to whom gun shots had been attributed, namely, Allah Bux, Agha Tariq, Agha Abdul Karim Khan alias Dinal Khan and Nasrullah Khan were arrested on different dates in July 1974 and thus there was no corroborative evidence available in this case in the form of recoveries which they managed to get rid off. Due to the police bungling of this case no crime empties were picked up from the spot. There .vas only ocular testimony of Zubair Ahmad and Ahmad Faheem P.Ws. who were injured in the course of occurrence and who have supported the prosecution version. It was urged by the learned counsel that due to the influence of Agha Ghulam Nabi Pathan, then a Senator and cousin of the father of Mst. Dilshad, out of the four armed respondents to whom gun shots had been attributed, three advanced the plea of alibi, namely, Agha Tariq, Agha Abdul Karim Khan alias Dinal Khan and Nasrullah Khan respondents. In the light of the background of enmity between the parties the learned Single Judge of the High Court of Sind Karachi who held the trial on the original side in this case, accepted their aforesaid plea and giving the benefit of doubt to all the seven respondents acquitted them. Learned counsel argued that a perusal of the record would indicate that it was a pre-planned murder and due to the great influence commanded by the respondents' family, it was possible for the culprits to forge a defence of alibi while they were still at large and not arrested by the police. It was submitted that Agha Tariq respondent claimed that he was admitted as indoor patient at Mirpur-Sakro Health Centre, whereas his father had expressed ignorance regarding his where about. This indicated that the record of the hospital had been interpolated and the plea of alibi was incorrect particularly because the doctor who had made the entries in the record or had treated him had not been produced in support of the plea of alibi. Again it was submitted that the treatment undergone as claimed by Agha Abdul Karim Khan alias Dinal Khan respondent at Karachi was of a doubtful nature. It was next submitted that the proceedings taken against Nasrullah Khan respondent for defalcation of a meager amount of Rs.5,000 and his appearance and arrest in Court before the notified date of hearing also cast doubt as to the veracity of the matter. Furthermore, the date of issue of court-fee stamp i.e. 24th June, 1974 affixed oh the application filed by him in Court on 21st June, 1974 likewise indicated that the proceedings had been manipulated in order to pmt up the plea of alibi in the present case. It was finally argued that there were two eye-witnesses who were injured in the course of the occurrence and who had supported the prosecution version. In the circumstances then the plea of alibi of these respondents was ex facie false, the prosecution case should have been held as proved on the basis of the ocular testimony.
4. We have heard the learned counsel. This case has been tried by a learned Single Judge of the High Court of Sind Karachi on the original side, and in the light of the arguments raised by the learned counsel in our considered opinion a case is made out for re-appraisal of evidence as well as for re-examination of the case law laid down respecting the plea of alibi by this Court.
5. We, therefore, grant leave in this case. Non-bailable warrants to issue against respondents Nos. 1 to 7.
6. M.Y.H./N-53/S Leave granted.