MUHAMMAD NOMAN Versus State
Background
OMAR SIAL, J.--- On 8-10-2012 when Muhammad Ali returned from work and went to his father's room, he found his father (Munawar Ali alias Achay Mian) dead. The arms and legs of the deceased were tied, his mouth taped and a pillow on his face. There was also a little blood flowing from his forehead. Ali's sister-in-law, Neelofer, told him that at 1:30 p.m., 2 women and 1 man had come to the house and killed Ali's father. On 12-10-2012, the police called Ali in the middle of the night and told him that they have arrested a boy by the name of Fahad Hussain and that he was one of the persons who had killed Ali's father. Fahad confessed before the police that he along with Safia, Samina, Noman and Mohsin had killed the deceased and had further robbed Rs. 130,000, 3 gold ornaments, 6 mobile phones, a camera, a perfume and a mobile charger from the deceased's room. That same day all the other accused i.e. Samina, Safia, Noman and Mohsin were arrested with the help of Fahad.
Trial
2. The accused all pleaded not guilty and claimed trial. PW-1 Muhammad Ali was the complainant. PW-2 was Neelofer, the complainant's sister-in-law who allegedly had seen the accused sitting in the deceased's room. PW-3 Asim Ali was the complainant's brother and was witness to most of the memos prepared by police during the investigation. PW-4 Syed Mazhar Abbas Zaidi was said to have seen the accused leaving the scene of incident. PW-5 Dr. Zahoor Ahmed conducted the post mortem. PW-6 Muhammad Tariq, a mashir to the memo of re-arrest of Fahad in this crime. PW-7 Chaudhry Mohammad Ilyas was the police officer who first responded to the information that a murder had occurred. PW-8 Syed Ali Arafat Shah saw the accused leaving the premises. PW-9 Syed Irfan Haider also saw the accused leaving the premises. PW-10 Akhtar Jalal was the officer who has arrested Fahad in another crime and the interrogation of which led to the disclosure of his involvement in the present crime. PW-11 Syed Hamdullah was the investigating officer of the case. PW-12 Sarah Junejo was the learned magistrate who conducted the identification parade.
3. The accused all pleaded innocence in their section 342, Cr.P.C. statements.
Impugned Judgment
4. The learned 1st Additional District and Sessions Judge, Karachi East convicted the appellants under section 302(b), P.P.C. and sentenced them to life imprisonment as well as a Rs. 200,000 compensation or a further 6 months in jail in lieu thereof. It is this judgment that has been impugned in these proceedings.
Parties heard
5. I have heard the learned counsel for the appellants as well as the complainant and the learned APG. The arguments of the learned counsel are reflected in the observations and finding below.
Observations and Findings
6. There are 7 pieces of evidence against the appellants in this case on the basis of which they were convicted. These are:
(i) PW-2 Neelofer seeing 2 women and 1 man, sitting with the deceased in his room in his house at about 1:00 p.m.
(ii) PW-4 Syed Mazhar Abbas Zaidi who saw 3 men and 2 women walking down the stairs of the house of the deceased at about 1:30 p.m.
(iii) PW-8 Syed Ali Arfat Shah who saw 3 boys and 2 women cross him on the street at an unspecified time before 3:00 p.m.
(iv) PW-9 Syed Irfan Haider who saw 3 boys and 2 women coming down the stairs of the deceased's house at about 1:30 p.m.
(v) An extra judicial confession made by accused Fahad Hussain.
(vi) Recovery of things stolen by the accused from the house of the deceased after having committed his murder.
(vii) CCTV footage.
I will address each piece of evidence.
PW-2 Neelofer seeing 2 women and 1 man, sitting with the deceased in his room in his house at about 1:00 p.m.
7. PW-2 Neelofer, the only prosecution witness who saw the accused persons sitting with the deceased prior to his murder, and thus the only last seen together witness, was not asked by the police to come and identify the accused in the identification parade. No reason was given for her not being included. Although she was the most important witness and was present in the house throughout the police investigation, her section 161, Cr.P.C. statement was not recorded by the police till 2 days later i.e. on 10-10-2012. No reason for the delay in recording the statement was given at trial. At trial Neelofer stated that accused Noman was innocent.
8. The Honorable Supreme Court has stipulated certain guidelines for cases which are based on "last seen together". In Fayyaz Ahmad v. The State (2017 SCMR 2026) it was held as follows:
9. For a conviction based on last seen evidence the following fundamental principles must be followed and the prosecution was under-legal obligation to fulfill the same:-
(i) There must be cogent reasons that the deceased in normal and ordinary course was supposed to accompany the accused and those reasons must be palpable and prima facie furnished by the prosecution.
(ii) The proximity of the crime scene played a vital role because if within a short distance the deceased was done to death then, ordinarily the inference would be that he did not part ways or separate From the accused and onus in such regard would shift to the accused to furnish those circumstances under which, the deceased left him and parted ways in the course of transit.
(iii) The timing when the deceased was last seen with the accused and subsequently his murder, must be reasonably close to each other to exclude any possibility of the deceased getting away from the accused or the accused getting away from him.
(iv) There must be some reasons and objects on account of which the deceased accompanied the accused towards a particular destination, otherwise deceased being in the company of the accused would become a question mark.
(v) There must be some motive on the part of the accused to kill the deceased otherwise the prosecution had to furnish evidence that it was during the transit that something abnormal or unpleasant happened which motivated the accused to kill the deceased.
(vi) Quick reporting of the matter without any undue delay was essential, otherwise the prosecution story would become doubtful for the reason that the last seen evidence was tailored or designed falsely to involve the accused person.
(vii) Last seen evidence must be corroborated by independent evidence, coming from an unimpeachable source because uncorroborated last seen evidence was a weak type of evidence in cases involving capital punishment.
(viii) The recovery of the crime weapon from the accused and the opinion of the expert must be carried out in a transparent and fair manner to exclude all possible doubts.
(ix) If the murder was not a pre-planned and calculated, the court had to consider whether the deceased had any contributory role in the cause of his death.
10. Similarly in Muhammad Abid v. The State (PLD 2018 SC 813) the Court held: The foundation of the "last seen together" theory is based on principles of probability and cause and connection and requires 1. cogent reasons that the deceased in normal and ordinary course was supposed to accompany the accused. 2. proximity of the crime scene. 3. small time gap between the sighting and crime 4. no possibility of third person interference 5. motive. 6. time of death of victim. The circumstance of last seen together does not by itself necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. (underlining is mine).
11. The fact that Neelofer's statement was not recorded for 2 days and that she was not taken to identify the accused at the identification parade, in itself dilutes the case of the prosecution as far as the last seen evidence is concerned. No cogent reason was given at trial to establish that the deceased in normal and ordinary course was in the company of the accused. There was no cogent evidence produced that the deceased knew the accused (apart from a vague assertion made by PW-2 Neelofer). There was no motive for the accused to kill the deceased. It appears to me that the motive regarding robbery, as is the statement of PW-2 Neelofer, was manufactured by the investigation officer to establish a case. My reasons for this conclusion are as follows.
12. It was an 80 square yards house where the incident occurred. In 3 rooms on the 1st floor lived the deceased and the complainant whereas 3 rooms on the ground floor were used by the complainant's brother and his family. There was only one mattress, one cupboard and one carpet in the deceased's room. The photographs taken reveal that the cupboard too was an extremely modest one. There is no mention of missing articles in the statement under section 154, Cr.P.C. that the complainant recorded. However, subsequently, it was alleged that Rs. 130,000, 3 gold ornaments, 1 bracelet, 1 ring, 1 necklace, 6 mobile phones, camera, perfumes, 1 body spray, 1 hair wax, 1 air freshner and mobile chargers were robbed by the accused from the deceased's room. I find the fact that the entire family of the deceased did not know that all these items had been robbed from their father extremely unnatural and unbelievable. The "robbery" becomes even more doubtful when it is observed that while the accused robbed the deceased of everything right down to his hair wax, they did not take away the gold ring that the deceased wore at the time of the murder. The camera was said to be recovered from Noman 3 days later when he was roaming around on the road with it. Further recovery of 1 women's ring, 2 mobile phones, 1 mobile charger, 1 perfume, 1 hair wax and 300 rupees was also effected. From Fahad's house 2 mobile phones, one lotion, one air freshner, one spray, one box of Nokia and 250 rupees were recovered on his pointation. From Mohsin the recovery of 1 baby bracelet, 2 phones, 1 mobile charger, 1 body spray, 1 hair gel and 350 rupees cash was effected; I find it immensely unbelievable that the deceased had so many mobile phones and women's gold ornaments in his possession at the time of his Murder. The story of all the items being stolen from the deceased is an afterthought and created solely to connect the accused with the crime and show motive for the killing. Partial case property i.e. the gold ornaments and Rs. 9010 were produced in court in an unsealed condition. The complainant who was a witness to the recovery stated at trial that none of the recovered property was sealed in his presence. Asim Ali, the other witness to the recovery, also stated that the case property had not been sealed in his presence. The complainant admitted that one of the phones produced as evidence was in a very bad condition. This is odd as it was claimed that the deceased would purchase phones and then sell them. No evidence, even the vaguest one, was produced to establish that the deceased was in possession of so many phone in his normal course of business. No person was interrogated who could corroborate this aspect of the prosecution case. I do not believe that at the time the complainant and his family discovered the dead father they did not realize that almost all his belongings right down to his hair wax had been stolen.
13. One of the witnesses to the recovery of the camera i.e. the complainant, testified that the camera said to have been his father's, and robbed by the accused, was recovered from accused Noman whereas the other witness to the arrest i.e. Asim Ali testified that the said camera was recovered from Mohsin.
14. Nearly all of the case property was not produced at trial on the pretext that the malkhana had got robbed. It was not explained as to how the bits and pieces of evidence which was produced, survived the malkhana "robbery".
15. The complainant testified that when he discovered his father's body, there was blood flowing from his forehead; the memo of inspection of the dead body however records that the deceased was bleeding from the back of his head. I also find it unnatural behavior that even though the death of the deceased was a total surprise to the complainant, he made no effort to un-tape the deceased's mouth or to untie his hands and legs until the police arrived. The bed sheet on which blood was said to have seeped was not seized by the police and instead a piece of it torn out. Case property was admittedly tampered with before seizure.
16. Murder is said to have occurred at 1:30 p.m. but was not reported to the police till 3:30 p.m. and the FIR was not lodged till 12:30 a.m. the next day. The requirement of proximity of time for last seen together evidence was not satisfied nor was the delay in lodging the FIR adequately explained.
17. In view of the above observations it appears that the criteria laid down by the Honorable Supreme Court to sustain a conviction on the basis of last seen evidence was not satisfied.
18. The Honourable Supreme Court has repeatedly held that a delay in recording the statement of an eye-witness (in this case not to the murder but to the last seen piece of evidence) without any justification would be lethal to the prosecution case. In Abdul Khaliq v. The State (1996 SCMR 1553): "Late recording of a statement of a prosecution witness under section 161, Cr.P.C. reduces its value to nil unless delay is plausibly explained. In Muhammad Asif v. The State (2017 SCMR 486): "Even one or two days unexplained delay in recording the statement of eye-witnesses would be fatal and testimony of such witnesses could not be safely relied upon." In Noor Mohammad v. The State (2020 SCMR 1049): "It is established principle of law that delayed recording of statement of the PW under section 161, Cr.P.C. reduces its value to nil." Not much sanctity can be given to the section 161, Cr.P.C. statement recorded by PW-2 Neelofer on account of the unexplained delay in its recording.
PW-4 Syed Mazhar Abbas Zaidi who saw 3 men and 2 women walking down the stairs of the house of the deceased at about 1:30 p.m.
19. This witness contradicted PW-2 Neelofer by stating that he saw 3 men and 2 women leaving the deceased's house at 1:30 p.m. while he stood in his balcony. As mentioned above, Neelofer testified that there were 2 women and 1 man who had come to meet the deceased. This witness too did not disclose to the police what he had seen although he claimed that he was at the deceased's house in the immediate aftermath and when the police was there. His statement too was recorded the next day. He admitted that even then he had not disclosed any description of the persons he had seen leaving. Zaidi at the identification parade, while disclosing what he saw, contrary to his testimony at trial stated that Noman and Fahad were walking down the stairs while Mohsin was walking up the stairs.
PW-8 Syed Ali Arfat Shah who saw 3 boys and 2 boys cross him on the street at about 3:00 p.m.
20. This witness was a chance witness who happened to have come to visit another person and claimed he saw the accused going past him coming from the deceased's house on a motorcycle. He recognized the 3 men he had seen as the 3 appellants. He said that he could not see the women as they had a nikab on. If PW-4 is to be believed then the accused were leaving the house of the deceased at 1:30 p.m. This witness claims to have see them leaving the deceased's house at 3 p.m. One of the witnesses is obviously not being entirely honest. This witness also claimed that the police recorded his statement the next day and had not read out what was written on it. He however signed whatever was written and given to him. He did not explain his nexus with the deceased and how he knew where the accused were coming from. It is pertinent to mention that though this witness at trial testified that he had seen the accused passing by him on motorcycles, in the identification parade, he had stated that he had seen the accused walking down the stairs of the deceased's house.
PW-9 Syed, Irfan Haider who saw 3 boys and 2 women corning down the stairs of the deceased's house at about 1:30 p.m.
21. His testimony was more or less on the same lines as PW-1 Syed Mazhar Abbas Zaidi. He claimed he saw 3 men and 2 women coming down the stairs of the deceased's house. He too testified that he had not disclosed the description of the persons he had seen coming down the stairs. This witness did not explain as to what he was doing in the locality at that time. He too was a chance victim. In his cross-examination this witness admitted that he did not know the deceased and had no relation with him or his family. It seems strange that a complete stranger was roaming round freely in the house of the deceased at the time of his murder and was in a position to give details of the scene inside the bedroom of the deceased. Why would he go to the house of the deceased when he had no relationship with him is also odd. This witness in the identification parade saw Noman walking up the stairs at the same time when the others saw him walking down. Further, this witness said that there was only 1 boy and 2 women. He could not identify Fahad at the identification parade.
An extra judicial confession made by accused Fahad Hussain.
22. Fahad Hussain's so-called confession before the police would be barred by Article 38 of the Qanun-e-Shahadat.
Recovery of things stolen by the accused from the house of the deceased after having committed his murder.
23. In view of the observations regarding the recovery made above, I am of the view that the possibility of the same being foisted upon the accused cannot be conclusively ruled out and in any case was not proved at trial.
CCTV footage
24. The investigating officer of the case claimed that a CCTV camera was installed nearby and that the complainant had given him (the investigating officer) photographs taken from the footage. The actual footage was never produced at trial. The photos have a date and time stamped on it. They show one boy and one girl on a motorcycle. The time on the photos is 12:23 p.m. i.e. nearly an hour before the time Neelofer says she saw the accused in the deceased's bedroom. Similarly, the 1 boy and 1 girl on the motorcycle as shown in the photo contradicts the testimony of the 2 witnesses who claimed they saw 1 boy sit with 2 girls and leave the premises. The photos do not reconcile with the witness testimonies. The investigating officer admitted that the complainant had not disclosed the presence of the photographs when he recorded his statement and that he (investigating officer) had not determined whether the same were even genuine.
Summary i. In view of the above observations it appears that the criteria laid down by the Honorable Supreme Court to sustain a conviction on the basis of last seen evidence was not satisfied. ii. Not much sanctity can be given to the section 161, Cr.P.C. statement recorded by PW-2 Neelofer on account of the unexplained delay in its recording. Neelofer the only person who claimed to have seen the accused and the deceased together was not asked to come and identify the accused in the identification parade. iii. Recovery was not proved and appears to have been foisted upon the accused. None of the witnesses who were examined at trial testified that they saw any of the accused carrying a bag with them. There was no way that the robbed items could be put by them in their pockets. I do not believe that the family was unaware of all that was robbed until it was time for the police to show recoveries to link the accused with the crime. iv. On account of the observations made above, I find the testimonies of the witnesses who claim to have seen the accused infirm, vague, contradictory and set up in order to establish the case. v. The CCTV photos produced by the prosecution itself run contrary to the prosecution case.
Conclusion
25. It would be unsafe to sustain a conviction on the basis of the evidence produced at trial. Appeals are allowed. Appellants are acquitted of the charge and should be released forthwith if not required in any other custody case.
JK/M-61/Sindh Appeals allowed.