Gohram Zardari (Appellant) VS The State (Respondent)

6-'YS

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rN Tr{E HrGH couRT -S]TPH' oF 'dii;mr tount HYDERABAD Before: Khan Agha Mi. J.r"ti"" Mohammerd Karim

Cr. APPeal No'S-58 ol 2Ol2' .;i;iii;;"al No'S-5e ot 2or2

Gohram Zatdari Versus

The State

Advocate Gohram Through Mr. Aijaz Shaikh, Appellant Zardari Shaikh, State Through Mr Shahid Ahmed ResPondent The

A.P.G

ed Bhatti-, Thro ugh Mr. Naze er Ahm ComPlainant Gulzar Advocate Ahmed 18.O4.2 o17 Date of hearing

Date of judgment

JU DG ME NT

f J. - ApPellant Gohram Zardari

MO HAMM AD KA RIM

Ist' Additi onal Sessions Judge' Shaheed was tried bY learned out of crime in Sessions Case No'2 16 of 2008, arising Benazirabad, under registered at Police Station Daur' for offence No.54 of 20O8, / aPPellant was found guiltY bY section 302, 34 PPC. Accused (the impugned judgm ent) and was judgment dated 27.01.2012 d to line of an PaY suffer'life imprisonment convicted and sentenced to I

In case of default in payment of fine' dre accused / Rupees one la c. ,i

R.I. for six months more' Th e accused / appellant will undergo ted to comPensation u/s 544 -A Cr.P.C, of appellant was also direc PaY Afzal' ln case two lac to the legal heirs of deceased Muhammad Rupees undergo payment of compensatron' accused / aPPellant to of default in was also S ection 382-8 Cr'P'C' ts more' Benefit of ,;

R.I. for six months the inrPugned extended to him' The aPPellant ha s challenged judgment through instant aPPeal' as narrated in the F'I'R' lodged UV comltaillt 2. Briefly the facts 2320 hours are that}.e rb on 2o'o7 2oo8 at Gulzar Ahmed at P'S Daur

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uncle a clerk in the Education department at Rahim Yar Khan' His Muhammad Afzal aged about 55/60 years, Shahnawaz son of Muhammad Afzal aged about 8/9 years and Mst' Shahnaz d/o Muhammad Afzal aged about I I ll2 years are residing ln Deh 72- Nasrat, Taluka Daur. One Gohram Zatdati, who is neighbour of from Muhammad Afzal, had demanded the hand of Mst' Shahnaz at Muhammad Afzal and on refusal he got annoyed' On 19'07'2008 night time, Shahnawaz and Miss. Shahnaz informed the complainant entered on telephone that at 1-30 a.m. Gohram Zard'arihaving hatchet intotheirhouseandawakenedMuhammadAlzalandtoldhimthat since he had refused to give the hand of Mst' Shahnaz to him' to therefore, he will not spare him, then he inflicted hatchet blows MuhammadAfzaTand'committedhismurder.Afterreceivingsuch information the complainant alongwith Rehmat Ali and Riaz Ahmed by came to the village where incident took place' F'I'R' was recorded A.S.I Wazir Hussain Shahani of PS Daur'

3.After completing the usual investigation, police submitted the challan against above named accused.

4.Formal charge against the accused was framed by trial court' Accused pleaded not guilty and claimed to be tried'

5.In order to prove its case prosecution examined as many as 07 witnesses and thereafter side of the prosecution was closed vide statement F;x.72.

6.The statement of the accusbd was recorded under section 342 Cr.P.C, in which he has denied the allegatio"" of tn" prosecution' According to him, he has been. implicated falsely at the instance of .lr Aijaz Hotipoto, Manager of Zatda:r House Nawabshah' He also gave evidence on oath stating therein that Muhammad Afzal:was murdered by unknown persons and the police has arrested son and daughter of deceased and such news was published in the newspaper on 2O.O7.2OO8, therefore, he is innocent and he has not committed Y murder of Muhamm ad Afzat. The accused did not call any defense witnesses in support of his defense.

7.The learned tria-l court after hearing the learned counsel for the parties and on the assessment of the entire evidence convicted and sentenced the appellant / accused as stated above in the impugned judgment

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produced before the

8.The facts of this case as well as evidence trial Court find an elaborate mention in the judgment passed by the therefore the same may not be reproduced here so as to trial Court repetition' avoid duplication and unnecessary has g. Mr. Aljaz Shaikh, learned counsel for the appellant did not inspire lorr,"rro"O tt tt was only one eye witness who "t "," who had corroborated her confidence; that two potential eyewitnesses suggest that they had not given evidence which tended to loutd 1ot case; that the recovery th" have supported the prosecution "f lId:t l weaponwasdoubtfulasithadbeenrecoveredfromt]reappellant,s house which did not appeal to reason; that no witness had come from were related and thus for all the close vicinity and that the Mushirs reasons a doubt had been created in the prosecution case the above ,,! the benefit of which had to be extended to the appellant who as such

was entitled to be acquitted' for t-Le appellant

10.In supirort of his contention' learned counsel relied upon the cases of Tarlq Penez v' The State (1995 S C M R

S C M R 308)

134s), Bashir Ahmed, alias Mannu v' The "*:"-(i::.t

(2017 S C M R 486)'

and, Muhammad Asif v' The State the impugned

11.On the other hand, learned A'P'G' fully supported and had covered judgment which according to him was well reasoned that in suppo-Jt of the all aspects of the case' He further contended witness; that th; appellant had prosecution case that there was an eye a motive to murder the deceased; that the medical "1 :n"*':"' ' evidence supported, the prosecution case and corroborated the other of the murder weapon ocular prosecution evidence; that the regovery ra hadbeenmadeonthepointationoftheappellantandassuchthe reasonable doubt and the prosecution has proved its case beyond a the appeal dismissed' impugned judgment should' be upheld and

12.In support of his contentions' learned A'P'G' tT-f':i upon the

cases or Naik Muhammad ,X?t".tfat: ,?001 t"'1163e) and P Muhammed Dhsan v statezF$cbrvrn'iasz) in terms of interested witnesses.

13.L,earnedcounselforthecomplainantadoptedtheargumentsof prosecution had proved its case learned APG and submitted that the I beyond a reasonable doubt against the appellant and as such the appeal should be dismissed (l-1

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14.Ihaveconsideredtheargumentsof1earnedcounsel,perusedthe by them at the bar' record and the case 1aw cited 11 of the mentioning at this stage that as per para 15. It is worth disputed the time of "The defence has not impugned judgment' as of injuries the number and nature incident, the place of incident' as Muhammad Afzal and his consequent death sustained by deceased Medical Of{icer' Heltce' this point stands proved described by the me therefore appears to be The real issue before beyond doubt'" on the evidence produced ffiar t:t at trral u'":-":::: has the prosecution whether based prove beyond a reasonable doubt that it was the appella:rt been able to who murdered the deceased' eye witness who gave evidence for the was the only

16.PW Shahnaz witnessed his a- She was the daughter of the deceased who prosecution. glow of the appeilant whom she recognized through the murder by the to be She is not a chance u'itness' I find her 'evidence light bulb. at and confidence inspiring' In my view she was not damaged reliable cross examination and her evidence has largely been all during is pw Gulzar Ahmed who although not an eye witness corroborated by and who she telephoned straight after the murder the complainant it is still to' Admittedly his evidence is hearsay but )', relayed the incident as he value under the circumstances especially of some corroborative and gave similar evidence at trial' Her evidence is also lodged the FIR PW 1 Dr'Ali by ttre medical report and the evidence of corroborated mortem of the deceased' This alone in Bux who carried out the post which could view provided that there are no other circumstances my prudent mind to the prosecution case or cause a doubt in a be fatal appellant' Reference in this respect would be sufficient to convict the SC the case of Muhammad Ehsan v' The State (2006 can be made to P' 1860 at Para 6 as under:

M R 1857) where it was held at

..6.ltistruethatthereis-onlyoculartestimonyofP.W'4Mst. lcy evidence, P'W. 6 Dr.

Khatun Bi;;;;;b*ated "*Jt"r Muhammal sarfraz Sial' The -i"- there is only ocular r"tiir"t uoimpeachable and

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conridence-;:"q#;:"'"1"'#i"t.::"ff it;:.;nt'ffi E:If ff "T#::ll:?l'1"i"i"uH;;nrureercorroboratioa ciution-a"J;;t; mandatory rule to be is rule ot "toia"'"t i,, t""r' I"=J- oin"t this is settled . applied #II;il satisnea about the trutbfulness prin"ipr" tiiiffie court is t"q"it"*""t of cortoborative of direct evidence' th: in that' as it evidence would not be or *rrt-=ijiinttt'"uaccount which is may as itlH;|,Ii.i,t ;l qtv ft" """" "vt--ii"tss

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6(t and is unimpeachable and confidence-ilgnfin8. ch.aracter by medical evidence"' (bold added) ""i[["r"t.d witnesses L7. It is true that there was potentiallg two other eye called at,tfal cannot however in my view the fact that they were not leadtoanadverseinferencebeingmadethattheywouldnothave { from the eye witness supported the prosecution case and thus detract evidence of PW Shahnaz.

was her

18.This is because one of tne potential eye witnesses of age at the time younger brother Shahnawaz who was only 8/9 years oftheincidentanda'lthoughitstatesatP.40ofthepaperbookthathe was identical was given up by the prosecution because his statement is that he was not to that of the complainant the reality of the matter certificate dated 22- capable of testifying. This is evidenced through a O5-2O10 signed by civil judge and judiciai magistrate II Nawabshah Shahnawaz was a whereby it was certified to the effect that' witness given by him child who canRot und'erstand the questions and reply statement cannot and is not giving rational answers and therefore his evidence and thus he i be recorded. He was therefore incapable of giving was not called.

19.The only other potential eye witness was Moula Bux who }| was at the time of the also a relative of the deceased who was at the house PW Shahnaz that incident however it is stated in cross examination of he was mentally retarded which is largely corroborated by the was not in his cornplainant Gulzar Ahmed who states that Moula Bux proper senses. Neither such statementq given under oattr were

challenged by the appellant and as such Moula Bux in my view was otherwise he not a person who was mentally fit to give evidence' Even as she is not cited as an eye witness by Ms Shahnaz in her evidence incident' As only mentions her brother being present at the time of the not such based on tfte above reasons in my view t]-e prosecution examining these two witnesses is not of any major significance' '" Asif respect the cases of Bashir Ahmed (Supra) and Muhammad known it (Supra) are distinguishable from the instant case' As is well mustbeborneinmindthateachcasewillturnonitsownparticular identical' In facts and circumstances and no two cases are likely to be young this respect it should also be noted that on account of their ages and one being a female and both being unarmed neither of the witnesses (Shahnaz and Shahnawaz) were in any position to come eye /v4

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deadly assault on him by the to the rescue of the deceased during the warned them not to appellalt (despite him being their father) who Shahnaz and her brother if come near and even threatened to murder Likewise the presence of Shahnaz told anyone about the incident' incident and identifii the adequate light for Shahnaz to witness the she cleariy says in her appellant has never been in dispute' As statement that, "ttre bulbs were glowing" and this aspect of her so again the case of testimony has been accepted by the appellant adequate light to Bashir Ahmed (Supra) in terms of there being witness the incident or see the appellant who she knew and actually present case' spoke to her is distinguishable from the the appellant

20.From the evidence of the PW's it also emerges that hacl a clear motive for murdering the deceased in that the deceased a (PW Shahnaz's) few days earlier had refused to give his daughter's the appellant' This hand to the appellant in marriage which angered Shahnaz' The fact is corroborated by the complainant and PW persons on different appellant has tried to blame other separate Shahnawaa' Moula occasions for the murder including Shahnaz and and not himself Bux and a certain Halepoto being behind the murder to have any motive to however none of such persons have been shown murderthedeceased.Furthermore,noenmityoranimusonthepart towards the of the PW's (especially Shahn az and' Gulzar Ahmed) on record to cause them to fabricate this case appellant t r."

"o*" against the aPPellant.

2L. The Chemical report also corroborates the other medical

evidence and oiular evidence The fact that the mushirs to an extent may have been interested witnesses in my view is of little' if any' case' In this significance and is certainly not fatal to the prosecution case (Supra)' respect reliance can be placed on Naik Muhammad's the

22.The hatchet which was used in the murder was produced by which was on a appellant. from a hedge from outside his house v common path as per the evidence of PW Bishart Ali Mallah who was was mushir' In the IO which is corroborated by PW Hasan Bux'uvho of this this respect, Qased on tl:e particular facts and circumstances case, I consider the recovery of the hatchet in this case to be weapon in the case of distinguishable from the recovery of the murder was locked in the Muhammad Asif (Supra) where the murder weapon earlier each case has accused's house' This is because as mentioned e

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and no two to be judged on its own particular tacts and circumstances casesarelikelytobeidentical.Inthiscasetheappellanthadnot it in a hedge the hatchet in his house' Instead he had dumped placed close to his house which others had access to so to an extent' keeping inviewhispanicafterthemurderandbeingclearlyidentifiedby ShahnazandShahnawaz,hehasattemptedtodisposeofthehatchet easy and ready access by putting it in a place where others could' have to disassociate himself to it apart from himself and tl:us has attempted he was tl:e person from it. To a certain extent it is also relevant that where the hatchet who lead the police and the mushirs to the place alone' which was hidden as logically if he had carried out the murder hatchet was was tlae case, only he would have known where the hidden.

witness 2g. A review of the evidence shows that in my view the eye and was not was trust worthy, reliable and inspired confidence position with the damaged in cross examination' Like wise was the by PW Gulzar Ahmed other PW's. Eye witness Shahnaz is corroborated and chemical who is also the complainant, the medical evidence evidence. The murder weapon has also been recovered' 24.Whenconsideredinaholisticmannertheprosecutionevidence' in my view, from start to finish sets out a believable and reliable the "deceased to the unbroken chain of events from ttle murder of conviction of the appellant at trial'

25, There appear to be very few, and only then' minor contradictions in the prosecution evidence and again, very few' and even then only during the minor procedural irregularities committed by the police , fatal to the course of the investigations none of which in my view are evidence' In prosecution's case or caste any doubt on the prosecutions Zaklt I(han & others this regard reference may be made to the case of v. The State (1995 SCMR 1793l.'

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26.Most certainly if there is any doubt in the prosecution's case benefitofsuchdoubt,assetoutinthecaseofTariqPervez(Supra) concession' However must go to the appellant as of right as opposed to case of in considering this aspect. of the case I am guided by the 1572) where it was Faheem Ahmed Faroogui V State (2008 SCMR held as under at P. 1576 at Para D

,,It needs no reiteration that for the purpbse of giving ., benefit is not of doubt to an accused petson' moie than one infirmity i

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doubt in required, a single infirmity creating .reasonable tJre the mind of a reasonJle and pruAent mind regarding truth of the charge i"t"" the-whole case doubtful' Merely il;;* the burde-n is on - the accused to prove his innocence to prove its it does not absolve the ptose"ution from it" of doubt'"(bold at-tty case against tfre accused- ttvota any shadow added)

{ 27, In this case I am of the view that when the evidence is read and

considered in totality there would be no doubt in a reasonabte and of the offense for prudent person's mind that the appellant was guilty which he has been convicted by the trial court' 2a Thus, for the reasons discussed above I find that the doubt against ttre prosecution has proved its case beyond a reasonable dismiss this appellant, up hold the impugned judgment and hereby appeal.

Hyderabad:

Dated: L9-O4-2O17

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