Allah Dino Khaskheli (Appellant) VS The State (Respondent)

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IN.THE HIGH COURT OF SINDI{'

Iidcuri couRr HYDERABAD Before: Agha ffi*...lrr",l." Mohammad Karim Khan Cr. Jail APPeal No'S-73 of

Allah Dino I{haskheli Versus

'lhe State

S hai kh, Advocate Appellant Allah Dino Through Ms. Na3ira Khaskheli Shaikh, Through Mr Shahid A hme Respondent The State

A.P.G.

Date of hearing tz.o+.zotz

Date of judgment

JU DG ME NT

J.- 'Appeliant Ailah Dino

M OHA MMAD KARI MK

HAN AGHA

ed tst. Additional Sessions ' Judge' l(haskheli was tried bY learn out of

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in Sessto ns Case No'2O1 l2OO7 ' arising Shaheed Benazirabad, Statiol-r Taluka Nawabshah' at Police crirne No.64 of 2OO7, registered was sections 302' 5O4 PPC. Accused / aPPellant for offence under 27 .ol.2ol2 (the impugned judgment) i founa guiltY bY judgment dated and to and sentenc ed to suffer life imprisonment and was convicted fine' the one 1ac' In c ase of clefault of payment of pay fine of RuPees The accused / R.I. six monLhs more'

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accused / aPPellant will undergo 544-A Cr'P'C' of

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to pay comPensation u/s appellant was also directed. legal heirs of deceased Khan Muhammad' In Rupees two lac to the aPPellant to com pensation, accused /

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case of default in PaYment of Cr'P'C' was slx months R'I' more' Ben efit of Section 382-8 I undergo has chAilen gecl the imPugned I also extended to him' The appellant judgment through instant aPPeal' F'l'R' of the prosecution case as disclosed in the 2. The brief facts Khatoon on 18'07'2007 at 2330 hours' are that lodged by Mst' lmam Khan Muhammad was fifth in number' she has six sons, out of whom D*:1:::h,:: o" *" enmitv with Allah They have old murderous two at sunset time' Allah Dincl Khaskheli alongwith day of incident .rr I

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unid,entified persons calne to her house in Rikshaw and inquired frorn her about hei son I(han Nluhamrnad. She replied that he has gone towards Brick kiln. Thereafter, they went towards Brick lfiln and after short while she heard cries and alongwith her sons Faiz.Muhammad and Ahmed went torvards that place and saw Allah Dino alongwith two unidentified persons running away in rikshaw while giving abuses and hakals. complainant party saw her son was. having sustained knife injuries; they immediately took injurecl to hospital, however' he succumbed to injuries. Thereafter, she went to Police station and lodged the report.

3.After completing the 'usua1 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 orderto prove its case prosecution examined as many as 08 'closed vide witnesses and thereafte; side of the prosecution was statement Ex. 15.

6.'The statement of accused was recorded ul]der section 342 Cr.P.C, in which he denied the allegations' of ttre prosecution' ,r According to him, he ha.s been implicatecl falsely ar-rd the murder weapon (Churri) has been foisted ufon him. He however neither examined himself on oath nor led any evidence in his defence'

7.The learned trial court after hearing the learned counsel for the parties and on the assessment of the entire 'evidencA bonvicted and sentenced the appellant/accused as stated above through the impugned judgment.

8.The facts of this case as well as evideuce produce$ before the trial Court find an elaborate mention in the jr-rdgment passed by the trial Court therefore the same may not be reprodrrced here so as to avoid duplication and unnecessary repetition.

g. Ms. Nasira Shaikh, learned counsel for the a;rpellant has contended that the impugned judgmerrt shouid be set aside and the appeal may be allowed for the following rcasons; that there was a five hour delay in todging the'FIR; that there wa$ alr old enmity between the parties rnhich hacl lead to the fabrication of t.he FIR; that the distance between the place of the nrurder'ancl the house o[ tl-re

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complainant was over one acre; that the cornplainant was not an eye witness to the incident; that there was a 2 day delay in recording the S. 161 Cr.PC statements; that the chemical report was sent after a delay of 15 days and thus for all the above reasons a doubt had been created in t-lle prosecution case the benefit of which had to be extended to the appellant who as such was entitled to be acquitted.

( 10. In support of her contentions learned counsel placed reliance on the following authorities'zaman v. The state (PI-,D 1985 Lahore 566), Muhammad lrshad v. The state (2002 P. Cr. L. J 154 1), Arshid and another v. Shaman-ud-Din and another (2015 P' Cr' L' J'1123), Pathan v. The State (2015 S C M R 315), trfan Ali v' The State (2015 S C M R 840), Muhammad Razzaq v. The State (2008 P' Cr'L J s76)

11.On the other hand, learned A.P.G. fully.supported Lhe impugned judgment whic.h according to him was well reasoned and had covered all aspects of the case. Lle furtl-rer contended that in support of the prosecution case that there was no undue delay in registering the FIR; that there rr,'ere twtl eye witnesses; that. the appellant had a motive to murder th6 deceased; that the medical and chemical evidence supported the prosecution case and corroborated the other ocular L prosecution evidence and that it was not relevant that there 'was a l5 day delay in sending the chemical Samples for analysis; that the recovery of the murder weapon had been made from the appeliant as such the prosecution has proved its case beyond a reasonable doubt and the impugned judgment should be upheld and the appeal dismissed. In support of his contentions, learned n:P.G. has relied upon the case of Muhammad Zaman V State (2014 SCMR 749) in terms of the FIR not amouuting to a sr,rbstantive piece of evidence.

12.I have considered the arguments of learned cottnsel,'perused the record and the case law cited by them at the bar.

13.Turningto the lirst contention of learned counsel for the appellant ^( based on the facts and circumstances of Lhis'case I clo not consider. a delay of 5 hours in lodging the FIR to be fatai to the prosecution case. In this case the complainant reached the place of incident as her son was dying from stab wounds and as such, in my view, it was quite natural for her to immediately assist in arrauging transport to take him to hospital and accompanying him to hospital. so that he might be saved before conternplating the registration of an F{R. I agree that ry

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there was enmity between the parties however as eiplained by the complainant dnd as corroborated by PW's Faiz Mohammed and Ahmed Khan (both son,s of the complainant) the appellant was pressurizing them to compromise a m.urder case in connection with tl-re tnurder of one of the complainants other son's whereby a relative of the appellant was convicted. Hence the .appellant also had a motive to murder the deceased.

14.I do not think that the distance between the place of the incident being approximately one acre from the. complainants house to be that relevant bearing in mincl that from strch a distance the complainant would be able to hear the screams of her son being stabbed which she attested to and was corroborated by her sons PW's Faiz Mohammed and Ahmed Khan who were with her in the house at the time of the incident and. quite naturally followed their mother as per their evidence to the place of the incident having been aware of the fact that the appellant hail gone to look for her son/their brother. Considering that the deceased was receiving multipte stab wounds this would also give the complainant and her sons additional time to reach the place of the incident before the appellant could e scape the scene.

15.As per the contradiction in her FIR of the oomplainanL not being an eyewitness and her evidence where she claimed [o be an eye witness. The FIR is no doubt an impbrtant document as it is made immediately after the event but as was held in the case'of Muhammad Zam,ant (Supra) an FIR cannot take the place of evidence given under oath. It may however be of value in terms of c.ontradiction and of. undermining the evidence of the witness during cross examination. However, in this case vis a vis this contradiction what seems to be of primary importance, in my view, is that even in the complainant's FIR she stated that she was acbompanied by her two sons Faiz Mohammed and Ahmed I(han both of whom as PW's have given evidence under oath that they were eye witnesses to the incident and have corroborated the complainant's evidence. Thus, there are at least two, { if not three, eye witnesses to the incident all cif r4rhorrr corroborate each other concerning the incident and all of whom gave evidence under oath and in my considered opinion none of whom was demolished during cross examination. With regard to them not intervening at the time in my view this is explair-rable by the fact that Lhe murder was being committed by three men who tfrleatened to mttrder the complainant ancl her two sons before the asiaildnts. quickly fled the w /l

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scene by rickshaw and the primary concern of the rnother and two sons would b'e for their son/brother lvho at that time was seriously injured and had.not yet died ancl thus the urgent r-reed to get him to hospital to try and save tlis life rather than intervening or giving chase to the fleeing assailants especially as they knew one them i'e' the appellant prevailed upon them. The complainant and PW's Faiz Mohammed'and Ahmed Khan were not chance witnesses. It may be { that their arrival on the scene prevented the appellant and his accomplices from killing the deceased on the spot as opposecl to only leaving him in a seriously injured conclition as they were compelled to flee by lhe arrival of the complainant and her two sons'

16.The FIR was lodged at 2330 on lB-O7-2007, the postmortem was started within 2 hours on 19-07-2007, on l9-o7-2OO7 the place of incident was inspected by the Io and sealed blood stained earth in the preserrce of mashirs and on 2O-O7-2OO7 . the statements of the complainants .sons PW's Faiz Mohammed and Al-rmed Khan was recorded. Based on this ihain of events I do not collsider a one to two day delay in recording the statements of PW's Faiz Mohamrred and Ahmed Khan to be fatal to the prosecution's case'

17.The appellant was arrested by the IO ori 2IJ-O7-2OO7 as per the memo of arrest and recovery and a blood stained Churri/like knife was recovered from him which was in a plastic bag which was sealed on the spot in the presence of Mushirs which along witlt bloocl stained earth was sent for chemical analysis which report was positive. It is true that the blood samples of the earth i.nd, churri/like knife were sent for chemical analysis after 13 days of the arrest of the accused but in my viow this is not fatal to the prosecution case. what in m-v view is significant is whether these blood samples could have beetr tampered with. In my view both samples were seized and sealed at the spot in the presence of Mushirs and tl-rat there is no evidence to show that such samples were tampered with before being sent for chemical anal5rsis. In fact this suggestion is not even made during cross 1 examination of the Io. Ralher the suggestion fhat the churri/like knife was foisted on the appellant has only beeu ruade.

18.It is correct that there are some cliscrepancies in the evidence however in my view none of these discrepancies are of a material or major nature so as to effect the findir-rgs in the impr-lgned judgment especially bearing in mind that evidence was recorded between 3 to 4

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years after the incident which can lead to slight lapses on the part of the witness rrhich will not be fatal to the prosecutions ca.se. In this respect reference.may be made to the cases oiZ^kil. Khan & others v' The State (1995 SCMR.1793).There also appear to be.some lnrnor procedural lapses on the part of the police during the investigation process as shown by the cross examination of the IO however none of these minor procedural lapses in my view is fatal to the prosecution case. It is also correct that some of the star -itn"s"es are inter.related but it is settled law that this will not in and of itself rule out a conviction. In such circumstances, iri my view, the whole evidence must be considered in its entirety and in a holistic manner keeping in view the facts and circumstances of each particular case to see if it meets the required standard of proof. Furthermore, if the plan of the complainant was to falsely implicate the appellanL on account of old enmit-v what was the need to include two other accomplices? Simply the appellant could have been named. This v'ery fact in my view tends to give further'credibility to the prosecution's version of events

19.In my view the medical evidence and in parLicular as explained by PW Yar Ati.who carried out the post mortetn is consistent with the deceased being killed by a Churri/like knife apd in particular the knife recovered form the appellant as explained by him thougl-r his evidenCe and in particular his cross examination and t.ends to corroborate the ocular evidence along with the chemical report'

20.I entirely agree with learned couusel for the appellanl that the accused should be entitled to the benefit of'the doubt in criminal cases which is a well settled legal principle horvever I arn guided in this respect by the case of Faheem Ahmed Farooqui V State (2008 SCMR 1 572) where it was he ld as under al P .157 6 a't Para D "It needs no reiteralion that 1'or the purpose of giving benefit of doubt to an accused person, more than one infirmit5r is not required, a single infirmity creating reasonable doubt in' the mind of a reasonable and prudent mind regarding the ' truth'of the charge makes the whole case doubtful' Merely 1 because the burden is on the accused to prove his innocence it does not absolve the prosecution from lts clutty to prove its' case against the accusecl bcyor.rcl an-Y sha.dou' o[ dollbt'"(bolcl added)

21.ln this case I am of the view that when the evidence is read in totality there would be no doubt in a reasonable and prudent person's mind that the appellant was guilty of the offenSe for whidh he has been

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charged not with standing the few minor procedural irrbgularities and minor contradictions in the evidence of the PW's which even otherwise are not fatal to the. prosecutions case.

22.On the whole I find tirat the prosecution evidence is'confidence inspiring and shows a consisLent and logical train of events from the appellant kqocking on the complainants door to firrd out the whereabouts of her deceased son, to the complainant following up on the close by screams, the eye witnessing of the last part of the attack on her deceased son by the appellant and two other accused (absconders), the rush to take her seriously injured son to hospital' his death at the hospital, the subsequent registration of the FIR' appointment of IO, postmortem, IO's visit to wardat, IO's taking of S.161 Cr.PC statements, arrest of the appellant,'recovery of blood stained churri/tike knife and the posilive chemical report along with corroborative medical evidence when placed ir1 juxtaposition with the oral evidence of.the PW's.

23.Thus, for the above reasons I find that the prosecution has proved its case beyond a reasonable doubt, up hold the impugned judgment and hereby dlsmiss this appeal.

Hyderabad t8.o4.2017 JU

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