Ghulam Haider (Appellant) VS The State (Respondent)

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CtrRTIFICATtr OF THtr COU RT IN RE GARD TO REPORTING CRIMINAL JAIL API'trAL No. S-2S OF Z00T t [GHULAM HYDIIR & OT'LIIIRS VIIRSUS TI{E STATE]

SINNH HIGH COUT{T , CIF{CUXT COURT HYDERABAI}

COMPOSITION OF BtrNCH

HON'BLE MR. MO I{AMMAD I(ARIMKHAN AGHA

(s.B.l Date of last hearing (heard/ reserved): 30- I O-ZOZ3 Decided on: 06- 1 1-2023

(a)Judgment approrred lbr reporting

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CERTIFICATE

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i Certificate that tlre -Jttclgrnent/ Order is based Lrpon or enunciates a principle of law/decide a question of law which is of first impression/ distinguishes over-rLrles/ explains a previous decision.

Strike-out wtrichever is not applicable.

NOTtr: - (i) This slip is only to be used when some action is to be taken.

(ii)If the slip is used, the Reader must attach it to the top of the first page of the Judgment.

(iii)Court Associate rnust ask the Judge written the judgment rvhether ttre j Lrdgrnent is approved for reporting" (iv) Those clir:ections which are not to be used should be cleleted.

SGP, I(ar-L (iii) 773-2000 .1-2003-lll

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OTRDER SHEET

!N THE HIGH f;OURT trF SIh$ MH*! ,

CIRCUIT COIJRT, HYDERABAD

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Criminal Jail Appeal No.S- 2S of ZOOT

DATE O RDER WII-F! {$IG[{A]-LJR[: OF JUDGE

IVlis tVlir Shakir Ali l-alpur and Anraar Ahnred, Aclvocates for appellants alongwith appellants (on bail).

lVls. Sana IVlemon, A.P.0 for ilre State.

lvlr. G. tu. Leghari, Advocate for complainant.

Ihave heard the Iearned counsel for appellants, learnecl A'P.G and learned counsel for complairrant. Reserved for juclgmept.

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IN THE I{IGH COUITT OF SII{DH, CIRCUIT COURT

I_IYDEITAI]AD

Cr:. Jail Appeerl I\o. S - 25 of 2007

Ghrrlarn l-lyder 8r others

Velsus

"fhe State

Appellants : Sikandar and Through Mir Shakir AIi Talpur, Allah Bux @ Buxarr Advocate (present on bail)

Responctent : The SLate Through Ms. Sana Memon, Assisttrnt Prosecutor General, Sindh

r Complainant : Muharnrlacl -l.hrough Mr. G.M Laghari, Advocate Khan

IJate of hearing 30.10.2023

Date of juclgment 06,71.2023

IUDG MEhIT

MOHr\MMA I] I{ARIN,I I{tI z\N r\Cll-IA, [.- fhis Crirninal ail J Appeal is directecl against the judgmcnt dated 08.01 .2007, passed by tlre leamed Vth Adclitional Sessions Juclge, I-lyderabad, in Sessions Case No.157 of 2000 (re: State V Ghulam l-Iaicler ancl others), {-ulanilting frotn Clinlc I\o.01} of 2000, registerecl at Police Station Bulri Slralr l(aritn, uuder section s 302, 324, 34 PPC, whereby the appellant G1rtrlam I-Iycler alias l-Iaicler has been convict ed, u/s 302(b) ppc ancl seutenced to suffer imprisotrment for life for committilg murcter of deceased Jarr Muhatntnacl. FIe was also clirected to pay fine of Rs'50,000/-, in case of default thereof the appellant was also clirected to rtnclergo I1.I for olle yealr more. lf the line is recoverect, the same shall

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be paic{ to the leg,al hejls of deceasecl. As far as the appellants Sikanclar ancl Allah lJux at'e coltcernecl, they have l:een convicted under Sections 337-A(i), 337-A(ii) ar-rd 337-F(i) PPC ancl as such both of them were sentenced to suffer R.I for two years u/ s 337-A(i) PPC each as "Ta' zir', and also pay Daman to the tune of Rs.S,000/- each to the complainant Mtrhamtnacl Kharn. They were also convicted uf s 337-A(ii) PPC a*d sentencecl to suffer R.I for five (05) years each as "Ta'ztr" and to pay arsh at the tune of Rs.l0,000/- ear:lr to complainant Mtrhamrnacl l(han. They u/ere also courriclccl r-r/s 337-t;(i) PPC and sentencecl to suffer R.l for orle (01) year each as "'L'a'zit" ancl to pay Daman to the tune of Rs.2000/- each to the cornprlttinant Muhammad l(han, However, all the sentences were orclerecl to rtrn concurrently. The appellants were au,arclecl benefit of section 382-Cr.p.C.

2 T'he facLs of the prosecution case as per IrlR are as uncler:- "Tltnt, o, 22.01.2000 nt 2100 horu.s complninnnt Mttharrtrrmd Kltnn lotlgcrl F/1t sfa !ittg tl'terein tlnt lrc is Znnrindar. -l-adny, on 22,01.2000, lrc nlong ruitlt ltis brother Mtrlurntrrmd, lart Hnii s/o Aluned l-nghnri nnd Clruinrn Httssnin s/o Klutdn Brtx Lnghnri nt nbottt 6-00 li,nt, luttl gt)ne to atterrcJ tl.te nmn.inge ,f LTnslint Kltnskltcli nrrd rulrcn llu:.t1 TUerc rettn'nirrg to tlrcir aillige it abortt 7-00 l),ttt, n.fter nttenrlirtg llrc rrrnrriage irtd Tuere goiig by tlrcir ruolorc.rlclc utlrcrt itr .l)'ottt of the tents ofitrc rtnrriagu,Zl fr.rrio ratrl, tlrcy snrl llrcre llnii s/o r\luneri. Lnglmri, Asluif s/o Buxan Lnglmri u)erc nlso goittg by foot urd ruheru nt nbottt catiing distnnce T(ttts couererl, tlrcy snlU thnt Hyder s/o Jtn'io, Brrxnn s/a Sid"dlc Jnnmri, Siknttdnr s/rt Arlcltnr Jttnnri rulro hnd also attencled the nboae nmrringc TPct'c nlrenclry:;tnrtcling tlrcre nnd tlrcy T.uere preaiottsly tlrrcntering llrcrn tmcl {l rcy stnrtecl nbusing.'[hereafter, Siktmdir ntrtl Bttxnn reltentedly gnue lntlil blortts i cornplainnnt nncl ltis ln'other lrut lt/hlmnmnd. ln tlrc ruenmultile, 'Hnji s/o Ahmecl I-nglmri, Gltulnttr Hsrrstitr s/o Hnji l{lurcln lJr.tx Lngliari nnd Asluaf s/o Iluxfitl Lnglmri nlso renclrcd tlure nncl in tlrcit:preseftce, Hyrte"r Jnrunri fired frortt his country rtrnda pistol nt tlrc co'nrylnittnt.tt strniglfi[y uti711 intenl:iott to corwttit tlrcir nttn.der, as fi result i*.ty 0f tolich ltrotlrcr of cornplninnnt lnn Motlmnunncl srrstained injttry oit lils clrcst t:ts ruell ns cor4tlnintrut nlso sttstninecl pnltet iliries, Tlteren.fter, dtrc ttt itttcruurtiorr rt! Ashrnf, Glutlnrtr Hr.,srn[n mrcl Hnji, rulrtt raltritttrrttded Ilrc trr,c'ttserl, tlrc ncctrced rtmde their esc,pe good, 'l'ltert cr)tttTtluirttttr I yturty toolr irujtn.ed Jan Altilmntrnnd to lrusytitnl for trcntrrtenl itt tlrc Dntstm of Hnji Al'.i Hnssnn Lrutd,, Bttt tl:c brotlrcr o.l'r:orrtTtlnitunrt sL{cunfilted to tite injttries on tlrc ruay so thcy ltnue cottte nlorry ruitlr lis clend aiAy nnd thereifter, cotrtplnirrrtrtt TUettt to PS ntrd rcprtrt tlrnt ncutsecl nnnrcly Hyd.ei s/o Jttritt Jntttnri, IJtt:urrtr s/tt Siddik Jntrtnri nnd Siknnd.ar" s/i lvletur

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Jaunri in fr.n'tlternnce of tlrcir conm'nn intentiorr lmae coruniltted rnm'cler of lis ltrotlrcr Jnn lt/Lr,tltanrntnd."

3.After usual investigation police submitted the challan before the Court concerued and after completing necessary formalities, learnecl trial court fraruerl Lhe clrarge agairrst the accused /appellants, to which they pleadecl not gr.rilty ancl r:laimecl trial.

4.At trial, the prosecution in order to prove its case examined g wihresses and exhibited nlrrnerous documents and other items. The s ta tetrrent-s of acc usecl \,vere recorded under section 342 Cr.P.C rvhereby they each cleniecl the allegations leveled against them alct clairned tl"reir false in'rplication by the complainant. I{owever, neither they examined themselves on oath nor led any evidence in their clefence.

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5.Learnec{ trial Court after hearing the learned counsel for the p;rrties and exaurilting t-hc evitleuce nvailable on recorcl convictecl a1c1 seutenced the appellants as st"atec[ ear:lier in this judgrnent.

6.The facts of the case as well as evidence producecl before the trial court fincl an elaboratc'mettLion in the irnpugnecl judgment passed by the tlial court atrcl, therefore, the same may not be reproduced here so as to avoicl duplication and unnecessary repetition.

7 , Leaured aclvocate for the appellants has contencled that the appellauts are innoceut and have been falsely implicated i1 this case by the cornplainant dr-re to enrnity; that there have been dishonest improvetnents in the eye witness evidence whicll renders it unreliabte; that due to a lack of light t['re eyc rvitnesses cor-rlcl not have reliably iclentifiecl the appellants; that l-he rer-ovcred lathies were foistecl on the appellants; that there \,vas lro eviclence that any wedding even took placc aucl thr-rs for atty or: a 1l of the above reasons the appellalts be acclr-ritted of the charge by extending thern the benefit of the doubt.

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support of his coutetltions ire placed his reliance pn the cases of Sardar Ilibi and another versus Munir Ahmed and others 12017 SCMR 3441, Muhamurad Mansha versus The State [201S SCMR ZTZ], Azh ar

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Melunoocl ancl others versrrs The State 12017 SCMR 135], Muhammad Asif verslrs The State 12017 SCMR 486), Muhammad Bilal and allother versus The State and others 12021 SCMR 1039], Muhammad Inrrau versus The State l2A2A SCMR 8571, Tajamal Hussain Shah versus The State and another 12022 SCMR 1,56T1, Mushtaq and J others versus The State IPLD 2008 Supreme Court U, Akhtar AIi and others verslrs The St'ate [2008 SCMR 6] and Ali Sher and others versus The State [2008 SCMR 707].

B. Learnect Assistaut. Irrosecutor: General Sindh on behalf of the State alorrg with leaured corlnsel for the cornplainant, after going through the entile cvidcrrt:c of the plosecution witnesses as well as other record of the case have supported the irnpugned judgment and rnainly relied on the eye witr-lesses whom they contended were reliable >- witrresses and the recoveries frorn the appellants on their pointation and as such the appeal be ctisrnissed. In support of their contentions, they placed reliance on the case of ]umma versus The State [2010 scMR 15301,

9.I have cousiderecl the subrnissions of the parties, pelusecl the tnaterial available on record anct consiclered the case laws citecl at tl-re bar.

10.At the outset it is significant to note tl"rat the main appellant/ accused Ghu lerrn Flycler who was sentenced to life imprisoumeut for the tnr-trrler of Jan Muhammed expired during the penclency of the appeal ancl the case against him abated. The other appellants were couvictcd and sentenced for lesser offences are on bail.

11 . Af ter llly reassesstneut of the eviclence based on the witness evidence and especially the medical eviclence, the blood and empty recovered at the crime scene I fincl that on 22.01.2000 at about 2100 hours near Khaskl-reli village Jan Muhammed (the cleceased) was tlrurclered by fir:e at'trr and tJrr: cornplainant receirred lathi blows.

"12. Fronr the imprr-rguecl jtrdgment it was for-rncl that Ghulam I{yder cotlllrlittecl the rnrrrcler of Jan lr/uharnmed who has now expirecl. The

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lllain role attribtrted to the appellants is that tl-rey hit the complainant with Iathies and caused hirn serious iniuries. The question before me therefore is whetl^rer the frl'osecution has provecl its case against the appellants Lreyoncl a reasonal,lc' cior-rbt. T'hat is, was it the appellants who seriously inlureci the accusecl by causing him lathi blows.

13' After lny l'eassesslnent of the evidence on r.ecorcl, I find that the prosecutiou Jras l\ol' Pt'tl,c'cl Lreyoncl a reasonable cloubt the charge against the appellants for it'hich they wele convicted for the following

IEASONS;

(u)l.hc pr'osecutiotr case mainly rests on the evidence of the eyc n'iLucsses whose eviclence I will examine in detail below;

(i)PW 1 Mtrhanu,ecr Iflran. I{e is the comprainant tlris case. Accorclirg Lo his evidence on 22.0-12000 i, af ter attendi^g the rnarriage cererrrorly of lrJoor M,hanrmed at village Kashi<heli he was returni,g home o, a motor lrike when the appellants armed rt'ith Jathi's attackecl hi'r and the expired Grruram IJ1r6{g,' l'i.ecl a pistol shot at his brother Jan Muharrrrrcr{ whicrr hit hirn i, the chest ancr kiled hi,r Lrel'o'e uralci,g trreir escape gooc1, \{e have rroted that although the complainant loclgerl hir; IrIR r,vith promptitucle he has macle a number ol' r{isho.est irnprovements in his evidence.

lior exarnl:le, he does not say that he received pellet i,juries in his eviclence whicrr he stated in his FIR a.cl i, his l"-IR he does not_state ary source of light br"rt in his cviderlce states that , ,o,_rr.e of light was from the r,'eclding. I, this respect reliance on the ci-rse of Muhanu,ecl Ma.shais-placecl (supra). Irtrrtherlnore no eviclence has ac[rrally bee. lead to prove that a raredcling clid in fact take place on tl-rat llor o.xamlr[,,, ,o wit.ess of the weclcli,g ^ig,ht. party \'vels callctl tr givc eviderrce ancl r-ro weclcliig card \'vas cxhibiteLl. T'rrc appeilants i, trrere sectio, 342 cr'. Irc s ta I er,e, ts cteny trra t trrey a tte.clecl any wedcling o, the in question. At the tirne of the attack it w.s dark ^ight yet no light bulb was recoverecl rt'hich casLcs t{oLrlrt on the cornplainant,s ability to irL',tif}, wiih accLrracy his attackers. I. this respect relia,c* is 1:lacecl on tire cases of sardar Bibi (supra) *.c1 Azhar Mha,rood (supra).In his evidenc* ir.,i,

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wilrress ac{rnits that he dicl not know appellant Allah Ilux from [-,efore so this begs the question as to hoi,t, Lrc vvas alrle I"o identify hirl ancl nalne hirn in thc FIR il'hc clid noL l<r-row who he was unless he hacl conrjultecl with other wihresses ]:efore he lorlgerl his IrlR which possibility cannot be ruled out as accorclirrg to the evidence the police told him to pro anr-{ collect the witrresses which is hardly in line r,vith a proper police investigation where the police fincl out [l-re witnesses and record their Section 161 Cr.PC staLernents. According to the evidence there was also enrnity between the parties and thus when all these factors are taken together we find that we cannot safely rely on the evidence of this eye witness cspecially in terms of the correct ic{entification of the appellants.

(ii)Ey" witness PW z Haji is a chance witness who gave his e1,e w i t I tgss Sec tion 1 61 Cr:.IrC s tateme nl 7 tlay:; af'tet' the inr:irlent withor-rt any explanation for such rjela1,. l1 is wcll settlcrt by llow that such r{ela1,srl e1,e witncss section 161 staternents renders the evidence oi lhe witness unreliable and as such we place no reliance on the evidence of this eye wil"ness. llr this lespect reliance is placed on the case of lVltrh;rnrrned Asif (Supra).Aclditionally it was clark whcn the incident took place, there is no eviclcnce that he knew the appellants from before, no solrrce of light was recovered and as such we in arly even cannot safely rely on his evidence as correct"ly irlentifying tire appellants.

'l'hus wc clisbelieve the evidence of both eye wi Lnc,sses especially irr terms of correctly inrlen tifying the a ;rpel lan ts.

(iii)Wc have tlorrlrts its to the recovery of the lathies op Lhe proi.Lar Lion of the appellanLs. This is l:ecause befole thc' arppellants pointecl out where the lathies vvere hic{clerr in the bushes outside their house the police hacl alreaciy raided the houses of the appell.nts arrc{ sr:arched both the houses of the appellants ancl l:ushes out side. This begs the questio. as to why tl-rey were not able to find the lathe's at this tirne but magicaily founcl them in the Lrushes ou tside the appellant's house o11 their pointation. 'l'[rus, based on this evidence it cannot be ruled ou L that the lathes were foisted or1 the appellants.

(i") 'Ihat importaut eye witrresses Ghulam Hussain and Ashreif wL're droppec{ by the proseclrtior-r withor-rL

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;i.y expla.a tio. a,d thus the prosecution failed to prodlrce sorne of its best eviclence ancl the dropping of Lhes.: two eye vvitnesses by the prosecution leads to the inlcrcnce under section tig (g) eanoon_e- slrahadat ordi,alrce lg}4 that these wihresses woulcl not have supported the prosecution case. In this respect reliance is placed on the case of Mr"rhammecl Asif (Supra).

(") It is t-rue that the,rectical eviclence supports the lrrosecutio,'s case vis a vis the injuries suffered lry the cornplainant. This evidence however can only point ourt the set of Lhe injurry ancl wlrat type of \vci1pot1 lrla\/ have ,*-atrsed it. It cannot identify the crr Ipri ts.

14' 'Ihurs, basecl on the above cliscr-rssion, I find that there are doubts in the prosecution case anct it is well settled by now that the accused is entitlecl to the bencfit of t]rc cloubt by way of right as opposed to > concession and as such basecl ou extencling the benefit of doubt to the appellants, the appellants are acquitted,of the charge, their appeals are allowed, the irnpr-rgnecl juclgment is set asicle with respect to thern and theil bail Lroncls stancl clischargecl anrl they are free to go.

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