Fazil (Appellant) VS The State (Respondent)

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Datc ol' larsr ]rcaring (hearrcl/ rcscrvcd): 07- l l _2o2:J Dci:idecl rin: 15-11-202:i

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CERTIF ICAT-E

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Cr. Jail Appeal No.5-4212014 :i

Fazil S/O Mir Gul Tehlani, confined in Central Prison Hyderabad ...Appellant Versus -fhe Respondent State

Sessions Case No. 3OB l?frLL Crime No. Lll l?.OLL

Police Station B-Section Nawabslrah U/s 302 PPC.

ORDER SI{EET

hIN(}]{ CCIURT OF $INDhI , CIffiCUIT TOURT, HYDEITABAt} a Cr. Jail Appeal No.S-42 of 2014

DATE ORDER WITH SIGNATIJRE OF JUDGE(s) For lrearing of ntain case.

IVlr. IVlumtaz Ahmed Lashari advocate for the appellant. lVIr. Nazar lVluhammad N/emon, Additional Prosecutor General.

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llrave heard learned counsel for the appellant and learned Additional Prosecutor General. Complainant has treen served br-rt l-re preferred to remain ! ;rbsent, lrence, his interests have [reen looked after by learned Additiona] t i Prosecutor General. Reserved for judgment.

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IFJ TIII] I_IIGH COURT OF SII{DH, CIRCUIT COURT

HYDERABAD

Criminal Jail Appeal INo. S- 42 of 2014

FAZIL

Versus

TI{E STATE

Appellant : Fazil s/o Mir Tlrrough lVIr. Mumtaz Ahmecl Lashari, Cul fehlani. Advocate.

I I?espondent : l'he State fhrough Mr. Itlazar Muharnmad Menron, Aclclitional Prosecr-rtor General, Sindh.

Co urnsel for the cornplainant called absent withourt intimation.

Date of hearing 07.11.2023

Date of juclgrnent 15.11 .2tJ23

IUDGMEhTT

h,IOI{AMMAD I(AITIM I(ILAI\ AGI-IA, I.- This crinrinal appeal is rlirected against the juclgment datecl 15.02.201,4, passed by the learned l-st Additional Sessions ]udge, Shaheed Benazirabad, in Sessious Case No. 308 of 2071 (re: The State versus Fazil), ernanating frotrr Crirne No.111 of 2077, registered at Police Station B-Section, I{awabshah, uuder section 302 PPC, whereby the appellant Fazil T'ehlani has been convicted u/s 302 (b) PPC as Ta'zir and sentenced to sufl'et imprisonmeut for life for cornmitting the rnurder of deceased Mst. Mc'rre Zadi. He was also clilected to pay 1ts,100,000/- (Rupees One l_

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Lac) as colrrpensation to the legal heirs of deceased Mst. More Zadt as proviciecl uls 544-A Cr.P.C; and, in case of non-payment of said 1 coprpepsation, the appellant shall further undergo'SI for the periocl of 06 rnonths. I{owever, benefit of Section 382-8 Cr.P.C was extendecl to the appellarrt.

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2 'I'he lacts of the pl'osecution case as rrtelltioned in the FIR' are as uncler:-

"On 23.07.201't nt 1.430 hours coruplniluult Mir Hazar l(lmn '['elrlmti nppeared nt Police Stntiott B-Section, Ncrcuabshnh mtrl lodged /-IR, stnting tlrcrein tlmt Irc has seuetl dnugltters and his fotrth nrnnber dnt,tghter nandy lvlst. More Zadi aged nbout 1.6/17 yertrs is t.umrarried. Since long tirue lis neplmu nanrely Fnzil s/o Mir Gul Tcltlnrui (tlrc present nppellnttt) ruas aslcing ldm tl'rut lrc will kilt l4st, ltAore Zndi ns lrc lms atspiciort onlrcr chnracter nrldlrc wns nlso snying tlmt Mst, ItLore Zndi is rtot of n good charncter, Todny '[elilnni mtd llrc contplninnrtt and lris crnrsins lnlal s/o Kltud'n Bux , N4r,ilmtntmd Pnnalt s/o lt/l.ttlmrurund Arnin Tel'tlnni TLtere sitting in tlrcir lrarrse nnrl lis dnuglfier \tAst. More Zndi ruetrt otttside tlrc lrtsrtse for tt,nslting the clallrc nt pond ntljrcent to lds lrouse, At nbout 07:30 harrrs thq ltenrd fiuo fire slrcts noise ft'ottt the pond side, tlrcy irrtrrrctlintely rurclrctl torttards tlrcre ard sfilu tlut Lnzil Telinni lufis strnighf firing uporl ltis clmryhter, to rulnnt tlrcy grtae lmlrnls but lrc rfin nrLtal/ torunrds tl'rc utesterfi side alongruith ruenpon, Thert tlrcy snrt) tlrnt one firenrm runs hit to ltis daughter orl the rigltt side of neck nrud pnssed tluough nnd tltouglt from lrcr forehend artd fioo fire slrctslit ott lrcr bnch torunrds right side nnd left side nnd one lire shot Tttfis hit ort her riglfi side of forenrru antl slrc runs lying on tlrc cnrth and duc to firenrm injwries sl'rc runs expired. Then coruplninnnt ttft tlrc nhoue nnnred ruitnesses ouer tlrc dend body artd zuent to ilforru tlrc Ttolice nnd lodgerl report ngninst his ttepl'rcw Fnzil 'l'elilnni thnt lrc ltns connnitted tlrc nnu'der af ltis dnuglfier Mst. More Zsdi on fnlse susTticion ott her clmrncter, l'rcnce this FIR"

3.After usual investigation police submitted the challan before the Courb concerned ancl after completing necessary forrnalities, learned trial Court frarned the charrge against tl-re accused/ appellant, to which he pleardecl not gr-rilty ancl clairned trial.

4.At trial, the prosecution in ordel to prove its case examined 7 witnesses and exhibitecl numerous documents and other items. The statement of accused wers recorcted ur-rder section342 Cr.P.C whereby he cleniecl the allegations levelecl against him and claimed his false,t

in'rplication by the cornplainant. I-Iowever, neitl-rer he examined himself on oaLh nor' lecl any evidence in his defence.

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5.Lealnecl trial court after hearing the learned counsel for the par:tjes ancl examining the evidence available on record convicted and scntcncerl the appellant as stated earlier in this judgment. I{ence the appellant has filecl tl-ris appeal against his conviction.

6, Learnecl trial court in the impugnecl judgment has already rlisclrssecl the evidence in cletail and there is no neecl to repeat the satne here, so as to avoicl duplication and unnecessary repetition.

7.It is also noted that the complaint appointed counsel but l-re preferred to rernain absent without intimation. Since the appellant had trlreatly spent a number of years in jail and the interest of the , complainant could be looked after by learnecl AIIG in the interests of J trstice I proceedecl with this olcl appeal of 201,4 ancl have decided the sarne through this judgment.

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8.J .ei,t ruecl aclvocar te ltor: tl-re appellant has contencled that the appellant is inuocent anc{ lras been falsely implicated in this case by ther complainant; that it was an urlseen incident and that the evidence of the sole eye witness coulcl not be safely relied upon; that there \ ret:e tnaterial cotrtradictions in the evidence of the proseclttion wihresses which rendered their evidence unreliable; that no recovery had been trrade frotn the appellant and as such based on all ot' any of the above circutnstances the appellant should be acquitted of the charge by being extetrclerl t-he benefit of the doubt. ln support of his contentions he placetl t'eliance ou the cases of Muhauunad Shoban versus The Stat'e 17022 SCMR 16081, Sarft'az Nlasih versus The State [2017 P.Cr.L.J 280J, Mnhamuracl Din and others versus The State and others [2018 YLR 850], Saeedul l-Iarlue alias Abdullah and another versus The St'ate [2018 YLI{ 242), Muhatntnad Ramzan ancl another versus The State [2006 P.Cr.L.J 1739), Mian I(han and 3 others versus The State and another [2018 MLD 2267, Saifal and another versus The State l'1976 Ir.Cr.L.J 4761, Sarong versus The State 11976 Ir.Cr.L.l 2541, Umaid AIi

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ancl another versus The State 11971, P.Cr.L.J 671 and, Yousaf I(han versus The State and another [2005 YLR 901].

i g. Learnecl Adclitional Prosecutor General Sindh on behalf of the State, af ter going through the entire evidence of the Pl'osecution witnesses as well as other recorcl of the case has supported the impugnecl juclgment. I-Ie rnainly contendecl that the FIR was loclged .: withogL delay naming the appellant with a specific role; that the eviclence o[ the sole eye witness cor-rlcl be safely relied upon and that the meclical eviclence corroboratecl the ocular eviclence and as such the appeal be clisrnissed. In sr-rpport of his contentions, he placed reliance on the case of Sajid Mehrnoocl versus The State !2022SCMR 1BB2].

10.Basecl on lny reassessment of the evidence of the PW's especially the sredica I eviclellce anrl other rneclical reports, tapedar's u evictence/sketch and recovery of blood and empties at the crime scene I fincl that the prosecution has proved beyond a reasonable doubt that Mst Mourzacli (the deceasecl) was murdered by firearm on or about ?.3,07jlAL- at 0730 hours at waLer pond near village Jumoon l(han .f arnali, Deh I(hiyaryoon, Talika Nawabshah.

11.'fhe only questior-r left before rrle is whether it was the appellant who rnurclerecl the cleceased by firearm at the said time, date and loca tion?

'12. Af ter my reassesstnent of the eviclence I find tl-rat the prosecuticln has NOT proved beyond a reasonatrle doubt the charge against the appellarrt keeping in view that each criminal case must be decided on its on,n particular facts anct circumstances for the following reasons;

(u)Aclmitteclly the FIR was loclged with relative promptitude on the sarne clay and the appellant was namecl in the FIR with a specific role along with the eye witness.

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(b)I f inrl that the pr'oseclrt'ion's case primarily rests on the evidence of the eye witnesses to the tnurder of the cleceased ancl whether I believe their evidence whose evidence I shall consider in detail below;

(r/ Ey" witness PW 1 Mir Hazar.Fle is the cornplainatrt and father of the deceased. Accorcling to his eviclel-tce

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the accused usecl to tell him that he would kill the cleceaserl Lrasert on her bacl ciraracter. That on 23.07.20'L'L at 7.30aur the cleceasecl had golle to wash solne clothes at { the pond near their village. On hearing fire arm noise he along with Jalat went to the place of incident atrd saw that 1he .leceasecl was lying with firearrn iniuries. The accused firecl shot at the deceased and then ran away' The deceasecl c1iec1 on the sPot and then he went to lodge his FIR. During cross examination he also statecl that along with Jalal a Mr.Panah was sitting with hirn at the tirne of the incitlent.

'I'he witness is the father of the deceased however there is 1to frroven errmity with the appellant thus tlre corlprlainaut's ltleIe lelationship to the deceased is ncl reason to t'iiscarrl his evitletrce which has to be jutlged ou its own wtllth. ln this tespect reliance is placed on the cases of Amal Sllerin v The State (PLD 2004 SC 371) aud Dilclar l-Iussaiu v Muhamrnacl Afzaal alias Chala (PLt) 2004 SC 663) and Qasim shazade (Supra).I am however put on caution regarding the cornplaiuaut's eviclence.

'fhis eye wittless knew the appellant before the inciclent anct he allegeclly saw hirn in clay light tnurder his daughter by fir:earrn. Although he is not a chance witness as he was residing in the Same house as his unmarriecl deceasecl claughter I clo have doubts about his erricience for the following reasolls;

1.Accorrling to his owu evideuce he was insicle his Itouse when he healcl shots aird then calne out with Jalal who hacl been sitting with him and

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Panah. During l-ris cross exartination he states that he heartl 4 shots. fhe deceased or"rly received 4 t firearm injuries (only 3 empties wel'e recoverecl at the crirne scene) so it follows that all tl're shooting was over before he left his llouse. The tluestion then arises as to how he saw the appellant shoot the deceasecl. Eveu in his cl'oss exatniuation he states that he saw the cleceased runaway r,vith a pistol in his and which again indicates that he tlid not actuerlly see the appellant shoot the deceasecl. It is also uote worthy that in his own evideuce he states that the incident took place 2 acres away frorn his house so it is clifficr-rlt to see how clespite it being ciay light he was able to correctly identify ar-i1r one especially when they were fleeing with their bacl< to him.

2.The complaiuant's evidence is further undermined ancl fulll-rer cloubt is caste on the same by the evidence of PW 4 Jalal who states in his evidence that he was present in the city of Nawatrshah vvhcr-r the incident took place ancl was callecl to the uratteL pclnd where the cleceasetl had been ,C

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lnut'rleled by the complainant. This clearly shows that he was not atr eye witness to the incident and was not with the complaiuatrt at the tirne of the i inciclent sitting with him in his house. He was uot cleclarecl hostile and l/vas not coutraclicted on these facts cluring his evidence. I fincl this to be a lnaterial coutracliction which adversely eff ects the eviderlce of the cornplainant.

3.'l'l-re cotnplaitraut's evideuce is further underrnined anrl fr,rrther tlouLrt is caste on the salrle by the evicleuce of PW 7 Muhatnmed Panah who states in his eviclence that he came from his house in Sh;rhilatlpur aucl reached the place of incident at about 10arn where he saw the dead bocly of the cleceasecl. This clearly shows tl'rat he was not an eye witlless to the incident and was not with the cornplainant at the time of the incident sitting with him in his house. Again I find this to be a tnaterial contradiction which ftrrther adversely effects the eviclence of the cornplainant. This witness was even cleclared hostile but withstoocl t his sr-rbsecltteut cross exatni natiorr.

4, No other wituess gave evidetrce that the appellant had threatenecl to tnurcler the deceased on accouut of her barl character.

It is trtre that I can convict on the basis of a sole eye witness plovidecl that I finr-l his/her eviclellce to be leliable, trust worthy and conficlence inspiring, Ilaserl orr the particular facts and circutrrstances of this case,, o, dir.rrsser-l above, I clo not find the eviclence of the cornplainant who is the sole eye witlless to the murcler of tl-re cleceasetl to be reliable, trust worthl, anrl conficlence inspiring aud disbelieve his evicleuce- I finrl the nrurcler of the rleceasecl to be an ultseen incident.

What other evidence is there agaitrst the appellant.

(.) Now that I have clisbelieved the evidence of the sole eye witness as to the iclentity of the person who carried out the mulrler. T'he meclical eviclence is uot of rnuch consequence as it can only tell you the type of injury, seat of injury and type of .t weapon used. It canrrot tell you the name of the perpetrator of the offence.

(d)No rnashirnama of arrest ancl recovery was exhibited so there are cloubts as to when ancl where the appellant was actually arrestecl especially as the appellant clairns that he u,as al:eady in police custtlcly when his alrest was disclosecl.

(*) No tnemorandam of recovery of any pistol was exl"ribited uor was any pistol and as such the recovery of ernpties at the crime scene is ir-rsufficierrt to link the appellant to the murder.

(f)No rnotive has been proven for the mut'der of the deceased b)'

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the appellant rather only bare urlcorrobor:ated allegations of the cotlplainant that he woulcl kill her.

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13.Thus, basecl on the above discussion, I find tI-rat the prosecution has I\TOT proved its case against the appellant beyond a reasonable doubt anct by extending the appellant the benefit of the doubt for the reasons discussed above, which he is entitled to as a matter of right as oppslsecl to concession, I lrereby set aside the impugned judgment, allow the appeal ancl acquit the appellant of the charge. The appellant shall bc releasecl frorn prison unless he is wanted in any other custody

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14.The appeal starrds clisposed of ir-r the above tertns.

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