Ramji Kolhi (Appellant) VS The State (Respondent)

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cIIIMINAL APpttAL lyo. s*67 of z0l0

RAMJI VI ST Il Ir STAl'E

SINDH HIG H COURT CIRCUIT COU RT HYDBRAB,.'

CONIPOSITION OF BENCH

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I I (} N' I} I,Ii N,I IT. .I LIS]'I C E, I\{ ()I I AM ]VIAI) I(A ITI NI I(H AN A(] I r ,, (s.B.I D,Lc .f last hi:,r-i,g (lrr:urcl/ r-r:scrvr:c1) : 14 11'2o'.2?, I D<:r:iclr:cl rir-r: 20- 1 I -2023

(a).Iudgmr:nt. approvc(l lrlr rcpor-l.irrg YES

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enunciates a principle of law ldecide a questiol of ln,uy u,hjt:i-r of first impression/clistinguishes over-rlllcs/explaips, prcvirlus clecision.

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IN -I'II IIIIIGI I IIOL]R]' OII SINDI I (]I IT'I'(][JI'[' ( J tr{',1' H\/DIttAt]At) CRL AIIPEAI- NO: ,5"' (,,/ On 20 I0 Ramji son of l(ararnslri, I-Iinchr, achrlt, I(olhi by caste, Itesiclent of Zalriclabad, Talrrl<a l-lussirin Bux N4ari, lasil MPRhaf ' a.J- {ln,,*l- (n f-A-d e**lit ---Appel I ant/Con vi ct ,7"n /*T'Y ,r?

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a C)". r\ppcal No.S-67 ot'20 I 0

lfAl'll OltDlr,lL WI'II I SICNAI'L]RI] OIt J L]DCIi t4. I 1 .?023

Mr. Aziz Ahnrecl I-aghari, Aclvclcate 1or appellant.

Ms. sana Memon, Asst. prosecutor ceueral, sinclh.

I liavc healtl the lcat'ttecl counsel for the allpellant arrcl lear,ecl A.p.G. t -,t.

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HIGH COURT OF SINDH, CIRCUIT COURT AT

HYDERABAD

a Crirninal Appeal Irlo.3-67 of 2010 [Ramji versus The State]

Appellant fhrough Mr. Aziz Ahmed Leghari, Advocate

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Co r rrl: la i rr a lrt Corrrplainant expirecl, however on 30.-10.2023 his son namely Manu appearecl and reposed full faith antl confidence in learnecl Stat'e Counsel.

State Through Ms. Sana Mernon, Assistant Prosecutor General, Sindh.

Date of hearing 74,17.2023 r'

Date of decision 20.11 ,2023

IUDGME htT MOI-IAN{I\{Atf I(AIlIhiI I(HAN ACHA I.- Through this Crirninal Aprpeal the appellant llamji l-ras impugned the Juclgment clatecl 02.02.2010 passecl by learnecl Sessious Judge, Nlirpurkhas (Trial Court) in Sessions Case No.28 of 2006 [The State versus ltamji],.outcorne of Crime No.02 of 2006 registered at P.S Mirpur Old for offence punishable ttnder Section 302 PPC, whereby he has been convicted and sentencecl uf s 302(b) IrPC to suffer rigorous imprisonment for life with further directions to Pay Rs.50,000/ - as cornpensation to the legal heirs of { cleceasecl under Secticln 544-4 Cr.P.C ancl ir-r case of default in payment tlreleof he has to fr.rrther suffer simple imprisonment six rnonths more, 'l j Itot,i,ever, he has heen extended benefit of Section 382-8 Cr.p.C.

'I'he brief facts r:f tlre L prosecution case are as uncler:-

"cotr4tlairtnnt Nnilru lodged tlrc FIR on 1g.02.20a6 by statfug tlwt ltr" is fnrnrer by professiotr snd lws tl'u,ee sons and six diughteri; llmt lds dmtgliler Sht. l3atuli hnd ruarried with Ranli Kotili nbiut one{

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yenr bnch irt ttillnge Zahidnltnd; tlutt yesterday he nlong-tuitlt his elder son ManLL Tuent to Zahidnbnd to see his daughter Sht, tsawli; that in the niglfi lds dnr.tghter contplained tlrcm thnt lrcr husband Rantii r.tsed to rualh'eat l'rer oyr petty runtters, ns such lrc mtd his son tried to malce \ llnnrji rntderstand thnt lre should not nmltreat Sht, Baruli on petty rnntters, due to u,lich Rnnji becmne nnnoyed; thnt nfter tnldng nrcal " tlrcy nll ruent to sleep nrud irt tlrc nrcrning Ramji went totuards lsrrds for ruorlc pwpose nnd lis dnughter Sht, Baruli also ruent behind her Irusbmtd llmnji; therenfter Llnria tkllti mrd Diynlo Kollil ciltne to urcal \Lrcru, tlrcn lrc nlong-tuith lis son Mutru, Hfirio ancl Diyalo went toturrrrls lnnds to uisit the crop nnd nt about 1,'145 lwr,ts tlrcy lwnrd tlw. cries of lndy froru tlrc crop of rugnrcilt"Le nt the distance of abaut four ficres, lrcnce tl'rcy ruertt inside tlw sugarcilvrc crop and salt) that Itnrnji Turts cmsing hntclrct blaw to lds dnughter, ru|rc was lying orl lnnd; tlmt they runde ltalwls to llaruji, rulto on seeing theru made lils ascnpe gootl nlong-ruitlt lmtclret; thnt lis dmghter becnme L;t'tcotzlciotts and clied nt the spot".

3.After usual investigation, Investigating Officer submitted his report before the concerned Magistrate, who took cognizance and then sent the case papers to learned trial Court, where copies were supplied to ac*cused and charge was framecl against him to which he plead not l

guilty anrl clairned trial.

4.ln order to pr'ove the case, prosecution exatnined eight (08) witnesses who cxhibitccl variotrs clocutneuts and other itetrrs. fhe statement of appellant under SectionS42 Cr.P.C wet'e recorded wherein he clenied the allegations of prosecution witnesses, however, neither he exarnined himself on Oath nor led arly evidence in his defence. The learned tr ial Court finally after hearing the learued counsel for the parties and considering the evidence on record convicted and sentenced the app-rellant/accused, as lnentioned earlier in this judgment.

5, Learneci trial court in the irnpugned judgment has already jI cl iscnssed the evidence in detail and there is no need to repeat the same 't,

hcre, so as to avoicl duplication and ulrrecessary repetition.

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6.Learned courlsel for the appellar-rt contended that impugned judgment is result of rnisreading and non-reading of material available on record; that the learned trial court has failed to consider that a single reasonable doubt in the case is sufficient to bring the golden rule of benefit of doubt into operation; that there are lnaterial contradictions in the eviclence of prosecution wit-nesses which rnakes the case highly

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clor-rbtful and the appellant is entitled to be awarded benefit of said ctourbts; that learnecl trial Court has not considered all the facts, i cirt:unrstances, concluct anci attittrcle of the witnesses on the judicial ; scale thor-rgh the provision of Section 367 Cr.l'.C manclates so, hence on t6is count alone the impr-rgned judgrnent is liable to be set aside; that learnecl trial Court has failed to consider that during cross-exatnination cornplainant had stateci that " |rc does not lmoro ruhst tufis ruritten in tlrc FIR ns 1rc is illiterate persotl" ; that even the complainant does not know that on whose lalcls this incident had happened; that learned trial Court has failecl to consider that cornplainant is not the eye-witness of the inciclent as he cluring cross-examination staLed that "I ntyself Lmd ttot seert ctccused bt1 inJlictirtg lmtclrct injtu'ies to Sht, Bntuli", which is contradictory to the vt:r.siop of FIR; that PW l{ario in his eviclence had clearly stated that he , .]J is pot the eye-witness of the inciclent and some persons disclosed hirn tlrat l{anji hacl committed rnur'der of Sht. llawli and that delay in L lgdgnept of FIR has not been considered ancl that for all or ally of the above reasons the appellant should be acquittecl of the charge by extencting hirn the Lrenefit of the doubt. In suppott of his contentions he has placed reliance on the cases of MUHAMMAD ASHRAF ALIAS ACCHU versus THE STATE [2019 SCMR 652] and, AMIR MUHAMMAD I(HAN versus THE STATE 12023 SCMR 5661.

T. Cornplainant had expired as reflected by the diary sheet dated 30.10.2023, however, on said ciate his son Manu had appeared and r r;:per*r, full faith and confidence on learned State Cottnsel to proceed

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with this case.

8.Learrred Assistant P.G vehemently opposed the appeal ancl prayed for its clisrnissal by arguing that appellant is nomiuated in FIR lF with specific role of causing death of his wife; that Prosecution witnesses have fully supported the version of FIR and there llo contradictions in their evidence; that medical evidence is supPol.ted by tfue ocular eviclence; that parties are known to each other as such there is no question of mistaken identity. In support of her arguments she placed reliance upon the reported cases of QASIM SHAHZAD AND f

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AI\OTI-IER verslrs TFIE STATE 17023 SCMR 117J and/ AMANULLAI-I versus THE STATE 12023 SCMR 5271.

l'- \^ g. I have hearcl the learr-red. counsel for the appellant as well as Iearnerl A.I,.G ancl have also perused the material available on record.

I0. IJasecl on rl1y r"eassessrnent of the evidence of the PW's especially the medical eviclence ancl other rnedical reports and recovery of blood at the crine scene I find that the proseclltion has proved beyond a reasonable cloubt that Mst Mrs tsawli (the deceased) was murclered by a sharp cutting instrument on or about 09.02.2006 at 11,45 hours in the sugar cane crop at the lancl of Zahid I(han Mari deh 101 Taluka Hussaiu lJux Mar:i.

11.The only question left before me is whether it was the appellant w5o" murclered the deceased by firearm at the said time; date and l Ii',cation?

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'lZ. After my reassesslr-rent of the evidence I find that the prosecution has NO'l provecl beyond a reasonable doubt the charge against the appellant keeping in view that each criminal case must be decided or-r its owr-r particular facts and circumstances for the following reasons;

(u)The FIR was lodged within t hours of the incident and the delay has been reasonably explained by deceased being taken to hospital for post rnortem and then released for burial atrd as such is uot fatal to the prosecution case especially as the appellant was natned in the FIR with a specific role along with the eye witness. I am however put to caution by the fact that prior to lodging the FIR the complainant consultecl with the landlord Zahid I(ran Mari although this rnight have been because he was an illiterate FlersoIl.

I (Lr) I find that the prosecution's case prirnarily rests on the eviclence of l"he eye witnesses to the rnttrcler of the deceased ancl whether I believe their evidence whose evidence I shall consider in detail below;

(i)Ey* witness PW 1 Nathtr. He is the complairrant and father of the deceased. According to his evidence he had gr)ne to visit the deceased and the appellant and he had tolcl the appellant to stop mistleating the cleceasecl o11 petty matters. I-Ie stayecl ovel' night in the house of the appellant anrl the deceased. In the morning the appellant left the house followed lry the deceased to his land. He, t

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Manu, I-Iario and Diaylo also went to the land. FIe heard cries from his daughter at sugar catle crop where upon he arrd the others rusherl there and saw the appellant hitting tl-re deceased with hatchet blows wllo ran away. W1-rilst he was making arrangernents to take the deceased to hospital sl-re cliecl

No dor-rbt tl-ris was a duy light incident and the "j. cornplainant [<uew the accusecl so identification ought not ustrally l:e a protrlern in such cases. However I find that the cornplainant was a chance witness who lived L5 to 20 I(M's away and he ancl his soll PW Manu l-rad no particr-rlal: l'eason to visit the deceased. According to his evidence he went to Diyalo's laud frorn where he heard cries which lancl is over a rnile away whicl-r l-re then changes to 2 acres which even otherWise begs the question how he hearcl the cries. The sugar cane croP was above the height of l"ris head and it cloes not seelrl plausible tl-rat he coulcl have reached the scene of the rnurtler and see the murder still taking place from a clistance of or-re rnile or two acres as he would have to search through the sugar calle to find out where the cries were coming from. Even during cross examination he goes back on his eviclence in chief and admits that, " I ttry sett did rtot see the acurced inflictirtg hatcltet iniuries to Mst l\awli". I-Ie also had a rnotive to falsely implicate the 'l ,l appellant in that he was mistreating l-ris daughter over petty rnatters. 'I'hele are also nullterous contradictions of a material nature betrnreen his evidence ancl the other eye witnesses. It does also uot appeal to logic, reason and cotrlltlotlsense that the appellant would tnurder t]re deceased whilst her father ancl brother were visitiug hirn. If he wanted to kill her he woulcl have waited until thel, harl left and returnecl back to their owll village As such for the reasons meutioned above I find that I cannot place reliance on this wituess as to the identity of the person who murdered the deceased.

(ii)Eye witness PW 2 Manu. I{e is the sorl of the complainant and brother of the deceasecl. According to his evidence one duy prior to the incider-rt he, the complainant ancl his rnother went to the house of the appellant to Sarnohao hirn. After taking rneal they went to l I sleep in Lhe house of MASI Bheerna ancl in the morning

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the appellant anrl his sister left for cutting gt'ass. Thereafter he, Lhe cornplainarrt, Flario and Diyalo wetrt to visit the lancl o[ l-I;rrio lrom where they heard cries of a Iacly frorn the sugar: cane crop. Thereafter they went to the cries where they saw the appellant causiug hatchet blows to the rleceased who on seeing tl-rern ran away. He weut to look for a vehicle for taking the cleceased to hospital but she had died by the tirne of his retuttr.

Again this was a day light incident aud the witness kuew the accused howevel' once again like the complainant he is a chance witness having come from his village with his father frorn 15 to 20 I(M's away. Significantly, his f

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evir-1ence differs ar-rd contraclicts the cornplainant's evidence in that the cornplainant rnakes no mention of his wife going to the appellar-rts house to Samohao the appellant (or evel1 that his wife accorrrpanied hirn to the appellants village who was not exarnined as a witness as { to her presence) and accorr-ling to his evidence they all returnecl to sleep at MASI Bheem'a house where as according to the cornplainant they all slept at the appellarrt's house. Surprisingly, according to his evidence the;, then, including l-Iario and Diyalo who were sleeping '-l with thern, rryent to the appellants house for breakfast which begs the rluestion why they did not eat breakfast at MASI's house where tl-rey slept the night and had the neecl to go to the appellants house for breakfast which is contrary to usual sirrrlhi custorn, practice and tradition when a relative stays at your holrse. T'here also seerns to be no reason why locals Hario ancl Diyalo needed to stay at MASI's house which rloes not appeal to commoll sense.

Accorrling to his eviclellce they heard the cries of a lacly from about 1 ancl a half to two acles away which again begs the question how he was able to hear the cries from so far away. He reached the cr.ime scene within 15 rninutes yet surprisingly he was still able to see the appellant hitting the deceased witl-r a hatchet. This does t'rot seelll possible as the rnurder would have lreen cornmitterl within this time perioci and the rnurrlerer woulcl have fled the scene of the crime. The sugar cane was 7 /B feet high and spread over 7 or B acres yet he was able to see the appellant rntrrdering the deceased from olle acl'e away. An acre is not a short distance and it is hardly Lrelievable that he woulcl have been abie to see anything arnollgst the 7 /S feet high sugar cane. Furtherlnore, PW 5 Dharrnoo wlro was the mashir to tlumerous clocuments stated in his evidence, tl-rat " the sug(tr cfrrrc crop 7,0fls uiltiuatetl on B/9 acres. The heiglrt ol' tlrc sugrtr cilfie wus sltove lhe height af u hunurn being,The place af incident wus rtot visiltle outside the plnce of the silgilr cfine crop" so it beggars belief as to how this eye witness was able to see the a1:pellant committing the murder of the cleceasecl. PW 5 Dharmoo also states in his evidence that that, " it is correct that acctrsed ltarnji was cultivating some land which was not the place of t'he incident nor the place of recovery of the hatchet'" This begs the question of how the accused carne to l:e at the wardat with the deceased wl-iich was not his lancl when he had left for cutting his lanc1. T'his eye witness aclmits not giving a Section 16L eye t witness Cr:.PC staternent to the police and only gave his Section 164 Statement to ther magistlate nearly 3 weeks after tl-re incident. lt is well settled by now that the failur.e to girze a section L61 Cr.PC eye witness statement for weeks orl end is fatal to the evidentiary value of that statenrent. I-le was namecl in the []IR, his father, gave his FII{ on the day of the incident anc{ as such there was no excuse in not recorcling his 5.161 Cr.PC eye witness staternent in a tirnely manner.

As sucl-r for the reasons rnentionerl above I find that I

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cannot place reliance on this witness as to the identity of the person who rnurderecl the deceased,

(iii)I3ye witness IrW 4 Hario. This alleged eye witness as per' *{ the FIR stated in his evidence that he did not see the incident btrt was told abotrt it. I{e was declared hostile and was cross examined by the prosecution. During his cross examination he statecl that he gave his statement because the police asked him to give the statement which they wanted. He has not supported the prosecution case. I-Ie was an irnportant witness as he was an independent witness ancl was not related to the deceased where as all the ot'her cye witnesses wet'e closely related to the rleceased.

Thus, I rlisbelieve the evidence of the eye witnesses as to the iclentity of the rnurderer ancl fincl this to be all u nwi tne ssecl murcie r.

Other evidence ancl considerations

(.) Another allegecl eye wituess in the FIR Diyalo was also given up by the prosecution as soon as P\,V 4 Flario was declared hostile as such under Article '129 (g) Qanoon-e- L.- Shahadat Orclinance '1984 the infererlce can be drawn that he would not have supportecl the prosecution case. This is a logical assllrnption as once l']W f{ario was declared as hostile coupled with the cornplainant admitting that he did not witness the incident in his cross examination it would

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Diysls in order to bolster their flagging case but insteacl he was giverr up by the prosecution *itno"t explanation.

(r"1) l'hat accorcling to the evidence of the complainant thei appellant left his house and went towards his land at Barn whereas the cleceased left the house towards the land a L lOarn precisely 2 hours later and as such there is also no last seen evideuce as the appellant ar-rd the deceased left the house separately 2 hours apart and there is no evidence thal: they both ended up at the same place approximately 2 hours later when the deceased was murdered.

(*) 'I'hat the prosecution has not proved that the appellant had any tnotive to rnurder the deceased. On the contrary it was

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the comprlainarrt's side who were angry about the way the appellarrt was treating the deceased who was their i il daughter.

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(0 That altl-rough the rnedical evidence supports the prosecutiotr case it can only identify the nature of the irrjury, the seat of the injury and type of weapon used but is of no assistance in identifying the perpetrator.

(g)ln essence the only piece of evidence left aqainst tl-re appellant is the fact that he recovered the hatchet on hi7

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own pointation which was tnade 4 days after his arrest which arresL occurred 3 days after the incident. The hatchet was allegedty found amongst the sugar cane so how the appellant was able to find it when the police were not able ,' {' to c1o so when inspecting the wardat castes doubt on its recovery which in any event could easily have been foisted on the appellant as he suggested during cross examination of the IO.

13, T.h1rs, based on the alrove c{iscussiotr, I find that the prosecution has-l\OT proved its case against the appellant beyond a reasonable ,l

,l tloubt ancl by extending the appellant the berrefit of the doubt for the leasorl$ cliscussecl above, which he is entitlecl to as a matter oI right as gpposed to concession, I hereby set aside the impugned judgnrent, allow the appeal and acquit the appellant of the charge. The appellant on bail shall have his bail bonds discharged and he is free to go, '14. 'I'he appeal stands disposed of in the above terrns. l-

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