Abdul Sattar Rind (Appellant) VS The State (Respondent)

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[N TF{E HIGF{ COIJRT oF SII\TDH ilIE.CUIT C OIJfdT, HYDERABAD. cr. Appeol No.5- | 5O of ?oLL' Khsn Rindh' F.bduI Ssttor son of Bodol 6id0ro llAachi' futirtor, futuslim, R/o villoge Tslukq Sinjhoro, Di str ict ScnghorOf f ender ul eit p resent confined in Youthf Hyd ... ... A PPe I lo nt ' -LnflU strirrl School,

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J uvenile Jqil ,

Vs.

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....ResPondent ' The Stste

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iN TFIE I-IIGH COURT OF SII{DH, CIRCUIT COURT

HYDERABAD

t Crinrinal App*al I{o. S- 150 of 2011

ABDUL SATTAR

Versus

TI{E STATE

Ap-rpellant : ALrrlul SertLar 'l'hlough syecl Tarique Ahmed Shah, s/ o Ilaclal Kharr llincl Aclvoca te.

(pr"esent ou Lrail).

-['lrrough llesponclent : "i'he State Ms. Rarneshan Oad t ,r\ssistant Prosecutor General, Sindh"

I\one present for cornplainant ctespite being on notice.

I)ate of hearing 28,'r'r,2423

D.rte bf juclgrnent 04.12.2023

IUDGMIlI{'I

MOHAMMAL] I(AI{IM I(FIAN AGFIA, T.- This criminal appeal \ is directecl against the judgment dated 20.04.2011, passed by the lear:ned Aclditional Sessions jr-rdge, Sl-rahdadpur, in Sessions Case No.

40 of 2ATI (re: The Sterte versLls Alrdul Sattar), emanating from Crime No.4B of 2008, registerecl at Irolice Station Sinjhoro, under section 302, 34 PPC, wherclry the appellarrt Abdul Sattar has been convicted u/s 307 I'PC a$ 'l'a'zir ancl senLencecl to suffer irnprisonment for life for r--olnnritting the rlr-rrcler"ol'cleceased Ghazi I(han. He was also clirected to pa), lint: ol lk.2t)0,000/- (Itr-rpees fwo Lac); and, in case of non- a

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paymerrt of fine, tht'' appellant shall undergo SI for a period of 01 year rnore. The benefit of Section 382-B Cr.P.C was extended to the

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aprpcllant. Flowever, since the appellant Abdul Sattar was juvenile at the time of comrrrission of offence, therefore, his case was tried separately fr:onr other: co-accllsed.

2.'I'he facls ol tlte prosecution case as mentioned in the FIR are as under:-

" OIi 04.07,2008, conrylniTLnnt Ahthanunad Slmrif Rirud lodgetl F,llt, nlleghrg tlrcrein thnf pri.or to one and lmlf rnonth, qunrrel loolc place betrueen the cornplninnnt trnd Kntnnl Khnn Rind ntrcl otlrcrs, strch F1Ii bearitry No,34 of 2005 Tuns lodged at PS Sinjlrrtro ngnirrst tlrc contplnitmnt pttrty nnd dispute rlns going ott, 'Otr 03,07,2008, irt tlrc niglrt ltis.fn{lrcr Glruzi Kltnn, cottsin Hnkint nlortg-ruith lvlttltnrtttttnd nfter tnking rurcnls rLtent to sleep in tlrc courttlnnl o! tlte Otnq on cttts, Jrc runs sleeping iru lils house rulrcn nt nbattt 0"130 hours lis cortsirt Hnlcit'n cnrne to \ilru and disclosed thnt Irr: ulong-ruitlt ltis cottsin Mulutrwnncl and uncle Ghnzi l(l'mn TL)ere sleeping itr ilrc Otnq, where t)rcy lrcnrd tlrc cries of Ghnzi K|tan on tultich thetl bttth ruolce rp nnd irlentified tl'mt l{arunl [{han Rind l'mi,itrg C)rut, Sntt.nr ad Wnzaer lmuing lmtchets in their hands-and Cltr,tlarn Shnbir runs hauing lstl'i in |is hand Tuere causirtg lmtcl'rcf ttlorus to ttncle Glwzi Khnn on his ltend nnd Knrual Rind gaae lmknls to tlrcm to keep quite lyittg on tlrc cot, Tlrcrenfter, nccused went {tTu(ty toutnrds ttorthern side, After that tlrcy srr70 his uncle Glmzi liltnrt runs lmuing {ruo Lintcltet blorus on his forel'rcnd nnd blood ru{ts ottzittg r,rtri tlittd rutttt1 , On srrclr infrtrtrmtian tlrc contplninnrtt along- ruitlr ltis relnliur.:; Knrirn Bu:u atul Glrulaut ]lnsool Rind T.zeTIt to Otnq rulrcrt: I:\rcry snTt) lis fntlur Clmzi IQun TLtns \ittg dend, '['lw.rt:tftu', cotnplninnnt TUerLt to P,S nnd lodged report rf tlrc , l :;

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3, After usuarl investigartion police submitted the challan before the Court concerned and afLer cornpleting necessary formalities, learned trial Court.framecl the charge against the appellant, to which he \ pleadecl irot gr-rilty ancl clairnecl trial.

4.At trial, Lhe prosecutior-r in orcler to prove its case examined 09 wihresses and exhibitecl nurrerous ,Cocuments and other items. The statement of eiccuscd was recorded under section 342 Cr.P.C whereby he clenietl tht" alleg-,atiorrs levelerl argainst hirn and claimed his false irnplicaLion try the cornplainant. fhouglr the appellant did not examine t

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himself'on OaLh; however, in order to disprove the charge, appellant examiirecl one 11.W. rrnrnely Allah Dito as his defense witness. t

5.Leamed trial court after hearing the learned counsel for the parties and erarnining the evidence available on record convicted and sentenced the appellant as statecl earlier in this judgrnent. Heuce, the appellant has filerl this appeal against his conviction

6.Learned trial Court in the irnpugned judgment has already cliscussed thc. eviclencc in detail and there is no need to repeat the same here, so as to avoicl cluplication ancl unnecessary repetition.

7.It is notecl that o11 the last date of hearing, complainant iVlr-rha,rnmacl Sharif irad appeared ancl stated that he and his family members ha.re forgiven the appellant in the name of Ahnighty Atrlah; howerrer, 1ro sr-rch application has been filed in this regard. Today, complainant is callecl al:sent without intirnation" Since, this is an old appeal ol' 20"17, and the cornplainant has Chosen to remain absent, Lherefore, nis interesL was looked after: by learned A.P.G

8.Learned counsel for the appellant has contendecl that the appellant is innocent and has been falsely implicated in this case on account of enr:rity and hence the 17 hour delay in lodging the FIR rvhich enablec{ the cornplairrant to cook up a false case against the accusecl; that the eviclence of the eye witnesses cannclt be safely reliecl upon as it was clark ancl they could not have seen the appellant even if thelt were present rnrhich hr: contenc{eci they were not as it was an Lrn\\/itnr:sse cl rrrurrlcr; Lhart no rccovcly was made from the appellant anrl that thele \,vere rnatel"iai contradictions in the evidence of the I r,vihresses which rnade their erriclence unreliable and that for any or all of the arl:ove reasons the appellant shoulcl be acquitted of the charge'by Lreing extenctect the br:nefit of the doubt. In support of his contentions he placed reliance orr tl-re cases of Muhamrnad Sharifan Bibi versus Mulramnrad Yasin and others lZAru SCMR BZT,Azhar Mehmood and others versrls 'I-he State VA17 SCIvII{ 135], Sardar Bibi and another versus Munir Airmecl and others [201 7 SCMR 344], Muharnmad Asif versds The Si;rte [2tl't :7 SCMIT 48b1, G.lV[ Niaz versus The State [2018

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SCMR 5061, Muharnrnad Arif versus T'he State 12019 SCMR 631,1, and Sarfraz and another versus The State [2023SCMR 67q I L). .Leamecl Assistant Prosecutor General Sindh on behalf of the State, after going through the entire eviclerrce of the prosecution rt,ihresses as wcli e-rs o ther recorcl of the case has supPortecl . the impr-igned juclgnrent. in particular she has relied on the eye witness i evidence rnrhich accolding to her can be safely relied upon.In support of her contentions, she placect reliance on the cases of Farman Ali atrd another versus The State aud another 12020 SCMR 5977, Abbas Ali versus The Stat'e 12027 SCIVIR 3491 and, Nasir Ahmed versus The State lp123 SCVIR 478),

10.I have consiclered the submissions of the parties, perused the rnaterial available o1r record and considered the relevant case law + including that cited at the bar.

11.Based o1.r my reassessrnent of the evidence of the PW's especially the rnedical evidence and other rnedical repr:rts and recovery of blood at the crime sccne I finct that the pr:osecution has proved beyond a reasonak,ie ctourlrt that Ghazi l(ran (the deceased) was murdered by a slrarp cr"rtting instrume,nt to the l'read on 04.07.2008 at 0130 hours at the court yarcl of the OLaq of the cornplainant situated at village Gidro Machi, taluka Sinjhor:o.

.12. '1he only question left before me is whether it was the appellant n ho murclered the deceasecl by causing a blow to his head with a sharp instrument at the saicl tirne, clate ancl location?

13.After my reassessment of the eviclence I find that the prosecution

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has I\,IOT provr.d bcyoncl rr reasonatrle doubt the charge against the appellant kecpirrg, in view that eacJr crinrinal case must be decided on its own prlrLiclrlar facts ancl circurnstances for the following reasons;.

(u)The FIR was lodged after 15 hours of the incident. The cornplainernt attempted to explain this delay by the fact tira t the IrlR was loctged after he took the deceased to hospital, alter the postmortem was carried out and after

I"r \y the body of his father was buried however according to PW 5 Viirharnmed Javed who wrote down the FIR of the complainant verlrabirn the FIR was lodged before the post f rlortem was carriecl out wl-rich discrepancy tends to unclermine the FIR. Thus, I am put to caution of the fact tirat the [7 hi-rrirs clelay in lodging the FIR has not been l'uliy explained which unexplained delay can often be fatal to the pl'osecLrtion case as it left tirne for consultation and cc)ncoction of a false case whicl"r is tnore likely in this case where tlrere is Frroven enrnity betweeu the complainant and the accttsecl sicle as per evidence on record.

(b)I f ir-rci tha t the prosec ution's case prirnarily rests on the evir'lence of tire eye witnesses to the murder of the cler;easett and whether I believe their evidence whose eviclencr: I shall consicler in detail below;

(i)Iry* witness PW 2 Ha[<im. He is related to the complainant and the deceased. According to his evicleuce or1 04.07"200S he and his cousin Muhamtnec{ r/vere sleeping in their Otaq when at b atbout 0130 hours they heard a noise ar-rtl woke up ;rrrd sit v\r thc co-etct'used along with the appellant u ncler the light of ill-t electric bulb. He saw co- accuscd W'arzir ttntl the appellant cause straight hzrtchel- Lrlov',,s ovet' the head of the deceasecl who vvas sleepinll jn Lhe same Otaq. Arrother co-accusecl hacl a shot gllll pointed on them so they could not intervene. I Ie made hue and cries and rushed to Lowalds Lhe house c-,f the complainant and informecl 'de'ceased ihc complaiuaut who was the son of the ;rbout Lhe incident and then returned to the crime scene with the cornplairrant and found the dead borly of the deceased, The appellant and the co- accusecl l-rad gorre.

'l'his witncss was lelated to the deceased and also I-rac{ proven enmity with the appellant's side who had lodgecl an FIR against him arrd the cotnplainant. -fhus, I arn pllt lo cautiorr as to the reliability of his ev icicncc"

hio douhL tire r,vihress knew the appellant before the irrciclerrt arrd he vvas named as a witness in the 1.rote:rl"ially clelayed FIR however it was a night time inr:iclent ancl althourgh he states that he saw and rocognized the appellant under a light bulb no light Lrulb \^/as over" seizecl L:y the police which brings into t{o r.rir t hi:; i r-lentificartion of the appellant. Furthenrule, r,vhat was the witrtess ctoing sleeping in tire Otaq insteacl of tJre house? It has come on rec'.rxi throrrgh DW 1 Ailah Ditta whose shop was

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r.relrt to the Otaq as confirmed by the tapedar's report atrct who had beer:, sleeping in his shop for Lhe last 10 years th;rt only he and the deceased slept il' or-rt ir-r Lhe opell ernd on tl're night in question this witness \,vas i-tot present. Irr fact there were only two cr.)t-q at tire Otaq so if tire deceaseci was sleeping in orre where wel'e the other two eye witnesses ,!i ' slceiiing? fhis all castes doubt o1-t the evidence of this'vt,ihress. lt is also significarrt that this eye r,r,it-uess gave liis sectiou'L6'L Cr.PC statetnent 52 d;rys after the incident without any explanation. It is well scttk:d by, 11ow that such delayed Section 161 statcineuts olt eye wihresses are of llo evidentiary value. 'fhis wilness was a chance witness who accor:cling to DW 1 Allah Ditto always remailred in the house wil.h the cornplainant and other eye wilness Murhamrned and thus for the reasons above I c{isbelieve tl-re eviclence of this witness who had every reason to implicate the appellant in a false case and even if he \^ras present at the time of the

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incident (wtrich l c1o not believe) he would not have br:en able to r:orrectly and safely iclentify the appeliant. 'l'l'rrts, 1 ctistrelieve the evidence of this eye rt,iLuess ancl plact: no reliance LtPon it.

(ii)Ey* witness PW 3 Muhammed. He is related to the deceasecl. I-Ie corroborates the evidence of the PW 2 l-lakirn in all rnaterial respects. For the shme r:celsorls mentionecl above in respect of PW 2 Hakim I also disbeiieve his eviclence.

Other evidence atrd considerations

(.) l'hat no recovery of any hatchet or any other weapon was made frorn the appellant on his arrest.

(d)ThaL according to IrW 4 Palio Khan (who is related to the cornplainarnt and callecl by the complainant to be rnashir) inrlrc-r was the nrashir oI arrest at the time of arresting the a ppcllan t a ha tchet arrcl lathi was recovered from the appellarrL [row'ever surch recovery is uot recorded in the n-rL.rrlo arrcl no snch r"ecovel'y was made according to PW7 Girurlarrn Rasool wlro was the arresting officer and IO of the case. No rccovered iterns were thus exhibited hs it appears that none lvere in fact recoveled. According to the marshir the arrest rvas inade on 05,07.A8 but according to the arresting officer the arrest of the appellant was made on 13.08.13 which accorcls with the memo. This rnashir is tlrerelfore found to Lre a dishonest witness and no memo signecl by him can be safely relied upon which again t;rr:ates dor-rbts in tlre prosecution case.,

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(*) I'haL tire eridence ol the Io PW 7 Ghulam Rasool which is sei grrt iir n-raterial part below trlso creates cloubt on t!-re cas(' of the proscclrtiorr.

t ,,lt is there was fr fact that ns per ruashinxfin'x{t place of incjdent cot at the distarices of 6fr feet from dead body oaer which. Ailsh Dito rt)ns saicl to liaue been sleeping at the tirue of irrt.idetrt. *trclr fact Lt)frs stateol by the con'tplainant to me at the tittc o.l'irtsper,tiun of placc oJ' irucident. I haue not nrerftioned irt lhr rrmslilnrcnna tliut the conrplainant disclosed such facts to ],.re. cols T0e1.e not lytng ittside tlrc roortt of otnq. There runs no cot

lyir,g in tlrc Otnq i*rtpt the cot of tlw deceased and s cot at the irrir,r,, of 6/7 fee::t. PW Itnkhti hnd stated in lis stntenrcnt U/s: 151 Cr. [).C thil ,riu,sed Abdtil Sattar lilns holding lathi nnd nccused rttn-tlttin1 tctrunt,rls A/orfl2, IIe lms nlso stnted thnt ncctrsed I{nmnl Rind rttrtl (]lrttltrrrt Slmbbit' lrtrrl nttt t:ontnilterJ tlrc nl'totte offence nnd ruere

ttgl sct:tr tm [lrc sytr-tt. I lmtte slrutptt ncutsed Ksntnl. Ilind nnd Gltulnnt Strtfu[tir in Colurrm No.2 ns t!rc contplninatt lirnself stnted'before nrc tlttrl l)rcr1 iook tlolly Qtrrnn in preslThle of Mt.trsldd Pir Hnssmt Shrrlr ttmt tliy ltnrl rrct iarutritteri tha nltor,e offence, therefore, I hatte kept lJrc.ir yntttes rtt colrurm No.2, I did ruot record suclt fw'tlrcr stntenient o.f crsniltlnittnri nuring irntestigntion, I haae also obserued and opirret,i at tlre time of lniltirissian o! clmllan that fathercf l Jc,rnplainant Ghazi l(lran rofrs nurrdered lty unlflrown culprits ntrtl the cornplnittant tlue to pctsoflill erunity inaolued the acclsed, l;tft tlrcr'c LLlcts no proof against accused. Ittspite of aboae reytc*.t nteltioried ot'i tl'tc hnclc sidc of chnllnry'chnrge slteet I lmue tirestt:il rtccused V\,lnzeer rtnd Abdrtt Snttsr nnd subnritted suclt clrillnri (),r AL}-2A08. I lmtte not stfunitted tlrc report before tlte hrlttgistrntr for relensc o.[ ntt ttcctrscd LI/s:497 Cr,P.C, ns prouided Ltryl,:t'!>t:r:liott'169 Cr.P.C. lt is fact that One Syed Hussairt Shan, sachal urrd Glutlafir Mustafa s/o Allah Dito Rind haae uohrtrtrtrily sz.uorrr their aJfidauits on stanrp llepers about the trccttscd Wazeer, Abfutl Sattat' and others being ittnocent,'lt is qcutsed !w:t tlmt cotnplairrtult and P,W Glnilam llasool were itr cyitne No,34,/200s o! P.S Sirtihoro, whereirl nccltsgd l{amal It)(.ts r:on4tlabrant. I'lmue. also recorded the staternents'f tlc.f'etrse witnesses Glrulant Rctsctol and l(arim Bux Rind who ,rirp statecl about the accttsed being ittnocent. I liaae'not rt:t:orded the statenrcnts Ws: L61- Cr.I).C of both rflqthis' No priuate person exccpt both ruashirs and complainant u)&s Ttresent 'that at the tirne af insytection of place of incident, lt is fact rnashir Palio is relatiae of de.ceased and P,Ws llalcint and Mulu,trtr tneul fit'e nephezus of deceased Ghazi l{han" '(Bold ;rrItle,-l) h

(f)'l'ira t riltl"ioLlgl:r the' tnectical evidence supports the pl.osecutitrn cose it carl only identify the nature of the injurry, thc seat o[ tire injury ancl type of weaPon used but is oi n() ilsslstance in iclelrtifyinq the perpetr atol.

(g)'i'l.i1t pri the i:asis of nearly ttre same set of evidence co- eiccusecl Ghulam shabbir was acquitted and as such the appeliant is enl,itlecl to equal treattnent under the law. NLitalrly no appeal against acqrlillal was filed in the case of i-r p,pel I ant Chr-ilain SJrtrlrtrrr.,

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'fhe eviclence of DW 1 Allah Ditto cornpletely unclermines the prosecution case. He was an independent wifness who hacl every reason to be sleeping in the cot close to the cleccased and according to his eviclence both eye witnesses . were noL present at the tirne of the irrcident and it was an Lutseell tltrrder. Even if only a little weight is given to his eviclence it castes doubt on the prosecution case as he was not a chance witness who had beetr sleeping by his shop opposite the Otaq where the deceased was murdered for the li,rs L 10 year s.

14.Thr-is, baserl on the above discussion, I find that the prosecution has NO'I' provecl its case rrgains;t the appellant beyond a r"uror,ubl* doubt and by extencling the appellant the benefit of the doubt for the l.easons discussecl alrovc, which he is entitled to as a matter of right as opposecl bo concession, I hereby set aside the impugned judgment, allow the appeal and acquit the appellant of the charge. The appellant on bail shall have l ris bail troncls discharged ancl he is free to go

15.'I'he appeal stancls disposed of in the above terms.

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ORDER SHEET

!N TF"IH I{IGH ffiffiUfqT ffiF SEfSMhfl ,

CIRCU IT COURT, HYDERABAD.

Criminal Appeat No.S- 1S0 of 2011

DATE ORDER WITI-I SIGhJATURE OF JUDGH

28.11 2A23.

syed rarique Ahmed shah, Advocate ior appellant alongwith appellant (on bail).

fVls. Rameshan Oad, A.p.G for State

I have heard learned counsel for the appellant ancl learnec1 /\,P.G for State, Reserved for Judgment

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