Asif Ali (Appellant) VS The State (Respondent)

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SINDH HIG F{C OURT, CIR CUIT COURT HYDERABAI}

COMPOSITION OF BENCH

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-t.r /8tl ? Criminal Appeal No. of Z0l 5 t ..- t ( Asif Ali 5/O llqji l(han, Muslim, adult, by caste Mughal R/O Village Ali Dad Mughal, Talul<a and District Tando Muharnrnad Khan APPELLANT

VERSUS

The State RESPONDENT

. Crime No,3? of 20.l3 . u/s 302 PPC a P.S. Shail<h Bhirkio.

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ORDER SI_IEET

IN TIIE I{IGTT COUITT OF SINI}I{,

CI RC T]IT CO UTIT, IIYDIIRAXSAD.

Cr. Appeal I'{o.S- 1 84 of 20 1 5

DATII oltDlllt wlTI-I SIGI{A]-URE oF JIJDGE 22.t1 .2023.

Mr. I(ararnr-rllah Memon, Advocate lor appellant.

Ms. Ilameshan oacl, Asst. Prosecutor General, sindh.

I have hearcl the learned counsel t.or the appellant and learnecl A.p.C. Reserved f or .i r"rcl grnent.

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HIGH COURT OF SII\TDH, CIRCUIT COURT

AT HYDERABAD

Criminal App*al No.S-LB4 of 2015 [Asif Ali versus The State] i,

Appellant Through Mr. I(aramullah Memon advocate

Cornplainant None present

State Through Ms. Rarneshan Oad Assistant P.G

Date of hearing 22.71.2423

Date of decision 27.1'r,2023

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IUDGMENT

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MUHAMMAD IGRIM I(HAN AG_HA Ii Through this appeal tlre appellant Asif Ali has irnpugned the Judgment dated ?4.1.1.2015 passed by learr"rerl Sessions Judge, Tando Muharnmad Khan (Trial Court) in Sessions Case No.10 of 2013 [The State versus Asif Ali], outcome of Crime No.32 of 2013 registered at P.S Shaikh Bhirkio for offence punishable undel Section 302 PPC, whereby he has been conrricted and seuteuced u/ s 302(b) PPC to suffer irnprisonrnent for life with further clirections to pay Rs.1,00,000/ - as fine, payable to the legal heirs of deceased, anci in case of default in payment thereof he has to further suffer simpie irnprisoument for two years/ however, he has been extenclecl benefit ol Section 382-ll Cr.Ir.C.

2.Complaiuant Allah Dino lodgecl the aforesaid FIR, alleging therein that his blother Rabdino Mugllal aged about 35 years (deceased) had a \ camel calt; on 16.05.2013 he alongwith his nephew Ficla Hussain Mughal, tnaternal cousin lJasheer Ahrnecl and Asif A1i Mughal (accused) left the village at about 02:30 am on camel cart of brother Rabdino Mughal for work purpose ancl Rabdino Mughal also accompanied with them; that at about 03:00 a.m when they leached at lirrk road, village Irlawab Noor Ahrrred Talpur, he, his uephew liicla llussain and rnaternal cousin.Basheer Al"rmecl alightec{ frotn carnel cart to pass urine, lneanwhile tl-rey saw that Rabclino arrd Asif Ali Mughal were exchanging hot words with each other; tkrat accused Asif AIi Mughal caused blow wooden Eis (one of tl-re t

\s, sicle sticks of ber-lstead) at the head of brother Rabdirro with intent to commit his prurcler in their presence; that they gave hakals to Asif Ali, who on their hakals succeederl to ran away in sugarcane croP with wooden Eis; that thereafter they saw that blood was oozing from the injuries of Rabclino and he was dead, then they informed the police, who shifted the cleacl bocly to Civil I-Iospital Tando Muhammad Khan and'also issued letter for posttnortem.

3.After usual investigation police submitted the challan before the Court concernec{ ancl aftel cornpleting necessary formalities, learned trial Court frarnecl the charge against the accusecl/ appellant, to which he pleacled not guilty arrcl clairned trial.

4.At trial, the prosecution in order to prove its case examined six (06) witnesses ancl exhibited numerous documents ancl other items. The statement of accused was recorded under section 342 Cr.P.C whereby he cleniecl the allegations leveled against him and clainred his false implication by the complainant. However, neither he examined himself on oath nor led any evidence in his defence

5.Learnecl trial Court after hearing the learned counsel for the parties ancl exarnining the eviclence available on record convicted and sentenced the appellarrt as stated earlier in this judgment. Hence the appellant has filed this appeal against his conviction.

6.Learnecl tlial court in the irnpugned judgment has already ,la

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i, discussecl the evirlence in cletail and there is rro need to lepeat the satne here, so as to avoicl duplicatiorr and unllecessary repetition.

7 .It is also noted that the complainant was served witl-r the notice, however, he chosen to rernain absent. Since the appellant had been alreacly been in custocly for a considerable period of time and the irrterest \ of the cornplainant could be looked after by the learr-red APG in the interest of justice, I proceeded with this old appeal of 2015 and have decided the same through this judgment.

B, Learnecl counsel for the appellant contended that he is innocent anc{ has been falsely implicated in this case by the complainant and PWs as the deceased wanted to nrarry with the sister of appellant due to which complainant party was annoyed; that there rvas a delay in 17 hours in lodging the FIR; that the so called eye witnesses l-racl falsely irnplicated the ,

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\ss appellant anrl as such their eviclence could not be safely relied upon; tl-rat there are material contradictions in the evidence of the witnesses which renclerecl their evirlence unreliable; that the camel cart was not seized in.

w6ich the appellant and the cornplainant party were riding at the time of the incidenq that there are material contradictions in the evidence of the witnesses which renclerecl their evidence unreliable; that though alleged witnesses were present at the place of incident, however, they did not try to rescue the cieceasetl, which makes the prosecution case highly doubtful; that all the private PWs are close relatives of complainant as such they are interested witnesses ancl as such based on ally or all of the above reasons

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the appellant should be acquitted by extending hirn the benefit of the doubt. In support of his contentions he placed reliance on the record.

g, Learner,l Assistant P.G vehemently opposed the appeal and prayed for its dismissal by arguing that appellant is nominated in FIR with specific role of causing cleath of an innocent person; that pl'osecutiori witnesses have fully supported the version of FIR and there is no contrarliction in their evidence; that n-redical evidence supports the ocular eviclence; that parties are known to each other as such there is no question of mistaken identity; that death of deceasecl is admittedly unnatural, therefore, it cloes not attract to a prudent mind that complainant party left the real culprit ancl implicatecl the appellaut in this case. In support of her argurrrents she has relied upon the reported cases of MAZHAR ELLAHI versus The STATE [2020 SCMR 586] and NASIR AHMED versus The srATE 12023 SCMR 478).

10.I have hearrl the leamecl counsel for the appellant as well as learned A.P.G and have also perused the rnaterial available on record'.

11,. IJaserl o11 lny reassessment of the evidence of the PW's especially tlre rnedical evidence arrd other medical reports and recover y of blood at the crirne scetle I fincl that the prosecution has proved beyond a reasonal:le cloubt that Rabdino Mughal (the deceased) was murdered by being hit over the heacl with a wood.en implement on 16.05.2013 at about 0300 hours at link road village lrlawab Noor Ahmed Talpur, taluka Tando Muhammed Khan.

12.The only question left before me therefore is whether it was the appellant who rnurclerecl the deceasecl by l-ritting him over the head with a wooclen irnplen-rent at the said time, date and location?,

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d 13. After tny t'eassessrrent of the evidence I find that the prosecution lras provecl beyond a reasonable doubt the charge against the appellant keeping in view that each criminal case tnust be decided on its own <r' particular facts ancl circutnstances for the following reasons;

(u)l'hat the IrIIt was lodged within a day of the incident however sucir delay has been fully explained by the complainant Allah Dino and PW 2 Bashir Ahmed in their evidence. This is because after the accused hit the deceasecl over the head with the wooden irnplement which caused his death they immediately called the police rn,hich lead to PW 5 Muhamnred Ismail who was the IO arriving at the scetle who inspectecl the clead body bgfore transporting it to l-rospital for post mortem. After the post mortern of the cleceased the deceased's body was released to the complainant who buried the body expeditiously as Per Muslim ritual and then immediately lodged the FIR. Thus any delay in loclging the FIR has been fully explained. Even otherwise as Per evirlence of IrW 5 Muhamrnecl Ismail he had received a call from the complainant at 3.45 am that the appellant hacl murdered the cleceasecl by hitting hirn ovel the heacl with a wooden patti wllich leacl hirn to reach the place of varciat at 04.L0am and inspect the > deacl body and as sucir the police already knew about the incident ancl name of accusecl within a few of hours of the incident. As such any clelay in lodging the FIR has been fttlly explained and is not fatal to the prosecution case based on the particular facts and cilcurnstallces of this case. In this lespect reliance is placed on the case of Muhammed Nadeern alias Deemi versus The State (2077 scMR 872).

(1r) That the appellant is named in the FIR with the specific role of rnurclering the deceased by hitting the him over the head with a wooden patti,

(.) I fincl that the prosecution's case prirnarily rests o11 the eviclence of the eye witnesses to the murder of the deceased anrl whether I believe t'heir evidence whose evidence I shall considel below;

(i)Eye witness l']W 2 Allah Dino. I{e is the brother of the deceased. According to his evidence on 15.05 ,2013 he, the accused, PW Bashir Ahmed, Ficla Hussain and the \ deceased went to Nawab Noor Ahmed for work of chaff by carnel cart ancl reached there at about 0300am when he, PW Ilashir Ahrned and Fida Hussian got down from the cart to urinate leaving the deceased and the accused behincl. They were urinating about 15 paces away.frorn the camal cart when they saw the accused and the deceased exchange hot words. lhey g€rve them hakals. He saw the accusecl cause injury to hea,J of deceasecl with wooden patti who then made his escape good by running through tl're head high sugar cane cropr. The deceased was dead and they then informed the police who arrived at the vardat.

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The witness is the brother of the cleceased however he had no proven erlmity or ill will towards the accused, who rt was also his relative, and hacl no reason to irnplicatE him in a false case and thus the eye wihress' Inere relationship ( to the cleceased is no reason to discard. his evidence whiclr has to be jtrdged on its own worth. In this respect reliance is placed on the cases of Amal Sherin v The State (PLD 2004 SC 371) and Dildar Hussain v Muharnrnad Afzaal alias Chala (PLD 2004 SC 663).

'l'his eye witness knew the accuserl before the inciclent and ire saw him frotn close range and thus there is uo case of mistaken iclentity and no need to holil an ideutification parade in orcler to cletermine the idendfy of the accused, The closs examination of the accused also suggests that he c{oes not deny his presence at the seen of the incident but onl1, that it was not him who did the murcler and that he has been falsely irnplicated. Even if it was arguecl that it was too dark to see the incident (which I do not accept as tl-re complainant was only 15 paces away and had travele.d in the cart with the accused) I find that the case falls squalely within the judicial guidelines of last seen evidence as laicl down in the cases of Fayyaz Ahmed V

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State (2017 SCMR 2026) and Muhammed Abid V State (PLD 201,8 SC 813) as the complainant and the accused and tire deceased all came together in the camel cart and the complainar-rt had only left tire cart for a few rninutes a few paces away to urinate wl-rilst the accusecl and tire deceased were left alone by the cart.

I'his eye witness was not a chance witness as he lived next door to the cleceased (who was his brother) and the accusecl anc{ were all going to work together. His evidence has not been materially improvect upon from his FIR ancl iris presence at the scene is r:orroborated by PW 3 Bashir Ahmec{. He did not give chase to the appellant as his first priority was attencl to his injured brother ancl the appellant \ ras armed whilst he was not ancl it would have been difficult to catch the accused in the sugar cane crop at night. He gave his eviderlce in a nahural mamel and was not dentecl at all r"luling cross examination ancl as such I finr-1 his evirlence to be reliable, trust wolthy and confidence inspiring and believe the same especiaily in \ respect of the iclentity of the accusecl I can cor-rvict on the eviclence of this sole eye witness alone though it would be of assistance by way of abundant caution if thele is sofite corroboratlef supportive evictence. In this respect reliance is placed on the case of Muharnmad Ehsan v. The State Q0A6 SCMR 1857). As also found in the cases of Farooq l(han v. The State (2008 SCMR 917), Niaz-ud-Din arrd another v. The State and another (2011 SCMR 725) and Muharnmad Isrnail vs. The State (2077 SCMR 773). That what is of significance is the r1r-Lality of tire tvicleltce erncl not its quantity ancl in this case

-- \so I find the evidence of this eye witness to be of good quality anrl believe the same.

In this case however there is another eye witness namely PW 2 Ilashir Ahmed, His evidence corroborates the { evicience of the complainant in all material respects. He. also knew the appellant' from before and was riding along with him and the complainant in the camel cart. He is named in the FIR as an eye uritness. He gave his section 161" Cr.PC statement with promptitude ancl also gave a Section 164 Cr.PC statement both of which fully implicated the appellant in the murder which were not materially improved on at- the fime of giving his evidence. He also was not a chance witness and gave his evidence in natural malmer. I-le vvas not dented during cross examination and I fincl his evidence to be trust wolthy reliable and confidence inspiring and I believe the same and place reliance on it.

Thus, based on my believing the evidence of the eyewitnesses mentioned above what other supportive/corroborative material is there against the appellant? It being noted that corroboration is only a.rttle

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of caution and not a rule of law. In this respect reliance is placed on the case of Muhamnrad Waris v The State (2008 SCMR 78,+) which held as under.

" Cotrrahorntion is only n rtilc of cnution nncl is not n rule of lmu nnd i.f the eye rt,itness ttccotutt is found to be relisble nnd trust ruortlt:y tlrcre is lmrdly nny need to loolc for nny corrobot'ation" (c1) fhat it does not appeal to logic, commoll sense or reason that a it blother (the complainant) would let the real murderer of his brother (deceasecl) get away scot' flee and falsely implicate an innocent person by way of substitution. In this respect reliance is placed on the case of Muhammed Ashraf V State (2027 SCMR

(u)That the medical evidence and medical reports as discussed above fully support the eye-witness/ prosecution evidence. It confirms that the deceased diecl frorn being hit over the head by u wooden object,

\ (0 That tl're appellant after his arrest con-fessed to the offence and on his pointation lead the police to the murder weapon (wooden patti) vvhich he hacl hiriclen in a place which only he could irave known about which was stained with blood which as per chemical ': report was found to be human blood.

(g)That it has not been provell through evidence that the IO PW Muhamrned Ismail had any enmity or ill will towards the appeliant and had any reason to falsely implicate him in this case, for instance by foisting the wooden patti on him, and in such circutnstances it has been held that the evidence of the police ' witnesses can be fully relied upon and as such I rely on the police

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fr evidence. In this respect reliance is placed on the case of Mushtaq Ahmed V The State (2020 SCMR 474).

(L)That through his cross examination of the wilnesses the appellant cloes not appear to cleny his presence at the crime scene aL the " I relevarrt tirne.

(i)That all the PWs are consistent in their evidence and even if there are solne contradictions in their evidence I consicler these contradictions as minor in nature and not material and certainly not of such rnateriality so as to effect tl-re proseclltion case and the conviction of the appellant. In this respect reliance is placecl on the cases of Zakir I(han V State (1995 scMR trgS) a^d Iflradim Hussain v. The state (pLD 2010 supreme Court 669).The evidence of the pw,s provides a believable corroborated unlcroken chain of events ?rom the time the cornplainant, accused, deceasect ancl pW Bashir Ahmed left there homes for work on a camel cart to thern stopping to urinate to the complainant ancl PW ljashir Ahmecl seeing the accused hit the deceased over the hearl with a woocien patti to the deceasecl dying on the spot to the . accusecl running away and being errrested. on the iarne ctay to the accusecl recovering the nrurder weapon (wooclen patti) on his pointation.

0)UncloubterJly it is for the prosecut'ion to prove its case against the accused beyond a reasonable doubt but I have also considered the clefence case to see if it at al1 can cast doubt on or dent the prosecutio, case. The defe^ce case is simpty one of false irnplicatiou on account of enmity but this is only a bare allegation, No evicleuce has come on recold to support this atlegation and the appella,t tiid ,ot give evirle,ce on oath or call a,y DW in suppor.t of his clefence case. Thus I clisbelieve the clefence case in the face of reliable, trust worthy and conficlence inspiring eye witnesses a,d other corroborat'ive /supportirre evicle.ce against the appellant which has not at alt dented th.e prosecution case.

74' I hus, I:ased ot1 the above r-liscussion especially in the face of reliable, trustwolthy ar-rd confidence inspirir-rg e\/e witless evicle.ce and otlrer corroboratle f supportive evidence mentioned above, I fincl tliat the Prosecution has proved its case against tl-re appellalt beyoncl a reasonable doubt for; the offence for which he has been convicted and sentencecl anrl as such his appear is disrnissed.

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