Muhammad Ilyas @ Ilyas (Appellant) VS The State (Respondent)

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ffi$.'{[f,u$f;f{,eH_ JAIL. AppffiAL i\d(J" ffi-'n tr1 ffiF 2fi21 { ilfi f\jl.-lruiVIATlON CAS[: NO. 21 OF Z0Z1 $\tr[]$-f;/.\tvE[w$lu[] st-"yAs 6p f,LyAs v/s THH $TATE

SINDH HIG H COURT, CIRCUI T COURT HYD ERABAD

COMPOSITION OF BENCH

HON'trII-,Ii h{I{. .IUS'I'ICE M(}I_IAMIVIAD I(AITIM I(HAN AGI{A H(}N' I}[-,III MII. .IIJS'I'ICII KI_IA I)I M I-I US.SAIIVTUNIO

(D.8.)

[]atc cif' lasL hcarirrg (hcard/ rcscrvcd) : 23- I 1 -zozg I [)r:r;idccl rrn: 30- 1 t-2023

(,1) .Judgmcr-rt r.rpprovcd lor rcportirrg YtrS hY-

CERTIFI CATE

Certificaitr: thaL thc:

udgmeltt/ Order is based upon or

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cl-runciates a principle of law/decide a question of law which is of first impression/distinguishes over-rules/explains a prcvious decisiorr.

SLrike-ouL urhichcver is nol applicable.

N O',l'll: (i) '[']ris slip is only to tlc uscrl r.r,hcn somc action is to be taken.

(ji)I[ l.hc slip is r-lsi:<l, thc ltcarlt:r must attach it 1$ the top of thc lirsl. pagc of LI-rc .Judgrnent.

(iii)corrrl Associi:rr: musl ask the .Juclge r,vritten thc.judgmcnl. I rr,hr:t.hcr t.hr: .jr-rr.lgrnr:nt is npprrlrr<:d frrr rr:porting.

(iv)'l'hos<: r.[ircr:l.iorts r,i,l'ric['r i.rrc nr>l. l.o trc uscc-l shonlc] hc deletecl.

SCI), I(arr-i, (iii) 773 -ZOOO-4-2003-il1

I rRCU_rT COURT,.HYDEBIABA,p.

Cr. Jail Appeal No.D-l_0U20?.L (Confirmation Case No. Z 1 lZ}Zt)

Mr-rhammad Ilyas @ ilyas S/O Glrularn Hussain Janrali (-onfined in central prison, liyderabad. .Appellant,

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ORDER SHEET

IN THE HIGH COURT OF SihIMH,

CIRCU IT COURT, HYDERABAD

Criminal Jail Appeal No,D- 101 of 2021 [Confirmation case No.21 of 20211

DATE ORDER WITH SIGIUATURE OF JUDGE

lVlr. Asif Ali Talpur, Advocate for appellant. Nlr. Shewak Rathore, Deputy Prosecutor General, Sindh.

We have heard the learned counsel for appellant and learned Deputy Prosecutor General. Reserved for Judgrnent, h ru/cr

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II{ THE HIGH COURT OF SINDH, CIRCUIT

COURT HYDERABAT)

Before:

Mr. ]trstice Moharnmad I(arim Khan Aghl Mr. Justice I(hadirn Hussain Tunio

Cr. |ail App*al I'.Io. f)- 101 of 2021 [Confirmation Case I'-]o.21 of 2021,1

)' Muharnmad Ilyas @ Ilyas

Versus

The State l

\ Appellanl, : Muhammacl Througir Mr. Asif Ali TalPUr, Advocate Ilyas @ Ilyas s/o Chulam Flussain Jarnali

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Respondt'nt : the State Through Mr. Shahwak Rathore, Depr-rty lrrosecutor General, Sindh

Complainant: iNone present.

Date of hearing 23.71.2A23

Date of judgment 30.11 ,2023

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MOHAMMAD I(AT(IM I(HAN AGHA, T.. This Criminal Jail Appeal is directed against the judgment dated 25.08.2021., passed by the Additional Sessions Judge-I / MCTC, Dadu, in Sessions Case hJo.437 of 2020 (re: The State V Muhammad Ilyas @ Ilyas), emanating from Crirne hJo.172 of 2020, registerecl at Police Station A-section Dadu, under section 302 PPC, whereby the accused /

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appellant Muhammad Ilyas @ Ilyas 5l o Ghulam Hussain Jamali has been convicted u/s 302(b) PPC and sentenced to death as ta'.ztr; { however, subject to confirmation by this Court. The appellant was' also directed to pay compensation of Rs.200,000/- [Rupees Two Lac] . to the legal heirs of the cteceased Ghularn Hussain as provided under section 544-A Cr.P.C.

?. The facts of the prosecution case as Per FIR are as under:- " Ott 20,08,2020 conrplainant Mr.thanmrad Azeent lnruali lodged FiR stnting therein tlmt he used to cultiaate lnnd, his elder brother llyns usunlly denmruded sl'mre of land ftom his fnther Glu.iam Hussaitt, ltis fnther told hint tlmt he ruill distribute the land to all bf tlrcrn, fuslpsper, lis brotl'rcr llyns often exclmnged harsh ruords ruitll lis father Ghularn Hussnin and wns annoyed. On 1"6,08.2020, he, Itis brotlrcr Murlmnunnd Saleeru, Father Glu.ilanr Httssain went to ttisit tlrcir lnnd, his father ruas nhead of thent, n'rcnnruldle lds bratlwr llyas 11s1pirrfi, siclcle in lds lmrtd nncl lmtclrct on lltrs slrctilde, ,on orrt \ ft^ottr lrouse, fls slon ns lre trrriuetl, lrc aslrcd his fntlter tlmt lrc ruill not sp{.tt'e ltiru todny, 'flrcreafter Multnnwnad tlyns inflicted lmtclrct blotu on the'lrcnd of his father Ghulam Hussain, on receiaing injury, lds fnther rdile raising cry fallen down on" the grottnd. Tlrcn accused Itlulurrtmsd llyns cnused injr.ry on baclr side of head of lds father ruitl't top eclge"of siclde. He ani lis brotlrcr Sslerrrr rt tired torunrds tlrcir fnther hy rnisirug cries nrtd issting Hnkals. Tltey cfinrc fiear to tlrcLr father snd stnLt that Irc lmd sustained injwies froru rulich blood u){ts oozing, Tl'rcy {u'rfrl"Lged conue1fince attd took tlrcir fatlw to Ciuil Hospitnl Dndu, roherefronr lis fatlrcr 70ns referred to Nawabshah lnspitnl for firtlrcr treatnrcnt, On 1,9.08,2020 lds fatlw died at Nmunhshah hospitnl, Thereafter tlrcy brought the dead body at Ciuil Llospitnl Dndt.t. After conducing postntorteru tlrc dead body runs hnnded ouer to contpktinnnt for hurinl nnd after cornpleting ftmeral rites conytlainsnt nppenred at PS nnrl lodged the FlR,"

3.After usual investigation, police submitted challan of the casei before the concerned Court. After cornpleting necessary formalities, learned trial court framed charge against the accused, to which he \ pleaded not guilty and claimed ttial.

4, In order to prove its case, the prosecution examined seven (07) wilnesses who exhibited various clocuments and other items, The statement of accused under Section 342 Cr.P.C was recorded wherein he denied the allegations of prosecution witnesses, however, neither he examined himself on Oath nor produced any witness in his defense.

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5.On CONC lusion of the trial, the learned frial Court after hearing learned counsel for the parties and appraisal of prosecution i

{ evidence brought on recorcl, convicted and sentenced the appellant 1l vide impugnecl judgment, as set out earlier in this judgment, hence the appellant has preferred this appeal against his conviction.

5.The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the impugned judgment passecl by the trial Court and, therefore, the same may ,-ro.t be reprocluced here so as to avoicl cluplication and unnecessary repetition.

7.It is noted that vide order dated 20.A6.2023 the service upon complainant has been held good and as such his interest shall be looked after by learned A.P.G.

B. Learned counsel for the appellant has contended that he is innocent of any wrollg doing and that he has been falsely implicated in tlris case by the complainant partf ) that there was a four duy clelay in lodging the FIR which gave the complainant time to concoct a false case; that there al'e material contradictions in the lWr' evidence which renders their evidence unreliable; that the oculai evidence is contradicted by the medical evidence; that no incriminating article has been recovered from the appellant and that for any or all of the above reasons the appellant should be acquitted of the charge by extending him the benefit of the doubt. In support of his conteutions he has placed reliance on the case of Amir Muhammad I(han versus The State [2023 SCMR 566].

9, On the other hand, learned Deputy Prosecutor General Sindh has fully supported the impugned judgment and contended that the eviclence of the eye wihresses to the incident was reliable and conficlence inspiring and they hacl fully implicated the appetlant in the rnurder of the deceased in a brutal manner; that police recovered crime weapon / hatchet from the crime scene; that the chemical report relating to the bloodstained earth secured, from the place of inciclent, bloodstainect clothes of the cle,:eased and appellant's

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clothes were all positive ancl as such the prosecution had proved its as such case beyoncl a reasonable doulat against the appellant and l-ris appeal shoulti be clismissed and his conviction and sentence be on the maintainecl. In support of his contentions he placed reliance cases of sajid Mehrnood versus The state lz0zz scMR 1882] hnd;

shahsher Ahmad and another versus The state and others 12022 scMR 1e311.

10.We have hearcl the argurnents sf the learned counsel for the out parties, gone through the entire evidence which has been reacl a ,r . :--)-^^*! -^,ifL tl-, by the appellant's counsel, the impugned judgment with their able -^l

assistance and l-rave consiclered the relevant case laws including

those cited at the bar.

11.Based or1 our reassessment of the evidence of the PWs \ especially the *rec{ical evidence ancl other medical reports and recovery of bloocl ancl murcler weapons (sickle and hatchet) Eit th€ crime scene, we find that the prosecution has proved beyond a reasonable d.oubt that Ghulam Hussain (the deceased) was hit over the heaci with a hatchet/sickle on 16.08.2020 at about 6pm at the agricultural 1ancl situated rlear village shah Muhammed Jamali i

which leacl to his cleath on account of such injuries on 19.08.2020 at IrJawabshah hospital.

7?. The only cluestion left before us therefore is whether it was the appellant who murclered the deceasecl by causing hatchet/sickle blow to }'ris head at the said time, date and I'ocation?

:tZ. After our reassessment of tI-re evidence we find that the t prosecution has proved beyond a reasonable doubt the charge against the appellant ,keeping in view that each criminal case must be deciclecl on its own particular facts and circumstances for the following reasons;

(u)It is true that the I-'lR was lodged 4 days after the inciclent however we find that this delay in the FIR has been explained. lnitially the deceased was hit over his i.

head b), u hatchet/sickle at 6pm on 16.08.2020 however g

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the deceased cticl not die imrnediately instead he was renderecl ultcoltscious with severe wounds and was transported by the complainant to Civil Hospital Dadu

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r,vhere he received first aid treatment befoie he was referred to Nawabshah Hospital where he died on 19.08.2020.I-Iis bocly was then transported back to Civil Flospital Dadu where a post mortem was carried out and thereafter the body of the deceased was handed over to his relatives for burial who immediately after burying the bocty of the deceased lodged the FIR. As such any delay in lodging the FIR has been fully explained and is not fatal to the prosecution case based on the particulat' farcts arnd circurmstances of this case. 11 this respect reliance is placecl on the case of Muhammed Nadeem alias Deemi versus The state (2011 scMR 872).ln fact since the cleceased was the fat-her of the accused and the eye witnesses were also sol.rs of the deceased/father if the deceased hacl lived it rnight be that no IrIR would have been lodged as in essence it was a close family matter.

L (b) That the appellant is named in the FIR with the specific role of murdering the deceased by hitting him over the heac{ with a hatchet ancl sickle.

(.) we find that the prosecution's case primarily rests on the eviclence of the eye witnesses to the murder of the deceasecl and whether we believe their evidence whose eviclence we shall consider below;

ri) Ey* wit,ess PW '1, Mtrharn,red Azeem. He ,is the complainant and son of the deceased. According to his eviclerlce the accusecl who was the elclest son of tl-re deceasecl used to ask the deceased to give him his share of tl-re joint lancl however the deceased told llim that the land woulcl be distributed equally among all legal heirs and o11 account of this dispute the accused was annoyecl ancl usecl to exchange harsh words with tlre cleceasecl. (Jn 16.08 ,20?0 he, his l:rother- pw Z Muharnrnecl saleem and his father (the deceased) went to visit their land. At about 6pm the accused having sickle in his hancl ancl hatchet on his shoulcler .\ calnL' out from the farnily house and told the deceased that l-re would not spare hirn. He saw the accusecl inflict hatchc.t blow on heacl of the cleceased who fell c{own and raiserl cries ancl t}re accusecl hit him on the heacl agairr with the sickle. FIe and his brother pW 2 saleem rushed to their father by raising cries and l"rackles. I-Ie saw the incident from about 50 feet. The accused dropped the sickle and hatchet and ran away whilst he ar-rd his brother Saleerl arrangecl to take tl-re r-leceasecl to hospital for treatrrrent as he was not c{eacl. but ulrconscior-rs.

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The witness is the son of the deceased however he hacl rlo proven enmity or ill r,vill towards the accused, who was his brother, and had no reason to implicate hirn in a false case and thus the eye witness' mere relationship to tl're cleceased is no reason to discard his eviclence which has to be judged on its own wolth. in this respect reliarrce is piaced on the cases of Anral Sherin v The State (PLD 2004 SC 371) and Dildar Hussain v Muhammacl Afzaal alias Chala

(PLD 2A04 SC 663)

This eye witness knew the accused before the incident as lre was his brother living with them and he saw him from about 50 feet in day light ald thus there is no case of rnistaken identity and no need to hold arr identification parade in order to determine the identity of the accused. The cross examination of the accusecl also suggests that he does not deny his preserrce at the scene of tlre incident but only that it was nclt hirn who did thc: rnurcler and that he has Lreen falsely irnplicatecl.

This eye wittless was not a chance witness as he was the brother of the accusecl arrd son of the deceased who liverl together and all worked their father's land. His evidellce has not been materially improved upon from his FII{ anrl his presence at the scene is corlobolated by PW 2 Muhamrned Saleern wlro is also his brother. He did not give chase to th'e appellant as his first priority was to attend to his injured father and transport him to hospital as he was still alive after the accused attacked him albeit seriously injured and unconscious. He gave his eviclence in a natural manner and was not.dented at all ciuring a iengthy cross exarnination and as such we fincl his evidence to be reliable, trust worthy and confidence inspiring ancl believe the same especially in respect of the identity of the accused, We can convict oll the evidence clf this sole eye witness alcir-re although it ,nrroulcl be of assistance by way of abundant caution if there is some corroborative/ supportive evidence. In this respect r:eliance is placed on the case of Muhammad Ehsan v. \ Tire State (20C6 SCMR 1857), As also found in the cases of Farooq Iflran v. The State (2008 SCMR .917), Niaz-ucl-Din and another v. The State and another (2011 SCMIT 725) and Muhammad Ismail vs. The State QA77 SCMR 773). Tha,t what is of significance is the quality of the evidence and not its quantity and in this case we firrd the evidence of tI-ris eye witness to be of good cluality and believe the same.

In this case horvever there is another eye witness narnely PW 2 Mullarnmed Saleem. I{e is the brother of tl-re complainant anrl th,e accused and son of the

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deceased' Flis eviclence corroborates the evidence of the complainant in all material respects. He also knew the appella.t as he was his brither. He saw the t appellant attack the deceased with hatchet and sickle from 60 feet i, daylight. He is named in the FIR as an eye witness. He gave his section 161 cr.pC statement with prornptitude which fully implicated the appellant in tire murrler of the cleceased which was not rnaterially improvecl on at tl-re time of giving rris evide,ce. He also was not a chance witness ancl his eviderlce in natural ma,ner. He was not cl#ted [urr* cluri.g a lengthy c'oss ancr we find his evidence to be trust worthy reliable and confidence inspiring ald we believe the sanre ancl place reliance on it.

Thus, based on our lrelieving the evid.ence eyewitnesses mentioned above what ofother the supportive/corroborative ,raterial is there against the appellant? It being noted that corroboration is only a rule of caution and ,ot a rure of law, I. this respect reriance is placed o. the case of Muhanrrnad waris v The state. (2008 SCMR 784) which held as under.

} " corroborntion is onry n rule of caution nnd. is not a rule of lnru a.nci i{ tl't e!/e ruitness nciount is,found , tobe reliable nnd trust tuortlty there is hnrdly nny neecl to lobtc for nny corroboratibn,,

(.1) That it does nr:t appeal to logic, common sense or reasoll that a brother (the complainant) would let the real rnurderer of his father (deceased) get away scot free a.d falsely irnplicate an innocent person, arso his own I:rother, by way of substitution. In this respect reliance is placed on the case of Muhammed Ashraf v state (2027 SCMR 7sB)

(e)That tl-re meclical eviclence ancl medical reports as discussed above fulry support the eye-witness/ prosecution eviclence. It confirrns that the cleceased died frorn l:eing hit over--the head by a sharp cutting object i.e hatchet ancl or sickle. Even if il^*ere is sorne dficrepancy between the medical ancl ocular evidence it is well settied by now that the ocular evidence will prevail. In this respect reriance is praced on the ^ cases of I Muhanrmed rtiaz v Muharni,ecr zaman (pLD .2005 sc 484), Muham,racr Hanif v. Trre state (pLD lgg3 sc Bg5), A,rir lflra, v. "l'he state (2000 scMR l gB5), sajiJ :l - i IVlchrnooti (supra) a,cJ srra,rshcr Arrmad (supra). t'i

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(f)rhat the rnurcler weapons i.e sickle and hatchet were recovered at the scene ancl as per chemical report were stained with hurnan blood.

(e)fhat i[ has not been proven through evidence that the Io Pw 7 Ali I{aicler hacl any enmity or ill will towards the appellant and had any rLrasron to falsely implicate tr

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him i, this case, for instance by planting the sickle and hatchet (murder weapons) at "the crime scene and in such circurnstances it has been helcl that I the evidence of the police wirnesses can be fully relied upon and as such we rely on the police evidence. In this respect reliance is placecr on trre case of Mushtaq Ahmed v The State (2020 SCMr{ 474).

(r') 'fhat as tneutioned in the FIR and the evidence of two eye witnesses the appella.t had a motive the for murdering the deceasecl. Narnely, that he was not giving hirn his share of the land as ihe elaest son.

(r)That alI the pws are consistent in their evidence and even if there are some co.hadictions in their evidence we consider these contradictions as minor in nafure and ,rot materiai and certainly ,ot of such materiality so as to effect the prosecutio, case ancl the conviction of the appellant. In this respect reriance is placed on the cases of zakir Khan v stare (199s scMR trgg) ancl Khadim Hussain v. The state (pLD 2010 supreme Court 669).1'he evidencc' of trre pw's provicles a believable corroborated un}:rok.n crrain of events frorn i the time the c*mplaina,t, PW 2 Saieem ar-rct the deceased left their house to go to their lands to the enraged accusefl murderi,g his fatrrer trrrough hatchet/sic[]e and the bei*g arrested to tire recoo"ry of the hatchet ancr sickle at the crime scene.

(,) undoubteclly it is for the pr-osecution to prove its iase, against the accusect beyoncl a re,esonable doubt but we have also considerecl the defence case to see if it at all can cast doubt on or clent the prosecution case. The clefence case is simply one of farse imprication on account clf e'mity but this is o,l y a bare ali*gation. No evide^ce has corne on record to support thislllegation ancl the appellant clicl not give evidlnce on oath or any IfW in support' of his defence case. Thus calr we disbelieve the ctefence case in the face of reliable, trust worthy a'd co,ficlence- irrspiring eviclence of eye wiLnesses and otirer co,roboruii,r., /iupportive evidence against the appella.t wrricrr has not at ail dentecr the.

pl'osecution case.

14' Thus, based on the al:ove cliscussion especially in the face of reliable, trustworthy anci conficlence irrspiring eye witness evidertce and other corrolrorative / supportive eviclence mentio*ed above, we find that the prosecution has proved its case against the appellant beyond a reasouable cloubt for the offence for which he hu: been convictect'aucl up]rold his conv-ictiolr. with regard to sentencing, the

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appellant committed the brutal pre-meditated murder of his father in front of his other brothers simply because his father would not 'l give hirn his share of the land. There are no mitigating factors and as such his death sentence is upheld.

15.Consecluently, the appeal is dismissed and the confirmation reference is answered in the affirrrrative.

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