Pirbhu Bheel (Appellant) VS The State (Respondent)

I

p-k,-A,,tr} { *};;I l-+ v+a J d I

CEI?I'IFICA'I'I' OF'TH COURT IN R ARD TO RBPORTING

CRIIVE IruAL APPffiAt- ru 0. $-4.7 $F 201 r' trJ[ffiffit{u v/s Tr--f ffi srATE

SINDH HIGH COURT , CIR CUIT COURT HYDERABAD

COMPOSITION OF BENCH

IION'I}LE MIt. .IT]STICII MOTIAMMAD I(AIIIM I(IIAN AGHA (s.B.l DaLe o[ lasl hcaring (heard/rescrved): 05- 12-2023 Dccidcd on: 12-1,2-2023

(a)..JudgmcnL approvcd ftlr rcprlr[in54 YES + ryL

CERTIFICATE

Certificarte that the Judgm entlorder is based upon or enunciates a principle of law/decide a question of larn, r,vhiclr is o[ first impression/distinguishes over-rules/explains a prcvious riccision

St.rikc-rlr:1- whichr:vcr is no1. i.rppli<;nblc.

NO'l'lJ: - (i) 'l'his slip is only t.o [rr: r-rsr:d r,vhcn somc action is l.o trc t.i.rkcn.

(ii)If Lhr: slip is r-rsr:r.l, l.hr: Itcadcr must. atlach il to {.}rr: top ol t.hc llrst- pngc oI'l.hc -_ludgrncnt.

(iii)CourL Associatr: ntust ersk the Judgc rvrittcn l-hc juclgrncnt r,vhcthcr thc judgmt:nt is approved for rcporting. (irr) 'l'hosc clircclions whictr are not t.r: br: usecl should bc deleted.

t.

S(lP, Knr-1, (iii) 773-2000-4 -2003-ilI

t t

ffr'*a-

F.

_l- F' t tst? i 9'o3'dtlt( s1 :ii:"',T*i:,t"tl T fi.# ffi rE1 *1,"^ D s trs' 11, nrn i'*ur,:H I

IN THE HIGH C RT OF SINDH AT

t

HYDERABAD

Crimin*l Appeal No. S * I+Of 2014

PIRBHU SON OF LACHMAN

Hindu, Adult, Residents of Land Ali Shair Rajjer, Deh Dhandhoro, Taluka,KhiPro, -t District'Semqhar t' tt Presentty *ofrIit ed at Central Prison HYderahad aa+aaaatlaaaal Appellant Versus The State aa a a t o a a a t a a a a + Respond.ent

F R No. 3,612007 U/ s. 3O2/ P.P.C P.S Khi a

I

I

s TL

OITDI]II SI_IEET

IN TI-IE IIIGFT COUIIT OIT SINI[)I{,

C I l{CtJ I'l' C0 [J It'[, IIYDIIR.dTI]AD. Cr. Appeal No.S-47 of 2()14

DATI] ORD]]IT WITH SIGNATURI] OF J{JDGE

I]or lrearing, of ma in case.

S),*d Zeeshan I-Iycler Shal"r, Advocate fbr appellant.

Ms. ltameshan Orrcl, Asst. Prosecutor Generill, Sirrdh.

i have hearcl the learnecl counsel for the appellant and learnecl A.P.G. Iteservecl fbr .i udgnrent.

t^

't' I I r(i z f't I r tt rl't'

A

P--Xm"t*l f*M J &4p *-r,'^ s \3

HIGH COURT OF SINDH, CIRCUIT COURT

AT HYDERABAD

r Criminal App*al No.S-47 of 20-1,4 [Pirbhu versus The State]

Appellant 'fhrough Syed Zeeshan Hyder, Advocate

Complainant None present

State Through Ms. Rameshan Oad, Assistant P.G

Date of hearing 05.12.2023

Date of clecision 1?,12.2023

)k**

T UDGMENT

+ MU HAMMAD KARIM KHAN AGFIA I'- ThTO ugh this appeal the appellant Pirtrhu has impugned the Judgment dated 26.02.201,4 passed by learned Sessions Judge, Sanghar (Trial Court) in Sessions Case No.117 of ?007 [The State versus Pirbhtr], outcome of Crime No.36 of 2007 registered at P.S Khipro for offence punishable under Section 302 PPC, whereby he has been convicted and sentenced u/s 302(b) PPC to suffer imprisonment for life with further directions to pay Rs.2,00,000/- each as compensation to legal heirs of deceased Karoo ancl Sht. I{ajiri, and in case of default in payment thereof he has to further suffer sirnple imprisonment one year more, however, he was been extended benefit of Section 382-8 CI.P.C.

2.Complainant Flarchand Bheel lodged the aforesaid FIR on 16.05.2007, stating therein that he is serving as Darogha whereas his l brotlrer l(aroo aged about 28 /29 years as Belder in Irrigation Department; that his brother l(aroo was residing with him and was performing his duties at Nara Canal Khipro from Mudho Pattan to Aqil Shah Pattan; that on 15.05.2007 in the morning his brother Karoo went to perform his duties and up to late night he did not return back, as such his brother Akk and cousin Bhojo went in search of Karoo; that at about 02:00 arn (night) his cousin Bhojo retuned back and disclosed

sTa

T-

that at about 0L:00 am when he and Akk reached near the house of Pirbhu llheel situated on the path of Nara Canal, they heard the cries of r

I

brother l(aroo, which attracted them and they saw on torch light that i 7 accused Pirbhu S/o Lachman Bheel was causing blows on sharp side

I

I

t i I of his hatchet to brother Karoo on which they raised hakkals and the

I

accused Pirbhu ran away with his hatchet and then they saw dead t

I

I

I

I

body of Sht. I-Iajiri W/o Pirbhu aged about 24 years having hatchet injuries and Karoo had also hatchet injuries, who also died within their sight; that after receiving such information he alongwith cousin Bhojo rushed towards place of incident and sarv the dead bodies of Sht. I{ajiri and his brother Karoo, hence aforesaid FIR was lodged,

3.After usual investigation police submitted the challan before the

I

Court concerned and after completing necessary formalities, Iearned trial Court frarned the charge against the accused/ appellant, to which he pleadecl not guilty and claimed trial.

4.At trial, the prosecution in orcler to prove its case examined nine (09) witnesses and exhibited numerous documents and other items. Tlre staternent of accusect was recorcled under section 342 CI.P.C whereby he cleniecl the allegations leveled against him and claimed his false irnplication in the case. However, neither he examined himself on oatl^r nor led any evidence in his defence.

5.Learned trial Court after hearing the learned counsel for the parties and examining the evidence available on record convicted and sentenced the appellant as statecl earlier in this judgment. Hence the appellant has filed this appeal against his conviction.

6.Learned lrial court in the impugned judgment has already cliscussed the evidence in detail and there is no need to repeat the same here, so as to avoid duplication and unnecessary repetition.

7.As is appearing from the impugned judgment the complainant had died his natural death during trial, as such he could not be examined before learned trial Court and his legal heirs neither engaged a private counsel before the learned trial Cc'urt nor effected appearance before this Court despite issuance of various notices at the given

)is-

address of complainant. Since the appellant had been in custody for a long time and the interest of the complainant/legal heirs could be looked after by the learned State Counsel, as such in the interest of 7 justice I proceeded with this old appeal of 2014 and have decided the same through this judgment.

B' Learned counsel for the appellant has contended that the appellant is innocent and has been falsely implicated in this case; that that this was a blind murder and that the alleged eye witnesses were not present at the time of the tnurder and as such their evidence cannot be relied upon; that the retracted confession of the appellant was made under duress and is contrary to the eye witness evidence anct as such it cannot be safely relied uPon; that the murder weapon (hatchet) was foisted on him by the police; and that for any or all of the above reasons the appellant be acquitted of the charge by extending him the benefit of the doubt. In support oI his contentions he placed reliance t on the cases of (i) DILMEER and another versus The STATE [2000 yLR 787), (ir) ZAFFAR versus The STATE lz}tz MLD 4661, (iii) FAZAL MAULA and another versus AI(HTAR IAMEEL and another MLD 8251, (iv) IMRAN versus The STATE [2015 MLD 46), (v) NIAZ AHMED versus The STATE [2015 YLR 1204), ("i) AZEEM KHAN and another versus MUIAHID KHAN and others [2016 SCMR ZT4l ancl (vii) MUHAMMAD ISMAIL versus The STATE LZ1qT SCMR

9 ' Learned Assistant Prosecutor General Sinclh on behalf of the State, who was also looking after the interests of the complainant, after going through the entire eviclence of the prosecution witnesses as well as other record of the case has fully supported the impugned \ judgment. In particular she has contended that there was no delay in lodging the FIR; that there are two eye witnesses both of whose evidence can be safely relied upon who directly implicate the appellant in the murder of the cleceased; that the appellant made a judicial confession which albeit was retracted at trial could be relied upon as it was voluntarily made with the object of telling the truth; that the rnedical evidence supports the ocular evidence; that the hatchet t

5it

(murder weaPon) was recovered on the pointation of the appellant and as such the prosecution had provecl its case against the appellant beyond a l'easonable doubt and the appeal be dismissed. In support of v her contentions, she placed reliance on the cases of MUKHTAR ALAM versus FAZAL NAWAB and another 12020 SCMR 61g] and GHAFFAR MAHESAR versus The STA'rE

L2022SCMR 1280J.

10' I I-rave heard the learned counsel for the appellant as well as learned A.P.G and have also perused the material available on record and the case law cited at the bar.

11' Based on my reassessment of the evidence of the pW,s, especially the rnedical eviclence, recovery of bodies of the deceased and blood at the crime scene which lead to a positive chemical report I find that the prosecution has provecl beyond a reasolable doubt that Karo and Sht Hajiri (the deceased) were both murdered by a sharp cutting weapon ou 16,05.2007 at about 1am at the path of Nara Canal l(hipro in front of Landhi of the accused.

12' The only question left before me therefore is who murdered the deceased by firearrn at the saicl time, clate ancl location?

13' After lny reassL'ssment of the evidence on record, I find that the prosecution has proved beyond a reasonable doubt the charge against the appellant for which he was convicted for the following reasons;

(u)That the FIR was lodged with a delay of about L0 hours however based on the particular facts ind circumstances of the case I do not find such delay fatal to the prosecution case. This is because after the witnessing the murder and discovery of the clead bodies the complainant was informed by an eye witness who reached it-ru wardat and then

.L

proceecled to the PS which was about 5 to 6 I(M's from the warc{at as such the delay in 1odging the FIR has been fully explained. In this respect reliarrce is placecl on the case of Muharnmad Nadeem alias Deemi v. The state (2011 scMR

(b)Ihe appellant is named in tl-re promptly todged FIR with the specific role of murdering the deceaied by hatchet. Even otherwise no specific/proven enmity has .o*u on record between the appellant ancl the complainant which woulcl motivate hirn to loclge a false case against the appellant.

5 r4

(.) In my view the prosecution's case primarily rests on the eye witnesses to the murder whose etridence I shall consider in v detail below;

(i)Eye witness PW 3 AKK. He is brother of the complainant who died of natural causes before giving evidence at trial and the brother of the deceased I(aroo. Accordirrg to his eviclence the deceased I(aroo was working in the irrigation departrnent and posted at Dharo nara canal. On 15.05.20A7 the deceased went to his post but did not return home. Thus, he and his cousin Bhojo went out in search of deceased Karoo. At about Lam they both came to where deceased Karoo was posted when they heard l(aroo's cries. On torchlight they saw the appellant inflicting hatchet blows on deceased Karoo. They gave hakals and the appellant ran way with the hatchet. Deceased l(aroo had died and they also found body of deceased flajira who had received hatchet blows and was dead. He then sent Bhojo to inform his elder brother Harchand who came to the wardat and then went to inform the police and lodge the I,IR. Police carne to the wardat and the deacl bodies were taken to hospital.

This eye witness knew the appellant before the incident, and saw the appellant from a few feet a way over a few minutes when the appellant was murdering deceased l(aroc, by hatchet so there is no case of mistaken identity and no need to hold an identification parade especially as the accused with specific a role was named in the promptly lodged FIII. In this respect reliance is placed on the cases of Anranullah v State (2023 SCMR 527), Qasim Shazad V State QAn SCMR 177)

Admittedly the eye witness was related to the deceased I(aroo who was his brother however it is well settled by now that evidence of related witnesses cannot be discarded unless there is some ill will or !\ enmity between the eye vritnesses and the accused which has not been proven in this case by any reliable evidence. In this respect reliance is placed on the cases of Tiaz Ahmed V The State (2009 SCMR 99) Nasir Iqbal alias Nasra and another v. The State (2016 SCMR 2152) and Ashfaq Ahmed v. The State (2007 scMR 641),

This eye witness is not a chance witness as ire was the brother of the deceased Karoo residing in the same house as him in the nearbr/ village and went to look for him where he was posted when he did not return home. I-Ie is named in tl^re promptly lodged FIR. He t

) w

f saw the appellant murder the deceased Karo by torch light. He knew the deceased from before and as there is no case of mistaken identity. The witness saw the appellant by torch light. Admittedly the torch l.

was not recovered but we must be practical and use our comuronsense in respect of this aspect of the case. Namely, no one goes out at night in rural areas to look for some one with no source of light. obviously they would take a torch with them so they could find there way to the place where Karoo was posted. what use would it be searching for some one in the dark with no source of light? The fact that the torch was not recovered was not the fault of the eye witness who had no idea that he had to hand it over to the police. This was the job,of the IO and once again the ground reality in our society/environment is that the police rarely recover light bulbs or torches in the rural areas where it is taken for granted that at night people use torches because it is dark and on account of excessive load shedding. Admittedly he gave his section 16L eye witness statement after a delay of 10 days but once again this was not his fault. Such delay ,t, is often fatal to the prosecution case but the fact that his name was mentioned in the promptly lodged FIR as an eye witness leads mq to giving some weight to his evidence. He also gave his evidence in a straight forward manner and was' not dented during cross examination. He had no enmity with the appellant and as such had no reason to implicate him in a false case. As such l believe his evidence especially in respect of the identification of the appellant but give it lesser weight than is usual on accollnt of the delay in recording his 5.16L Cr.PC statement.

(ii)Ey* witness PW 4 Bhojo. He was cousin of the complainant and PW 3 AIfl( and was also related to the deceased Karoo. I lis evidence corroborates the evidence of eye witness PW 3 AKK in all material respects ancl the same considerations apply to his evidence as to the evidence of PW 3 AKK. Namely, I believe and rely on it but give it lesser weight than I usual due to the delay in his recording his 5.161 Cr.PC statement.

Having believed the eye-witnesses evidence, albeit with lesser weight than usual, I turn to consider the corrobotatle f supportive evidence whilst keeping in view that it was it was held in the case of Muharnmad Waris v. The State (2008 SCMR 784), atP.786 para 4 as under;

" Corroborntion is only a rule of caution and is not a rule of lnru nnd if tlrc eye ruitness {tccourut is found to be reliable and tntst ruortlty tlrere is hnrdly ilny need to loolc fr, frtty corrobot'iltiot't"

I

5 rq

Thus, based on my believing the evidence of the 2 PW eye mentioned above, although giving their evidence lesser weight than is usual, what other supportive,/corroborative material is their against the appellant?

'r

(d)Shortly after his arrest the aprpellant made a judicial confession (later retracted at trial) which is reproduced as under for ease of reference.

"On 16.05.2AA7, I returned baclc to nty honre fronr

I

Chnnoseri Mori, ruhen nt about 1,0/1,1 P.M night, smu that tlty sot't rpns sleeping on n Cot but nry rt tfe runs not ausilable

I

on lrcr Cot. Then, hearcl sonxe noise from Hut, was I hauing hatchet and spade in nxy hands. lcept spade I tlrcre ancl toolc hatchet with me and went inside the Hut

I

where saw that Karo" and my wife Sht, Hajri, u)ere nalced and zuere corundtting intercourse then becarue I ilnger and firstly caused hatchet blows to l{aro on his shoulder who died at the spot and thereafter I also caused hatcl'tet blows to my wife Sht. Hajro on her shoulder, who also died then and there. Then after Iceeping the hatchet on Cot I went to sleep, Therenfter, I cnlled my nmternnl uncle nntnely lttl.nkhnn to ruham I narrated

A

tlrc nbotte fncts ru\rc nslced to cill the Nek Mard nnd then our l'/ek Mnrd cnnrc nl Otnq nnri cnlled nle to rulnru alsa I nnrrnted tlrc snrue fncts tlrcn lrc took t'ne on llns motorcycle to tlrc Police Stntion"(bold adcleel)

It is settled by now that even a retracted judicial confession can be relied upon if it is found to be voluntary and is truthful and fits ir-r with the prosecution case. In this respect reliance is placed on the case of Muhammad Amin V" The State (PLD 2006 Suprerne Court 219). In the instant case the appellant has claimed that his confession was not voluntary and was a result of coercion as his family was kept in police custody to ensure tl"rat he confessed. No mention of this was made at the time of recording the confession before the magistrate. No mention of it was made in the appellant's Section 342 Cr.PC statement. I-Ie dicl not give evidence on oath and did not call any of the allegecl detained relatives as DW's. As such I find that the confession was made voluntarily with the object to tell the truth. No doubt there is some discrepancies with the evidence of the \ eye witnesses but I do not consider that such discrepancies shake the prosecution case as tire confession supports the core of the Prosecution case narnely that the appellant murdered the deceased with a hatchet and as such I believe the confession and place reliance on it and find that it is corroborative of the eye witnesses version of events.

I also find that the magistrate committed no material proceclural irregularities in recording the judicial corrfession which I have placecl reliance u..

n

d (") that the bodies of both the dec:eased were found in the hut of the appellant for which he was not able to give any explanation.

S z.o

B

(f)That it does not appeal to log;ic, commonsense or reason '/ that a brother would tet the real murderer of his brother get away scot free and falsely impticate an innocent perso" by way of substitution. In this respect reliance is plaiecl on the case of Muhammed Ashraf v state (z}zl SCMR Tss).

(S)That the medical evidence and post mortem report fully supPort the eye-witness/ prosecution evidencg and the confession that both the deceased died from receiving wounds from a sharp cutting instrument i.e a hatchet.

(h)That on his arrest a clay after the incident the accused irnmediately lead the police"to the murder weapon which was a hatchet on his own pointation which was hidden in the roof of his house in a place which the police would not be aware of.

(i)That there was no ill will or enmity between the police and the appellant and as such the'y had no reason to falsely ,A implicate the appellant in this case, for instance, by foisting the hatchet on him. Uncler these circumstances it is settled by now that the evidence of police witnesses is as good as any other witness. In this respect reliance is placed-on the case of Mustaq Ahmed v rhe state (2020 scMR 474).Thus, I believe the evidence of the IO 'who was not dented during cross examination whose eviderrce of arrest ancl recovery is supported Lry the rnashir,s evidence.

0)'I'hat the bloocl stainecl earth recoverecl at the wardat and clothes lecovered from the cleceased were sent for chemical examination which report found the bloocl recovered at the scenL.' and on the clothes to be human blood.

(k)The motive for the murcler has come on record. Namely, that the deceased Karoo wasi caught having intimate relations wirh the wife (deceased Hajira) of th; appellant which angered him and lead to him murdering them, ^

L

(l)'fhat all the IrW's are consistent in their evidence and even if there are solrle contradictions in their evid.ence I consider thc'se contraclictions as minor in nature and not material and certainly not of such rnateriality so as to effect the prosecution case and the conviction of the appellant. In this respect reliance is placed on the chses of Zakir Khan V State (1995 SCMR 1793) and I(hadim Hussain v. The State (pLD 2070 supreme Court 669).T'he evi,lence of the pw,s provides a believable corroboratecl unbroken chain of events from the eye witnesses searching for tl're cleceased Karoo at his post

.f o

5T \

i to tl-rern seeing the appellant murder.ing the deceased Karoo i with a hatchet and fincling next to him the body of the wife of the appellant deceased Sht Haiira also with hatchet wounds to the arrest of the appellant to the recovery of the hatchet on his pointation to the retra,:ted judicial confession of the appellant.

(*) Undoubtedly it is for the proseculion to prove its case against the accusecl beyond a reasonable doubt but I have also considered the defence case to see if it at all can caste doubt on or dent the prosecution case. The defence case as set out by the appellant during his cross examination was that he was not present at the time of the murder and he has been falsely implicated however he did not give evidence under oath or call any DW in support of his defence case or even procluce an iota of eviclence in support of his defence case. Thus, in the face of eye witness evidence, his confession before judicial magistrate and other supportive/ corroborative evidence I disbelieve the defence case which has r-rot at all dented the prosecution case.

/a 1,4. Thus, based on the above discussion, I find that the prosecution has proved its case against the appellant beyon{ a reasonable doubt for the offence for which he has been convicted and sentenced and as such his appeal is dismissed.

lz. T7

T E

"Srrjjnd Iessnt/P.A"