Ahmed and another (Appellant) VS The State (Respondent)

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IN THE H IGH COURT OF S DH CIRC I

COU RT HYDERABAD

Criminal Appeal No. .s r of 2013 f5q

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1- Ahmed son of Jaclaro, l.\ ',n l.' 2- SS hpa.!__s!n _of Ah m ed 'i t.u.,\,'

BOTH muslirns, odults, Arisar Residents of viliage.Hawati Arisar

APPELLANTS/ACCUSED

VERSUS

I Th e Sta te. RESPONDENT

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L'r. Appr-al No. S-59 ol' ll0 1 3

I)i\.I.I:i OIiDI'R WIl.I I SIGNA'|UITE OII JLJDGE Irrlr lrcliring cll'urrrin cirsc.

1 1 .l 2.2023.

z\ppellant Alrnrecl is present on bail.

lVlr'. .] ahar.rgil l(han I)atlrnn, Aclvocate klr appelIants, I\'lr'. Abtlrrl I Ia I''eez.. Associate o1' Mr. Mian Ta.i Muhamrnad I(eerio, l,-'rrnrccl corrrrse I [br'Lhe conlplainant.

i\zlr;. Salrir N4e nton. Asst. [)rclsccrrlor General, Sinclh.

I lnt'c l'rr,ttt'cl tltc Icurttcrl r:otrnsel ltlr tht: appc=llant, conrplainant and the I learne tl n.l'. C . l(esen,cci 1'or .i udgrnent.

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COMPOSITION OF BENCH

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YES

CERTIF ICATB

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II{ THE HIGH COURT OF SINDH, CIRCUIT COURT

HYDERABAD

Criminal Appeal I.[o. S- 59 of 2013

AHMED AND AI{OTHER

Versus

THE STATE

Appellant : Ahrned s/o Throurgh Mi. Jahangir Khan Pathan, Jadaro (present ou bail). Advocate.

Respondent : The State Through Ms. Sana Memon, Assistant Prosecutor General, Sindh,

Complainant Mr. Abdul Hafeez, Associate of Mr. Mian Tui Muhammad Keerio, Advocate is present.

Date of hearing 11 .12.2023

Date of judgment -r8.12.7023

TUDGMEI{T

MOHAMMA D I(ARIM I(HAN AGHA, T.- This Criminal A ppeal is directed against the jr"rdgment dated 27.05.7013, passed by the

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learnecl Sessions Juclge, Umerkot, in Sessious Case IrIo. 1A7 of 2009 (re: The State verslts Ahrned and another), emanating from Crime No.20 of 2009, registered at Police Station Chhor, under section 302, 324,-1A9,337-4(i),337-F(i) PPC, whereby the appellants Ahmed and Solrbat have been convictecl u/s 302(Lr) PPCI as Ta'zir and sentenced to suffer imprisonrnent for life for cotnmitting the murder of deceased Rajab Ali and Rasool Bux. They were also directed to pay Rs.1,,00,000/- (Rupees One Lac) each as cc'mpensation to the legal tl

5w lreirs of deceasecl as provided u/s 544-A Cr.P.C; and, in case of non- payment of said colxpensation, the appellants shall further undergo S.l for 06 months rrrore. However, benefit of Section 382-8 Cr.P,C f was also extended to the appellants. It is noted that during penclency of this appeal, the appellant Sohbat has expired and report in this regard has already been furnished by the Jail Authorities vide order dated 28.70.2013 and as such his appeal was not pressecl.

2.Facts of the prosecution case as mentioned in the FIR are as uncler:- "OrL 28.70.2009 nt 1500 hotn's, conrplainant lrunru Bux lodged FIR, alleging tlterein thnt tlwe is s dispute or)er plot in frortt of ltis ltouse ruitlr Almrcd Arisar. It is firtlrcr alleged in tlrc F,I.R tlmt on 26.10.2009, Ahnrcd arud Obhnyo cnlled |ilru at plot nncl nslced to uncrtte tlrc sfinlet otlrcruuise it ruould not be good for lirn, tlrcrenfter arld tlrcy ruent muay. lt is firther stnted tltat on 28.10.2009, \rc, lis brotlrcr Rnsool Bux, Qndir Bux, nephew Ilajnlt Ali, Ahutfinz Ali, Shnh I'Jmunz nnd Asif TLtet'e nttnilnble nt furc sto1t trcnr csbitt of [1m1nt, rphen nt nbout 7:30 P.M, n blnck colour lnncer cnr No.C-6039, cfinle froru Dlroronaro side, stopped nent tlrcrn, ncutsed Soltbnt arrued ruith guru Shnhnilr alias Punlnon arnrcd ruith DBBL Gun, Aluned nrrned ruith hstchet, Jnbbar nrnrcd ruith DBBL Gwn aliglfied front tlrc snid cnr saying tlmt tlrcy ruiil be killed, snying so, nccLtsed Soltbnt made fire fi'ont repenter gLr"t't tl"pot'L Rnjab, wlrc rulille receiaing tlrc fire shot fell doutrt, Slmlu'nir nlins Pwnlnon rnsde fire upon Rasool Bux, tulto nfter receiuittg irujw'y fell dorun, ncntsed Aluned cnused labbnr runde strnight fire upon Qadir Bux, Shah Naruaz, Munttaz nnd Asif, rttlrc nlso strctnined hlw'ies, Accttserl Ahrued cnttsed Slmrp side lrntclrct hloru to Slmh Nmunz, on fire reports aillagers cfitne rtuming to zuliclr nll nccused Tuent nwny rulile firing in tlrc snid t'a' lorpnrrls Clilrur, lt is fin'tlrcr nlleged in the f .I.1{ tltnt tlrcy snTL) tltnt Rnsool llt.tx mul llnjnh Ali died nt the spot, leauing Hnyat nnd Qnzi oT)er dend hodies, referred tlrc injtn'ed to lrcspital, tlrerenfter conqilninnnt nppenred at police statiotr and lodged tlrc

F.I,R,"

3.After usual investigation police submitted the challan before the Court concerned and after cornpleting necessary formalities, learned trial Court framed the charge against the appellants, to which they pleaded not guilty and clairned tlial.

4.At trial, the prosecution in order to prove its case examined 12 witnesses ancl exhibited numerous documents and other items. The statements of accusecl were recorded under section 342 Cr.P.C b

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wheleby they deniecl the allegations levelecl against them and claimed their false implication by the complainant. I{owever, neither the appellants examiued themselves on Oath nor led any evidence in f their defense.

5' Learuecl trial court after hearing the learned counsel for the parties and examining the evidence available on record, convicted and sentenced the appellants as stated earlier in this judgment. I-Ience, the appellants have filed this appeal ergainst his conviction. It is to be noted that appellant Sobat has died and the appeal with regarcl to him was disposed of as not pressed.

6.Learned trial Court in the impugned judgment has alreacly discussecl the eviclence in detail ancl there is no neecl to repeat the same here, so as to avoid cluplication and unnecessary repetition.

7, Learned coLlnsel for the appellant has contencled that the appellant is innocent and has been falsely implicated i1 this case on accoullt of enrnity; that the evidence of the eye witnesses cannot be safely relied uport as they are all relatecl to each other and the deceased; that the so callecl clispute over the plot is made up; that the hatchet was foisted on the appellant by the police; that there are material contraclictions iu tire evidence of the PW's which renclers their evidence unreliable; that two co-accused have been acquitted ancl on the salne set of eviclence and he is entitled to similar treatrnent and for any or all of the above reasons the appellant should be acquitted by extending him the benefit of the dou6t. In supPol't of his contentions, he placed reliance on the reported cases of AMIR MUHAMMAD I(HAN versus The STATE 1202g SCMR }' 5661 and MUHAMMAD HASHIM SHAH and others versus The srATE 12023 SCMR 17681.

B. Learned Assistant Prosecutor General Sindh as well as learned counsel for the cornplainant, after going through the entire evidence of the irrosecution wihresses as well as other recorcl of the case supported the impugned judgment. In particular, they contended that their were 6 eye witnesses in this case gll of whose evidence could be safely relied upon; that the medical evidence supportecl the

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ocular evidence; that the rnotive had beerr proven and that the murder weapon (hatchet) had treen recovered on the pointation of the appellant and as such the prosecution had proved its case f beyond a reasor-rable doubt and the appeal be dismissed. In support of their contentions, they placed reliance Dn the cases of Qasim Shahzad and another versus The State and others 12023 SCMR 1771 ancl, Muhammad Bashif and another versus The State and others 12023 SCMR 1e0l

L), I harve heerrci tl-re learnerl counsel for lhe appellant as well as learnecl APG and learnecl counsel for the complainant and have also pelused the material available on record and the case law cited at the bar,

10.IJased on my reassessment of the evidence of the PW's, especially the medical evidence, recovery of blood and empties at the critne scene which lead to both positive chemical and F'SL reports I finct that the prosecution has proved beyond a reasonable doubt that Rasool Bux (the deceased) was murdered by firearm and hatchet injuries and PW Shah Nawaz was injured by hatchet on 28.10.2009 at about 1.30prn adjacent to cabin r:f PW Hayat situated in village Hawali cleh larh taluka Umerkot.

11.The only question left before me therefore is who murdered the deceased and injurecl Shah Nawaz by firearm and hatchet and hatchet only at the said time, clate and location?

72, After my reassesslnent 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 t reasons;

(u)That the FIR was lodged within a few hours of the incident and based on the particular facts and circumstances of the case I do not find such slight delay fatal to the prosecutiorr case. This is because after the wilnessing the rnurder and ferrying the injured to hospital the complainant immediately lodged the FIR as corroboratecl by PW Tajrnal SirLgh who was the duty officer at the PS at the time of lodging the FIR as such any f

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slight delay in lodging the IrlR has been fully explained. In this respect reliance is placed on the case of Muhammad Nadeem alias Deemi v. The State (2011 scMR 872).

(b)The appellant is named in the promptly lodged FIR with the specific role of hitting the deceased and injured Shah I{awaz with a hatchet. Thus there was no time for the complainant to cook up a false ca-qe against the appellant. Even otherwise no specific f proven enmity has come on record between the appellant and the complainant or any PW which would motivate them to lodge a false case against the appellant.

(.) In rny view the prosecution's case primarily rests on the eye witnesses to the murder of the deceased and injury to Shah l{awaz whose evidence I shall consider in detail below;

(i)Eye witness PW 1. Imam Bux is the complainant and brother of the deceased. According to his eviclence two days prior to the incident at about 1 9arn the appellant and co-accused (Obhayo who wrls acquitted based on a different and distinguishable role i.e he was not present at the tirne of the incident) calne to his house and asked hirn to vacate the plot otherwise it would not be good for hirn. On 28.10.09 at about 1.30pm he along with the cleceased, Rabjab Ali (since dead), Qadir I3ux, Shah iVawaz, Mumtaz Ali and Asif Ali were standing at the bus stop of the village Hawali Ar isar when the appellant armed with a hatchet, Sobat (expired appellant), Shamir and Jabbar all of whom l-rad firealms came in a lancer car No.C-6039 and asked thern why they had not vacated the plot. Whereupon Sobat fired at Rajab Ali and Shamir (l'roclairned Offender PO) fired at the deceased ancl the appellant caused hatchet blows to the cleceasecl and Shah Nawaz. Mumtaz Ali and Asif also feIl to the ground on account of fire shots. There Lrpon the accused escaped from the crime scelte in the same car. I-Ie took the injured to the

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hospital leaving Qazi and I*Iayat over the dead boclies arrcl then he loclged the FIR.

This eye witness knew the appellant before the incident, and saw the appellant from a few feet a way rnurdering the deceased by hatchet and injuring Shah Nawaz by hatchet so there is no case of mistaken identity and no need to hold an identification parade espe'cially it was broad duy light at 1-.30pm. The accused is also named with specific a role in the promptly lodged FIR. In this respect reLiance is placed on the cases ,,

5p Amanullah v State (2023 SCMR s27), a^rr: Shazad V State (7023 SCMR 117).

Admittedly the eye witness was related to the deceased who was his brolher however it is well settled by now that evidence of related witnesses cannot be discardecl unless there is some il1 will or enmity between the eye witnesses and the accused which has not been prov€n in this case by any reliable In this respect reliance is placed on the cases of Ijaz Ahrned V The State (2009 SCMR 99) Ir{asir Iqbal alias Nasra and another v' The State (2015 SCMR 21,52) , Ashfarl Ahmed v. The State Q0A7 SCMR 641) and Abdul Wahid (Supra), Ihis eye witness is not a.chance witness as he was residing in the sarne locality as the deceased who was his relative who he had met up with at the bus stop with other relatives. His eviclence was not materially improved on from his prornptly lodged tllR. I-Ie gave his eviclence iu a uatural manner and was not damaged during a lengthy cross exarnination I find his evid(lnce to l:e trust worthy, reliable and confidence inspiring and I believe the same.

It is weli settled by now that I can convict the accused on the evidence of a sole eye witness provicled that I find his evici*t.* to be trust worthy reliable and confidence inr;piring. In this respect reliance is placed on the case of Muhammad Ehsan v. The State (2006 SCMR 1857). As also found in the cases of Farooq I(han v. The State (2008 SCMR 917), Niaz-ud-Din and another v. The State and another (2011 SCMR 775) and Muhammad Ismail vs. The State QA77 SCMR 713). That what is of significarrce is the rluality of the evidence and not its quantity ancl in this case I find the evidence of these eye witnesses to Lre of good quality and believe the same.

(ii)Ey* witness PW 2 Shah lrlawaz. He is related to i the complainant, the deceased and other eye witnesses who are all his co-villagers. His evidence corroborates the cornplainant's evidence in all material respects. I-1i: saw the appellant hit the cleceased with a hatche:t from close range and was also hit himself by the ;rppellant with a hatchet which leacl to hirn being injured as proven by the meclical evidence. I{e knew the appellant and the irrciclent took place in bro,ecl duy right urrder his llosc with Lhe appeliant ev'en striking him with a hatchet. It is settled by rrow that the evidence of an

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injured eye witness is deenred more reliable than usual eye witnesses. In t]ris respect reliance is placed on Aquil V State (2023 SCMR 831)'He is named in tire promptly lodged FIR and gave his -+' Section 167 Cr.PC sLatement on the same duy which was ttot materially improved upon during his evidence at trial. He had no enrnity with the appellant anc{ hacl no reason to implicate him in a false cerse. I-le gelve his evidence in a natural lnanner and was not dented during a lengthy cross examination and the same considerations apply to his evideuce as to the cornplainant's evidence. I find his evidence to be trust worthy reliable and confidence inspiring and I believe the same.

(iii)Ey* witness PW 3 Asif"Ali. He is related to the complainant and deceased and the injured Shah Nawaz, His evidence corroborates that of the cornplainant and PW 2 Shah Nawaz in all material respects. I-Ie knew the accused before the incident and saw the incicleut" in broad duy light from a short distance. I-Ie was injured at the crime scene as .{ supported by the meclical evidence and it is settled by now that the evidence of an iniured eye witness is deemed more reliable than usual eye witnesses. He was named in the FIR and gave his Section 161 Cr.PC statement as sooil as he woke from consciollsr-Iess at the hospital which was not materially improved upon during his evidence at trial. I-Iis evidence was not damaged during a iengthy cross exatnination and the same considerations apply to his evidence as to the complainants and PW 2 Sirah Nawaz's evidence. I fincl his eviclence to be trust worthy reliable and confidence inspiring and I t,elieve the same.

(i") Ey* witness PW 4 Qadir. He is closely related to the cornplainant and the deceased. His evidence corroborates that of the complainant, PW 2 Shah I{awaz and PW 3 Asif Ali in all material respects. I-Ie knew the accused before the incident and saw

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the inciclent in broad duy light from a short distance. FIe was injurecl at the crime scene as supported by the medical evidetrce and it is settled by now that the eviderrce of an injured eye witness is deernecl rnore reliable than usual eye wifnesses, l{e was narned in the FIR and gave his Section 161 Cr.l'C statement as soon as he woke from consciousness at the ho;;pital which was not materially irnproved upon during his evidence at trial, Ile was not damaged during a lengthy cross examination and the same considerations apply to his evidence as to tl-re cornplainant's and that of

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PW's 2 Asif Ali's evidence. i find his evidence to be trust worthy reliable and cc,nfidence inspiring and I believe the sarne.

+ (u) Ey* witness PW 5 Mumta:z Ali. He is related to the complainant, decease*-l and other PW eye witnesses mentioned abovrs. This eye witness was again injr-rred ol't the spot. FIis evidence corroborates that of the complainant and other PW's mentionecl above. I-Ie was namecl in the promptly lodged FIR and gave his 5.161 Cr.PC staternent on the sarrre duy which was not materially improved upon during his evidence at trial. He had no enlnity with the appellant and had no reason to impiicate him in a false case. It was .1uy light ancl as such he ,got a good look at the appellant from a close range who he already knew from before, T'he same conr;iderations apply to his evidence as to the evidenr:e of all the other eye wihresses as mentioned above. I find his evidence to be trust worthy reliable and confidence inspiring and I believe the salrre.

r ("i) Ey* wiLnc,ss PW 6 Muhamnted l{ayat. I{e is related to the complainant. FIis evidence corroborates the other eye wiLnesses mentioned above in all marterial lespects. He was not injured at the crirne scene al tho urgir he cor roborates being lef t at the crime scene to look af ter the two dead bodies whilst the injured were terken to hospital. He is named in the promptly lodged FIR and gave his 5.161 Cr.PC statement with relative promptitude which was not materiaily improved on during the trial. I-le hacl no enrrrity with the appellant and had no leasoll to irnplicate hiur in a false case. It was duy light and as such he got a good look at the appellant from a close rang;e who he already knew from before. fhe salne considerations apply to his eviclence as to the evidence of all the other eye witrresses as mentioned abcve. I find his evidence to be trust worthy r:eliable and confidence inspiring and I believe the same.

I{aving believed the evidence cf 6 eye-wifnesses I turn to consider the corroborativefsupportive evidence whilst keeping in view that it was it was held in the case of Muhammad Waris v. The State (2008 SCMR 784), at P.786 para 4 as under; I

" Corroblrntiott is only n rule of cnution and is not n rule of lmp nnd if tlrc eye ruitness nct:ount is found to be reliable nnrl trust ruortlry tlrcre is Imrdly nny need to loolc for nny t'orroborttiott"

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Thns, based on my lrelieving the evidence of the 6 PW eye witnesses as mentioned above what other supportive/corroborative material is their against the appellant?

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(d)I'hat it does not appeal to logic, commonsense or reason that close relatives of the decear;ed would let the real rnurderer of their close relative flet away scot free and falsely implicate an innocent person by way of substitution. In this respect reliance is placed on the case of Muhammed Ashraf V State (2C21, SCMR 758).

(*) That the medical evidence and post mortem report fully suppot't the eye-witness/ prosecution evidence that the deceased diecl from receiving a firearm iniury and incised wound to the heacl/nbcl,: (i.e hatchet iniury) as rnentioned by the eyewitnesses and the injured eye witness Shah Nawaz (who alsrt gave evidence) also received his injuries from a sharp incised instrument i.e a hatchet as mentioned by the eye witnesses in their evidence.

a (f) 'I'hat tire appellant was arrested two days after the incident and within 6 days of his arrest the appellant lead the poiice to the murder weapon (hatchet) on his own pointation which was hidden in a place which only he could have known about as confirmed by PW 7 Ghaulam Mustarfa who was the mashir ancl the merno of recovel'y itself .

(g)Notalrly, only the appellant was armed with a hatchet according to the eye witnesses an-C as such only he could have caused the hatchet blows to the deceased and Shal-r Nawaz ancl as such there is no case of throwing the net wider to rope in the appellant especially as it was he who had originally threatened the cornplainant to vacate the plot two days before the incident or face dire consequences and it was his son expirecl appellant Sobat who was with him at the tirne of the incident who caused fire arm injuries to some of the PW's.

(h)Tirat one.tuy after the inciclent ttre police seized the car which the appellant and his co-accused alighted from which was abandoned and also contained the firearms usecl by the other co-accusecl in th'e offence.

(i)That there was no ill will or enrnity between the police anrl the appellant and as such they had no reason to falsely irnplicate the appellant in this case, for instance, by foisting the hatchet on him. Under 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 t

t fr<, V The State QA20 SCMR 474). fhus, I believe the evidence of the IO who was not dented during a lengthy cross examination whose evidence of arrest and recovery is supported by the mashir's evidence.

fi) That the blood stained earth recovered at the wardat and clothes recovered frotn the deceased were sent for chemical examination which report found the blood recovered at the scene and on the clothes to be human blood.

(k)'['he rnotive for the tnurtler has come on record. Namely, that the cleceased had refused to vacate the plot which was demanded by the appellant as per the evidence of the eye witnesses.. As per eviderrce of the complainant there was no land record in respect of this land which is not uncommon in some small villagers in the interior of Sinclh.

(1)Ihat all the PW's are consistent in their evidence and even if there are some contradictions in their evidence I consicler these contradictions as minor in nature and not rnaterial and certainly not of su.cl-r materiality so as to effect thr: prosecLrtion case ancl the conviction of the appellant. In this lespect reliance is placed on the cases of Zakir Khan V State (1995 SCMR 1793) I(hadim Hussain v, The State (PLD 2010 Supreme Court 669) and Maskeen Ullah and another versus 'l'he State and another [2023 SCMR 1568l.The evidence of the PW's provides a believable corroborated unbroken chain of events from the accused warning the appellant of clire consequences unless he vacated the plot to the appellant and his co-accused attacking the complainant party with firearms and in the case of the appellant a hatchet to the death of the deceased and serious injury to Shah l{awaz caused by hatchet to the recoveries of ernpties at the crime scene to the arrest of the appellant and the recovery of the hatchet on his poirrtation.

(rr)lhat the fact that sorre of the co-acclrsed were acquitted is of no benefit to the appellant as either they had much lesser roles or were acquitted by v,ay of cornpromise. i.

(") Undoui:teclly it is for the prosecution to prove its case against the accused 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 ouL by the appellant is that he was falsely irnplicated in this case ancl vvels not present at during the inciclent. However the accused did not give evidence under oath and did not call any DW to support his defence case. Ilven in his 3.347 C,:.PC statement he offers sin'rple denials ancl does not e\/en say where he was t

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supposecl to be at the tirne of the incident or with whom. fhus, in the face of eye reliable, trust worthy and conficlence inspiring eye witness evidence and other supportive/ corroborative evidence discussed above I * disbelieve the defence case whiclr has not at all clented the prosecution case.

13, 'I'hus, baseci or1 the alrove tliscutsr;ion, I find that the prosecution has proved its case against the appellant beyond a reasonable doubt for the offences for which he has J:een convicted and sentenced in the impugned judgment arrd as such his appeal is dismissed. SHO PS Chhor shall arrest the appellant who is on bail ancl return hirn to Central Prison Hyderabad to serve out the rernainder of his seutence. A copy of the Judgment shall be sent to SSP Umerkot fol compliance

IU r€lieftl *llafiz I:ahad*

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