Ghulam Muhammad Khaskheli (Appellant) VS The State (Respondent)

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IN THE HIGH COURT OF SINDH, CIRCUIT COURT

HYDERABAD

Cr. Jail Appeal No.S-212 of 2007

Ghulam Muhammad I(raskheli

Versus

The State

Appellant : Ghulam tlrrouglr Mr. G.M Laghari, Advocate Muhamrnad S/o Ramzan Khaskheli (Present on bail)

Respondent : The State through Ms. Rarneshan Oad, A.p.G. Sinclh None present for Vide order clated 23.01.2023, complainant complainant appearecl and shown his full faith ancl + confidence in learned A.P.G.

Date of hearing 19.06.2023

Date of judlment 23.06.2023

IUDGMENT

MOHAMMA DI( ARIM I(HAN AGHA,I. - Tl'ris crirninal jail aprpeal is directecl against the juclgment dated o3.1o.zoo7, passecl by the Iearned 1't Additionar sessions Juclge, Badin, in sessions Case No.gO of 2001 (re: The state v Ghularn Muhamrnacl), emanating from Crime No.66 oi 2007, registered at Police station Badin, under sections 3oz ppc, .l rr4rereby the appellant has been convicted u/s302(b) ppC ancl sentenced to suffe, imprisonment for life. IJe was also clirectecr to pay fine of Rs.1,00,000/- to the legal heirs of the deceased, rrowever, in case.of default thereof the appellant was also clirectecl to unclergo R.I for one (01) year more. If the fine is recovered, tlre same shall be paid to the legal heirs of The appellant was awarcrecr benefit of section 382-B Cr.p.C. .cleceased.

2 2[o 2 Facts of the plosecution case as statecl in the F.I.R, are as uncler:- "'Unt coruplainnnt lurs seuen brotlrcrs. Otrt of tlrcm, the thirtl ruunber Rajnb Ali sunon lns sltop of rnbnco at Cittil Hispital rocrcl Badin. About year prior to lodgirtg of this F.r.R, saicl Rajab Ali got rrnrriecl -one f-rom.tlrc house of Ali Murnd Klmskheti. After, tlrc ntarriage"tlrc accused Ghulnru Muhnnunsd son of Rnmzan Khaskircli u,ns asking ilmt Mst. Noor T of deceased Rainb Ali ns lis lh11 .ttrrfe betroth prettiottslil anrl he toill see Rnjab Ali. on 19.04.200i at B:00 p.M, snid Rajab Ali iuas sittittg at shop, the contplnhmnt, his brotlrcr Mtthammncl Ranrznfl, nmtentil lris uncre Mu.lnntruad Yousttf smuoo, tuere conting tottrnrtls l?.ajnb for sonrc rpork mtdrulwt rcnclrcd tLear the lrctel of Attnttditto soouno, tltiy satu nccrrcetl Glnilnm Mtilmrunmd son of Rnnnan Khasrclrcri nrntecl toitri lntchet, gaue slnrp side hntclrct bloru to Rnjab Ali tplich hit hint on igttt sicte ij lis rrcck, wln fell tlorun and tluy tried to cntch lnld of hiru. In ihe ,rrcortiinre, the Electric light went off on zuhich the acurced frerr-away.

Thereafter, they brougltt tru inju'etr Hospitnr, tprrcre irrc injt.uicr sltccrmtbed tlrc inju'ies. Then tlrc contplninnnt left tlrc p.ws otter rlend bocly and ruent to Police Stntion mtd lodgetl such F.l.R.,,

3.After usual investigation police subrnitted the challa. agai,st accused befole the Court concerned and after cornpleting necessary formalities, learned trial court framed charge against him, to which he pleaded nobguilty and claimed trial.

4.At trial, the [rre5sqution in orc]er to prove its case has exami'ed 0z wihresses ancl exhibited numerous documents ancl other- items. The siatement of accused was'recorcled uncler. section 342Cr.p.Cwhereby he cleiried tl-re allegations levelecl against him ancl claimecl his false implication on account of a marital clispute. He also examinecl himself on oath at Ex.17 wherein he producecl newspaper cutting clatecl 20.04.2001 at Ex.77 / A however, he ctid not procluce any ctefense wirness to clisprove the prosecution case.

5.Learned h'ial Court after hearing the learned counsel for the parties and evaluating the evidence available on record convicted anci sentencecl } the appellant as set out in tl-re earlier part of this juclgrnent. Hence tire appellant has filed this appeal against rris conviction. The appellar-rt is on bail granted by this court on account of the clelay in heari.g his appeal.

6.I'he facts of the case as well as eviclence pr-oduced before the trial Court find an elaborate mention in the impugnecl judgmer-rt, therefore, the same are not reproducecl here so as to avoid duplicatiorr ancl unllecessary repetition. - t

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7.Learned counsel for the appellant has contenclecl that the appeilant is innocent and has been falsely implicatecl in this case on account of enmity; that the medical evidence contraclicts the eye witness eviclerrce; that there are material conh.aclictions in the eviclence of the eye witnesses; that the hatchet was foistecl on hirn by the police and that for any T or all of the above reasons the appellant shoulcl be acquitted of the charge. In support of his contentions he placed reliance on the cases of shahbaz Mashi v rhe state [2007 scMR 1631,] Muhammad sareem v rhe state [2010 scMR 374), Basharat AIi v Muhammad safdar and anothe r [2017 scMR 760'1,1, Haroon shafique v rhe state and another [201g scMR 2178), sikandar AIi v rhe state [2023 yLR 4zzl, Muhammad Hayat and others v rhe state [2023 yLR 2g0], Hasnat Ahmed V The state YLR s8sl.

8' Lealned Assistant Prosecutor General Sinclh on behalf of the State, aftel going through the entire evidence of the prosecution witnesses as + u'ell as other record of the case has supported the impugnecl juclgment. In I'rarticular she contended that there were three eye wihresses who hacl correctly identifiecl the appellant as comrnitting the rnurder of the deceased; that there was no enmity between the parties; that the appellant had a motive for committing the mur-der as the deceased hacl run off with his fianc6e of the appellant ancl marriecl her; that the hatchet (murder weapo.) had bee. recoverecl on the pointation of the appellant and as such tlre prosecution hacl pr.ovecl its case against the appellant beyond a reasonable doubt ancl the appeal be clismissecl. In support of her contentions, she placed reliance on the cases of Muhammad Rafique alias Neela and another v rhe state and others [2020 scMR 664], The State through P.G sindh and others v Ahmed omar sheikl-r and others I [2021 scMR 873], Ghaffar Mahesar v rhe state through p.c sindh and others [2022 scMR 1280] and Muhammad Bashir and another v rhe State and others [2023 SCMR 190].

9.I l-rave considered the submissions of the parties and have perusc,cl the material availal'rle on recorcl as well as the case law citecl at the bar.

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10.Basecl o. my reassessment of the evicle.ce of the pw,s especially the medical evidence and other meclical reports ancl the blood recoverecl at the crirne scene I find tl-rat the prosecution has proved beyond a reasonable doubt that Rajib Ali (ti-re cleceased) was rnurderecl by T receiving a sharp hatchet blow to his neck on 19.04.2001 at about Bpm at the REHRA of the deceased near Alrahdino soomro Hotel situatect o.

civil hospital roacl in Baclin town.

11' The o,ly question left before rne therefore is whether it was the appelia.t who murdered the cleceasecl by hitting him on the necl< witli a hatchet at the said time, date ancl location?

12.After my .eassessment of the evicrence I fi.cl that the prosecution has proved beyond a reasonable doutrt the charge against the appeilant keeping in view that eaclr criminal case rnust be cleciclecl on its own particular facts ancl circurnstances for tlre following reasons; a

(a)Tl-rat the FIR was loclgec{ on the same clay witir pror-.ptituc1e. A,y slight delay in Loclgi.g the FIR has bee. explii,c.cl'by the complainant took n,ho took the cleceasecl to hospital after the incider-rt and then went to tl-re ps and roclged his FIR ancl as such sir-rce the slight delay in lodgir-rg the FIR has been explainecl basecl on the particular facts ancl circumstances of the case i[ is not fatal to the prosecutio. case. In this respect r.eliarce is placecl on the case bf Muham'rad Nadee,r alias Deemi v rhe state (2011 scMR BZ2).

(b)'That the prornprly lodged FIR names the appellant with the specific role of murclering the cleceasecl by ctrtting his necl< u,itjr a hatchet ancl since the FIR was loclgcrl pro,rptly there was .o ti,re for the co.rplai.ant to cook up a false case agair-rst the appellar-rt.

(c)I fi.cl that tl-rc prosecution's case primarily rests on the evide.ce of tl-re eye wihesses to the rnurcler of tl-re cleceasecl ancl whetlrer I believe their evicle.cc especially i. telrns of the correct L iclentification of the appella.t whose c,viclence I shall consicler in detail below;

(i)Eye witness PW 1 Ahmed. He is the complainant and uncle of tl-re deceased. According to his eviclence o.r-r 19.04.2007 at Sprn he, his uncle Muhamrnecl yousif a.ci brotl-rer Muharnrned Rahi.r were corning frorn civil hospital roacl and wl-re, tl-rey reachecl the hotc.l of AIrah Dino soomro he sal' the appellant couri,g fror, the opposite directi.n with a hatcl-ret. FIe tl-ren saw the etpprsllsnl give a sharp sicle hatchct blow to the deceasecl o, the rigrrt iide of i-ris ,eck.,

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They hiecl to catch the appellant but he escaped in the darkness. The deceased fell down and they took irir-n to civil hospital Baclin where he was pronouncecl deac-l on arrival. He tlren went to the PS and loclged the FIR against the appellant.

From the evidence it transpires that this wifness is relatecl to the deceased wl-ro is his relative however no enmity or dispute has been proven between the eye witness anci the appellant although there were differences between the deceased a.d the appellant. In this uncler oath the 'espect appellant states, "it is correct to st.tggest tlnt I hape rto enruity tttith contplainmfi pnrty" and thus his mere relationship tL -tlrc the deceased is no reason to cliscarcl his evidence which has to be juctgecl on its own worth. In this respect reliance is placecl on the cases of Amal Sherin v The State (pLD 2004 SC 377), Dildar Hussain v Muhammad Afzaal alias Chala (PLD 2004 sc 663).

This eye witness knew the appellant before the incident which occurred at 8pm at night. According to the eviclence of .the eye witness the electricity ancl light was available whilst he wihressed the appellant cut the neck of the cleceased with + a hatchet and then the light went off wl-rich enableci tl-re appellant to make his escape good. Thus, he would have been easily able to recognize the appellant cutting the neck of the deceased especially as he was only 40 feet iway as per the tapedar's evidence and sketch thus there is ,o case of mistake-n identity and no need to holcl an iclentificatior-r paracle in orcler to deternri,e the iclerrtity of the appella,t who was arrestecl the next day.

This eye witness was not a chance wihness as he lived in the area and had every reason to be where he was at the time of the incident with his other relatives pw 2 Muharnmecl yousif and PW 3 Mtrhammed Rahim who also support his presence at the scene of the crime. He gave his s.154 Cr.pC siateme.t with promptitude and had no time to cook up a false case hgainst the appellant who he had no enmity or ill will with any way which might lead him to falsely implicate tl.ie appellant in this case. I-Iis 5.154 Cr.pC statement was not materially irnproved upon during the course of his eviclence. + He named the accused in his FIR along with a specific role. He gave his evider-rce in a natural manlter ancl was not clentecl at all clurirrg a le.gtl-ry cross exarnination ancl as such I find his evidence to be reliable, trust wortl-ry and confidence inspiring and believe the same especially in respect of the iclentity of the appellant who murclered the deceased by cutting his neck with a hatcl-ret.

I can convict on the evidence of this eye witness alone though it wo,ld be of assistance by way of caution if ther.e is

2t\ sorne corroborative/ supportive evidence. In this respect reliance is placed on the case of Muhammad Ehsan v. The state (2006 scMR "1857). As arso found in the cases of Farooq Khan v. The State (2008 SCMR g1Z), Niaz-ud_Di., n.,j another v. The State and another (2011 SCMR 725) and Muhammad Ismail vs. The State (2017 SCMR 713). That T what is of significance is trre quarity of trre evidence ancl not .its clua,tity and in this case I find the evic{e.ce of trris eye witness to bc. of goocl quality and believe the same. In tliis case however there is nrore than one eye witness.

(ii)Eye witness PW 2 Muhammed yousif. The deceasecl was his nephew. fhis eye wifness in his eviclence fully corroborates the evidence of eye witness pW 1 Ahmed. HL also knew the accused, was not a chance witness ancl saw the appellant hit the deceased in the neck with a hatchet from range. He is named in the FIR and gave his 1el1t1v1ty_ctose s.161 C''PC statement on the same clay as the incident which was not materially irnproved upon during the course of his evidence and had .o ill will or enmity *ith th" accusecr ilr order to implicate the accusecl in a false case. He gave his evidence in a natural ma.ner and was not dented cic'spite a lengthy cross exalrination a.d thus I fincl his eviciencc to be + reliablc, trust worthy and confidence inspiring ancl believe the sarne and place reliance on it.

(iii)Eye witness PW 3 Muhammed Rahim. He was the brother of the deceased. This eye witness in his evidence fully corroborates the eviclence of eye witnesses pW 1 Ahmed and PW 2 Muhammed yousif. IJe also knew the accused, was not a chance wibness and saw the appellant hit the cleceased in the neck with a hatchet ancl also o., ru, tnign with the hatchet from relatively close range. He is nameclln the FIR and gave his 5.161 Cr.pC statement on the same day as the incider-rt which was .ot materialry irnprovecl upoir during the course of his evidence and hacl no ill wili or enrnity with the accusecl in orcler to implicate tlrn acr:usecl irr a false case. I-Ie gave his evidence in a natural marrncr anel was ,ot dented despite a le,gthy cross exalnination a,cl thus I fincl his evidence to be reliable, Lrust worthy and conficle.ce inspi,ing and believe the same a,d place reliance on it and with the evidence of PW 1 Ahrnecl and pW 2 Muhamrned + Yousif.

Thus, based on my believing the evidence of the 3 eyewitnesses what other supportive/corroborative materiar is there against the appellant? It being noted that corroboration is only a rule of caution and not a iure of law. In this respect reliance is placed on the case of Muhammad waris v The state (2008 scMR 784).

(cl)That it cloes not appeal to logic, coml,onsense or reaso. that a leal relative woulcl let the real murclerer of his real relative Be!

ti away scott free and falsely implicate an innocent persorr t-ry way'of substitution. In tl-ris respect reliance is placecl on the case of Muhamrned Ashraf V State (2021 SCMR 75g).

(") That the rnedical evidence ancl reports fully sLrpport 'redicar the eye-witness/prosecutio. eviclence. It confirms that the deceasecl died frorn a blow to his r-reck ancl that he also receivecl ar-r injury to his thigh both of which were incisecl wouncls causecl lry a shalp cutting weapon such as a hatchet. The cause of cleatl-r was the injury to the ,eck. The fact that only one pw mentionecl an injury to tl-re thigl-r as well as to tl-re neck I clo not consicler as material in tl-re face of the other evidence of the eye witnesses which otherwise is all corroborative of each others evidence. In any event ocular eviclence always takes preference over rneclical evicrence a,cl ir-r this case it was simprly the number of blows ancl one cliffere,t seat of injury as opposecl to tl-re type of weapon usec1.

(f)That the appellant was arrestecl one clay Iater by the porice and on the sarne clay he took the police to the bloocl stainecl hitchet on his pointation which was hidden in a secret place which only the appellant would have kr-rowt-r about.

a (g) That the blooc{ed rnurc{er weapon (hatchet) recoverecl on the pointation of the appellant a,d as well as the appellants and deceased's clothes were covel'ecl witl-r hurrran bloocl as per a positive chemical report.

(h)That it has not been proven tl-rrougl-r eviclence that a.y particuiar police witnesscs l-racl any enmity or ill will towarcis thc appcllant and harl any l'easor-r to falsely irr-rplicate l-rinr in this case, for instarrce, by foisting the hatchet on the appellant, anel in sucir circumstances it has been held that the evidence of tl-re police wihresses can be fr-rlly relied upon anc-l as such I rely on the evidence of the police witnesses. In this respect reliance is placbcl on the case of Mushtaq Ahmed V The State (2020 SCMR 474j

(t)r'hat all the PW's are cor-rsistent in their eviclence ancl even if there are sorne contradictions in their eviclence I co.sicler tl-rese contradictions as minor in nature ancl not material ancl certainly not of such materiality so as to effect the prosecution case ancl the conviction of the appellant. In this respect reliance is placecl on the + cases of Zakir I(han v state (1995 scMR 1793) ancl l(hadim Hussai^ v. The state (PLD 2010 suprerne Court 669).The eviclence of tlre PW's provides a believable corroboratecl unbrokcn chairr of events from the time the eye witnesses saw the appellant cut the neck of the deceased with a hatchet to the appellanf escaping to tl-re appellant bc'ing arrested tl-re next clay and leacling the potice to the murder weapon (hatchet) to the meclical eviclence supporting the eye wihress evidence.

(,) 'l'hat the appellant hacl a r-,otive to murcler the c{eceasel{.

T'his was because as asserted in tl-re IjrR ancr the evidence on recorcl

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the appellant wanted to marry Ms Noor Jehan however she was allegedly kiclnapped by the deceaseci who later marriecl her ancl thus out of levc.nge he murdered the deceased who had taken his potential rvife from him.

(k)Tlre nev'spaper report stating on 20.04.2001 that tl-re offence had been cornmitted by an unk.owrr Lrersol-r I finci to be I inacfunissible in evidence as it was not exl-ribitecl t-ry its author. Even otherwise the newspaper report aPpears to be wrong as the FIR naming tl-rc' accused was lodged on.l9/20.04.2001 a.cl appears to have treen pla.ted by the appella,t to clraw attention away frorn himself. In this respect reliance is placed on the case of dtrt" v Ahmed Orner Shaikh (2021SCMR 873)

(1)Undoubtedly it is for the prosecution to prove its case against the accused beyond a reasonable doubt but I l-rave also considered the defence case to see if it at all can caste doubt on or dent the prosecution case. The defence case is two forcr (a) marital dispute ancl (b) absence at the time of the inciclent. with regarcl to the rnarital dispute as explained above this is what gave tl-re appellant the motive to murder the deceasecl ancl not to be falsely irnplicatecl. As for his absence at the time of the inciclent l"re claims to ha'e been arrested from the Otacl of I Iaji Mallah however he failecl to procluce any witness to support this clefence. Thus, for the tt reasolls mentioned above I clisbelieve the defence case whicl-r I find to be an after thought in the face of reliable, trust worthy ancl confidence inspiring eye witness and other corroborative /supportive eviderrce against the appellant which has not at all clented the prosecution case.

13.Thus, based on the above discussion, I have no cloubt that the prosecution has proved its case against the appellant beyoncl a reasonable doubt for tl-re offence for which he l-ras been convictecl ancl hereby maintain his conviction and sentel-lce ancl ctismiss the appeal. The appellant on bail shall be arrestecl and taken into custocly by sl-Io .ps Badir-r and returnecl to central Prison Hyclerabacl to serve out the rernainder of l-ris sentence. A copy of this Juclgment shall be sent to ssp Badin for compliance who shall submit his compliance report before this t court within 14 days of this Juclgrnent.

74.The appeal is disposed of in the above terms

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