MASHOOQUE ALI (Appellant) VS THE STATE (Respondent)

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IN THE HIGH COURT OF SINDH, CIRCUIT COURT

HYDERABAD

Before IvIr. Justice Mohammad Karim i(han Agha + Mr. Justice Muhammad Saleem Jessar

Cr. Appeal No.D-02 of 2022 [Confirmation Case No.02 oi2022]

Cr.lail Appeal No.D- 03 oi2022 [Confirmation Case No.02 oi 2022]

Mashooque Ali

Velsus

The State

Pauper Appellant Mashooque tlu'ough Mr. Asi{ Ali Taipur, Advocate Ali S/o Mul-ramrnad Achar

Respor-rclent the State through Mr. Shewak Rathore, Deputy Prosecutor General, Sindh

Complainant Ghulam Qaclir In person and l-ras relied on learned DPG alias Baboo

Date of'hearing 13.06.2023

Date of judgrnent 1s.06.2023

T UDGMENT

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MOHAMMAD KARIM KHAN AGHA,I.- Tl-ris crirninal a ppeal and criminal jail appeal are both directed against the judgment dated 05.07.2022, passed by the learned sessions Judge, Tando Allahyar, in Sessions Case No.70 of 2027 (re: The State V Mashooque Ali), emanating from Crime No.19 of 2027, registerecl at Police station B-Section, Tando Allahyar, under sections 302 PPC, whereby the accused / appeilant

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Mashooque AIi S/o Muhammad Achar has been convicted u/s 302(b) PPC ancl sentenced to death; however, subject to confirmation by this Court; he was also directed to pay compensation of Rs.500,000/- to the heirs of the deceased. Benefit of section 382-8 Cr.P.C was also extended to + the accused

2 Facts of the prosecution case in brief, are as under "Complainant Ghulam Qadir alias Baboo has two daughters. and three sons and his daughter Mst. Komal aged about ZLl/zyears got married with Mashooque Ali s/o Muhammad Achar Siyal about 5/6 years back and after marriage they were spending their life happily, thereafter they started to make quarrel with each other on petty matters. According to complainant, his son in law was jobless, therefore, some days back, he along with his wife and daughter arrived at his house and started to live with him' Thereafter on 1.L.02.2021 complainant had gone to his work place ancl when at about 03-40 pm returned back to his home for lunch and reachecl at the cloor of his house, there he met with his nephew Gul Hassan s/o Rahim Bux and Muhammad Umer Qambrani, they a, disclosed him that Mashooque Ali is beating his wife Mst' Komal' Thereafter they atl three went inside the house and found that Mashooque Ali Siyal was holding sickle in his hand and he was striking sickle on the left neck side of Mst. Komal and she was trying to save herself and was making hue and cry. According to complainant, they raised hackles to accused and asked him not to commit murder, in the while Mst. Komal sustained severe injuries and she fell down on the ground and blood was oozing, thereafter accused Mashooque with his daughter Ume-e-Ruqia aged 03 years fled away on the motorcycle, which was parked at the outer door of the house of the complainant. Then complainant went near to Mst. Komal, Iifted her and found out that she has sustained three injures at her neck, one injury at left cheek and one injrry at her left hand ancl clue to those injuries, she succumbed to her death. Thereafter complainant informed to B-Section Police, police arrived and after compieting formalities, shilted the dead body of deceased to Civil Hospital, Tanclo Allahyar for postmortem' After postmortem, complainant sent the dead body of deceased-through .- his relatives and ariived at PS and loc{gect F.I'R''

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3.After usual investigation, police submitted formal challan of the case before the concemed court. After completing necessary formalities, Iearned trial couri frarned charge (Ex.2) agairrst accused Mashooque AIi, to which he pleaded not guilty and claimed trial vide his plea (8x.2/ A).

4.In order to prove its case the prosecution has examined 05 wibresses and exhibitecl numerous documenb and other items and thereafter prosecution side was closed at Ex.9.

5.The statement of the accused / appeliant was recorded under + section M2 C:.P.C. at Ex.L0, in which he denied the allegations leveled against him and claimed his false implication. Flowever, he neither examined himself on oath nor produce any witness in his defence.

6.On conclusion of the trial, learned trial court after hearing leamed counsel for the parties and appraisal of prosecution evidence brought on record, convicted and sentenced the accused / appellant, as mentioned in the impugned judgment and has also sent reference to this Court u/s 374 Cr.P.C for confirmation of death sentence or otherwise, hence the appellant has preferred this appeal against his conviction.

7 The evidence produced before the trial court finci an elaborate , mention in the impugned judgment, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

8.Learned counsel for the appellant has contended that he is innocent of any wrong .doing and that he has been falsely implicated in this case by the complainant party hence the FIR was delayed for 5 hours; that none of the PW eye witnesses was present at the scene of the incidenu that there are material contradictions in the PW's evidence which renders their evidence unreliabte; that PW's, even if they were Present, are all related and interested as such their evidence cannot be safely relied uPon; that the ocular evidence is contradicted by the rnedical evidence; that the sickle was foisted on the appeiiang that at the relevant time the appellant was not present at the place of incident and 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 contentions he has placed reliance on the cases of Bashir Muhammad Khan V The State (2022 scMR 986), Mohammad Shoaib alias shahoo and others v The state (2022 YLR 1337), Jamal Khau V The state (2O2O P.Cr.L.J 1589) and Ghutam Hyder through superinteudeut, central Prisou v The State

(2020 YLR 2411).

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9.Complainant Ghularn Qadir alias Baboo present in person does npt want to engage indepenclent counsel and has shown his full faith and confidence in learned D.P.G.

10.On the other hand, learned Deputy Prosecutor General Sinclh has fully supported the irnpugned judgment and contendecl that the evidence of the eye witnesses to the incident was reliable and confidence inspiring ancl they had fully implicated the appellant in the murcler of the cieceased in a brutal maruteri that the eye wihresses were corroborated by the medical evidence; that the murder lveapon was recovered on the pointation of the appellant after his arrest and as such the prosecution hacl provecl its case beyoncl a reasonable doubt against the appellant and as such his appeal should be dismissed and his conviction and sentetrce be maintained. In particular he stressed that due to the brutai and cold blooded murder of the deceased by the appellant, the death seutence awardecl to him was fully athacted in this case. ln suPPort of his contentions he placed reliance on the cases of Muhammad Abbas V The State (PLD 2O2O Supreme Court 620), Noor Ahmed V The State (2019 SCMR L327), Muhammad Akram alias Akrai V The State (2019 SCMR 61O) and Rafaqat Ali and others V The State (2016 SCMR 1766)-

11.We have hearcl the arguments of the learned counsel for the parties, gone through the entire eviclence which has been reacl out by the appeilants' counsel, the impugned juclgment with their able assistaLrce and have considered the relevant larv including that cited at the bar.

72.Based on our reassessment of the evidence of the PW's, especially the medical evidence, the blood stained earth recovered at the scene of the crime we find that the prosecution has proved beyond a reasonable doubt that on 17.02.2021. at about 1540 hours inside the room of the I complainant's house situated at Ghazi Kalroo Mst Komal (the deceased) was murdered by having her throat cut by sickle and died on the spot on account of her injuries.

13.The only question. left before us therefore is whether it was the appellant who murdeled the deceased by cutting her throat with a sickle at the saicl time, date and locationl

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1,4. After our reassessment of the evidence we find that the prosecution has proved beyond a reasonable doubt the charge against the appellant for which he was convicted and sentenced keeping in view that each criminal case must be decided on its own parlicular facts and circumstances for the following reasonsi

(u)That the FIR was lodged within 5 hours of the incident. This slight delay in lodging the FIR we find based ou the particular facts ancl circumstances of this case has been fully explained ancl as such is not fatal to the prosecution case. This is because the complainant first had to call the police in respect of his deceased daughter who arrived ancl carried out legal formalities, he then had to take his cleceasecl daughter to hospital where her post mortern was carried out before her bodv was returned to him and thereatter he immediately lodged the FIR' In this respect reliance is placed on the case of Muhammad Nadeem alias Deemi V The State (2011 SCMR 872).

(b)That as tl're FIR was lodged with promptitude there h/as no tirne for the complainant to cook up a false case against the appellant in collusion with the police or any other party. The complainant was an eye witness to the murder and he names the appellant as the p9r99n. who murdered his daughter with a sickle and as such has named him with a specific role in the FIR.

(c)We find that the prosecution's case primarily rests on the evidence of the eye witnesses to the murder of the deceaseci and whether we belieie their evic{ence especially in connection with the correct identificatioh of the appellant whose evidence we sl-rall consider in cletail below;

(i)Eye witness PW 2 Ghulam Qadir. He is the complainant and was fhe father of the deceased. According to his evidence his daughter (the deceased) used to complain to him that her husband (the accused) used to quarrel with her otl account oi petty matters. His daughter and l-rer husband had been living with him in his house for 2 to 3 weeks. That on 11'.02.2021' he went to work and returned home for lunch at about 3.40pm when his nephew Gul Hasan and Umer met him and told him that the accused was qirarreling with l'ris daughter. AII three then went to his house where he saw that the accused was carrying a sickle ancl was striking his claughter with it whilst his daughter was trving tb defenr.l herself. They triec'l to stop the accuseel but he causecl three blows to the neck of deceaseci with the sickle and then ran wal' I with his own baby daughter on a motorbike' Blood was oozing from the injuries of his daughter who died on the spot. He callecl the police who arrived and then the dead body of his daugl-rter was taken for post mortem.

From the evidence it transpires that this witness is related to the cleceased who was his daughter however no enmity or clispute has been proven between the eye witness and the appellant. There is an allegation that because the eye witnesses daughter had a love marriage he was annoyed but this can be discarded as a

reason for the complainant killing his daughter or having any enmity with the accused as the deceased anl1 the accused hael been married for over 6 years and hacl a daughter between them. If the appellant wantecl to murder his daughter on account oi tl-re love marriage he would have done it within months of their marriage at their own home not after 6 years in his own house where he had invited them to stay. Thus, his mere relationsl'rip to the deceased is no reason to cliscarci his evidence which has to be juclgecl o.,'it, o*n worth. In this respect reliance is placecl on the cases of Amal Sherin v The State (PLD 2004 SC 371), Dildar Hussain v Muhammad Afzaal alias Chala (PLD 2004 SC 663).The appellant was alone in the house with the deceaseci and his baby daughter at the time of the incident. The complainant was unarmed and was not in a position to stop the attack and according to him he.was in a state of surprise and shock when he witnessed the incident.

This eye witness knew the appellant before the incident which occurred at about 3.30pm in broacl day light in the complainants own house where the accused and the deceasecl r,r,ere botlr lir,ing, He saw the attack on his daughter by the accused from only a few feet away which attack lasted a few moments and would have got a good Iook at the appellant who he already knew. Thus, there is r-ro case of mistaken iclentity anc-l no need to holci an identiiication parade in orcler to cletermine the identity of the appellant. FIis presence at the scene of the incident is corroborateci by PW Muhammed Umer wllo entered the house with him at the time oI the murder of the deceased.

This eye witness was not a chance witness as he lives at the crime scene and was returning home for lunch. As noted earlier based on the particular facts and circunrstances of the case, he lodged his FIR with promptitude where he named the appellant as the person who he saw hitting the deceased on the neck with the sickle ancl his FIR was not materially improvecl on during his evidence. He gave his evidence in a natural manner and was not dented at all cluring a lengthy cross examination anc{ as such we find his evidence to be reliable, trust r,t orthy ancl coniidence inspiring and believe the same especially in respect of the identity' of the appeliant who murdereci the cleceaseel. As in the FIR he also gives the motive for flre murder namely the marital quarreling between the accused and the cleceased.

We can convict on the evidence of this eye witness alone though it if would be of assistance by way of. caution there is some ( corroborarive/ supportive evidence. 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 Khan v. The State (2008 SCMR 9L7), Niaz-ud-Din and another v. The'State'a1d another (2011 SCMR 725) and Miihammad Ismail vs. The Stafe (2017 SCMR 713). That what is of significance is the quality of the evidence and not its quantity ancl in this case r'r'e fincl the evidence of this eye witness to be of goocl qualitv ancl believe the same. In this case however there is more than one eye witness.

(ii)Eye witness PW 3 Muhammed Umer. He is also related to t

the deceased. His eviclence corloborates tl-iat of PW 2 Ghulam Qadir in all material respects. He kner.v the appellant frorn before the inciclent wllich was in day light and he saw the appellant hitting the cieceasecl on her neck lvith the sickle inside the compiai.a.t's house irom a short clistance so woulcl have been easii1,. abie to recognize hirn. He is narned as an eye witness i. the FIR. He iras no relatior-rship or enmity with the appeilant ancl hacl no reasoll to implicate the appellant ir-r a false case' He gave his section 161 Cr.PC statement one day after the incide[rt which was r-rot rnateriaily improved upon cluring the course of his evidence. He was also uot a chance witness as he had come to visit the cornplainar-rt who was his relative anrl he lived nearby. In this resPect reliance is placecl on the case of Muhammed Akram alias Akrai (Supra) I{is eviclence w'as not clentecl clespite a lengthy cross exarnination anel in l'ris eviclence he also corrolrorates PW 2 Gi'rular-n Qadil ir-r resPect of the motive for the murcler i'e the marital tluarrelling betw'een the accusecl anc-l the cleceasecl' He was also present a dav later ar-id actecl as mashil when the appellant was alrestecl b1' PW 5 Lnran Akhtar u'ith his babl' rJaughtel wltch further corroborates the eviclence of PW 2 Ghularn Qadir that after murclering the eleceasec'l the appellant fleci rvitl-r his baby claughter. We believe his evidence i.n rcspect, oi the incident an,j in particular the correct iclentificatior-i o-f dre appeilant rt ho mulclered the deceased through sickle blo'n's to her neck. The sarne considerations apply to his evidence as the evidence of PW 2 Ghulam Qadir.

Thus, based on our believing the evidence of the 2 eyewitnesses what other evidence/rnaterial supportive/corroborative or other wise is there against the appellant? It being noted that corroboration is only a rule of caution and not.1 rule of law. In this respect reliance is placed on the case of Muhammad Waris v The State (2008 SCI\4R 784)

(d)That apart Irom the actual murder the evidence of the eye witnesses is fully corroborated by the mashir of all the relevaut documents PW 3 Muhatnrnecl Urnar rt4ricl-r includecl inspection of the wardat, recovery of blood at warclat, fiIemo of arrest and memo of recovery of the murder weapon being the sickle on the pointation of the accused two days after his arrest.

(e)That tl-ie appellant was arresterl by PW 5 Itnran Akl-rtar with his baby claughter a ctay after the murcier which further corloborates tlie evidence of PW 2 Ghularn Qaclir that after murclering the cleceasecl the appellant fled with his baby daughter.

(f)That it does not appeal to logic, colnlrlonsense or reason that a I father would let the real murderer of his claughter get anzay scott free and falsely impiicate an innocent persorl by way of substitution. In this respect reliance is placed on the case of Muhammad Ashraf V State (2021 SCMR 7s8)

(g)That the meclical eviclence and rnedical rePolts lully support the efe-witness/ prosecutiorl evidence ir-r that the deceased received cuts to her neck and rnajor neck vessels caused by a sharp cutting insh'ument whicl-r caused her death. A sickle is a sharp cutting instrutnent. The fact that tl-re deceased was also shown to have an incised lvound or-r her left

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hand,also supports the prosecution case of the deceased being cut b1' a sickle as the wound on the hand is a defensive wound'

(h)That the murder weaPon namely the sickle was recovered by the appellant on his pointation two days after his arrest which was hidden in u-rlu." which onlv he would have known about and as such could not hive been foisted on him. Tl-rat there was blood on the recovered sickle + which lead to a positive chemical rePort'

(i)That nearly all tl-re relevant police entries and memo's have beel cluly exhibited in support of the prosecution case'

(,) That it has not.been proven through evidence that any particular police witness had any enmity or ill will towards the appellant and l'rad urry ,"uror, to falsely implicate him in this case for instance by foisting the sickle on him and in such circumstances it has been held that the' evidence of tl-re police witnesses can be fully relied upon and as such we rely on the police evidence. In this respect reliance is placed on the case of Mushtaq Ahmed V The State (2020 SCMR 474)'

(k)Tllat all the PW's are consistent in their evidence ancl even if there are some conffadictions in their evidence we consider these conh'adictions as minor i1 nature and not material and certainly not o[ such materialify so as to afiect the prosecution case and the conviction of the appellant. In this respect reliance is placed on the cases of Zakir Khan v state (1995 SCMR 1793) and I(hadim Hussain v. The state (PLD 2010 Supreme Court 669)'The evidence of the PW's provides a believable corroborated unbroken chain of events from the time the PW Umer saw the accused and the deceased quarreling to hirn ancl the cornplainant coming to the l-rouse of the complainant where they enteretl and saw the appellant hitting the deceased with the sickle on the neck and then escaping with his 3 year old child to the body of the cleceased being pronounced dead at hospital to the corroborarive/supportive rnedical evidence to the appellant being arrested a day later with his claughter to the appellant confessing to the crirne to the police (inaclmissible) to the appellant 2 clays after his arrest leading the police to tl-re place where he hael secretly hielelen the nrurtler weaPon (sickle) which was bloocl stained ancl recovered on his pointation rvhich proc-luced a positive chernical rePort.

0)That the motive for the murder l-ras been asserted in the FIR anc{ has been proven throughout in the evidence which is a matrimonial dispute between the appellant ancl the deceased.

(*) Undoubtedly it is for the prosecution to prove its case against the accused beyoncl a reasonable cloubt but we have also considered the { c{efence case to see iJ it at all can cast doubt on or dent the Brqsecution .- case. The defence case is firstly false implication by the complaint on the basis of his love marriage with the complainant's daughter who he allges killed his claughter for this reason. This plea has alreacly been reiectecl eariier in tlts juclgment; namely ii the complainant was so infuriatecl bv the marriage ire would not have waitecl 6 years to kill his claughter ancl *orrid not have c{one it in his own house. The appellant then claims tcr have been' grazng cattle at the time of the inciclent however thr-' appellant did elamine himseli on oath and did not call an' DW or produce 'ot a shred of eviclence in support of his defence case o, "iun

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t grazrlgcattle at the time oi the incident. Thus, for the teasolls urentiouecl ibor," *" elisbelieve the defence case of false implication alrcl alibi as an after thought in the iace of reliable, trust rt orthv ancl conficlence inspiring eye witness ancl other corroborative /supportive evidence agairut the appellant which has not at all clented the prosecution case.

? 15. Thus, based on the above discussion we have no doubt that the prosecution has proved its case agairst the appellant beyond a reasonable doubt for the offence for which he has been convicted and hereby maintain his conviction.

76.With regarcl to sentencing we note that the rnotive for the murder of the deceased has been proven as being on account of the appellant/deceased marital dispute, that the rnurder was a blutal one where a young lady received several blows to the neck with A sickle btrt we note that the appellant has a three year old daughter who might one day need his support since she has already lost her mother and taking this factor'into account we hereby reduce the sentence of the appellant from the death penalty to that of life imprisonment. Otherwise all the other fines etc imposed on the appellant in the impugned judgment shall remain in place.

17.As such the appeal is dismissed except in terms of modification in Sentence as mentioned above and the confirmation reference is answerecl in the negative. The appellant shall have the benefit of Section 382(8) Cr.PC.

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*Llafiz Fahad"