LUTUF ALI S/O ALI MUHAMMAD MALLAH (Appellant) VS THE STATE (Respondent)

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Crlrnln*t Jall Appoal No"507 of 2022

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Mr, Justice Mohammad Harlrn Hhan Agha

Dilh'.q ofllrcnring : l.$- 10-2fl24

D*citfu'd on : 22- 10-2024

(n)Judgtrtent approved lor l{eporling l'es

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CER'TIFICA "r E.

Cerrified that tlre judgrnent */Order is trased uport or enunciates a principle of law */decides a question of Iarv rvhich is of'lirst inrpression/distinguishes/. Over-rules/ revrlrses/explains a previous decisitltl.

* Strike out rvhichevcr is not applicable.

NOTE: - (i) This slip is only to be used rvhen soms action is ts be taken.

(ii)lf tlre *lip is used, the Reader must attach it to the top of the first page of the judgment.

(iii)tteader must ask the Juclge rvriting the Juclgrnent whethrr the Judgrnent is npprovsd lhr reporting.

{iv) Tlrose directions rvlriclr nrc rrot to he used slrould tre dele tetl.

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OF s H AT CHI

IN THE HI GH CO

Ercsent:

Khan Agha NIr, Justlee Mohammad' Ilo;rlm

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t Mallah Appellant: Lutaf Ali s/o. Ali Muhammacl Advocate' tf,r""gl, Ivtr. Musharraf Azinar'

Respondent: The State through Mr' Muhammad Iqbal and Awan, Addl. ProsEcutor General' Sindh Mr. Mumtaz Ali Shah, Assistant Prosecutor General Sindh.

Date of Hearing: 1 5, 1 0.2a24

Date of Announcement: 22.LO '2024

JUDGMETi[T Moh,,moto,d,,Kolrim,Khgtn flqha. J: Appellant Lutaf AIi was tried in the

Model Criminal Trial Court/lst Additional Sessions Judge, Thatta in Sessions Case No. 145 of 2019 in respect of Crime No. 03 of 2019 under Section 3OZ p,P.C, registered at P.S. Mirpur Bathoro and after a full- fledged trial vide judgment date d 26.0T .2022 he was convicted under section 802 (b) P.P.C. and sentenced to suffer imprisonment for life for two counts of murder. He was also directed to pay Rs.2,0O,000/- as compensation to the legal heirs of deceased in terms of Section 544-A Cr, pC against both the convictions. Such compensation shall be recoverable as arrears of land revenLle; however in case of default in payrnent of compensation, the appellant shall undergo further R.l. for six months. The benelit of section 382-B Cr.P.C. was extended to the apPellant.

2.The brief facts o[ the case as per FIR are that on 02.01,2019 at about 1340 hours near main gate of Bathoro High school, Talrlka Mirpur Bathoro, District Sujawal appellant Lutaf Ali Mallah caused death of his mother-in-law Mst. Tasleem by causing her dagger knife

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I injuries in her abdomen and other parts of her hody over the matrimonial dispute with his wife Mst. suraya, at the time of incident t

deceased Mst. Taslccm was pregnflnt of fsur months. Hence the aforesaid FIR wns lodged.

3.After usual investigation, police submitted formal challan of the cflse trefore the concerned court, After completing necessary formalities, i learrrerl trial court framed charge against the accused, to which he plended not gt"tilty and claimed trial.

4.At trial, in order to prove its ca$e, the prosecution examined I rvitnesses and exhibited numerous documents and other items. The statement of the accused / appellant was recorded under Sectlon 342 Cr.P.C. in rvhich he denied the prosecution allegations leveled against him and claimed his false implication in the commission of alleged crime. However, neither he examined himself on oath in disproof of the prosecution case nor led any evidence in his defence.

5.On conclusion of tJ:e trial, learned trial court after hearing learned counsel for the parties and appraisal of prosecution evidence brought on record, convicted and sentenced the accused / appellant vide / impugned judgment, as set out earlier in this judgment, hence the appellant has preferred this appeal against his conviction.

6.The evidence produced before the trial court finds afl elaborate mention in the impugned judgment, therefore, the sarne may not be reproduced here $o as to avoid duplication and unnecessar_y repetition.

7.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 hence the delay in lodging the FIR; that the evidence of the eye witnesses cannot be safely relied upon as they are put up witnesses; that there are material contradictions in the evidence of the witnesses which renders their evidence unreliable; that the appellants confession before the judicial magistrate was retracted and was not rnade voluntarily and as such it cannot be safely relied upon; that the alleged crime weapon being the knife/dagger/churri was foisted upon the appellant by the police and that for any or all of the above rea$ons the appellant should be acquitted of the charge by

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extending him the benefit of the doubt. In support of his contentions learned counsel for the appellant has placed reliance on the cases of t

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Habth Ahmed, vs. The State (2020 YLR 23Sl and Muhammad Alrram vs, The $tate (2009 SCMR 230).

8.On the other hand, learned Additional Prosecutor General Sindh has have fully supported the impugned judgment. In particular, he "rrt contended that any delay in lodging the FIR had been fully explained; that the evidence of the eye witnesses to the murder could be safely reliecl upon; that the retracted judicial confession of the appellant wa$ mad,e voluntarity with the object of telling the truth and as such it could be safely relied upon; that the eye witnesses evidence ulas supported/ corrohorated by the medicat evidence; that the appellant himself volunteered to produce the crime weapon / knife before the police which was recovered by the police on his pointation and as such the prosecution had proved its case beyond a reasonable doubt and the appeal be dismissed. In support of his contentions he placed reliance on the cases of Muhammad Imran vs. The $tate PA21 SCMR 69), Zulfrqar Ahmad and another vs. The State (201 I SCMR 4921, Khalid Mehmood vs. The State (ZOLT SCMR 201), ilyryaz Ahmed vs. Allah ,/ Illasaya and others (2004 SCMR 1808) a;rd Muhammad Amin vs" The State [pLD 2006 Supreme Court 219).

9.I have heard the argtrments of the learned counsel for the parties, gone through t.Le entire evidence which has been reacl out by the appellant's counsel, the impugned judgment with Iheir able assistance and have considered the relevant laur including that cited at the bar.

10.Based on my reassessment of the evidence of the pW,s, e$pecially the medical evidence, the blood stained earth recovered at the scene of the crirne I find that the prosecution has proved beyond a reasonable doubt that on 02.01.2019 at about l340pm Ms Tasleem Mallah (rhe deceased) was murdered by a sharp cutting instnrment in front of the rnain gate of high school h{irpur Bathoro Taluka Mirpur Bathoro District Sujawal

1 1. The only question left before me therefore is rvhether it rvas the appellant who murdered the deceased rvith a sharp cutting instrument i at the said tirne, date and location?

L2. After ffiy reassessment of the evidence I find that the prosecuuon

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nas proved be)'ond a rcnsonable dor-rbt thc charge against the appellant fteeping in vicn' thnt each crimirral cass must be decided on its own particr-rlar facts and circumstauccs for tl're following reasons;

(n)Thnt aclrrrittcrlly the FIR wns lodgcd aftcr a clclay of one day tf Iton evcr I firrd that this delay in lodging the FIR has becn fully e.tplninecl ns the complainant lirst had to take his deceased wife to the hospital u,lto at that- time was seriously injured but alive so his priority \\,as to tahe her immediately to Mirpur Bathoro hospital whcrc Itnfortunatcly sfte died and her body was then taken to Sujawal Hospita.l rv6crc a post mortem rvas performed then he had to make the funeral arrangernents rvhile being in a sate of shock and once the funeral had beer', carried out the FIR was immediately lodged. Even I othenvisc, the police had been informed by the complainant about the I inciclent and in particufar that the appellant had murdered thc

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complainants u'i[e by knife within an hour of the incident as per PW 7 Iman Bu,x rvho was the IO of the case as is confirmed by the entry exhibited at l0/A at P.165 of the paper book and as such based on the particular facts and circumstances o[ this case I do not find that the delay in lodging the FIR is fatal to the prosecution case. In this respect reliance is placed on the case of Muhammad Nadeem alias Deemi v. The State (201 I SCMR 8721

(b)That the appellant is named in both the entry at Exhibit 10/A rvhich lvas lodged r,vith an hour of the incident and the FIR with a specific role,

(c)I find that the prosecution's case primarily rests on the evidence of the eye witnesses to the murder of the deceased and whether I believe their evidence especially in cory:egfion * with the correct identification of the appellant whose evidence shall consider in detail below;

(i)Eye wituess PW I Dhani Bux. He is the complainant and the husband of the deceased. According to his evidence on 02.0L.2019 at about 1.40pm he was returning from hospital with his',vife/deceased when he met PW Lal Bux, who was the brother - of his rvife/deceased, at the gate of the hospital who accompanied them home.When, however, they reached the gate of high school Mirpur Bathoro he came across his son in law/accused. The accused asked his wife/deceased where his wife was who was the complainant's daughter. When his r,r'ife/deceased replied that he did not know the accused took out a knife and caused blorvs to his wife's/deceased abdomen and other parts of her body. After raising crics the accused ran arvay. The complainant took his injured wife to Taluka hospital Mirpur Bathoro and then reported the matter to the police. His wife/deceased died in hospital and was se nt to Talul<a Hospital Shujawal for her post morlem.

This eye witness is related to the deceased and also to the accused however no enmity or dispute has been proven between this eye witness and the appellant and thus the mere relationship to the deceased is no reason to discard his evidence i rvhich has to be judged on its orvn worth. In this respect reliance is placed on the cases of Arnal sherin v The state (pLD 2004 SC 37r]', Dildar Hussain v Muhammad Afzaal alias chala (pLD

2AO4 SC 663).

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\b, This cyc tvittrcss nlso kncrv thc nppellant before the incidcnt u'hich tooh place at l.4Oprn in broad day liglt as thc appcllant rvas his sorr iu lar.v. Thc incidcnt wcnt on for about 5 minutes and t the eye rvitncss rvas closc to thc incidcnt and would have got a t good loolt at the appellant rvho he alrcady knbw. Thus, there is no cnse of nristal<en idcntity and no need to hold an identification parade in order to determine the identity of the appellant. The \ appellant's presence at Lhe scene of thc incident is corroboratcd by PW 2 Lal Bux and PW 3 Gul Soho Ali rvho arc also eye rvitpesses. Admittedly this eye rvitness at the time of the incident u,as old, inlirm and suffered from impaired vision at the time of i f the incident but there is no way that he could have failed to identity the appellant who was a few l-eet away from him in broad day Iight who he could even recognize by voice being his son in tari'. frnportantly he reported the incident to the police wiihin an hour of the incident naming the appellant as the person who murdered his wife by knife after dropping her off at the hospital.

This eye witness was not a chance witness as he was the husband of the deceased and had every reason to be with her at the time of the incident. As he was infirm and old it was but natural that his wife/deceased would have accompanied him to the hospital. He was unable to intervene as the incident happened quickly as he was old, infirm and unarrned. It has also come in evidence that the appellant after having an argument

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f u,ith his wife who had left him thought the deceased knew where she rvas and was refusing to tell him and hence his motive for attacking her. As mentioned earlier he reported the incident / immediately to the police in detail and also lodgeci his FIR nith relative promptitude based on the particular facts and cireumstances of the case which was not materially irnprovement upon during the course of his evidence. He named the appellant in his FIR with a specific role along with the other eye witnesses. He gave his evidence in a natural manner and rvas not dented at all during a lengthy cross examination and as such I find his e'ridence to be reliable, trust worthy and confidence inspiring and believe the same especially*i" respect of the identify of the appellant who murdered:' t',- his wife/deceased.

I can convict on the evidence of this eye rvitness alone though il" would be of assistance by way of caution if there is somc corroboralivel supportive evidencc, In this respect reliance is placed on the case of Muharnruad Ehsan v, The State (2006 SCMR 1857i. As also found in the cases of Farooq Khan v. The State (2008 SCIIIR 9lTl, Ni*z-ud-Din and another v. The State and another (2011 SCMR 725lr and Muhammad Ismail v$. The State (2017 SCIvIR 713). That,r,vhat is of significance is the qualitl, of the evidcncc and not its quantity and in this case I find the evidencc of this eye witness to be of good quality and believe the same. In this case however there are more than one eye witness.

(ii)Eyc witness Pw 2 Lal Bux. He is the brother in law of the cornplainant and the deceased is his real sister. According Lo i his evidence on 02,0 L20 19 he met the complainant and his sisl.er/deceased at the gate of taluka hospital Mirpur Bathoro.He corroborates the evidence of the complainant i, ali material respects and also rrrentions pW Gul Soho who was sitting on one side.

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This witness was not a chance witness as he had every rcason to accompany his sister and her husband home from the hospital. He is tramed in policc entry bcing exhibit tO/A which was lodged within hours of the incident and also in the relatively promptly lodged IrlR as an eye witness. FIe gflve hls S.161 Cr.PC statement within one day of the incident which was not materially improved upon dtrrirrg the course oI his cvidcncc, Hc knew the appcllant from before fls he was related to him and hence there was no need for an idenLification parade. It was a day light incident and he got a good looh at the appellant frorn close range and as such there is no case of mistahen idcntity. Hc gave his evidence in a straight forward manner and wfl.s noL dcnted despite a lengthy cross examination. I find his evidencc to be trust worthy reliable and confidence inspiring and believe the same espccially in respect o[ thre corrett identification of the appellant- The same considerations apply to his evidence to that of the complainant.

(iii)Eye witness PlV g Gul Soho. He ls an independent witness r.vho knew the complainant, his wife/deceased and her brother pW Lal Bux as they all used to live in the same village. According to his evidence he had gone to the NADRA office in Mirpur Bathoro and when he reacfied the main gate of the high school on 02.0 L.ZO1g at 1.40pm he saw the complainant, his wite/deceased and pW Lal Bux when after hearing cries he saw the accused cause knife blows to the deceased. He then helped take the deceased to hosPital.

This uritness had no enmity or ill will with the appellant zurd had no reason to implicate hirn in a false case. He gave his S. 16 1 / Cr,pC statement L day after the incident which waa not materially improved on during his evidence. It was a day light incident so he would have seen the incident clearly. It is unclear how r,vell he knew the appellar-rt and ho'n far away he might have been from the incideni and he rnight have been a chance witness hor,,vever he gave his evidence in a straight forward manner and was not dented during a lengthy cross examination. As such taking all tlee above into consideration I place some weight on his evidence but Iesser than that of the other eye witnesses especially in terms o[ correct identification of the appellant.

Thus, based on my believing the evidence of the 2 eyewitnesses and a third one to a lesser extent what other evidence/material supportive/corroborative or other wise is there against the appellant? It, being noted that corroboration is only a rule of caution and not a rule of laur. tn this respect reliance is placed on the case of Muhammad Waris v The State (2OOB SCMR 784)

(d)Thrce days after his arrest the appellant confessed to the murder before the police and he took the police on his pointation to the place where he had hidden the murder weapon which rvas a place which he only knew about. That it has not been proven through evidence that any particular police witness had any enmity or ill will torvards the appellant and had any reason to falsely implicate him in this case for instance by foisting the knife on him and in such circumstances it has been held that the evidence of the police witnesses can be fully relied i upon and as such I rely on the police witness evidence, In this respect reliance is placed on the case of Mushtaq Ahmed V The State (2020 scMR 474).

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(e)Three days after his arrest and one day after the recovery of the murder wettpon on his pointation the appellint was brought beflore a judicial rnagistrate rvhere he made a judicial confession to th-e murder ol the deceased which is reproduced below for ease of reference;

Sectlon 164 Cr.FC Statement {Confesslonf of the appellant before Fw g lYluhs,mmed Amir Judlclal rnaglstrate ln rnaterial part;

"Qu.esfionl l'/f,rat do gau haue lo scy

d Ansuren I haue to con,fless that I haue cammltted thts murder oJ rng mother ln la,w hecause she wanted to sell mg urfs. She has alreadg sold two of her daughters. She hcts sold fl thern to dffirenf persons. /f u/as her bustru€ss, She used to sag that she will sell mg wtfe and what witt I do. She threatened to kitt mg daughter when she u.ras born. $he used. to askme to leaue her daughter. Many peaple used to threaten us. Mg brother Khan Muhammad. hah" g;ri" mone1 to my mother in laut at the time of d-eliuery of mA d.aughter ta tuke my wrfe to Karacht but she hid the *oney. MV *rf, toid me that her mother has asked. her to kill mg ba.by *n*n she sau.r her first ttme and. then theg will take mA rytfe' My mother in law sold h.er two daughters t9 Thaeems. They wanted to take mA wtfe too. Thaeems threatened mg wtfe that theg uttll take her. My mottter in law was in conniuance utith them."

,/ Although this confession was retracted at trial it is well settled by now that I can relay on this retracted judicial confession as agailst its. rnaicer if i tina that (ai it was made voluntarity and {b} it weis made with the object of telling the truth based cn the prosecution case anrJ that even minor irregularities in recording ihe confession before the judicial magistrate can be ignored- In this respect reliance is placed on the cases of Ch. Muhammad V Yagoob V The $tate (L992 SCMR 1983), Bahadur V State (PLD :-9a6 SC 336) Muhammad Amin v The state (PLD 2006 SC zLgl, Manjeet $irrgh V State (PLD 2006 SC 30) and Aeeem Khan V Mujahid Khan (2016 SCMR 274l..

In this ca$e the confession fully ties in with and corroborates the eye witness evidence. There is no evidence that the conflession was anything but voluntarily made with the object of telling thc truth. ihns, I believe and place reliance on the appellant's retracted judicial confession trspecially as there urere no materlal procedural irregularities ln the manner in which the appellantis confession was recorded in that he r,vas produced before a magistrate and was aware of this fact, his hand cuffs were removed, oo poliCe men lvas in the room, he was given adeqr,iate reflection time, he rvas tolC that his confession could bc used against him in evidence in a court of law, he was checked for e'ridence of mal treatment and none wa$ found, he was not handed back to the police after he confessed and lvas handed over r-o judicial custody after making his confession.

l (f) That it does not appeal to logic, cornmonsense or reason that a husband and brother would let the real murderer of their wite/sister get away scott free and. falsely implicate Em innocent person by way of substitution. In this respect reliance is placed on the case oI

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Muhsmmad Ashraf V $tate (zOZt SCMR TEB)

(e)That the rnedieal evidence and medical reports fully support the eye-witness/ prosecution evidence in that the deceased received at least 3 stab wounds to the abdomen and 2 other incised injuries which lead to her death,

(h)Tltat all the PW's arc consistcnt in Lheir evidence and even if there are solnc contradictions in their evidence I consider these corrtradictions as minor in nature and not material and certainly not of such materiality so as to effect the prosecution case and the conviction of tlre appellant. In this respect reliance is placed on the cases of Zak.ir Khan V State (1995 SCMR 1793) and Hhadim Hussain v. The State (PLD 2Ol0 Supreme Court 669),The evidence of the PW's provides a believable corroborated unbroken chain o[ events from the time the complainant and his wite/deceased were returning home from the hospital with PW Lal Bux to the appellant confronting the deceased over hiding her dnughter/his wife and on her denial he viciously stabbing her u,ith a knife to him running away to the arrest of the appellant to Lhe recovery of the knife on his pointation to his conflession before the judicial magistrate.

(i)That the motive as per FIR and evidence on record is that the appellant thought that the deceased lvas hiding his wife from him. fi) Undoubtedly it is for the prosecution to prove ils case against the accused beyond a reasonable doubt but I have also considered the deflence case to see if it at all can cast doubt on or dent the prosecution / case. The defence case as per cross examination by the appellant is that the deceaserl died on account of an accident which is completely contrary to the medical evidence and the eye witness evidence and his confession. He did not give evidence on oath or call any DW in support of his defence case. Thus, for the reasons mentioned above I disbelieve the defence case in the face of reliable, tn:st worthy and confidence inspiring eye witness evidence and other corroborative / supportive evidence agarinst the appellant which has not at alt dented the prosecution case.

13.Thus, basecl on the above discussion I have no doubt that the prosecution has proved its case against the appellant beyond a reasonable doubt as per the charge.

14.It is noted that in the impugned judgment the appellant lvas convicted of two counts of murder, One in respect of the deceased and one in respect of her unborn child, Since the appellant was not put on notice about the murder of an unborn child in the charge which onty carne to light during the course of the medical evidence I acquit hirn ot the charge of the murder of the unborn child but conrrict him and

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maintain his sentence for the murder of the deceased and for one set of compensation to the legal heirs as set out in the impugned judgment.

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15.As such ths appeal is dismissed except as modilied by his acquittal of the murder of the unborn child.

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