RAJESH @ RAJOO S/O MUGHARAM (Appellant) VS THE STATE (Respondent)

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IN THE HIGH COURT O F SINDH, KARACHI

Present:

Mr. lustice Mohammail Karim Khan Agha Mr. lustice Khadim Hussain Tunio

CRIMINAL APPEAL NO,3O OF 2022

CONFIRMATION CASE NO.O1 OF 2022

Appellant: Rajesh @ Rajoo son of Megharam through Mr. |aved Ahmed Qazi, Advocate.

Respondent: The State through Mr' Muhammad Iqbal Awan, Additional Prosecutor General Sindh.

Date of Hearing: 08.05.2023

Date of fudgment: 11.05.2023

IUDGMENT

MOHAMMAD KARIM KHAN AGHA, I;- Accused Ra jesh son of Megharam was tried before the Ist Additional Sessions fudge/Model Criminal Trial Court (MCTC-I) Karachi in Session Case Nos.1533/2020, arising out of FIR No.243/2020 under Section 302 PPC and vide judgment dated 12.01.2022 accused Rajesh alias Rajoo was convicted u/s.265-H:(ii) Cr.PC for of{ence under section 302(b) PPC and awarded death sentence as Ta'zir subject to confirmation by this court. The accused was directed to pay compensation to the legal heirs of the deceased in the sum of Rs.10,00,000/- (Rupees Ten Lacs) u/s.544-A Cr.P.C. and in case of failure he shall suffer SI for six months more. The accused was also extended the benefit of Section 382-B Cr.PC.

2.The brief facts of the case as narrated in the FIR are that on07.10.2020 Ravi, the brother of complainant has inlormed him that their sister Radha has been burnt due to fire incident in her house No.K-753, Haji Mureed Goth, Firdous Colony, Gulbahar, Karachi and she is lying in Civil Hospital Karachi under treatment. During treatment, her sister disclosed that she was set on fire by her husband Rajesh alias Raju due to some quarrel. The husband of his sister has restrained him to inform police till final treatment of Radha in the hospital Muhannnd A f

6g On72.70.2020 at about 0340 hours she expired during treatment in Civil Hospital I(arachi, Hence the instant FIR was lodged.

3.After usual investigatiory the case was challaned and the accused was seut up for trial where he pleaded not guilty to the charge.

4.The prosecution in order to prove its case examined L1 witnesses and exl-ribited various documents and other items. The statement of accused was recorded under Section 342 Cr.P.C in w}rich he denied all the allegations leveletl against him and claimed false implication. However, the accused did not give evidence on oath but did produce two DWs in support of his defence case.

5.After hearing the parties and appreciating tlie evidence on recorcl, tl-re trial court convicted tl-re appellant and sentenced hirn as set out earlier in this judgment; hence, the appellant has filed this appeal against his conviction.

6.The facts of the case as well as evidence producecl before the trial coult find an elaborate tnention in the impugned judgrrrent dated 72.01,.2022 passecl by the trial court and, therefore, the same may tlot be reproduced here so as to avoiLl duplication and unnecessary repetition.

7.Learned counsel for the appellant has contended that there was no eve witness to the fire; no last seen evidence; that it was a case purely of circurnstantial evidence which is woefully lacking in this case; that the FII( n,as lodged after a delay of 5 days which went unexplained which enablecl the complainant party to cook up a false case in collusion with the police; that the cause of the fire which killed the deceased was unknown i.e deliberate or by acciclenU that the appellant was not present at the time of the fire; that the accused con-fession before the police was inadmissible in evidence; that the clying declaration could not be relied upon as it was belated; that the medical evidence did not support the ocular evidence; that there were no burns on the appellar-rt's hands and that for any or all of the above reasons the appellar-rt be acquittecl by being extended the benefit of the doubt. L"r support of his contention, l-re has placecl reliance on tl're cases of Zahoor Elahi v. The State (1997 SCMI{ 385), Ahmad Nawaz v. The State (2016 P. Cr.L] 7267), Munawar v. The State (2022 YLR 198), I(ashif Ali alias Kalu v. The State (2022 SCMR 1515), Sh. Muharnmad Amjad v. The State (PLD 2003 SC 704), Naseeb Ullah v. The State (2012 YLR 2570), Mst. Zahida Bibi v. The State (PLD 2006 SC 255), Noor

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Muhammad v. The State (2009 P. Cr.LJ 797), Abbas v. The State (2008 MLD 854), Met. Ghulam Zohrav. Malik Muhammad Sadiq(1997 SCMR 449), Farman Ahmed v. Muhammad Inayat (2007 SCMR 1825), Hayatullah v. The State (2018 scMR 2}9z),l{aiihuddin v. The state (2021 MLD 1809), Sardar Bibi v The state r (2017 SCMR 3M), lbtar Hussain v The State (2007 SCMR 605), Syed Saeed Muhammad shah v The state (1993 SCMR 550), Amfu Zamanv Mahboob (1985 SCMR 685), Muhammad Arif v The State (2019 SCMR 631), Tai Muhammad v The State (2022P Cr. L i 126) and Bakhtzada v The State (2013 YLR 230)'

8.On the other hand leamed APG appearing on behalf of the state has fully supported the impugned judgment. In support of his contentiory he has placed reliance on the case of Maieed v The state (2010 scMR 55), Noor Muhammad v The state (1999 SCMR 2722), ltbdul Razaq v The Abdul Ghaffar (2020 scMR 202), Shamshad Ali v The State (2011 SCMR 1394) and Muhammad Imran v The State (2021SCMR 69).

9.We have heard the arguments of the learned counsel for the appellant as

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well as learned Additional Prosecutor General Sindh and gone through the entire evidence which has been read out by the appellant's counsel, and the impugned judgment with their able assistance and have considered the relevant law including the case law cited at the bar.

10.After our reassessment of the evidence we find that the prosecution has proved its case beyond a reasonable doubt against the appellant for the following reasons keeping in view that each criminal case is based on its own particular facts, circumstances and evidence:-

(a)That there has been a delay in 5 days in lodging the FIR. The incident took place on 07.70.2020 and the FIR was lodged on 12.10.2020.On 07.70.2020 it was unclear how the fire which lead to the burn iniuries on Mst Radha (the deceased) had been caused. The fire might have been caused by accident and as such initially after the incident no FIR was lodged. It was only two days later on 09.10.2020 that relatives PW's Ravi, { Beena and Sonia came to know through the deceased that it was the accused who had set fire to her. During the 3 days prior to lodging the FIR the deceased \ ras in the ICU and as such her family were more concemed with her weUare rather than lodging an FIR which is quite natural under the circumstances. However when the deceased died on 12.10.2020 3 days later an FIR was immediately lodged against the appellant who was arrested at the hospital. Under these tragic circumstances although we are put to caution we do not find that the delay in lodging the FIR is fatal to the prosecution case based on the particular facts and circumstances of this particular case. In this respect reliance is placed on the case of Muhammad Nadeem alias Deemi V The State (2011 SCMR 872), Muharamad A.lf

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(b)That from the evidence of a number of witnesses it does not seem in doubt that the deceased received burn injuries on account of a fire which started at her house. As such we find this to be the case. Whether the fire was started accidentally or deliberately we will deal with Iater in this Judgment.

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(c)Based on the medical evidence of PW 7 Abdul Jabbar MLO who keated the deceased on her arrival up to her death whereby he found that the deceased was burnt due to fire with 38.5'/o of her body being burnt and her death certificate we find that the deceased died on account of her bum injuries which she received during the fire which was not challenged during cross examination. In fact the defence of the appellant appears to be that he was absent at the time of the fire with his 8 year old daughter Sadna and that the fire started by accident. He does not seem to dispute that his wife who was the deceased died on account of the burns which she received during the fire.

(d)Admittedly there is no eye witness as to who started the fire and no last seen evidence to connect the appellant to the fire at his house apart from the appellant's suggestion during cross examination to the complainant PW 1 Premchand that he was out of his house with his daughter at the time of the fire searching for bread and paratha.

(e)The case against the appellant is therefore based on circumstantial evidence as conceded by the prosecution. With regard to circumstantial evidence leading to a conviction in a capital case it was held as under in FayyazAhmedV State (2017 SCMR 2026) at P.2030 para's 5 and 6 which' are reproduced as under;

"To beliqte or rely on ciranmstantial euiilmce, the well set-tled anil ileeply mtrmched pinciple is, that it is imperatiae for the Prosecution to proaiile all links in chain an unbroken one, uthere one end of the same touches the dead body anil the other the neck of the accased. The present case is of such a nature uthere runy links are missing in the chain.

To carry conaiction on a capital charge it is essential that coutts hatse to deeply scrutinize the circumstantial widence because fabicating ol such eaidence is not uttcott l?rot as we haae noticed in some cases thus, oery minute and nartoro eramination of the same is necessary to secure the ends of justice and that the Prosecution has to establish the cas beyond all reasonable doubts, resting on circumstantial widencp, "Reasonable Doubt" does not mean any doubt but it must be accompanied by such reasons, suffcient to persuade a judicial mindfor placing reliance on it. lf it is short of such standard, it is better to discard the same so that an innocent person might not be sent to gallows. To ilraut an inference of guilt from such eoidetce, the Court has to apply its juilicial mind with ileep thought anil with extra care and caution and uthenwer there are one or some indications, shotoing the ilesign of the Prosecution of manufacturing and preparation of a case, the Courts haoe to shout reluctance to beliwe it unless it is juilicially satisfieil about the guilt of accuseil percon and the requireil chain is made out utithout missins, Muhoonwr, Adf

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link, othenaise at ranclom reliance on such eaiilence utould result in failure of justice.

It may also be kept in mind thnt sometimes the inttestigating agency collects circumstantial euidence seetns appirentty belieaable howeaer, if the stict standards of scrutiiny aie ) applieil there utould appeal many cracks and doubts in the same which are always inherent therein and in that case Courts haoe to discard and disbelieoe the same.,, (bold, added)

11' Thus, keeping in view the raw on circumstantiar evidence what evidence is there to link the accused to the murder of his wife by burning her to death.

(i)The first Iink is the fact that the appellant was the husband of the deceased and that they were both living in the same house at the time of the fire which lead to the deceased being burnt to death and the appellant has given no explanation as to where he was at the time of the fire as he sees to jump from defence to defence.

(ii)The next link is the dying declaration which the deceased made to her relatives in the ICU. Three days before she died. It is notable that MLO Abdul labbar who was treating the deceased stated in his evidence that it was incorrect that there was a chance of survival of the deceased and thus knowing her condition she must have expected her imminent death.

The guidelines for considering the evidence of a dying declaration were set out as under in the case of fvfaje"i (Supra);

"lt is n ruell-settled principk,o.f latt, tlutt i.f dtlirtg declarntiotr is m.nde et,ett he.fore n prittnte person, is .frie .fiom in.fltrcnce nnd tlw persons before tdrcttt such drling t*,cLorntiort toas mnde toas cxntrittt,tl tlu,n it hecotttes substantiue piece ,f eoidencc nnd .7or tlmt no corroborotion is required nnd ratch declnrntion ctttt be rtmdL, bnsis of r:onuictirnt. Tlris Court gmre ftillotrtttrg grtidrng prittciples for rehlittg ttporr the dying declnratiorr itr t/rc citst: of Farnunrllttlt u. Qndeem Kluttt 200't SCMR 1474.

" (i) There is no specified forum before tulrcrr suclt decl.nrntiott is required to rnaLle.

(ii)There is rto bat tlnt it cannot be nude before o prittntt: person.

(iii)There is no legal requirement thnt tle de.claratiort rurrct be rend ot er or it trurct be sigrted hy its tnnker.

(it,) lt slould be influeu:e frec.

Muhdmmad Arf

(t,) ln order to prctte srrch declnration tlu: persott br1 tphom it runs recorded slnuld he exnmint,d.

(t,i) Such declnrntion becornes substttutit,e Lt,idence rdvn it is prozted tlnt it runs rutde by tlrc dccensed.

Y (t,ii) Corroboration o.f a dying declnrttiort is ttot a nile ef lup, hrt requirement o.f prudence.

(z,iii) Such declaration lilp,, protryd by cogent etidence cmr be tnnde n hast lbr cortztictit'trt."

12.In this case trhere are three witnesses who gave evidence regarding the deceased dying declaration before them which evidence is reproduced as under for ease of reference;

Evidence in chief of PW 11 Ravi.

"This incident took place on 7.10.2020. At nbout 0930 hours my neighbor Sanjey has informed me that there is some smoke from the house of Radha, my sister. I immediately uent there and I saw the house utas burnt and no one was aaailable. On the first floor ttu in-lauts of Radha were residing, I went there. I inquired about the fire incident. Thcy disclosed that tle fire spread due to lamp (DIYA). I then utent to the house of Shankar my brother in law. ] a disclosed him that Radha has sustained burn iniuies due to fre

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incident in her house, she is in hospital. utent to Ciail Hospital I saut in-lauts of Radha at the hospital They ilid not allou me to meet uith my sister Radha. I came back to my house. I informed my sister Sonia, who rcsides at Hyderabad, I also ailaised her to aisit Radha. Sonia inquired me about the incidcnt, I disclosed tlu facts. Sonia did not come due to Chehlum days. She came on 9.70.2020, On the same date my sister Beena also came. They came with their husbanils. We aisited hospital on 09.70.2020. We met with Radha and asked her about the fire incident, She disclosed that she utas not burnt due to lamp (DIYA) but het husband Rajesh set her on fire. She further disclosed that Rajesh was not going for work since tuto ilays, as such, there occarred quanel befiaem couple. I recordeil the oideo utith mobile phone of Mohan (husbanil of Sonia), uthatwer disclosed by Radha. We came back at home. OnL2.1.0.2020 at about 0330 or M00 hours Radha expired in the hospital iluring treatmefi. My Wother Premchand has informed the police at Police Station. Tlu police came at Cittil Hospital and conducted the legal formalities. I see Ex. 3/A, 3/8, j/E €r 3fi1 and say these are same, correct and bear my signatures. The accused zuas also arrested from Ciuil Hospital in my presenu. LO. has recorded my statement under section 1.61 Cr.P.C. on 19.70.2020 I handed ooer ttuo IISBs to l.O. utherein the aideo was recorded by me regarding the statement of ileceased Radha. I also handed ooet the screenshots of Whatsapp data. I.O. again recorded my statemmt under section L61 Cr.P.C. Accased Rajesh and USBs present in the Court are same,,. (bold added), frtahanmad AdI

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Evidence in Chief of PW 5 Beena

"On 7.10.2020 I zuas prexnt in my house at Jhampeer Distict Thatta. My brother Raai has called me on telephone that there occurted fre incident in the house of my sister Radlu. He further v disclosed that Radha has sustained fre burnt injuies and is admitted in hospital. He further disclosed that in-lauts of injured Radha do not allottr him to meet uith Radhn. On 9.L0.2020 I came alongwith my husband at the house of my parmts in Karachi. On the same ilate my sister Sonia and her husbanil Mohan Lal came from Hyderabail at house of my parents in KarachL I along with my sister Sonia and my husband so also husband of Sonia uent to hospital, I met with my injured sister Radha and asked about the incidett. She discloseil to us that her husband did not go for utork since two days. Therc occuneil altercation and quarrel behaeen her and her husbanil Rajesh She further disclosed that due to such quarrel her husband set hq on fire in the house, My brother Raoi was also aoailable at the time of out meeting utith injwed Radh* Raoi also recoriled aiileo clip utith mobik phone. On 12.10.2020 my sister Radha expired due to burn injuries in the Ciail Hospital duing treatment. My brotlur Pream has lodged such FIR. I.O. has recorded my stntement Ll/s. 161 Cr.P.C. at P.S. My statement U/s. 154 Cr.P.C. was nlso recorded before the lttdicial Magistrate on L7.1.0.2020. I produce my stateruent us '164 Cr.P.C. as CTC at Exh. 9/A and say it is a same, correct, bears my RTI and my photograph. Accused Rajeslt @ Rajoo yesent in the court is same". (bold added) Evidence in Chief of FW 6 Sonia.

On 7.10,2020 I rtas present in my houx at Hyderabad. I recehted phone call of my brother Raai. He disclosed that there occurred fire incidcnt in tLu house of my sister Radha in Karachi. He further disclosed thtt Radha has sustained fire burn injuries and is admitted in Cioil Hospital, Karachi. Rrai met uith Radha on same date but the in laws haoe refused the meeting of Raoi ruith my sister Radha in the hospital. On 9,70.2020, I came along uith my husbanil at the house ol my parents in Karachi. On the same ilate my sister Beena and her husband came from lhampeer at house ol my parcnts in Karachi. We utmt to hospital to meet utith my sister Radha on the same date oiz. 09.1,0.2020. We askeil Radha about the incident. She discloseil to us that her husband has set her on fire. We asked as to why her husbanil set het on fire? She replied that her husband ilid not go for work since tzao days. There occurted altetcation and quarrel befipem her and her husband Rajesh, therefore, her husband set het on fire in the house, On 72.10,2020 Radha has expircd in Cioil Hospital, Karachi- On 1.4.10.2020 my L61 Cr.P.C. zohich I produce at Ex. 10/A, tohich is samz, correct and bears my signature. On 17.10.2020 my 164 Cr.P.C. statement was recorded before the leamed ludicial Magistrate zohich I produce at Ex.10/8, it is ssme, correct and bears my RTI and photograph. Accused Rnjesh present in the Court is same. (bold atlded)

Mahomnud A.At

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13.We find that the evidence of all the three witnesses mentioned above fulfills the criteria/guidelines laid down by the Supreme Court which are also set out above for us to rely on their evidence in terms of the dying declaration against the accused which we do so as a piece of substantive evidence. This is v more so since they all gave their Section 161 and 154 Cr.PC statements with relative promptitude which were not materially improved upon during their evidence and none of their evidence was dented during a lengthy cross examination. Admittedly all the witnesses and the accused are related to each other but there is no enmity befween them and no reason for the witnesses to falsely implicate the accused. It is well settled by now that in such circumstances even related witness evidence can be relied upon as their evidence must be heated at its own worth under these circumstances. ln this respect reliance is placed on the cases of Amal Sherin v The State (PLD 2004 SC 371), Dildar Hussain v Muhammad Afzaal alias Chala (PLD 2004 SC 663).

(iii)The next link in the chain of evidence is the USB containing the video of the deceased dying declaration. The Y declaration itself was not denied but only claimed to be managed. As such we treat the USB/Video evidence as corroborative/supportive of the evidence of the dying declaration and attach some although lesser weight to its evidentiary value.

(i") The next link in the chain of evidence is that there was a fire in deceased and the accused house as proven by the prosecution evidence as discussed above.

(v)The next link in the chain of evidence is the medical evidence which proves that the deceased died on account of the burns which she received from the fire at the house of her and the accused.

(vi)The next link in the chain of evidence is the recovery of a burnt rilly and a bottle of chemical which was found at the vardat which fully corroborates,/supports the evidence that the deceased was deliberately burnt.

(vii)The next link in the chain of evidence is the medical evidence which proves that the appellant had burnt fingers as per PW 8 MLO Muhammed Asad's evidence and his medical report both of which went unchallenged during cross examination and for which the appellant had no explanation for which fits in with the prosecution case of the appellant setting fire to his wife.

(viii)That it does not appeal to logic, corrunonsense or reason that a real relative would let the real murderer of his real relative get away scott free and falsely implicate an innocent person by way of substitution. In this respect reliance is placed on the case of Muhammad Ashraf V State (2021 SCMR 758L

Maho,nnad A4l

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(ix)That it has not been proven through evidence that any particular police witness had any enmity or ill will towards the appellant and had any reason to falsely implicate him in this case for instance by foisting the burnt rilly and chemical substance at his house and in such circumstances it has been held that the evidence of the police witnesses can be fully relied upon and as such we rely

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on the police evidence. In this respect reliance is placed on the case of Mushtaq Ahmed V The State (2020 SCMR 474).

(x)That all the PW's are consistent in their evidence and even if there are some contradictions in their evidence we consider these contradictions as minor in nature and not material and certainly not of such materiality so as to affect 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 Khadim 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 fire started to the deceased being taken to hospital with serious burn injuries to the dying declaration of the deceased before three witnesses to the recovery of the burnt rilly and chemical substance at the deceased and accused house to the death of the deceased through her burn injuries to the arrest of the appellant at the hospital to the appellant being found to have burn injuries on his fingers.

(xi)That the motive for the murder was a quarrel between the appellant and his wife. a

(xii)Undoubtedly it is for the prosecution to prove its case against the accused beyond a reasonable doubt but we have also considered the defence case to see if it at all can cast doubt on or dent the prosecution case, The defence case is simply false implication. However there seems to be no reason for such false implication as there appears to be no enmity between the parties. He then during cross examination of PW 1 the complainant stated that he was out with his 8 year old daughter at the time of the incident looking for bread but he made no effort to call this alibi witness who is living with his grandmother and once he put forward this defence he should have at least taken some steps to prove it. In this respect reliance is placed on the case of Anwar Shamim V State (2010 SCMR 1797). He did not give evidence on oath and his two DW's support the prosecution case that the deceased suffered serious burns injuries and was visited by the witnesses who gave evidence of her dying declaration. The DW's only seem to suggest that the witnesses should not have visited the deceased due to the danger of infection. However ,rs per medical evidence the deceased did not die of any kind of infection. Thus, for the reasons mentioned above we disbelieve the defence case of false implication as an after thought in the face of reliable, trust worthy and conJidence inspiring evidence against the appellant which has not at all dented the prosecution case.

1'4. Thus, for the reasons mentioned above the prosecution has proued an unbrokea chain of eoidence, uhere one enil of the same touches the deait body t Muhommad ArV

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and the other the neck of the accuseil and as such we maintain the conviction of the appellant.

15.With regard to sentencing we can maintain the death penalty based on circumstantial evid.ence. In this respect reliance is placed on the case of Muhammed Amiad V State (PLD 2003 SC 704).In this case a young mother has been murdered in cold blood in the most brutal manner by being burnt to death over a quarrel. A young child has also lost her mother. The effects on the familv are devastating. Crimes against women and in particular domestic violence seem to be on the rise these days. Some so called aggrieved men seem to have little compulsion in throwing acid over women for the most trial of perceived reasons ruining their entire lives and denting their futures. Rather than showing respect for our women folk men often treat them with utmost cruelty and brutality as if we live in medieval times and where women were regarded as chattels. For those men who behave in such an unspeakable manner towards women and/or children the court must send a loud and clear message that such shameful and l& disgraceful conduct will not be toleratjin a society governed by the rule of law and Islamic values and concepts and in such like cases the only appropriate. sentence is a deterrent one. As such based on the particular facts ancl circumstances of this most barbaric case where a husband burnt his wife alive over a quarrel we uphold the death sentence.

'16 As such the appeal is dismissed and the conJirmation reference is answered in the affirmative

JUDGE rtl'sf z:

IUDGE

M ha,nmod Arif