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Official Citation: 2024 SHC 1865
Court / Jurisdiction: Sindh High Court
Petitioner: Cr.J.A 46/2024 (S.B.) Sindh High Court, Circuit at Hyderabad - Aftab (Appellant)
Ruling Summary: This decision was rendered by the Sindh High Court, officially reported as 2024 SHC 1865. In this matter between Cr.J.A 46/2024 (S.B.) Sindh High Court, Circuit at Hyderabad - Aftab (Appellant) and the Respondent, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Sindh High Court CASE NO: Cr.J.A 46/2024 (S.B.) Sindh High Court, Circuit at Hyderabad CITATION: 2025 SHC HYD 1865 PARTIES: Aftab (Appellant) ORDER DATE: 11-JUL-25 BENCH: Hon'ble Mr. Justice Riazat Ali Sahar(Author) A.F.R: Yes ------------------------------------------------------------ IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD
Crl. Jail Appeal No.S-46 of 2024 (Aftab v. The State)
Appellant: Aftab son of Abdul Hakeem Bagrani through Mr. Ghulam Muhammad Laghari , Advocate. Respondent: The State through Khalid Hussain Lakho, Deputy Prosecutor General. Complainant: Abdul Aziz Memon through Mr. Khadim Hussain Talpur, Advocate. Date of hearing: 05.05.2025 Date of Decision: 11.07.2025
J U D G M E N T RIAZAT ALI SAHAR, J: The appellant, Aftab son of Abdul Hakeem Bagrani, has preferred this jail appeal against the judgment dated 30.03.2024 passed by the learned Additional Sessions Judge, Matli (District Badin) in Sessions Case No.03 of 2023. By the impugned judgment, the lea rned trial Court convicted the appellant under Sections 324, 457, 337 -F(iii) and 337 -F(vi) of the Pakistan Penal Code 1860 (“PPC”) and sentenced him as follows: for the offence under Section 324 PPC (attempted qatl -i- amd) to rigorous imprisonment for ten y ears and a fine of Rs. 100,000 (in default, six months‟ simple imprisonment); for the offence under Section 457 PPC (lurking house -trespass by night) to five years‟ rigorous imprisonment and a fine of Rs. 50,000 (in default, three months‟ simple imprisonme nt); for causing ghayr - jaifah mutalahimah (falling under Section 337-F(iii) PPC) to three years‟ rigorous imprisonment as Tazir plus payment of Daman Rs. 100,000 to the victim; and for causing two ghayr -jaifah munaqillah injuries (each falling under Sectio n 337-F(vi) PPC) to seven years‟ rigorous imprisonment (each count) as Tazir plus Daman of Rs. 100,000 per injury to the victim. All sentences were
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2 ordered to run concurrently, and the benefit of Section 382-B of the Code of Criminal Procedure (“Cr.P.C.”) was extended to the appellant. The appellant, being aggrieved by his conviction and sentences, has impugned the same before this Court, praying for acquittal. 2. The prosecution case, as unfolded in the FIR (Ex.03/B) and at trial, is that the appellant is the former husband of the injured victim Mst. Rukiya. The record reflects that Mst. Rukiya contracted marriage with the appellant Aftab in 2018, but that marriage ended in divorce in 2019. In July 2020, Mst. Rukiya entered into a second marriage with comp lainant Abdul Aziz (PW -1). The appellant, allegedly displeased by this development, had since been issuing threats to his ex -wife Mst. Rukiya, warning of dire consequences and even alluding to killing her. Approximately two years after the divorce, on 17.1 0.2022 at about 9:30 PM, the appellant carried out the attack which is the subject of this case. That night, the complainant Abdul Aziz was temporarily away from his house (attending to his daughter at a nearby home), while inside the house were Mst. Rukiya (his wife), PW -2 Raja Rameez (the complainant‟s son and eyewitness), and one Mohsin Shah (the complainant‟s son -in-law). Taking advantage of the complainant‟s brief absence, the appellant allegedly armed himself with a hatchet and trespassed into the com plainant‟s house under cover of darkness. Without any provocation, the appellant launched a sudden and brutal assault on Mst. Rukiya, swinging the hatchet at her head. In a desperate attempt to defend herself, Mst. Rukiya raised her arms; the assailant‟s hatchet struck her both arms, causing deep incised woun ds. The first blow landed on her left arm just below the shoulder, nearly severing it (the arm was left “hanging” due to the severity of the cut), and the second struck her right arm, slicing through muscles and blood vessels. The appellant delivered a thi rd hatchet blow to Mst. Rukiya‟s left thigh (buttock region), inflicting another serious wound. Mst. Rukiya collapsed due to these injuries and raised hue and cry for help. Hearing her
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3 screams, PW-2 Rameez and the other family members rushed to the scene a nd found the appellant in the act of aggression. The appellant brandished his blood -stained hatchet and threatened to harm anyone who approached. As the family members were unarmed and fearful for their lives, they did not attempt to physically tackle the appellant at that moment. Upon seeing the witnesses gather, the appellant swiftly fled the scene, escaping into the night with the hatchet in hand. In his haste, the appellant left behind one of his chappals (footwear) at the crime spot as he ran off. 3. The aftermath was one of urgency and panic. The complainant, who arrived immediately upon the appellant‟s flight, found his wife grievously injured and bleeding profusely from both arms and her thigh. Without loss of time, the family transported Mst. Rukiya to the police station (PS Matli) at about 10:00 PM that night, in order to obtain a medico -legal letter before seeking emergency treatment. ASI Muhammad Ali Ansari (the investigation officer, PW -6) promptly recorded Entry No.31 at 2200 hours in the stati on diary and issued a letter for medical examination/treatment of the victim. Given the life -threatening nature of the injuries, the priority was to secure medical aid. The injured was rushed to the Taluka Hospital Matli, where PW -4 Dr. Sobia Batool (WMO) provided first aid and noted the extensive injuries: (i) a large incised wound on the left upper arm with compound fracture of the humerus, (ii) an incised wound on the right arm involving deep muscle but no exposed bone, and (iii) an incised wound on the left thigh with muscle damage. The patient was in hypovolemic shock (pale, cold body) due to blood loss. After stabilizing her, Dr. Sobia referred the victim to Liaquat University Hospital (Civil Hospital) Hyderabad for specialized orthopedic evaluation. Mst. Rukiya was referred to Hyderabad that very night, but due to the severity of her condition, she was further referred to JPMC Karachi, where she was admitted to the ICU and remained under treatment for over a month. It was only once Mst. Rukiya‟s condition was somewhat stabilized that the complainant returned
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4 to Matli and formally lodged the FIR on 19.10.2022 at 1500 hours (Crime No. 158/2022, PS Matli). In the FIR, the complainant narrated the above facts, including the appellant‟s prior threats and the details of the assault. The two -day delay in registration of FIR was thus explained by the imperative of obtaining urgent medical care for the critically injured victim; notably, the initial report to police had in fact been made on the night of the incid ent when the injured was taken to the station for the medico -legal letter, and the police themselves facilitated her immediate hospitalization. 4. The investigation was spearheaded by ASI Muhammad Ali Ansari (PW -6). According to his testimony, after issua nce of the medico-legal letter on 17.10.2022, he awaited the complainant‟s return for lodging of the FIR. Once FIR No. 158/2022 was registered on 19.10.2022, the formal investigation commenced. The I .O inspected the place of occurrence on the same day at 16 00 hours, pointed out by the complainant, and prepared a memo of site inspection (Ex.05/B) in presence of two mashirs (witnesses) – namely Muhammad Ilyas and Abdul Razzaque. The site inspection memo noted, inter alia , bloodstains at the scene which were collected and sealed by the I .O. During this visit, the complainant also produced a chappal (sandal) belonging to the accused, which had been left behind by the assailant during his escape; the I .O took it into custody and prepared a memo of recovery of chap pal (Ex.05/C) at 1645 hours. Later that same day (19.10.2022) at 1800 hours, acting on information about the fugitive‟s whereabouts, the I.O conducted a raid at Bawali Shakh (canal area) and successfully apprehended the appellant in the presence of the mas hirs Muhammad Ilyas and Abdul Razzaque. A memo of arrest (Ex.05/D) was drawn on the spot. Upon interrogation, the appellant volunteered a disclosure that he had hidden the weapon (hatchet) used in the offence in a nearby graveyard, and he offered to recove r it. Treating this as a lead, the I .O proceeded to the pointed location at 1845 hours and, on the appellant‟s indication, recovered a blood - stained hatchet hidden in the graveyard. The hatchet was seized
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5 under a memo of recovery (Ex.05/E) witnessed by the same mashirs, and the I .O later deposited it in the police malkhana (store) vide entry No.119 of Register 19. During investigation, the I .O also recorded statements of material witnesses under Section 161 Cr.P.C. – including the eye -witnesses and the mash irs – and on 25.10.2022 he traveled to Karachi to record the statement of the injured Mst. Rukiya (PW -5) when she had regained consciousness in the hospital. Meanwhile, the medical evidence was collected: Dr. Sobia (PW -4) at Matli had issued a provisional medico-legal certificate on 19.10.2022, and after receiving the radiology reports confirming fractures (from Hyderabad) she issued the final medico - legal certificate on 23.11.2022, classifying the injuries as aforesaid (two munaqillah and one mutalahimah). On completion of the investigation, the police submitted the challan/report under Section 173 Cr.P.C. before the competent Court. 5. The trial commenced on 04 .01.2023. The learned trial Court framed a formal charge against the appellant under Sections 324, 457, 337-F(iii) and 337 -F(vi) PPC, to which he pleaded „not guilty ‟ and claimed trial. In order to prove its case, the prosecution examined six witnesses. PW -1 Abdul Aziz (complainant) and PW -2 Rameez Raja (eye-witness) both gave direct ocula r accounts of the incident, identifying the appellant as the assailant and detailing the manner in which he attacked Mst. Rukiya. PW -3 Abdul Razzaque (mashir) corroborated the investigative recoveries – he witnessed the preparation of the injury memo at th e police station, the site inspection, as well as the recoveries of the accused‟s chappal, the arrest of the accused, and the subsequent recovery of the hatchet on the appellant‟s pointation. PW -4 Dr. Sobiya Batool (WMO ), Taluka Hospital Matli) testified t he nature of the injuries sustained by Mst. Rukiya and her treatment; she produced the medico -legal documents (Ex.06/A through 06/Q) and confirmed that two of the injuries were ghayr -jaifah munaqillah (involving bone fractures) and one was ghayr -jaifah mut alahimah, all caused by a sharp - cutting weapon (such as a hatchet). PW -5 Mst. Rukiya
Crl Jail Appeal No. S-46 of 2024
6 (injured/victim) herself appeared before the Court once she had recovered sufficiently; she fully corroborated the ocular account of her husband and son, recounting how th e appellant – whom she recognized as her ex -husband – intruded into her house at night and assaulted her with a hatchet, causing severe wounds to her arms and leg with intent to kill her. She identified the appellant in the courtroom and also identified th e recovered hatchet as the weapon used against her. Lastly, PW -6 SIP Muhammad Ali Ansari (the I .O) narrated the steps of his investigation as summarized above and produced various contemporaneous records – including the station diary entries (Ex.08/A to 08 /D), the FIR (Ex.03/B), and the series of memos (Ex.05/A through 05/E) bearing his signatures. All the witnesses were subjected to searching cross -examination by the defence, which mainly focused on alleged minor inconsistencies and the purported motives t o falsely implicate the appellant, as detailed shortly. After the prosecution evidence, the statement of the accused was recorded under Section 342 Cr.P.C. (Ex.11). In his statement, the appellant denied the allegations in toto and professed innocence. He termed the prosecution witnesses as biased on account of “family enmity” but did not specifically explain the incriminating circumstances appearing in evidence. When questioned about the presence of his shoe at the scene and the recovery of the hatchet on his information, he had no plausible answer. He admitted that Mst. Rukiya had married the complainant after his divorce, but baldly alleged that she was “still in his nikah” – a stance apparently aimed at tarnishing the legality of her second marriage. The appellant, however, neither entered the witness box on oath (as allowed under Section 340(2) Cr.P.C.) nor produced any defence witness or other evidence to substantiate his claims. The trial culminated in the conviction and sentences noted above (paragraph 1), by judgment announced on 30.03.2024. 6. Learned counsel for the appellant has been heard at length. He assails the judgment of the trial Court primarily on the ground that the prosecution evidence was unreliable and suffered from
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7 material infirmitie s, which were allegedly ignored by the trial Court. He submits that all the eye-witnesses (PW-1, PW-2, and PW- 5) are close relatives – in fact members of the same household – and thus “interested” witnesses. It is contended that no independent person from the locality was produced to corroborate the occurrence, despite the incident taking place in a residential area at 9:30 PM. Learned counsel highlights that, according to the witnesses, some neighbors had gathered after the incident, yet none was examined, which casts doubt on the veracity of the prosecution story. He further points out to the delay of nearly two days in lodging the FIR (from 17 th night to 19 th afternoon of October, 2022 ), arguing that this delay provides sufficient time for deliberation and concoction; in counsel‟s view, the possibility that the occurrence was reported after due consultation and fabrication cannot be ruled out, especially given the admitted prior dispute s between the parties. It is next argued that the prosecution failed to prove the alleged prior threats through any independent evidence – e.g. no complaint or application about these threats was ever produced by the complainant or victim during investigat ion. On the contrary, the defence produced a copy of an application reportedly moved by the appellant‟s mother on 19.06.2020 to the SSP (Tando Muhammad Khan) seeking protection from the family of Mst. Rukiya. This, the learned counsel demonstrates that it was in fact the appellant‟s side that was under threat from the complainant party, and it suggests ulterior motives on part of the complainant and his wife to implicate the appellant falsely. Emphasis is also laid on certain investigative omissions: counse l notes that the investigating officer did not send the blood -stained earth or the recovered hatchet for forensic serology or fingerprint analysis; neither were the victim‟s blood-soaked clothes taken into possession. These lapses, it is argued, render the recovery evidence doubtful. It is contended that the entire case rests on the statements of interested witnesses and the uncorroborated recovery of the hatchet allegedly on the appellant‟s pointation while he was in police custody – a recovery that, according to learned counsel, should be viewed with suspicion
Crl Jail Appeal No. S-46 of 2024
8 as it could have been planted. The learned counsel points out that at the time of arrest, no weapon was found in the appellant‟s personal search, and the hatchet‟s discovery in a graveyard hours later is inherently suspect. Finally, the learned defence counsel submits that the appellant is a first -time offender with no previous criminal record. He prays that, given the doubtful circumstances and prosecution failings highlighted, the appellant be given the benefit of doubt and acquitted of all charges. In support of his contentions, he has cited case -law including Muhammad Yaseen v. State (2018 YLR 2577) and Muhammad Saleem v. State (2019 MLD 162) (among others), to reinforce the principles that a single loophole in prosecution or a delay in FIR can be fatal to the case, and that interested testimony without independent corroboration may be unsafe for maintaining a conviction. This Court has given careful consideration to these precedents. 7. Conversely, the learned Deputy Prosecutor General (“DPG”) for the State, assisted by the learned counsel for the complainant, supports the conviction and sentences. They submit that the impugned judgment is well -reasoned and is based on proper appreciation of evidence. The so-called “interested” witnesses are in fact natural witnesses, being the victim and her family members who were present at their home at the time of occurrence – their mere relationship inter se is not a valid ground to discard their testimony, es pecially when it has remained consistent and unshaken on material particulars. The DPG points out that the ocular account is strongly corroborated by the medical evidence: the nature of the wounds (incised injuries with fractures) clearly indicates an atta ck with a sharp -edged weapon like a hatchet, aligning perfectly with the prosecution version. The presence of the appellant‟s chappal at the crime scene and the recovery of the blood- stained hatchet upon his disclosure are further incriminating pieces of evidence that lend credence to the eyewitnesses‟ statements. Any minor inconsistencies or omissions in the testimony, learned DPG argues, do not go to the root of the case and have been duly
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9 addressed by the trial Court. He submits that the delay in FIR has been satisfactorily explained by the unavoidable circumstances (the critical injuries to the victim and her immediate removal to hospitals in two different cities), and thus the delay is of no consequence in casting doubt on the prosecution‟s truthfulness . The learned DPG also rebuts the defence‟s theory of false implication, contending that there is no plausible reason for the complainant party to falsely accuse the appellant of such a heinous crime, especially when it involved the near -fatal maiming of t he complainant‟s own wife – an ordeal no family would inflict on themselves merely to settle scores. He emphasizes that the appellant was indeed the ex -husband of the victim and had obvious ill-will, providing a strong motive for the crime, rather than a motive for the complainant to frame him. It is further argued that any investigative lapses (such as not sending certain items to the forensic lab) were not deliberate but at most an oversight, which does not by itself exonerate the appellant in the face of compelling direct evidence. The learned DPG concludes that the prosecution successfully proved its case beyond reasonable doubt; he prays for dismissal of the appeal, maintaining that the conviction and sentences are just and proper under the law. 8. I have given anxious consideration to the submissions of both sides and have minutely reappraised the entire evidence on record. This being a first appellate forum in a criminal case, it is the duty of this Court to reassess the evidence independently and arr ive at its own conclusions on facts and law. Having done so, I find that the prosecution case has been prove d through coherent and confidence- inspiring evidence. The impugned judgment of the learned trial Court has satisfactorily addressed most of the salient points raised, and I entirely concur with its outcome. My own reasons, upon reappraisal of each material aspect, are given below. 9. The case largely hinges on the eyewitness accounts of PW -1 (husband of the victim), PW -2 (son of the complainant) and PW -5 (the victim herself). All three witnesses were present at the scene
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10 and have given a consistent narrative of the appellant‟s unlawful entry and violent assault on Mst. Rukiya with a hatchet. The defence has criticized them as “interested” witnesse s due to their relationship with each other. It is true that these witnesses are related to the victim, but mere existence of a family relation does not automatically disqualify their testimony nor label them as untrustworthy. Our superior Courts have repe atedly held that related witnesses can be the most natural witnesses in circumstances where the crime is committed within the family home or in the presence of close relations. In the present case, the incident took place inside the complainant‟s residence at night; it is but natural that the victim‟s immediate family (husband, etc.) would be the ones present or first to reach the scene. They fall in the category of “natural witnesses” rather than chance witnesses. The Supreme Court of Pakistan has explicat ed that not every related witness is to be tagged as an “interested” witness – a witness would be deemed interested (in the pejorative sense) only if it is shown that he or she bears some animus, motive or malice to falsely implicate the accused. In Muhammad Ijaz v. The State (2023 SCMR 1375) , it was underscored that relatives of a victim, who witness the occurrence, are ordinarily considered truthful unless proven otherwise; they cannot be brushed aside merely due to relationship, especially when no substa ntive evidence of ulterior motive is brought against them. In the case at hand, the defence has not demonstrated any credible motive for PW -1 or PW -2 to fabricate a case of this nature against the appellant. The only suggestion hinted at was that there were marital disputes and some acrimony due to the victim‟s remarriage – but that is a double - edged sword. If anything, it provides a motive for the appellant (the jilted ex-husband) to commit violence, rather than a motive for the victim‟s family to maim the ir own wife/mother and falsely blame the appellant. It is unfathomable that the complainant‟s side would stage an attack of such savagery upon their own family member merely to implicate the appellant. In absence of any tangible evidence of concoction, the relationship of the witnesses with the
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11 victim actually goes to support their presence and firsthand knowledge, instead of detracting from their credibility. 10. Having scrutinized their testimonies, I find PW -1, PW-2 and PW-5 to be straightforward and cre dible witnesses. PW -1 Abdul Aziz (complainant) gave a detailed account of the entire episode – from the background of threats to the moment he heard his wife‟s cries and saw the appellant inflicting hatchet blows. He remained unshaken in cross -examination. The defence put lengthy and often repetitive questions to him, but failed to elicit anything beneficial to the appellant. The trial Court keenly noted, and I concur, that the complainant answered every question calmly and consistently, which in fact reinf orced the prosecution version. No material contradiction or discrepancy surfaced. At one point, the defence suggested to PW -1 that only his wife was injured and no one else in the family – to which he replied in the affirmative, “It is correct that during this incident only my wife sustained injuries and no one else”. The learned trial judge rightly observed that this line of questioning by the defence essentially buttressed the prosecution case – it highlighted that the appellant‟s rage was directed solely at his ex -wife, which is consistent with the motive and inten tion alleged (to kill her), and that the family did not intervene immediately because the assailant was armed and posed a threat to all. Similarly, PW -2 Raja Rameez (who is the complainant‟s son and an eye -witness present inside the house) fully corroborat ed the complainant‟s version. He testified that he saw the appellant attacking his step -mother (Mst. Rukiya) with a hatchet and that the appellant threatened the family, declaring he would not spare anyone. His cross -examination did not dent his account; h e remained consistent. Indeed, the defence again confirmed through PW -2‟s cross -examination that no other family member was harmed and that the family was too overawed by the armed appellant to apprehend him at the spot, which explains why the appellant ma naged to escape momentarily. Such admissions
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12 align with ordinary human conduct and lend further credence to these witnesses rather than the opposite. 11. Most importantly, I…
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