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Official Citation: 2024 YLR 1892
Court / Jurisdiction: Sindh High Court
Year of Decision: 2025
Decision Date: 2025-07-11
Parties: Allah Dino Lakhan vs The State
Ruling Summary: This decision was rendered by the Sindh High Court on 2025-07-11, officially reported as 2024 YLR 1892. In this matter between Allah Dino Lakhan and The State, 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.
Case cited as 2024 YLR 1892
Court Name: Sindh High Court Judge(s): Ali Haider 'Ada' Title: Allah Dino Lakhan vs The State Case No.: Criminal Appeal No. S-39 of 2020 Date of Judgment:2025-07-11 Reported As: 2025 SHC SUK 1874 Result: Appeal Allowed
JUDGMENT
JUDGMENT Ali Haider 'Ada',J;- Through this judgment, the appellant has assailed the judgment dated 10.03.2020, passed by the learned Ist Additional Sessions Judge, Sukkur/Model Criminal Trial Court (hereinafter referred to as the "learned trial Court") in Sessions Case No. 165 of 2019, titled The State vs. Mitho alias Muhammad Mithal and others, arising out of Crime No. 20 of 2002, registered at Police Station Bagerji, for offences punishable under Sections 302, 337-H(ii), 148, and 149 PPC. Through the impugned judgment, the appellant was convicted and sentenced to life imprisonment as Ta'zir; and was further directed to pay a fine of Rs. 200,000/- (Rupees Two Hundred Thousand only) as compensation to the legal heirs of the deceased, as provided under Section 544-A Cr.P.C. In case of default in payment, the appellant shall undergo simple imprisonment for a further period of three months. However, the benefit of Section 382-B Cr.P.C. was extended to the appellant. 2. Briefly stated, the facts of the prosecution case are that on 09.06.2002, the complainant Ali Sher, along with his nephew Ghulam Mustafa (deceased), was sitting on a cot at the hotel of Qazi Bahadur after attending the marriage ceremony of a Haji Ghulam Hussain. Two other relatives, namely Ghulam Nabi and Muhammad Murad, were also already present at the hotel. At about 01:00 p.m., the accused persons, namely Allah Dino (appellant), Manzoor, and Mitho alias Muhammad Mithal each armed with a Kalashnikov along with Chanesar (armed with a rifle), Fareed (armed with a shotgun) and two unknown persons (armed with TT pistols), arrived at the hotel. On the instigation of accused Allah Dino, accused Chanesar fired upon the deceased, followed by accused Allah Dino also firing at him, while the remaining accused resorted to aerial firing. As a result of the firearm injuries, the deceased Ghulam Mustafa fell from the cot and died at
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the spot. Upon inspection, the deceased was found to have sustained multiple firearm injuries: one on the right side of the neck which exited from the left side near the ear, another below the left nipple which exited near the right elbow, a gunshot wound on the chest over the right nipple and another on the left buttock. The dead body was thereafter shifted to the hospital, and subsequently, the complainant lodged the FIR at the concerned police station. 3. After registration of the FIR, investigation was carried out; and two accused persons namely Manzoor and Mitho alias Muhammad Mithal were arrested on 02.07.2002. During interrogation, on their pointation, recoveries of Kalashnikovs were effected on 12.07.2002 and 15.07.2002 in that order. The present appellant was shown as an absconder along with the remaining co-accused. Accused Manzoor and Mitho alias Muhammad Mithal were sent up for trial before the learned trial Court. Upon conclusion of the trial, both were convicted and sentenced to five years' imprisonment by the learned trial Court. However, at the time of pronouncement of the judgment, accused Manzoor was absent and had absconded. Accused Mitho alias Muhammad Mithal challenged his conviction before this Court and vide judgment dated 25.05.2016, his sentence was reduced to the extent of the period already undergone. As the appeal was not decided on merits but disposed of on the ground that he had already undergone a substantial portion of the sentence and had shown willingness to for undergone. 4. The appellant was shown as having been arrested on 11.07.2019, in connection with another crime and a memo of imaginary arrest was prepared accordingly. Subsequently, the appellant was sent up for trial and on 24.08.2019, the learned trial Court framed an amended charge against him. The appellant pleaded not guilty and claimed trial. 5. In support of its case, the prosecution examined the following witnesses: PW-1: Samiullah, a police official who handed over the dead body of the deceased to his legal heirs. PW-2: Ghulam Nabi, an eyewitness to the incident. PW-3: Muhammad Panjal, a mashir of various memos.PW-4: Abdul Hameed, ASI, the author of the FIR.PW-5: Abdul Qadir, ASI, who prepared the memo of imaginary arrest.PW-6: Rafiq Ahmed, a police official who acted as mashir of the memo of imaginary arrest.PW-7: Dr. Zain-ul-Abidin, the Medical Officer who conducted the post-mortem examination of the deceased.PW-8: Abdul Hameed (same as PW-4), who was again examined after being summoned under Section 540 Cr.P.C. upon an application moved by the learned State Counsel, on the ground that the original Investigating Officer had shifted to Kashmir and his whereabouts were not known, as per the report of the process server. 6. During the course of proceedings, prosecution witness Ghulam Nabi submitted an application dated 19.02.2020, informing the learned trial Court about the death of the complainant, Ali Sher, as well as prosecution witness Muhammad Murad. Thereafter, the learned State Counsel closed the prosecution evidence by filing a statement dated 19.02.2020. 7. Subsequently, the learned trial Court recorded the statement of the accused under Section 342, Cr.P.C, wherein the appellant denied the allegations leveled against him, professed his innocence and prayed for acquittal. The appellant did not opt to examine himself on oath under Section 340(2), Cr.P.C., nor did he produce any evidence in his defense. 8. Thereafter, the learned trial Court heard the arguments advanced by the learned counsel for the appellant, the counsel for the complainant/witness side and the learned State Counsel. Subsequently, the learned trial Court passed the impugned judgment, whereby the appellant was convicted and sentenced as mentioned supra, which is now under challenge before this Court. 9. Learned counsel for the appellant contended that the case is riddled with material discrepancies. He argued that the seat of injury is disputed and the role assigned to the appellant by the complainant party is contradictory in nature. It was further contended that the statement of the accused was recorded without providing him access to relevant material, thereby depriving him of a fair opportunity to respond. The learned trial Court, it was argued, failed to consider the
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medical evidence, wherein the doctor opined that the injury was caused by a gun, whereas the appellant was alleged to be armed with a Kalashnikov. Moreover, the Investigating Officer was not examined during the trial and the learned trial Court made no serious effort to secure his presence merely relying on the statement of the process server. This omission, it was submitted, casts serious doubt on the prosecution's case. Learned counsel further pointed out that the Ballistic expert report concluded that all crime empties secured from the place of incident were fired from the Kalashnikovs recovered from co-accused Manzoor and Mitho. This, according to the counsel, completely exonerates the appellant and breaks the chain of circumstances allegedly connecting him to the commission of the offence. In support of his contentions, learned counsel relied on the precedents: Imtiaz alias Taj vs. The State (2018 SCMR 344), Akhtar Ali and others vs. The State (2008 SCMR 6), Shal Muhammad vs. The State (2015 YLR 2413), Mir Alam vs. Amroz Khan and another (PLD 2015 Peshawar 125), Naseer Khan vs. Said Qadeem and others (2020 SCMR 293). He concluded by praying for the acquittal of the appellant. 10. On the other hand, the learned Law officers, assisted by the learned counsel for prosecution witness Ghulam Nabi, contended that the evidence of Ghulam Nabi was recorded in the absence of the main defense counsel. Although a junior associate was present at the time of the chief examination, he had not filed any vakalatnama, which, it was argued, was in violation of section 353 Cr.P.C. On merits, the learned Counsel submitted that the appellant had been assigned a specific role of causing firearm injury to the deceased and that the ocular account is corroborated by the medical evidence. Furthermore, the appellant had remained absconder for nearly 17 years, which in itself is sufficient to support the prosecution's case and raise an adverse inference against the appellant. It was emphasized that co-accused were also convicted on the same set of evidence. In support of their stance, reliance was placed on the authorities: Nasir Ahmed vs. The State (2023 SCMR 478), Shaheen Ijaz alias Babu vs. The State (2021 SCMR 500), Noorullah vs. The State (2012 YLR 168), Ghulam Nabi Narejo and 3 others vs. The State (2013 P.Cr.L.J. 499). 11. Heard the arguments advanced by the learned counsel for the respective parties. The material available on record has been perused with due care and a thorough appreciation of the facts, evidence; and legal aspects of the case has been undertaken. 12. Upon careful examination of the entire record and appreciation of the evidence, this Court finds that the prosecution has failed to establish its case against the appellant beyond reasonable doubt. As per the prosecution's own version, the alleged motive for the offence was a prior enmity stemming from a case registered in the year of 1999, in which both parties were implicated but later acquitted of the charges. Importantly, the prosecution witness admitted that no further incident occurred between the parties from 1999. Furthermore, no evidence has been brought on record to demonstrate that the deceased had played any active or specific role in the prior litigation. In fact, the complainant himself did not attribute any special or prominent role to the deceased in the previous dispute. He merely alleged that a quarrel had taken place between the complainant party and the accused party, without providing details as to how or why the deceased would have been targeted, especially when the complainant, who was admittedly present at the scene, was neither injured nor shot at. This unexplained selectivity in the attack casts a serious doubt on the prosecution story. This Court is guided in this regard by the principle laid down in the judgment of the Hon'ble Supreme Court in Muhammad Nasir Butt and 2 others vs. The State and others (2025 SCMR 662), wherein it was held: 11. The motive of the occurrence was stated to be altercation between Muhammad Hamid Amjad (brother of the complainant) and convict Baqir Butt prior to the occurrence by the complainant. Muhammad Hamid Amjad, allegedly present at the crime scene during the occurrence, was neither targeted by the accused nor he received any injury. As per statement of Shumaila (DW-1) the deceased Abid Ali had held her hand in the street, in the meanwhile the convict Baqir Butt
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(brother of Shumaila) came there and rescued her from Abid Ali and at the same moment Abid Ali made firing on them and she received firearm injuries at her arm. The alleged motive lacks the force necessary to connect the convicts with the commission of the offence. Reliance in this regard is placed on the case of "Muhammad Ijaz v. The State". (underline is for emphasis) 13. The ratio decidendi in the above case squarely applies here. The prosecution has not only failed to prove a credible motive. Thus, in the totality of circumstances, the alleged motive fails to provide any rational explanation for the commission of the offence by the appellant. 14. It would be highly relevant to mention here that the motive is a double-edged weapon, which can be used either way or by either side i.e. for real or false involvement. As held by Honourable Supreme Court of Pakistan in case of Muhammad Hassan and another Versus The State and others (2024 SCMR 1427); Muhammad Ashraf alias Acchu v. The State ((2019 SCMR 652) 15. The ocular evidence is the backbone of the prosecution's case. However, a careful examination of the testimony of prosecution witnesses reveals several inconsistencies and discrepancies which cast serious doubt on the reliability and credibility of the ocular account. The complainant's testimony is contradictory. In his initial statement recorded in the FIR, the complainant mentioned that the accused Chanesar and Allah Dino (the appellant) fired upon the deceased, while the other accused made aerial firing. However, during the course of trial, the complainant's statement was improved and altered to include a wider role of other accused firing straight shots at the deceased. Similarly, the testimony of another prosecution witness, Muhammad Murad, is at variance with the complainant's FIR and deposition. Muhammad Murad stated that accused Chanesar fired with a rifle, Allah Dino and Mitho fired with Kalashnikovs, Manzoor also fired with a Kalashnikov, Fareed fired with a gun and two unknown accused fired in the air with TT pistols. This broader version that attributes firing to all accused differs from the FIR and complainant's earlier statement, which is a glaring contradiction. Further scrutiny of the complainant's testimony reveals inconsistency regarding the attendance at the marriage ceremony of Haji Ghulam Hussain Junejo. The complainant initially claimed that only he and the deceased attended the marriage, but later stated that the deceased's father and brother were also present. This inconsistency undermines the reliability of the prosecution story. 16. Furthermore, in cross-examination, prosecution witness Ghulam Nabi admitted he could not specifically identify or attribute the injuries sustained by the deceased to any particular accused. This admission significantly diminishes the evidentiary value of his testimony and renders it unreliable. 17. Moreover, prosecution witnesses Muhammad Murad and Ghulam Nabi traveled from Sukkur but failed to satisfactorily explain the purpose of their visit or whom they intended to meet there. During trial, the said eyewitnesses also did not offer any plausible reason or justification for being at the place of occurrence, nor did they establish any specific connection to the events leading up to the incident. This unexplained presence renders their testimony suspect and untrustworthy. In the absence of reliable corroboration and given the material contradictions, the ocular testimony of the prosecution witnesses cannot be safely relied upon to convict the appellant beyond reasonable doubt. In this context, further reliance is placed upon the case of Muhammad laved versus The State (2016 SCM R 2021) wherein it had held that: 4. It has straightaway been observed by us that the occurrence in this case had taken place about a kilometer and a half away from the village abadi and at a place which was an open and uninhabited place inside a sugarcane field. The background of this case was a suspicion regarding illicit relations between Faiz Ullah deceased and a sister of Muhammad Javed appellant and in that backdrop a sugarcane field away from the village abadi looked like a perfect setting. Both the eye-witnesses produced by the prosecution, i.e.Ghulam Muhammad complainant (PW7)
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and Ehsan Ullah (PW8) were very closely related to Faiz Ullah deceased inasmuch as PW7 was a paternal uncle of the deceased and PW8 was a nephew of PW7. Both the said eye-witness were also chance witnesses as PW7 had claimed to have witnessed the occurrence when he was proceeding to Sargodha on a bicycle whereas PW8 had claimed to have seen the occurrence when he was going to meet a friend. Both the said eye-witnesses had completely failed to establish any reason for their presence at the scene of the crime at the relevant time inasmuch as PW7 had not even disclosed his reason for going to Sargodha and PW8 had not even named the friend that he was going to meet. The said related and chance witnesses had failed to receive any independent corroboration inasmuch as no independent proof of the motive set up by the prosecution had been brought on the record of the case and although a report of the Forensic Science Laboratory was received in the positive in respect of matching of the firearm recovered from the appellant's custody with a crime-empty secured from the place of occurrence yet the investigating officer (PW9) had clearly acknowledged before the trial court that the crime-empty had been sent to the Forensic Science Laboratory on the day when a carbine had been recovered from the custody of the appellant. (underline is for emphasis) 18. A further contradiction emerges from the depositions of the complainant and eyewitnesses regarding the seating arrangement at the time of the incident. The complainant testified that he was sitting alone on a cot, while the deceased was on a separate cot and the witnesses Muhammad Murad and Ghulam Nabi were sitting together on another cot. In contrast, Ghulam Nabi in his deposition stated that the complainant and deceased were sitting together on one bench and he along with Muhammad Murad were seated on another bench without any reference to cots. This inconsistency becomes more pronounced when examined in light of the memo of place of incident, which is entirely silent regarding the presence of any cot or bench, despite the prosecution claiming that blood was found on the cot. This difference between the ocular account, the site memo and the prosecution's reliance on physical exhibits (such as a blood-stained cot) renders the prosecution narrative internally inconsistent and unreliable. In this regard, reliance is placed upon the judgment in Nadir Khoso and others vs. The State and others (2024 YLR 1565), wherein held: ---that neither the tractor nor even the tractor seat where the deceased after sustaining injuries was lying, was produced and adduced in evidence; and that although it was natural that driving chair would have been stained with blood but no blood was secured therefrom. 19. The place of occurrence, the hotel of Qazi Bahadur, had independent persons such as Qazi Bahadur (the hotel owner) and Abdul Khaliq Mahar who identified the dead body at the time of inquest report. However, prosecution failed to examine these independent and material witnesses, whose evidence could have corroborated or disproved the prosecution story. The absence of their testimonies weakens the chain of evidence and raises questions regarding the thoroughness of the investigation and prosecution. 20. The post-mortem report indicates that the deceased's body was identified by one Bhai Khan (father of the deceased) and Ghulam Nabi. However, Ghulam Nabi did not claim to have been present at the hospital at the time of identification and Bhai Khan was neither examined by the Investigating Officer nor produced as a witness by the prosecution. The withholding of such crucial evidence is highly detrimental to the prosecution case and suggests a deliberate attempt to suppress material facts. Support for this view is drawn from the case of Iftikhar Hussain alias Kharoo vs. The State (2024 SCMR 1449), as held that: 13. In view of the material contradictions in the statements of eye-witnesses and the fact that they did not accompany the deceased in the hospital and that their names were neither mentioned in Inquest report nor in post-mortem report as the identifiers of the dead body speaks volumes
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about the absence of the eye-witnesses at the place of occurrence. Hence, their testimonies are unreliable. 21. It is settled principle that when independent or marginal witnesses, who are naturally available and could have offered impartial corroboration, are withheld without justification, an adverse inference may be drawn against the prosecution. In this regard, reliance is placed upon the authoritative judgment of the Hon'ble Supreme Court in Muhammad Ramzan vs. The State (2025 SCMR 762), wherein it was held: ----At the trial, the prosecution has not produced Matloob Hussain, the owner of the house as witness. An adverse inference is drawn under Article 129(g) of the Qanun-e-Shahadat Order, 1984 to the effect that had the above witness been produced by the prosecution at the trial, they would not have supported the version of the prosecution. Reliance in this regard is placed on the case of "Mst Saima Noreen v. The State" (2024 SCMR 1310). 22. Another major deficiency in the prosecution's case is the non-production of witness, the Tapedar, who prepared the site sketch, was admittedly examined in the earlier round of litigation involving co-accused persons. However, in the instant trial, the prosecution failed to examine him again. There is no explanation provided as to why he was withheld in this trial, particularly when the sketch forms a crucial part of the physical evidence. Similarly, the Investigating Officer (ASI Imtiaz Shoukat), who conducted the primary investigation and secured key evidence, was not produced at trial. The prosecution merely submitted a statement of a process server that the Investigation Officer had shifted to Kashmir and his whereabouts could not be determined. Surprisingly, the learned trial Court accepted this excuse, without issuing summons, seeking assistance from government departments (such as NADRA or the police hierarchy), or taking any effective step to secure the IO's presence. Given that the IO is a public functionary, it is unconvincing and legally unacceptable to presume that he simply could not be traced. In this context relied upon the case of Shaukat and 2 Others versus The State (1981 SCMR 444), as held that: 9. The learned counsel for the appellants contended that the statements of Liaquat Ali and Mahboob were transferred to the Sessions file in violation of section 33 of the Evidence Act as it was not strictly proved that they had absconded and, therefore, would not be available in the near future to give evidence in the case. In support of it he relied on the statement of Muhammad Rafiq, P. W. 8, and the reports Exhs. P. W. 8/C and P. W. 8/D submitted by him. All that he stated was "both the P. Ws. are absconders in case F. I. R. No. 174 dated 28th of November, 1973, under section 302/ 307/34, P. P. C. for murdering Mushtaq who was accused in the present case. There is no likelihood of their arrest in the near future." This process server is of the same Police Station and the information apparently given is from the record available at the Police Station. No effort seems to have been made by him to execute the summons nor did he depose to the fact that warrants were issued for their arrest in the other case but as their whereabouts were not known, by reason of their abscondence they could not be executed and, therefore, they were declared to be proclaimed offenders under sections 87 and 88, Cr. P. C. Therefore, what was deposed to was hearsay which cannot take the place of strict proof as was necessary to be adduced according to the dictum of this Court in Ali Haider v. The State (PLD 1958 SC (Pak.) 392). The trial Court took the statement of the process server on its face value while holding it to be a reality in the absence of further proof that an attempt was made to search them but as they had absconded, their whereabouts were not known which could further be proved by adducing evidence that they had been declared absconders in the other case. The High Court also without applying its mind on this aspect of the procedure merely held their non availability to have been established by the prosecution" which was a disregard of the provisions of section 33 of the Evidence Act. This alone would suffice to keep their statements out of consideration as they do not legally form part of the
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evidence in the case. But nonetheless we examined the worth of the solitary eye-witness, Liaquat Ali, as to whether it could form the basis of conviction ; and as regards Mahboob, his evidence in no way advance the case of the prosecution. (under line is for emphasis) This Court in case of Asif vs. The State (2025 YLR 757) has held: Initial investigation of the case was conducted by I.O/SIP Sagheer Ahmed Baig, he has not been examined by the prosecution for the reason that he has retired from the service, the retirement of the employee may not be a valid reason for his non-examination 23. The significant deficiency in the prosecution's case is that the entire case rests on the statements of close relatives of the deceased, such as the complainant and related witnesses, whose presence, credibility, and consistency are already under serious doubt due to contradictions and improvements in their depositions. Furthermore, even memos were not attested by any independent private persons, further weakening the evidentiary value of the prosecution case. This Court is mindful that in the absence of compelling justification, such as threats, unavailability, or…
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