IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Jail Appeal No. S – 81 of 2006

 

Appellants           :         Ghulam Muhammad and Manthar, through

Mr. Ghulam Shabbir Dayo, Advocate

 

Respondent         :         The State, through Mr.Aftab Ahmed Shar,

                                      Additional Prosecutor General

 

Date of hearing   :         18.02.2019

Date of decision  :         18.02.2019

JUDGMENT

IRSHAD ALI SHAH, J:-   The appellants Ghulam Muhammad and Manthar together with Shahmir (who now has died) by way of instant Criminal Jail Appeal have impugned judgment dated 19.10.2006 passed by learned 3rd Additional Sessions Judge Mirpur Mathelo, whereby they for an offence punishable u/s 302(b) r/w Section 34 PPC for committing Qatl-e-Amd of Hafeezullah have been convicted and sentenced to undergo imprisonment for life with fine of Rs.50,000/- each and in case of their failure to make such payment to undergo RI for six months, with benefit of Section 382-B Cr.P.C.

2.                 The facts in brief necessary for disposal of instant criminal Jail Appeal are that dead body of unknown person was found lying in a watercourse. On such information police party of Wasti Jiwan Shah led by SIP Asghar Ali Kolachi came at the place of incident it secured the dead body and then referred it to hospital for postmortem. At hospital one Saifullah identified the dead body of said to be of his brother Hafeezullah FIR on behalf of the State was lodged by SIP Ghulam Asghar Kolachi against unknown culprits. On investigation, it transpired through PWs Liaquat Ali and Ali Bux that deceased Hafeezullah was killed by appellants Ghulam Muhammad, Manthar and Shahmir (now has died) over a petty matter. They were arrested from them were secured the clothes of the deceased and then they were reported upon by the police to face trial for the above said offence.

3.                 At trial, the appellants Ghulam Muhammad, Manthar and Shahmir (now has died) did not plead guilty to the charge and prosecution to prove it examined PW-1 complainant SIP Ghulam Asghar at (Ex.07), he produced inquest report, FIR of the incident, memo of identification of deceased body of deceased and report of Chemical Examiner; PW-2 Medical Officer Dr. Hasamuddin (Ex.08), he produced postmortem report on the dead body of the said deceased; PW-3 Inspector Nazir Ahmed (Ex.09), he produced memo of arrest of accused and memo of recovery of clothes of the said deceased; PW-4 Liaquat Ali (Ex.11), he produced his 164 Cr.P C Statement; PW-5 Ali Bux (Ex.13), he produced his 164 Cr.P.C statement; PW-6 Shah Dino (Ex.15), PW-7 Ali Gohar (Ex.16); PW-8 Saifullah (Ex.20), he produced receipt regarding delivery of said deceased; PW-9 Rehmatullah (Ex.22); PW-10 Hashmat (Ex.23) and then closed the side.

4.                 The appellants Ghulam Muhammad, Manthar and Shahmir (now has died) during course of their examination u/s 342 Cr.P.C denied the prosecution allegation by pleading innocence, they did not examine any one in their defence or themselves on oath in disproof of the prosecution allegations.

5.                On evaluation of evidence so produced by the prosecution, learned trial Court convicted and sentenced the appellants Ghulam Murtaza, Manthar and Shahmir (Now has died) by way of impugned judgment, as stated above.

6.                 It is contended by learned counsel for the appellants Ghulam Muhammad and Manthar that they being innocent have been involved in this case falsely by the police on the basis of extra judicial confession allegedly made by them in presence of PWs Liaquat Ali and Ali Bux, which is a weak of evidence.  By contending so, he sought for acquittal of the appellants Ghulam Muhammad and Manthar.

7.                 Learned Additional PG for the State has sought for dismissal of the instant appeal by contending that the impugned judgment is well‑reasoned.

8.                 I have considered the above arguments and perused the record.

 

9.                Unnatural death of deceased Hafeezullah is proved of evidence of Medical Officer Dr. Hasamuddin. Now is to be examined the liability of the appellants Ghulam Muhammad and Manthar towards the alleged incident. Admittedly, none has seen Ghulam Muhammad, Manthar and Shahmir (now has died) committing the alleged incident. Their names are not taking mention in FIR of the incident which has been lodged by SIP Ghulam Asghar, on behalf of State. As per complainant SIP Ghulam Asghar, Asadullah came at hospital and identified the dead body of deceased to be of his brother Hafeezullah, but he did not suspect anyone to be involved in such incident. Apparently, appellants Ghulam Muhammad, Manthar and Shahmir (now has died) have been involved in commission of incident on the basis of 161 Cr.P.C statement of PWs Liaquat Ali and Ali Bux, as per them they heard appellants Ghulam Muhammad, Manthar and Shahmir (now has died)  saying that they have committed death of Hafeezullah over a petty matter. Such a disclosure on their part is appearing to be a very weak piece of evidence which could hardly be relied upon to base conviction. Be that as it may, 161 Cr.P.C statements of PWs Liaquat Ali and Ali Bux as per Inspector Nazir Ahmed were recorded on 20.08.1996. If it was so then it was with unexplained delay of more than two months to the incident which allegedly took place on 13.06.1996. In such circumstances, no much reliance could be placed upon evidence of PWs Liaquat Ali and Ali Bux.

10.              In case of Abdul Khaliq vs. the State (1996 SCMR 1553), it was observed by Hon’ble Court that;

“----S.161---Late recording of statements of the prosecution witnesses under section 161 Cr.P.C reduces its value to nil unless delay is plausibly explained.”

 

11.               Only piece of evidence which remains to be discussed is that of recovery of clothes of the deceased from appellants Ghulam Muhammad, Manthar and Shahmir (now has died). Such recovery apparently was made on 4th day of arrest of the said appellants and after more than two months of the incident. In that situation, the appellants could not be connected with the said recovery.

12.              The discussion involved a conclusion that the prosecution has not been able to prove its case against appellants Ghulam Muhammad, Manthar and Shahmir (now has died) beyond shadow of doubt.

13.              In case of Faheem Ahmed Farooqui vs. The State                      (2008 SCMR 1572), It has been held by Hon’ble Apex Court that;

“Single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge makes the whole case doubtful.”

 

14.               For what has been discussed above, the conviction and sentence recorded against appellants Ghulam Muhammad and Manthar by way of impugned judgment is set aside, consequently they are acquitted of the offence for which they were charged, tried and convicted by learned trial Court, they are present in Court on bail, their bail bonds are cancelled and sureties are discharged, while instant appeal in respect of appellant Shahmir stand abated on account of his death.

15.              The instant Criminal Jail Appeal stands disposed of accordingly.

 

Judge

 

ARBROHI