IN THE HIGH
COURT OF SINDH, BENCH AT SUKKUR
Cr. Jail Appeal No.S- 55 of 2018
Cr. Appeal No.S- 67 of 2018
Appellant : Janib Shar, through Mr. Sher Muhammad Shar, Advocate
Respondent : The
State, through Mr. Abdul Rehman Kolachi,
Deputy Prosecutor General for
the State
Date of
hearing: 04.03.2019
Date of
decision: 08.03.2019
JUDGEMENT
Irshad Ali Shah, J; The appellant by way of two separate
appeals (one is preferred by him from jail while other is preferred by his
learned counsel) has impugned judgment dated 23.04.2018 passed by learned
Additional Sessions Judge Ubauro, whereby he has been
convicted and sentenced for an offence punishable u/s 302(b) r/w Section 311
PPC to undergo imprisonment for life with benefit of Section 382-B Cr.P.C.
2. The facts in brief necessary
for disposal of instant appeals are that the appellant allegedly with
co-accused Sadam, Murad, Ranjho, Sawan, Sono, Noor Muhammad and Zulfiqar in prosecution of their common object have committed
Qatl-e-amd of his wife Mst. Arbeli by strangulating her
throat with rope, for that he and co-accused were booked and reported upon by
the police to face trial for the above said offence.
3. At trial, appellant and said
co-accused did not plead guilty to the charge and prosecution to prove it,
examined PW-1 complainant ASI Muhammad Ashraf (Ex.14), he produced roznamcha entry, memo of examination of dead body of
deceased, memo of place of incident and recovery of rope and FIR of the present
case; PW‑2 HC Abdul Sattar (Ex.15), he produced memo of arrest of
appellant; PW-3 Tapedar Qurban
Ali (Ex.16), he produced sketch of vardhat; PW-4 Medical
Officer Dr. Zaib-u-Nissa
(Ex.17), she produced postmortem report on the dead body of said deceased; PW-5
PC Gul Muhammad (Ex.19), he produced receipt whereby he handed over dead body
of said deceased to her relative; PW-6 PC Muhammad Aslam (Ex.20); PW-7 SIO/SIP
Pervez Ali Shah (Ex.21), he produced memo of recovery of clothes of the
deceased and then closed the side.
4. Appellant and said co-accused,
during course of their examination u/s 342 Cr.P.C,
denied the prosecution allegation by pleading innocence, they did not examine
themselves on oath or anyone in their defence.
5. On evaluation of evidence so
produced by the prosecution, co‑accused Sadam, Murad, Ranjho,
Sawan, Sono, Noor Muhammad and Zulfiqar were acquitted while appellant
was convicted and sentenced as above.
6. It is contended by learned
counsel for the appellant that the appellant being innocent has been involved
in this case falsely by the police and the evidence so produced by the
prosecution has been believed by the learned trial Court in respect of
appellant alone without lawful justification. By contending so, he sought for
acquittal of the appellant.
7. Learned Deputy Prosecution
General for the State by supporting the impugned judgment sought for dismissal
of the instant appeals.
8. I
have considered the above arguments and perused the record.
9. Unnatural death of deceased Mst. Arbeli is proved of evidence
of Medical Officer Dr. Zaib-u-Nissa.
Now is to be examined the liability of the appellant to the present incident.
The FIR of the incident has been lodged on behalf of the State. No independent
person has been examined by the police to ascertain the correctness of the
allegation of ‘karap’. It was stated by complainant
ASI Muhammad Ashraf and PW HC Abdul Sattar that on 06.3.2014 they with rest of the police
personnel were conducting patrol during course whereof they came to know
through spy information that appellant and others are going to kill Mst. Arbeli after declaring her
to be ‘Kari’ with Shahban alias Shaboo
Shar. On such information, they proceeded to the
place of incident. If for the sake of argument, it is believed that they
proceeded to the place of incident on information then they were under lawful
obligation to have associated with them independent person to witness the
incident. It was not done by them for no obvious reason, such omission on their
part could not be overlooked. It was further stated by them that they reached
at the place of incident and found the appellant and others, they after seeing them
and rest of the police personnel made their escape good. If it is believed to
be so, then it goes to suggest that they reached at the place of incident after
its occurrence. In end of their examination, they were not able to identify any
of the culprits excepting the appellant which appears to be strange, though
they named them in their FIR and 161 Cr.P.C
statements specifically. PW PC Muhammad Aslam came
with a different version by stating that they found the appellant and others
strangulating Mst. Arbeli. In
that situation, it would be highly unsafe to rely upon their evidence which is
found to be inconsistent and doubtful to base conviction against the appellant.
It was stated by SIO/SIP Pervez Ali Shah that on investigation, he secured the
clothes of the deceased prepared such mashirnama,
recorded 161 Cr.P.C statements of the witnesses,
apprehended the appellant, prepared such mashirnama
and then he was transferred and investigation of the case then was entrusted to
SIP Rafique Ahmed Soomro for further investigation. SIP Rafique Ahmed Soomro,
the prosecution has not been able to examine without any lawful justification.
His non‑examination could also be resolved in favour of the appellant.
10. In
case of Faheem Ahmed Farooqui vs. The
State (2008 SCMR 1572) it has been held by Honourable Apex Court that;
“Single infirmity creating reasonable doubt in prudent mind regarding
the truth of the charge makes the whole case doubtful.”
11. For what has been discussed
above, the conviction and sentence recorded against the appellant by way of
impugned judgment could not be sustained. It is set aside. Consequently, the appellant is acquitted of
the offence for which he was charged, tried and convicted by learned trial
Court. He to be released forthwith in the present case.
12. Both the instant appeals are
disposed of in above terms.
Judge