IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Crl. Jail Appeal No. S- 34/2021.

Date of hearing

Order with signature of Judge

For hearing of main case.

Appellant: Waqas Qayoom son of Abdul Qayoom Arain confined in Central Prison & Correction Facility Sukkur

Through Mr. Achar Khan Gabol Advocate for pauper appellant/accused.

Complainant: Kakan Babbar bycaste Arain

Through Mr. Ayaz Ali Gopang, Advocate

State: Mr. Aftab Ahmed Shar, Additional Prosecutor General.

Date of Hearing & Judgment: 07.02.2022

J U D G M E N T.

AMJAD ALI SAHITO, J.–Appellant/accused Waqas Qayoom has filed this criminal Jail Appeal challenging his conviction and sentence awarded to him under the impugned judgment dated 28.04.2021 passed in Sessions case No.26 of 2021 arising out of Crime No.378/2020 Police Station Moro whereby he was convicted and sentenced to suffer R.I for life on the ground of confession of his guilt.

2. Brief facts of the prosecution case are that on 07.11.2020 at 8.00 pm Waqas Qayoom went inside the room and found Mst. Kiranlying dead having sustained churri injuries on her neck and abdomen, blood was oozing.

3. Learned counsel for appellant/accused contended that the learned trial Court has committed an illegality/irregularitythat on a capital charge the appellant ought not to have been convicted on mere plead of guilty but the trial Court ought to have recorded the evidence. He further submits that no motive was stated and in the absence of which the award of capital punishment is unwarranted.

4. Mr. Ayaz Ali Gopang Advocate files vakalatnama on behalf of complainant which is taken on record. Mr. Aftab Ahmed Shar Additional Prosecutor assisted by counsel for complainant argued that in view of the clean breast admission of the crime the appellant deserves the punishment awarded to him, therefore, the learned trial Court has rightly convicted and sentenced the appellant as stated above.

5. I have heard learned counsel for the parties and perused the record with their able assistance. It is true that the proceedings before the trial Court indicate that the appellant had made a confession voluntarily but whether it is true or not is yet to be seen and which conclusion can be arrived at by reference to the material on record. Although no specific reference has been made to this aspect of the case in the impugned judgment, still it appears that trial Court in order to satisfy itself about the nature of confession as to whether it is true or not has referred to some material on record by reproducing the medical report submitted by the doctor and also the evidence collected by the Investigating Officer but their evidence to that aspect was not recorded in the Court and in absence of which such material i.e the medical report and the various evidence collected by the Investigating Officer, cannot be considered as a legal evidence against the appellant. The plea taken by learned counsel for the appellant at the time of hearing of appeal and the memorandum of appeal whereby the true nature of the commission of offence which entails Qisas punishment has been challenged. According to the appellant’s counsel in absence of the motive the appellant was not liable to capital punishment and that is also of Qisas and in view of the instrument with which the deceased was done to death i.e the Churri and bringing the case within the ambit of Qatl Shibh-i-Amd punishable under section 316 PPC. It cannot be said that the confession of plead guilty made by the appellant entailing punishment of Qisas is true and the evidence has been recorded and had this aspect been attended true then the trial Court might have not recorded the impugned punishment.

6. Considering the material available on record, this appeal is allowed, the conviction and sentence awarded to the appellant under the impugned judgment dated 28.04.2021 is set aside and case is remanded back to trial Court for deno vo trial for recording of evidence and decision afresh.

J U D G E

Irfan/PA