HIGH COURT OF SINDH ORDER: Cr.Appeal.No.S- 21 of 2008

 
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KARACHI: Sindh High Court has issued the following order:

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD

Cr.Appeal.No.S-

21

of

2008

Cr.Jail. Appeal. No.S-

74

of

2008

Date of hearing:

02.12.2014.

Date of judgment:

02.01.2015.

Appellants:

Sada Bux s/o Mohammad and Mukhtiar s/o Mohammad Hassan through Miss Nasira Shaikh, Advocate.

Respondent:

The State through Syed Meeral Shah, D.P.G.

Complainant:

Meenhal through Mr. Raja Hansraj Naurang, Advocate.

J U D G M E N T

SALAHUDDIN PANHWAR, J:-

Through instant appeal(s), arising from same judgment, appellants Sada Bux and Mukhtiar have challenged the judgment dated 18.03.2008, whereby present appellants were convicted and sentenced to undergo R.I for life and to pay fine of Rs.100,000/- each. In default of payment of fine, they shall undergo R.I. for one year. The fine, if recovered, be paid to the legal heirs of deceased Ghulam Hussain as compensation. However, by the same judgment co-accused Akber Ali, Muhammad Hassan, Qambar Ali, Mumtaz and Munawar Ali were acquitted by the trial Court.

  1. Relevant facts of the prosecution case are that on 21.07.1998 at 5-30 P.M, complainant Meenhal appeared at P.S. Samaro and lodged his report, stating therein that today he, his two sons Hasil and Ghulam Hussain, Laung and Anwar came at Saleh Bhambhro town when at about 3-30 P.M, they reached infront of the shop of Hiro Oad where accused persons namely Akbar Ali armed with hatchet, Muhammad with lathi, Kamber with hatchet, Munawar, Mumtaz and Muhammad Hassan with lathis got up from shop of Akbar and abused complainant party by saying that today they have given chance and thus they will not spare them. Akbar inflicted hatchet injury to P.W. Hasil, accused Kamber inflicted hatchet injury to PW Anwar on head, accused Munawar gave lathi blow to PW Laung, accused Mumtaz Ali gave lathi blow to complainant Meenhal, accused Muhammad Hassan gave lathi blows to PW Hasil. In the incident accused party had also received injuries. Thereafter, at about 3-45 P.M time deceased Ghulam Hussain (son of complainant) passed infront of the shop of Hiro Oad, at that time accused Sada Bux armed with S.B. gun, accused Sikandar armed with revolver and accused Mukhtiar armed with gun came there from railway station and challenged Ghulam Hussain that today they will not spare him; they directly fired from their respective weapons upon Ghulam Hussain which hit him on his knee and on groin area. Ghulam Hussain due to injuries fell down and died on the spot; thereafter accused ran away. Complainant took injured and dead body to RHC Samaro and then appeared at P.S. Samaro and lodged the report. Motive of the incident was that accused party had moved false applications against the complainant party one month prior to incident for which both parties had settled their dispute on Holy Quran.

  2. After usual investigation, challan was submitted and accused were sent up to face the trial.

  3. Charge was framed at Ex.2 to which accused did not plead guilty and claimed to be tried vide pleas at Ex.3 to 10.

  4. In order to prove its case, the prosecution examined complainant Meenhal at Ex.17, he produced FIR at Ex.17/A; PW Muhammad Hasil at Ex.18; PW Anwar at Ex.19; PW Wali Muhammad and Abdul Ghafoor were given by learned D.D.P.P vide statement at Ex.21 and 23; PW Dr. Kanwar Irshad at Ex.24, he produced final medical certificate of injured persons as well as postmortem report of deceased Gul Hassan at Ex.24-A to 24-I; PW PC Muhammad Saleem at Ex.25, he produced mashirnama of arrest of accused Moulvi Muhammad and others at Ex.25-A; PW SIP Wali Muhammad Rajar was given up by learned DDA vide statement at Ex.26; Mashir Muhammad Ismail at Ex.27, he produced mashirnama of clothes of dead body, danishnama, inquest report, mashirnama of injuries, mashirnama of clothes of deceased, copy of letter issued to Mukhtiarkar and photocopy of FIR of Crime No.36/1998 at Ex.29-A to 29-C; PWs Soomar, Razak and Mansoor were given up by learned DDA vide statement at Ex.30; PW SIP Muhammad Manthar Bhayo was examined at Ex.32. Thereafter, learned DDA closed the side of prosecution vide statement at Ex.33.

  5. Statements of accused persons u/s 342 Cr.P.C. were recorded at Ex.34 to 41, to which they denied the allegations leveled against them by the prosecution. They did not examine themselves on Oath nor adduce any evidence in their defence.

  6. Thereafter, learned trial Court after hearing the learned counsel for respective parties, convicted and sentenced appellants as mentioned above whereas co-accused Akbar Ali, Muhammad Hassan, Kamber Ali, Mumtaz Ali and Munawar Ali were acquitted u/s 265-H (i) Cr.P.C. by giving them benefit of doubt.

  7. Learned counsel for appellants inter alia contends that case against the appellants / convicts was full of doubts; on same set of evidence the co-accused persons have been acquitted hence believing same set of evidence for convicting the appellants is not within four corners of Safe Criminal Administration of Justice; medical evidence was not corroborating the ocular account; motive was not worth believing; appellant Mukhtiar Ahmed was acquitted from charge of off shoot case registered under section 13-d Arms Ordinance hence the benefit thereof was also requiring to be extended to the appellants / accused; alleged place of incident was thickly populated place but except interested and related witnesses none was examined. In support of his contentions, he has placed reliance on the case laws, reported as 1995 SCMR 127, 2008 SCMR 95, 2006 SCMR 1707, 1993 SCMR 1602, PLD 2004 SC 663, PLD 2007 Lah. 606, 2005 YLR 1128, 2001 YLR 1392, 1997 P Cr.LJ 1646, 2006 P Cr.L.J 84, 2001 P.Cr.LJ 211, 2013 P Cr.L.J 153, 1994 P Cr.L.J 331, 2013 P Cr.L.J 323, 1998 P Cr.L.J 63, 2009 P Cr.L.J 506, 2009 P Cr.L.J 43, 2001 P Cr.L.J 1682, 1995 MLD 1532, 2005 MLD 888 and 1995 NLR 474.

  8. On the other hand, the learned State Counsel, duly assisted by learned counsel for the complainant, argued that prosecution successfully established the charge against the appellants / convicts; the charge against the appellants / convicts was also supported by medical evidence; mere acquittal of co-appellant Mukhtiar from charge of off-shoot case u/s 13-d Arms Ordinance is not of any help for insisting acquittal in main charge case. The judgment is legal and well reasoned hence is not open for any exception.

  9. I have carefully gone through the entire evidence and considered the submissions made at the bar.

  10. At the very outset, I can safely say that proving of un-natural death is never sufficient to convict an accused unless and until through ocular account the allegation of causing murder is established. The status of the medical evidence in criminal administration of justice is nothing more than that of ‘a corroborative piece of evidence’ which could, at the most, help prosecution...

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