PLJ 2019 SC (Cr.C.) 526
Pakistan Penal Code, 1860 (XLV of 1860)--
---S. 302(b)--Qatl-e-amd--Re-appraisal of evidence--Present case was registered after father of the deceased allegedly sent information to the concerned Station House Officer (SHO)/police witness on a mobile phone that his accused son had murdered his deceased daughter under the allegation of 'Kari'--Said police witness was examined as a witness and his whole statement was based upon the information allegedly passed to him by the father of the deceased and the accused--Police witness also did not mention the cell phone number from which he received the information upon which the FIR was chalked out--Other witness also did not receive the information about the crime himself and it was told to him by the police witness--Admittedly, the father was never produced by the prosecution nor he was summoned as a witness to confirm the assertion made by the two witnesses--Conviction and sentence of accused was set aside in circumstances and he was acquitted of the charge--Jail petition was converted into an appeal and the same was allowed accordingly. [P. 528] A
Pakistan Penal Code, 1860 (XLV of 1860)--
---S. 302(b)--Qanun-e-Shahadat Order, (10 of 1984), Art. 71--Qatl-i-amd--Reappraisal of evidence--Hearsay evidence-- Such evidence could not be made basis of a conviction. [P. 528] B
Pakistan Penal Code, 1860 (XLV of 1860)--
---S. 302(b)--Qatl-e-amd--Re-appraisal of evidence--Extra-judicial confession before police--Such confession was inadmissible in evidence. [P. 528] C
Pakistan Penal Code, 1860 (XLV of 1860)--
---S. 302(b)--Qatl-e-amd--Re-appraisal of evidence--Recovery of weapon and crime empties on alleged pointation of accused--Weapon was not sent to the forensic expert for comparison or to determine whether it was in working condition or not--In the absence of any positive report of Forensic Science Laboratory, the recovery of the weapon was inconsequential--Allegedly, weapon was recovered from some bushes on pointation of accused, however the place was accessible to everyone--Furthermore private persons were also present in the area as admitted by the witness but only police officials were made witness of the said recovery--Conviction and sentence of accused was set aside in circumstances and he was acquitted of the charge--Jail petition was converted into an appeal and the same was allowed accordingly. [Pp. 528 & 529] D
Pakistan Penal Code, 1860 (XLV of 1860)--
---S. 302(b)--Qatl-e-amd--Re-appraisal of evidence--Medical evidence--Scope--Medical evidence at the most could be supporting evidence to the ocular account but it could not identify the assailant by itself.
[P. 529] E
Mr. Mehmood A. Qureshi, ASC for Petitioner.
Mr. Hussain Bux Baloch, Additional P.-G. Sindh for State.
Date of hearing : 26.3.2019.
PLJ 2019 SC (Cr.C.) 526
[Appellate Jurisdiction]
Present : Manzoor Ahmad Malik and Sardar Tariq Masood, JJ
versus
STATE--Respondent
Jail Petition No. 380 of 2017, decided on 26.3.2018.
(On appeal against the judgment dated 27.01.2017 passed by High Court of Sindh, Circuit Court Larkana in Criminal A. No. S-45 of 2015)
Order
Sardar Tariq Masood, J.--Through this petition, petitioner Sajjan Solangi impugns the judgment dated 27.01.2017 passed by the High Court of Sindh, Circuit Court, Larkana, whereby Criminal Appeal filed by him was dismissed and his conviction and sentence, awarded by the learned trial Court, was maintained.
2. Precisely, the facts of the case are that the petitioner was indicted in case FIR No.28 registered under section 302, P.P.C. on 18.09.2013 at Police Station Shah Panjo Sultan, District Dadu. After a full-fledged trial, vide judgment dated 28.07.2015, learned trial Court convicted the petitioner under section 302(b), P.P.C. and sentenced him to suffer imprisonment for life with a fine of Rs.100,000/- or in default thereof to further undergo six months' S.I. Benefit of section 382-B, Cr.P.C. was also extended to him. Aggrieved thereof, petitioner filed appeal before the learned High Court which was dismissed. Hence, this petition for leave to appeal.
3. We have heard the learned counsel for the petitioner as well as the learned Additional Prosecutor General, Sindh and have perused the available record with their assistance and observed that upon information allegedly furnished by Muhammad Hassan Solangi on mobile phone to Sikandar Ali Malkani, SHO Police Station Shah Panjo Sultan, this case was registered. According to the said SHO Muhammad Hassan Solangi informed him that his daughter Mst. Shazia has been murdered by his son Sajjan Ali petitioner by firing shots upon her, under the allegation of "Kari". Sikandar Ali Malkani, SHO was examined as PW-2 and his whole statement is based upon the information allegedly passed to him by Muhammad Hassan Solangi, father of the petitioner and deceased. He found the dead-body in the crop and completed the proceedings there. He admitted that the said Muhammad Hassan Solangi was not previously known to him. He also did not mention the cell phone number from which he received the information upon which the FIR was chalked out. The other witness namely Muhammad Nawaz (PW-3) also claimed that Muhammad Hassan Solangi informed the SHO regarding the murder of his daughter Mst. Shazia by his son. Admittedly, he did not receive the information himself and it was told to him by the SHO. However both the witnesses claimed that even Muhammad Hassan Solangi at the spot told the same facts to them but it is prosecution's own case that these two witnesses were not the eye-witnesses and they deposed upon the information allegedly furnished by Muhammad Hassan Solangi. Admittedly, Muhammad Hassan Solangi was never produced by the prosecution in this case nor he was summoned as a C.W. to confirm the assertion made by these two witnesses who according to both the Courts below are the witnesses of ocular account. According to the Qanun-e-Shahadat Order, 1984 the evidence of Sikandar Ali Malkani (PW-2) and Muhammad Nawaz (PW-3) is hearsay and hearsay evidence cannot be made basis for conviction. Both the Courts below had illegally relied upon the statements of these two witnesses. Sikandar Ali Malkani claimed that on 24.09.2003 petitioner Sajjan Solangi while in police custody during interrogation made extra judicial confession before him and the other witness but admittedly under the Qanun-e-Shahadat Order, 1984 the said disclosure under the custody before the police is inadmissible whereas Muhammad Nawaz (PW-3) who is also a witness of the said confession, did not utter any word regarding such confession. The reliance made by the Courts below on such inadmissible evidence was an unfortunate aspect of this case. Although, a .12 bore gun was recovered allegedly on the pointation of the petitioner and a crime empty was recovered from the place of occurrence but surprisingly the gun was not sent to the forensic expert for comparison or to determine whether it was in working condition or not. Allegedly, petitioner got recovered the said gun from the bushes which place was accessible to everyone. The private persons were also present there as admitted by the witness but only police officials were made witness of the said recovery. In the
absence of any positive report of Forensic Science Laboratory, the recovery of the gun is inconsequential.
4. The medical evidence at the most could be a supporting evidence to the ocular account and by itself cannot identify the assailant but as already discussed in this case there is no ocular account, hence medical evidence is also not helpful to the prosecution.
5. Both the Courts below had wrongly and illegally relied upon the inadmissible and hearsay evidence, hence, the conviction and sentence awarded by the learned trial Court and upheld by the Hon'ble High Court is not sustainable. Consequently, this petition is converted into an appeal and the same is allowed. The conviction and sentence, recorded and upheld by the Courts below against the petitioner Sajjan Solangi, is set aside and he is acquitted of the charge. He shall be released from jail forthwith if not required to be detained in any other case.
(K.Q.B) Petition allowed
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