Cr. Jail Appeal No.128 of 2010
JUDGMENT
Date of hearing : 20.04.2012
Appellant : Muhammad Khan
Respondent : The State.
Mr. Zulfiqar Ali Langa, Advocate for the appellant along with appellant produced in custody.
Mr. Abrar Ali Khichi, APG.
Muhammad Ali Mazhar,J:- This Cr. Jail Appeal has been preferred against the judgment dated15.02.2010 passed by the IIIrd Additional Sessions Judge, Malir, Karachi in Sessions Case No.329/2006.
2. Concisely, the facts of the case are that complainant Tanveer lodged FIR No.181/2006, at police station Shah Latif Town, Karachi under Section 302, PPC in which he stated that his father Falak Sher divorced his wife Kaniz Fatima, mother of complainant and after her divorce she contracted marriage with appellant Muhammad Khan. Out of wedlock one female child borne. On 14.07.2006, he was at his cattle pond where his Munshi Anwar informed him that his mother has been murdered. He along with his relatives went to police station Shah Latif Town, lodged the report and thereafter, the appellant was arrested who admitted to have committed the murder of Mst. Kaniz Fatima by causing chhuri blows.
3. After framing of charge, trial court examined the witnesses. PW-1 ASI Syed Haris Ali who produced the receipt of handing over the dead body of the deceased, memo of inspection of dead body and arrest of accused, inquest report, letter for obtaining cause of death. PW-2 Javed Kamran, PW-3 Naseem Khan and PW-4 Dr. Nasreen Qammar, WMLO of JPMC, Karachi were also examined. Dr. Nasreen had produced the postmortem report. PW-5 SI Abdul Majeed, I.O. of the case produced the chemical examination report. Since the complainant failed to appear, he was issued numerous process but he failed to adduce evidence hence his evidence could not be recorded and learned DDPP closed the side. The statement of accused was recorded under section 342, Cr.P.C. in which though he did not record his statement on oath nor produced any defence witness, however, he denied the charges.
4. The trial court found the appellant guilty but in the impugned judgment, it was observed that accused appeared to be more than 65 years of age and also having cataract problem, therefore, instead of awarding punishment under Section 302 (b), PPC the appellant was convicted under section 302 (c), PPC to suffer R.I. for 10 years and to pay fine of Rs.50,000/- to the legal heirs of the deceased, however he was given benefit of section 382-B, Cr.P.C.
5. It is an admitted fact that no ocular testimony was available in the trial court for the offence. The learned trial court in its judgment itself observed that the offence was a blind murder and there was no eye-witness of the occurrence, neither any witness had seen the accused while committing the murder of the deceased, however, the entire conviction is based on extra judicial confession of the accused before the UC-Nazim and recovery of churri on the alleged pointation of the accused. In the same impugned judgment, the learned trial court further observed that it is settled law that extra judicial confession has little value. It is further stated that many efforts were made for procuring the attendance of the complainant, but he failed to appear, therefore FIR is not a substantive piece of evidence but can only be used to corroborate and contradict its maker. The whole case is based on the statement of the UC-Nazim that the accused confessed before him that he committed the murder of his wife. It is also a matter of record that in spite of his extra judicial confession before the UC- Nazim, no effort was made by the I.O. to produce the appellant before the magistrate for recording his statement under Section 164, Cr.P.C. If he extra judicially confessed his guilt, he could have easily admitted his guilt before the magistrate but no statement was recorded under Section 164, Cr.P.C. to strengthen the case of the prosecution. So far as the recovery of churri on the alleged pointation of accused is concerned, PW1 Syed Haris Ali in his examination-in-chief stated that UC Nazim Naseem Khan informed him through telephone that appellant came to his office who committed the murder of his wife on the ground that she was having bad character. On receiving this information, Syed Haris Ali made entry in roznamcha and he went to the office of the UC Nazim where he found two persons Jawed Kamran and Muhammad Rafi and in presence of both mashirs he inspected the place of occurrence and inspected the dead body of the deceased and made recovery of bed-sheet and one churri. Though he stated that UC Nazim was mashir but in his cross examination he admitted that UC Nazim was not cited as mashir of recovery. However incriminating weapon was recovered from the place where the dead body was lying.
6. The learned counsel for the appellant argued that according to Jail Roll submitted by the Superintendent Central Prison, Karachi on 17.04.2012, the appellant has already served substantive sentence for 5 years and 9 months and he was allowed remission for 2 years and 2 months and total punishment so far served out by the appellant as per Jail Roll is 7 years 11 months and 1 day and his un-expired portion of sentence is only 2 years 2 months including the payment of fine of Rs.50,000/-. The learned counsel submits that the appellant is an aged person and even in the trial court his age was said to be 65 years in the year 2010 when the conviction was recorded and now his age is more than 67 years. He further submits that though the appellant has a good case to be acquitted on merits but he will not press this appeal if the appellant is released on the sentence already undergone. He further argued that the appellant is a totally displaced person and throughout the jail period he could not see or meet her daughter who according to his information is lodged at Edhi Centre and if he is released, he will first make out search of his young daughter. He further argued that due to old age, the appellant has eyesight problems and his overall health is also not good. He was a person of limited sources and was working as mason on daily wages, therefore he is not in a position to pay fine of Rs.50,000/-
7. The learned APG argued that though the conviction is based on circumstantial evidence but he laid much emphasis that the medical evidence and the recovery of churri from the place of incident establishes the offence and he further argued that the defence counsel on some material aspects failed to cross examine the prosecution witnesses Naseem Khan and Jawed Kamran, however keeping in view the peculiar circumstances of the case, he did not oppose if impugned judgment is maintained and sentence is modified and reduced to one already undergone.
8. After considering the entire material and the arguments of the learned counsel, I have no hesitation in my mind to hold that the conviction is based on circumstantial evidence. However it is also a fact that neither any defence witness was produced nor the appellant examined himself on oath. It is also a fact that conviction is based upon extra judicial confession. Nothing placed on record to show that the appellant is hardened or desperate criminal or previously convicted in any offence. According to jail roll, his conduct in jail is also found satisfactory. Keeping in the peculiar circumstances of the case, the case of appellant requires further mitigation in his sentence. According to Jail Roll only unexpired portion of sentence of 2 years and 2 months including the fine is remaining. The appellant seems to be impoverished, destitute and aged person who has shown much remorse in court and due to his long detention in jail he does not even know about the whereabouts of her daughter, however, according to his last information she is lodged at Edhi centre. In this case of extra judicial confession, the appellant deserves further alleviation, therefore, in my view, it would advance the cause of justice to allow the appellant a chance to rehabilitate, recuperate and be in this world rest of his life with her daughter who must have grown up but leading her life alone and requires love and affection of her father. So far as fine amount is concerned, the appellant is a poor person who prior to his detention was working on daily wages and has no means and sources to pay the fine.
9. As a result of above discussion, though conviction is maintained but the sentence of the appellant is modified and reduced to the sentence already undergone in view of the jail roll submitted by the Superintendent Central Prison, Karachi in this court on 17th April 2012 and fine amount is also waived. Accordingly, the appellant is ordered to be released forthwith if not required to be detained in any other case.
This Cr. Jail Appeal is disposed of in above terms.
Judge