2010 PLP 1965 (SCMR)

RAHMAT HUSSAIN JAFFERI, J.

On 20-4-1991 at 1-00 a.m., the complainant Haji Sardar Muhammad (P.W.1) lodged the F.I.R. stating therein that on the same day at 11-30 p.m. he was present in his house when his relative Mushtaq Ahmed (P.W.3) came to him and informed him that he (Mushtaq Ahmed) and Muhammad Javed (P.W.2) heard cries coming from the Poultry Farm of Muhammad Sharif, therefore, they went there and found that respondent No.2 (hereinafter referred to as ('the respondent') was carrying gun and the remaining accused namely Muhammad Sharif, Aslam, Akram, Ashraf and Jawaid son of Muhammad Siddique were standing there and they were inflicting fist and kicks blows to the deceased Muhammad Rafique; that within their sight the respondent fired shot from his gun at the deceased which hit him at his chest, who died there. Thereafter the culprits ran away. The motive of the incident was about matrimonial dispute between the parties. The police after investigation challaned the respondent in the Court whereas the remaining accused persons were released.

2. At the trial, the prosecution examined 7 witnesses including both the eye-witnesses and the Medical Officer. The learned trial Court convicted the respondent for the offence punishable under section 302(b), P.P.C. and sentenced him to suffer imprisonment for life and fine of Rs.50,000 or in default thereof to suffer RI for one year, vide judgment dated 12-3-2004. The respondent filed the appeal before the learned High Court of Sindh, Hyderabad Circuit, which was accepted by setting aside the judgment of the trial Court under the impugned judgment dated 2-4-2009. The complainant Haji Sardar Muhammad was dissatisfied with the impugned judgment, therefore, he has filed the present petition for grant of leave to appeal.

3. We have heard the learned counsel for the petitioner and perused the record and proceedings of the case. Admittedly, the complainant is not an eye-witness but the eye-witnesses are Muhammad Javed (P.W.2) and Mushtaq Ahmed (P.W.3). They supported the incident only but did not implicate the respondent. Their evidence reveals that on the cries they reached the place of incident and found the deceased Muhammad Rafique lying dead but they did not see the culprits. Both the eye-witnesses were not declared hostile by the prosecution, meaning thereby that their evidence was accepted. Thus there is no ocular testimony in this case to connect the respondent with the commission of this crime. The learned High Court has rightly held that in the absence of ocular testimony the conviction cannot be based.

4. After scrutinizing the evidence available on record, we are of the considered view that there is no misreading or non-reading of the evidence by the learned High Court. There is no illegality or irregularity in the impugned judgment as such it does not require any interference. The petition has no merits, therefore, the same is dismissed and leave to appeal is refused. H.B.T./S-38/SC Petition dismissed.